Strengthening Constitutional Interpretation and the Application of Constitutional Law in Afghanistan

With the aim of contributing to the stabilisation of Afghanistan, the Foundation has been supporting Afghan institutions for many years in establishing a durable rule of law framework. In the current project, the Foundation provides its expertise to assist the country in addressing constitutional challenges. The project therefore focuses on two important issues within the current Afghan constitutional system.

Developing a strategy paper on constitutional adjudication

Firstly, the project pursues the aim of addressing the discrepancies raised by Art. 121 and 157 of the Afghan Constitution by applying an inclusive approach. The Afghan Constitution currently does not foresee the establishment of a constitutional court and only provides limited powers in Art. 121 to the Supreme Court for constitutional interpretation and adjudication. The situation has become more complicated with the establishment of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC) in accordance with Art. 157 of the constitution. As Afghanistan is a relatively young democracy and an unstable state, it would especially require a competent and widely recognised judicial body to decide upon issues of constitutional law and in particular would need to resolve disputes related to the constitution.

Many stakeholders have voiced their agreement that Afghanistan requires a body with the power to interpret the constitution in a binding manner; therefore the project aims to initiate well-founded discussions amongst appropriate professionals with involvement of representatives of civil society on these topics and from there a strategy paper for strengthening constitutional adjudication in Afghanistan would be developed. This process shall be led by the Afghan Constitutional Studies Institution (ACSI) as a non-partisan Afghan association with scientific legal assistance provided by the Foundation.

Collaboration with the “Afghan Women Judges Association”

In addition to the institutional obstacles related to the interpretation of the Afghan constitution, many Afghan judges have insufficient knowledge of constitutional law and its importance for their work. This especially applies to female judges. While the number of women in the judiciary has increased over the years, they are still marginalised and only receive little support. Female judges only have limited access to training and their knowledge of constitutional law in general and more specifically its application in their work is still very weak. In order to strengthen both their standing within the judiciary and to provide opportunities for capacity building, female judges created the Afghan Women Judges Association (AWJA) in 2012. While the AWJA is supported by the Supreme Court, it is nonetheless independently registered with the Ministry of Justice as an association in its own legal right.

As female judges often decide on cases related to women, children and other disadvantaged groups, knowledge of the Afghan constitution, the basic rights guaranteed therein and their relevance for the adjudication of cases, is extremely important. Since Art. 6 of the Constitution mentions that the state is obliged to create a society based on the protection of human rights and Art. 7 calls for observing international treaties and the Universal Declaration of Human Rights, it is also important for female judges to have knowledge on some of the key (human rights) treaties that Afghanistan has ratified and is thus obliged to implement.

Therefore, workshops will be conducted in order to improve the capacities of female judges on constitutional law and its application in cases under their consideration. The Foundation will implement this project together with its partner organisation in Kabul: the Afghan Legal Research and Development Organisation (ALRDO).

Funding

German Foreign Office

Duration

1 January 2019 – 31 December 2019

Local Partners

  • Afghanistan Civil Service Institute (ACSI)
  • Independent Commission for Overseeing the Implementation of the Constitution (ICOIC)
  • Independent Administrative Reform and Civil Service Commission (IARCSC)
  • Capacity Building for Results (CBR)

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