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Who has the power in Afghanistan?

That question is key to promoting unity and ending the insurgency.

By John Dempsey, J Alexander Thier / March 2, 2009

KABUL, Afghanistan

Afghanistan is facing yet another rocky year ahead. Increased international troop levels here will probably mean more fighting – and more civilian and military casualties. A very mild Afghan winter portends a poor harvest, exacerbating an already serious food crisis in this impoverished country. And national elections are due to be held despite widespread insecurity.

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Add to that a constitutional crisis that is paralyzing governance at a time when strong leadership is needed to promote unity and end the insurgency.

At the center of the debate is that the country's five-year-old Constitution states that the president's term ends on May 22, 2009. Elections are to be held 30 to 60 days prior to that. But Afghanistan's Independent Election Commission has called for more time to allow for the preparation of the polls so that voters can safely and fairly cast their ballots.

While most accept the delay of the vote, leading Afghan politicians – including the speaker of the Parliament's lower house and President Karzai's own vice president – say that Mr. Karzai's term as president cannot be extended beyond the Constitutional deadline and that he should step down in May. After arguing for months that delayed elections and the extension of his term would comport with the spirit of the Constitution (the last elections were delayed as well), Karzai reversed his position Saturday, calling for snap elections.

However, the Independent Election Commission and the international community, which is financing the polls, agree that spring elections are simply not possible. Thus the crisis over the election date and extension of Karzai's term continues.

In Afghanistan's past, such disagreements have been settled violently, as in 1992, with the prime minister rocketing the presidential palace. But this time could be different: The president and his opponents are attempting to use the Constitution as both sword and shield. Each contends that the Constitution supports its position, but both agree that the rule of law, rather than the rule of the gun, should prevail.

Like many young democracies, however, Afghanistan's system of checks and balances remains fragile. In order for these types of disputes to be resolved within the Constitution, all parties must agree on the mechanism to address them, and therein lies the rub: There is a lack of consensus among Afghanistan's three coequal branches of government as to who should resolve constitutional disputes.

In the past, Karzai has turned to the country's Supreme Court for guidance, but parliament rejects the court's jurisdiction over these questions. Instead, parliamentarians contend that a separate commission – akin to a constitutional court – should be established to rule on constitutional matters, leaving ordinary legal cases to the Supreme Court. The Court and the president disagree, arguing that this power is firmly lodged in the Supreme Court. Unfortunately, the Constitution, an imperfect document (like most constitutions) is unclear on the question.