By Mujib Mashal
KABUL, Afghanistan — There was an air of expectation on both sides as the Taliban and American diplomats gathered to meet for the latest round of peace talks on Saturday.
Afghan and Western officials say that if the Taliban express willingness to finally go to the negotiating table with the Afghan government, American diplomats might be willing to play their main negotiating card: offering some sort of provisional schedule for the withdrawal of United States troops from Afghanistan.
That phase of agreement has evaded negotiators for more than nine months, through six rounds of talks in Doha, Qatar. The hardest work, however, might come only after the Taliban and Afghan officials agree to begin discussing a political settlement.
The Taliban have remained officially vague about what kind of government they envision. But some clues to how the insurgents view power and governance can be found in a constitution that the group drafted while it ruled Afghanistan but that was never ratified before the Taliban were ousted by the United States invasion in 2001.
The New York Times obtained a rare copy of that draft constitution — a 14-page document that was confirmed by people close to the Taliban, including some former officials who worked on the draft. It remains the only known official codification of the movement’s political vision.
The draft shows flashes of sophistication, but also provides a snapshot of a movement that had deep contradictions within itself about issues like women’s education, justice and tolerance of minorities.
Even while the group was in near-total control of Afghanistan, some of the basic questions that might be addressed in a constitution, like ensuring education for girls, were simply put off or just hinted at, to avoid any internal resistance from the movement’s influential and usually more dogmatic military commanders, former officials said.
That dynamic is still present within the Taliban today, according to active members. And it presents a huge obstacle to any negotiations with a new Afghan government that was founded as a republic with protections for women and minorities who are fearful at the prospect of returning to the Taliban’s restrictive code.
ImageTaliban fighters in Kabul in 1996.CreditTerence White/Agence France-Presse — Getty Images
The Islamic Emirate of Afghanistan, which is what the Taliban called its government during its rule from 1996 to 2001, was based on the allegiance of religious scholars to an all-powerful supreme leader who had ultimate authority. That was Mullah Muhammad Omar, the group’s founding leader.
Jalaluddin Shinwari, the deputy minister of justice under the Taliban government, and who still maintains contact with its leaders, said the modern insurgency will not settle for anything less than the return of the Emirate, and has a fundamental distaste for democracy. Even if the Taliban’s political leaders were willing to show flexibility, its military commanders still decide the negotiating red lines, he said.
“The Taliban will not accept elections,” Mr. Shinwari said. “The Taliban are telling Americans: ‘You accept our Emirate — return it to us the way you took it.’”
He added: “If the political leaders step back, the military leaders won’t. And if there ends up being a division, the situation will grow more dangerous than it is now.”
For their part, Afghan government officials say that a return to an emirate system would not be acceptable to Afghans.
“Peace under the shadow of an Islamic Emirate is not peace; rather, it is surrendering of one party to the other,” said Mohammad Karim Khalili, the chair of Afghanistan’s High Peace Council. “Neither will the Taliban surrender, nor the people of Afghanistan accept an Islamic Emirate.”
Twenty years and a couple of leadership changes later, the Taliban is an evolved force. But its political leaders who are negotiating in Doha — some of whom never fought on the front line, and others who have been away for more than a decade — know they have to walk a tight line with a military wing that is finding success on the battlefield against the Afghan government and the dwindling American and European forces who support it.
Mr. Shinwari knows well how invested the Taliban are in their strict interpretation of politics and governance through an Islamic lens: He was one of the officials central to the effort to draft a constitution for the Islamic Emirate.
A Taliban protest against United States airstrikes in Kandahar in 1998, when the movement ran Afghanistan.CreditReuters
In 1998, Mullah Omar convened about 500 religious scholars to draft a constitution for his government. The men arrived from across the country, and were put up for three days at the forsaken presidential palace that Mullah Omar never used.
Mr. Shinwari’s staff made copies of all the country’s previous constitutions, he said, and divided the clerics into committees to go through the documents, cross out what they considered to be against their interpretation of Islam, and then come up with a draft of their own.
One of the first items to be crossed out was an article from the last monarchy that left inheritance of the throne open to female members of the royal family.
“There was protest that it was against Shariah,” said Mr. Shinwari, referring to traditional Islamic law. “So items like that were scrapped.”
The document the scholars drafted over those three days was more a codification of the way the movement was already governing than any attempt to look forward.
It set out an all-powerful emir as the head of state and supreme leader, but left no mention of how one might be chosen, seemingly taking it for granted. Under the emir there was to be an Islamic council to which the government, headed by a chief of the council of ministers (a prime minister, of sorts), would report.
There is little acknowledgment that Afghanistan’s minorities existed, with the document declaring the Hanafi school of Sunni Islam as the official religion of the state and that nothing could go against Shariah’s dictates.
Yet the draft also offered certain freedoms — though almost always left to Shariah interpretation — that would have been a huge leap from what the Taliban actually practiced: It promised “liberty,” as long as it did not hurt others’ liberty or go against Islamic principles; a fair trial without use of coercion or torture; and freedom of thought and expression “within the limits of Shariah.”
Women leave campus after registering for classes at Kabul University in December 2001, the first day women were able to sign up for university studies there since the Taliban rose to power in 1996.CreditTyler Hicks/Getty Images
The constitution even included an article on telecommunications privacy, at a time when phone lines and electricity were rare in Afghanistan.
It also outlined mandatory military service, and mandatory primary education.
“Women’s education, within the limits of Islamic Shariah, will be arranged through a special law,” the document says. But in reality, any schooling for girls was vanishingly rare during the rule of the Taliban, who became known for whipping women who sought to go out in public dressed in anything less than full-body cover.
Ghezal Hares, an Afghan constitutional scholar, said that while there was precedent in earlier Afghan constitutions for the narrow definition of Islamic jurisprudence that the Taliban ordered, there are too many contradictions in how the group’s old document lays out a vision for governance.
The current Afghan Constitution, while making clear that nothing in the country can go against Islamic principles, leaves enough wiggle room and vagueness that accommodates the diverse interpretations of Islam in the country.
But the Taliban insisted on Shariah as the only source of law, as opposed to being just one of the sources, complicating compliance with international laws and treaties, she said.
“The differences are very, very fundamental,” Ms. Hares said. “They have tied so many elements of so many different constitutions together, and then put a flavor of Islam on everything — be it foreign policy, be it economic system, be it whatever — to an extent that the constitution talks about how the state is going to regulate how the individuals practice Islam.”
In response to a question of whether the current Taliban want to bring the whole country back into an Islamic Emirate, the group’s spokesman, Zabihullah Mujahid, again remained vague.
“Our goal is Islamic government,” Mr. Mujahid said. “How this Islamic government will come about is something we cannot decide now. On this issue, the clerics, analysts, and authoritative Afghans make decisions in its right time.”
In private interviews, as well as in informal discussions with Afghan politicians, some Taliban figures leave the impression that the group still sees itself as a government forced into exile. What they want is the return of their Emirate with a more open embrace that shares power, but not a renegotiation of the fundamentals of how they view power.
“What they are saying to Americans is this: You have accepted Saudi Arabia, and we won’t do more than their basic code — retribution for murder, chop off the hand for robbing,” Mr. Shinwari said. “If you have accepted Saudi, what’s wrong with us being another? The rest will be your priorities: aid, friendship, economic relations.”
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