Following a second round of voting in the Afghan Presidential election, allegations of fraud led to a potential political crisis. To avert the potential crisis, the two candidates in the run-off election, Ashraf Ghani and Abdullah Abdullah, are reported to have agreed to a long-term plan to create a Prime Minister position in the Afghan government. See Afghans to Alter the Government (NYT, 13 July 2014).
Although this plan is being hailed as a breakthrough, and a new hope for future stability, it will be an unstable and slow-going task to make it work. The structure and division of power in the Afghan government is laid out in the constitution. There is no Prime Minister position in the constitution. To change this arrangement, the constitution must be amended.
The mechanism to amend the constitution is to convene a Constitutional Loya Jirga. Article 110 of the constitution articulates the composition of the CLJ. It includes the members of the National Assembly, as well as Presidents of the provincial and district assemblies. One problem here is that the district assemblies have not fully formed.
In the event that the CLJ can be formed in a manner consistent with the requirements of article 110, it will be difficult to manage the group and foster sufficient cooperation to draft articles that a majority can agree upon. There will be much jockeying behind the scenes leading up to the CLJ, as well as during its meeting. This is not a minor issue being debated. It is a fundamental question of how power will be shared, divided, and balanced in a country where strong patronage networks have formed around government offices and sources of foreign revenue, with the two often being synonymous. Stakeholders will not yield their revenue sources or revenue-generating powers without substantial wrangling.
To dig deeper into these issues, see the Constitutional Law section of the Afghanistan Law Bibliography. Article 110 of The Constitution of Afghanistan is fairly straightforward. As the constitution was being drafted, a report from International Crisis Group, Afghanistan’s Flawed Constitutional Process, gave a downbeat assessment of the approach of having power centralized in a strong President. After the drafting, J. Alexander Thier wrote about the constitutional drafting process and debates that arose in The Making of a Constitution in Afghanistan. Thier also wrote with John Dempsey about the issue of constitutional interpretation in Resolving the Crisis over Constitutional Interpretation in Afghanistan. Rainer Grote provides an explanation of the current separation of powers in Separation of Powers in the New Afghan Constitution.
The articles linked to above are all free to access. If you have access to academic databases, there are a variety of other materials listed on the Constitutional Law section that you will be able to access.