Source: International Crisis Group Afghanistan’s justice system is in a catastrophic state of disrepair. Despite repeated pledges over the last nine years, the majority of Afghans still have little or no access to judicial institutions. Lack of justice has destabilised the country and judicial institutions have withered to near non-existence. Many courts are inoperable and those that do function are understaffed. Insecurity, lack of proper training and low salaries have driven many judges and prosecutors from their jobs. Those who remain are highly susceptible to corruption. Indeed, there is very little that is systematic about the legal system, and there is little evidence that the Afghan government has the resources or political will to tackle the challenge. The public, consequently, has no confidence in the formal justice sector amid an atmosphere of impunity. A growing majority of Afghans have been forced to accept the rough justice of Taliban and criminal powerbrokers in areas of the country that lie beyond government control.
To reverse these trends, the Afghan government and international community must prioritise the rule of law as the primary pillar of a vigorous counter-insurgency strategy that privileges the protection of rights equally alongside the protection of life. Restoration of judicial institutions must be at the front and centre of the strategy aimed at stabilising the country. The Afghan government must do more to ensure that judges, prosecutors and defence attorneys understand enough about the law to ensure its fair application. Reinvigoration of the legal review process and the adoption of a more dynamic, coordinated approach to justice sector reform are critical to changing the system. Justice is at the core of peace in Afghanistan and international engagement must hew to the fundamental goal of restoring the balance of powers in government and confronting governmental abuses, past and present. Urgent action is also needed to realign international assistance to strengthen support for legal education, case management, data collection and legal aid.
Legal institutions and legal elites have been deeply affected by the political paroxysms of more than three decades of conflict. The judiciary has been scarred by a legacy of political interference by both Afghan powerbrokers and external actors. Judicial independence has, as a result, been one of the main casualties of Afghanistan’s protracted war. The courts, for years, have suffered manipulation from an executive branch that has abused the law to fortify its position in the ongoing tussles between the secular and religious, the centre and periphery, the rich and poor. The Afghan government’s historic inability and persistent unwillingness to resolve conflicts between state codes, Islamic law and customary justice embedded in the legal culture have further destabilised the country. The critical leverage provided to fundamentalists in the constitution has concurrently had a deep impact on the evolution of legal institutions.
The strong presidential system adopted under the 2004 constitution has only exacerbated the weakness of judicial institutions. The lack of a clearly defined arbiter of the constitution has undercut the authority of the Supreme Court and transformed the court into a puppet of President Hamid Karzai. Given the wide range of powers granted the president and lack of checks and balances in the system, it is unrealistic to expect change will come from his quarter. The international community, meanwhile, has done little to create incentives for political restraint and accountability within the executive. The National Assembly must, therefore, consider its options for triggering constitutional review either through convening a constitutional Loya Jirga, or grand assembly, or through the adoption of a constitutional amendment requiring the initiation of a full-scale review of the founding document by 2014.
Friction between various stakeholders over the priority and content of rule of law reforms is blocking progress. There is a strong need to improve the legal review process by building capacity at the ministry of justice, with combined input from Afghan officials and expert international advisers. At the local level, the government and international community must deliver on the promise made at the 2007 rule of law conference in Rome to support better coordination between primary courts in the provinces and districts and high courts in Kabul.
Dysfunction at the provincial level has long been a hallmark of a system unable to resolve tensions between its highly centralised organisation and the diffusion of the population across difficult and often inaccessible terrain. Over the years, the Afghan government and the international community have endeavoured to resolve this problem, most notably through the introduction of regional trainings for Afghan judges and prosecutors. This is not enough. After nearly a decade of financial pledges and promises, neither the government nor the international community have a full picture of the demand for legal services at the provincial and district level. Province-by-province assessments of the courts, attorney general’s office and ministry of justice, including a focused look at caseloads, settlement and conviction rates, shortages in personnel, materiel and infrastructure should be regularly conducted and made available to the public. Developing a concrete, dynamic understanding of deficits in the system is the first step toward crafting an effective strategy for reform.
In its desperation to find quick fix solutions, the international community, and the U.S. in particular, has begun to look to the informal justice sector as a means to an undefined end. This is problematic for a number of reasons. While it is true that the use of traditional Afghan jirgas and shuras to resolve disputes, particularly in rural areas, is so widespread that it cannot be ignored, the current government is a long way from having the capacity to integrate the decisions of such councils into the formal system. Their multiplicity, the plurality of customs and the erosion of the social order during years of violent conflict have degraded the positive influence and real authority of such jirgas. Moreover, the exclusion of women from these informal judicial councils poses serious problems for the state’s constitutional obligation to defend the principle of equality under the law.
International involvement in this sphere will do little to enhance rule of law in the near term and it may, indeed, sow more confusion over the state’s legal authority and the real objectives of coalition partners. The task of monitoring and evaluating such councils has meanwhile fallen to a private U.S. contractor with an uneven track record in implementing rule of law programs in this and other countries. Outsourcing a task as delicate as monitoring the complex politics of tribal justice to a contractor with limited knowledge of the region is to nobody’s benefit.
The U.S. and its NATO allies must also acknowledge that stabilisation will depend as much on the legitimacy of state authority and re-establishment of the rule of law as it will on rebuilding Afghanistan’s police and military. To restore its legitimacy, the Afghan government will have to work much harder to eliminate corruption, ensure fair trial standards and curtail arbitrary detentions. Extrajudicial actions by the U.S. and its coalition partners against Afghan citizens have also distorted the justice system and are fuelling the insurgency. U.S. and NATO actions must conform to national and international laws, including an end to arbitrary detentions. There should be no expectation that Afghan officials and institutions will realign the justice system to conform to international norms until U.S. and NATO allies adjust their own policies and practices.
RECOMMENDATIONS
To the Government of Afghanistan:
1. Initiate a serious, comprehensive review of the constitution with a view to expanding political participation, enhancing greater balance between the judiciary, legislature and executive and clarifying the roles of the courts and attorney general.
2. Prioritise investment in improving training for legal professionals – including defence attorneys – by revising training curriculum to add a more substantial focus on the role of defence counsel, constitutional law, criminal procedure, ethics and international law.
3. Give greater support to merit-based appointment processes for senior positions within the judiciary such as the attorney general, Supreme Court chief justice and justice minister by articulating and adhering to requirements for standards of professionalism, educational qualifications and term limits.
4. Improve the legal review process by:
a) increasing staffing in the justice ministry’s legal drafting department, providing intensive training for current staff and hiring more legal interpreters/translators skilled in Pashto, Dari and English; and
b) adopting a time-sensitive strategy for the review and enactment of crucial laws such as the criminal procedure and penal codes.
5. Adopt legislation to protect the judiciary from outside interference, ensuring the security of judicial staff and witnesses and that additionally outlines enforceable punishment for those implicated in the obstruction of justice.
6. Conduct province-by-province assessments of the courts, attorney general’s office and ministry of justice with a focus on caseloads, appeal, settlement and conviction rates, and gaps in personnel, security, technology and infrastructure.
7. Adopt and implement a strategy for strengthening the defence bar and ensuring legal aid for the indigent.
8. Clarify criteria for corruption investigations and harmonise policy on pursuing sensitive cases involving high-level officials; and abolish the High Office of Oversight and reinvest resources allocated for anti-corruption across institutions, such as the attorney general’s office, ministry of interior, ministry of justice and the Supreme Court.
To the Attorney General’s Office, Supreme
Court and Ministry of Justice:
9. Develop institutional rule of law coordination by:
a) establishing an inter-agency commission for rule of law policy and justice programs; and
b) clarifying institutional lines of authority with special emphasis on enforcement and coordination mechanisms for criminal investigation, due process and detention.
10. Conduct an assessment of the Supreme Court’s administrative capacity with a view to realigning personnel management more broadly across judicial institutions.
11. Bring criminal procedure and penal codes in line with international standards of due process.
12. Institute pending pay-and-rank reform measures for prosecutors and other judicial staff.
To the International Community, especially the U.S. and NATO Partners:
13. Relocate rule of law support at the centre of the counter-insurgency strategy by:
a) realigning financial assistance to reflect greater balance between spending on building up national security forces and supporting judicial reform with a view to strengthening institutions in the formal justice sector;
b) limiting the use of private contractors to implement rule of law programs and committing to a long-term strategy of local capacity building by relying on Afghan and international NGOs with proven track records for programming support; and
c) immediately discontinuing funding for foreign-directed programming in the informal justice sector that attempts to create artificial links with the formal justice sector while clearly differentiating support for the Afghan state to craft its own policy on dispute resolution mechanisms.
14. Support judicial reform by assisting the government in:
a) implementing more dynamic personnel recruitment programs and improving training of justice sector staff, with an emphasis on support for translation, publication, record keeping and case management skills;
b) funding and devising a strategy for implementing regular assessments of the justice sector and disseminating the results publicly;
c) providing greater numbers of civilian advisers to regional judicial institutions for longer periods and ensuring that advisers have a proven background in the law;
d) improving infrastructure, to include construction of judicial centres, prisons and secure accommodation for senior judicial staff;
e) providing funding in support of a stronger national defence bar and providing legal aid for the indigent; and
f) directing funding toward cross-institutional pay-and-rank reform, prioritising implementation of proposed salary increases for prosecutors and generating financial support for a public defenders’ office.
15. Eliminate distortions created in the justice system by secret detentions, extrajudicial proceedings and excessive use of force by bringing U.S./NATO detention practices and policies in line with international standards.
Kabul/Brussels, 17 November 2010
