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The Judicial Reform Process in Afghanistan: in everyone's interest

David Nauta looks at what needs reforming in Afghanistan’s judicial system - from corruption to substandard prisons. And he analyses how the Afghan government and the international community have taken on needed reforms.

NATO/ISAF

Law and order structures still need further development and attention in Afghanistan.

The state in which Afghanistan is today is partly due to the way the international community has treated it. After the withdrawal of the Soviet Union and the subsequent abandonment of the country by the US, Saudi Arabia and Pakistan, Afghanistan became incredibly unstable and poor. With the recent rise of Islamic extremism and the attack on the US by terrorists, Afghanistan performs as a pivot for international relations. The entire world now has a strong interest in Afghanistan’s reconstruction, longer-term development and avoidance of further conflict.

The current commitment of the international community in the development of Afghanistan is shown by the continuous efforts of NATO’s ISAF (International Security and Assistance Force) mission, United Nations Assistance Mission in Afghanistan (UNAMA), the G8 countries’ and international organisations’ financial pledges and the participation of hundreds of non-governmental organisations.

However, the continued threats from the burgeoning drug economy and criminality and the attacks from opposing militant forces make it a challenge to rebuild Afghanistan into a secure and stable State.

The human resources that could propel democratic reforms are lacking and some local traditions cause widespread marginalisation in gender, social status or ethnicity.

The high level of corruption, criminality and civil unrest are the manifestations of structural, underlying root causes of the conflict. Poor governance, absence of the rule of law and lack of respect for fundamental rights are just a few issues that have to be addressed to avoid further conflict and unrest. The government of Afghanistan and the international community focuses on these root causes, but Afghan governance structures are still in the early stages of development and unable to curb political insecurity. The human resources that could propel democratic reforms are lacking and some local traditions cause widespread marginalisation in gender, social status or ethnicity. A recent example is the proposed law that would legalise marital rape.

Development priorities and judicial reform

The Afghan government set out a development strategy to address these root causes of instability; the Afghan National Development Strategy (ANDS). It is based on the UN Millennium Development Goals and serves as a Poverty Reduction Strategy Paper.

NATO/ISAF

Training will play a key part in building up the Afghan justice system.

The ANDS is divided into 3 pillars of activity;

  • security
  • governance, rule of law and human rights and
  • economic and social development

This helps categorise development needs and also helps ministries, donors, international organisations and NGOs, and the Afghan Civil Society identify areas of work and co-operation.

Judicial reform, part of the second pillar, started with the training of Afghan judiciary and the codification of laws. This has shown significant progress in numbers of trained personnel and indexed legislation.

Unfortunately, the donor activities have never been harmonised with the Afghan legal institutions, therefore lacking Afghan ownership. There was inadequate consultation with the Afghan government and little consideration was given to government objectives or priorities.

Another concern is whether the training efforts could deliver the anxiously awaited justice system. Widespread corruption within the judicial system impedes the correct enforcement of law, allowing wealthy drug lords and influential insurgents to remain free with impunity. The Afghan government has taken steps against this by issuing anti-corruption legislation, but it is a challenge to see changes in the near future. We might see some results when the Afghan economy grows strong enough to provide competitive salaries to police officers and the judiciary. A patrol man earns around 5,000 Afghanis ($ 100) a month, while the average salary of an Afghan is around $ 40 per month. But an Afghan family can easily earn around $ 600 a month with poppy cultivation.

The Afghans prize the system’s notion of “fairness” and prefer the use of the informal system, as the formal governmental system is perceived as highly corrupt.

Integration of Shari’a law in the judicial system

With the lack of a functioning official judicial system, Afghans rely on a more traditional, informal, justice practice. The Bonn agreement recognises the existence of this practice, but specifies that this system shall not be applied when inconsistent with the provisions of the Afghan Constitution or with international legal standards.

The majority of disputes settled by the Jirgas – elected representatives of surrounding villages - are civil disputes, with a few family disputes and criminal cases, using both local custom and Shari’a as their sources of law. Enforcement measures include both social pressure and referral to the civil – law enforcement - authorities. The Afghans prize the system’s notion of “fairness” and prefer the use of the informal system, as the formal governmental system is perceived as highly corrupt.

NATO/ISAF

Law and order in Afghanistan: no secure state can come without it.

On the negative side of the informal system, it does not require stare decisis nor publication of decisions. Therefore, there is a sense of arbitrariness and inconsistency amongst Afghans. Also there are various eye-catching differences with most western procedural systems, such as the significance of a testimony given by a female being rated as less reliable.

The informal justice practices have a remarkable impact on the life of individuals and the community. Although they do not meet international human rights standards, it would be a mistake to abolish the system. In post-conflict countries, where formal mechanism have disappeared or failed to function, informal systems have taken over and are often crucial to restore some degree of rule of law. These systems have an important role to play in the larger justice system.

It is an effective way to reduce conflicts, when they are more focused on negotiation or mediation disputes, rather than adversarial win-lose outcomes of the formal court system. In Afghanistan, the informal system has been less corrupt and the population has more trust in it.

Realistically, timeframes for re-creating the justice system would need at least two decades. In the meantime the informal system is an alternative that should be considered. Going forward, it would be necessary to develop new strategies to take advantage of the informal structures and at the same time encourage appropriate reforms.

To western standards, conditions of many detention/correction facilities vary from inadequate to extremely poor in some places.

A seemingly relatively more straightforward task is the rebuilding of correctional facilities. Unfortunately, after 30 years of conflict in Afghanistan, it was not surprising that the International Crescent and Red Cross’s (ICRC) findings on the physical state of prisons were negative. It found:

  • Cells are often over-crowded and poorly maintained.
  • Some detainees have irregular or no access to the open air,
  • the food is of poor quality
  • it is impossible for prison authorities to ensure a certain degree of privacy
  • due to hygiene problems, detainees often become ill.
  • the constructions remain simple, only allowing basic needs such as the flow of clean water and the existence of functional sanitation.

To western standards, conditions of many detention/correction facilities vary from inadequate to extremely poor in some places. There are specific programmes to improve these conditions but they usually try to respond to emergencies, rather than addressing the problem from a national approach.

A comprehensive approach

At the outset of the campaign in Afghanistan, the United Nations did not assume the lead role, contrary to many of its other missions. It limited itself to a co-ordinating role. This approach could work effectively, but the UN needs to coordinate not only at the operational level, but also at the strategic level. Although UNAMA is coordinating with ISAF, chiefs of G8 lead nations programmes, EUPOL and others, the UN needs to coordinate its efforts at the G8 ministerial level, NATO and EU to ensure funding, commitment and fine-tune the strategic outcomes.

An example where coordination could be more effective was the initial Judicial Reform Commission, which failed due to lack of commitment by the necessary stakeholders. The justice sector has received only a fraction of the funding allocated to reform projects. The lack of funding jeopardises successful judicial reform in Afghanistan.

Finally, full integration of traditional conflict resolution mechanisms and Shari’a law into Afghan legislation poses an enormous problem. The informal system of adjudication can play a valuable role in resolving minor and non-criminal disputes, leaving criminal cases to the government. International standards need to be integrated into the law and practice of all aspects of the Afghan judicial system. But the recent proposed legalisation of marital rape has already raised doubt about whether the methods used so far in assisting the Afghan government are the right way forward.

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