Sari Kouvo argues that an increased focus on the technical aspects of rule of law reform will not break the negative spiral of the Afghan public’s declining trust in the state and increased insecurity without a political will to tackle institutionalized impunity.

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KABUL, Afghanistan: ANP officers graduate from their training course in Kabul in June 2008.

Visiting a provincial prison in northern Afghanistan some years ago, I met a friendly and engaging prison chief. He told me about the challenges he was facing with corruption amongst the police, prosecutors and judges and how bad he felt about prolonged pre-trial detention and his administration’s shortcomings.

He also emphasized how much he appreciated the cooperation with the Provincial Reconstruction Team (PRT) and was eager to show me the refurbishment done with PRT support. In the middle of the conversation the prison chief had to take a call.

After my translator and I left the meeting, my translator informed me that the telephone conversation was about how much bribe a certain prisoner should be expected to pay for his release.

Since the Presidential elections in 2004, I have had the opportunity to observe the international community’s military, political and developmental engagement in Afghanistan. As a lawyer, I have been particularly interested in the role of law (or the lack thereof) in the shift from conflict to (at best) awkward peace.

During this period, common perceptions about state-building have changed from as ‘almost on track, give or take a few major challenges’ to ‘almost failed, but possibly savable’. Over the same period of time, the common perception has shifted from rule of law reform being a marginal issue to becoming the issue to be addressed if the state-building process in Afghanistan is to be saved.

My experience with the prison chief is a perfect illustration of the failure of the rule of law reform strategies deployed in the first years of the state-building process: ad hoc and donor-driven reform projects focusing on some law reforms, short-term capacity-building and refurbishing infrastructure. These efforts affected nothing but the surface of the Afghan security and justice sectors, while a culture of corruption and impunity was allowed to grow stronger. Depending on who the interlocutor is, the security and justice sectors show their different facets. The well-meaning foreigner with her driver and translator and the Afghan peasant who is claiming back his land from the local commander face very different realities of (in)justice.

the international community is finally in a situation where it can ‘connect all the dots’ and overcome the shortcomings of previous reform initiatives.

The past two years have seen increased focus on rule of law and have resulted in the emergence of new strategies and actors.

The Afghanistan National Development Strategy (ANDS) includes a comprehensive strategy for justice reform

The World Bank has been supporting the establishment of a justice window in the Afghanistan Reconstruction Trust Fund (ARTF)

The UN Assistance Mission for Afghanistan (UNAMA) in cooperation with the UN Development Program (UNDP) have been beefing up its rule of law unit through establishing the provincial justice initiative and

Troop contributing nations to the International Security Assistance Force (ISAF) have been developing justice components in their security sector and development initiatives.

When interviewing representatives of the international community about the increased focus on promoting rule of law in Afghanistan, one interviewee noted that the international community is finally in a situation where it can ‘connect all the dots’ and overcome the shortcomings of previous reform initiatives. My meetings and discussions with Afghan legal practitioners show these reforms in a different light; the ‘dots’ may connect, but the map does not correspond with reality.

Tackling Impunity

Without a doubt, the Afghan justice sector is dysfunctional and eroded, and considerable effort is needed to strengthen the technical aspects of rebuilding the security and justice sectors. In Afghanistan today, there are several parallel, and often inherently conflicting, perceptions of governance and rule of law. The governance and the religious laws imposed by the Taliban were extreme, brutal and discriminatory, but they were also only one more governance/rule of law structure forcibly imposed by a centralized government in Kabul, or in Kandahar in the case of the Taliban, whose power and legitimacy remained contested.

After years of conflict and several changes of governments, multiple government-centered (formal) and customary and community-based (informal) systems of governance and law continue to exist in parallel in Afghanistan. The last eight years of internationally-supported state-building have added to the complexities of rule of law and governance in Afghanistan.

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In Afghanistan, the rule of law continues to be a blend of government-centered (formal) and community based (informal) initiatives.

The failure to exclude the leaders of armed militias, many of whom have known records of gross human rights abuses, from government structures and the failure to ensure a comprehensive disarmament process have further weakened good governance and rule of law. The presence of leaders who perceive themselves to be above or beyond the law in the government has entrenched the void between myth and reality in the internationally-supported rule of law reforms in Afghanistan.

This is strongly recognized in the Afghan government’s own submission to the Universal Periodic Review (UPR) of the UN Human Rights Council, where the government stresses that one of the reasons that progress has not been made in implementing its own Action Plan for Peace, Justice in Reconciliation is the ‘inefficiency of the government apparatus and influence of powerful and former violators of human rights’.

One of the most extreme examples of the ‘institutionalisation’ of the culture of impunity is the adoption of the so-called amnesty bill by the Afghan parliament in spring 2007. Some of the (former) leaders of militias and now members of parliament managed to force the adoption of a law that, with a few exceptions, provided amnesty from prosecution for all those involved in the last two decades of conflict in Afghanistan.

Although the Afghan government stated in its UPR submission that President Karzai has not signed the bill and therefore it is not in force, the bill has served as a reminder of the continuing power of the militia leaders. And it is fair to presume that most of the Afghans who know about the Amnesty Bill still believe that it is a law in force in Afghanistan.

the declining security situation now poses considerable challenges for the implementation of programmes in certain provinces and districts.

Another reason for the institutionalisation of impunity has been inadequate attention to reform at the sub-national level. While some efforts have been made within the central government to address governance and rule of law deficits, provinces and districts were largely left to fend for themselves during the early years of the state-building process.

Although there is now a much more clearly stated focus on sub-national governance and rule of law (the UN provincial justice initiative being one part of this), the declining security situation now poses considerable challenges for the implementation of programmes in certain provinces and districts.

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Graduates of the Focused Border Development Training Programme, Spin Buldak, Afghanistan, April 2, 2009.

As a result, throughout the state-building process, the Afghan government’s only presence among large parts of Afghanistan’s poor and illiterate populations has been

Prison chiefs like my friend from the north

Corrupt police officers ready to harass if they do not receive their bribe

Judges whose decision depend on the will of the local strongman rather than on law and

Unofficial local governors who find it convenient to serve not only as governor, but also as police chief, prosecutor and judge in their district.

Not surprisingly, these patterns of corruption and crime have undermined the legitimacy of the government and are contributing to growing insecurity: a citizen that cannot trust the government is unlikely to defend and support it.

Though many observers warn that the elections are unlikely to be free and fair, the hope is that they will be at least credible.

Promoting legitimacy

Much emphasis is currently put on the upcoming electoral cycle and its power to restore the Afghan government’s legitimacy. Though many observers warn that the elections are unlikely to be free and fair, the hope is that they will be at least credible. Elections, enabling citizens to choose their political leadership, can certainly be a powerful tool for legitimacy.

However, as was already proven in the previous round of elections (presidential elections in 2004 and parliamentary elections in 2005), elections are no silver bullet. If perpetrators of war crimes and people with links to illegal armed groups are allowed to run for office and get elected using strategies way beyond basic election politics handbooks, elections may perpetuate rather than resolve the legitimacy crisis.

Given the extensive political, military and development support that it is providing to Afghanistan, the international community (including ISAF troop contributing nations) is in an excellent position to demand that the Afghan government consult with its citizens and to support justice-focused political debate in Afghanistan. Making demands on the Afghan government does of course also involve taking a critical look at the international community’s own strategies (such as has already been initiated by the new U.S. Administration).

However, at a minimum, a renewed commitment to rule of law in Afghanistan should include an increased focus on vetting senior political appointees and political candidates in the upcoming cycle of elections, an increased focus on disarmament and accountability in security sector reform and using access to justice as a measure for success of justice reform.