Select Committee on Defence Written Evidence


Memorandum from Olivia Holdsworth

EXECUTIVE SUMMARY

  1.  After five years of international assistance to reform of the formal justice system[21] in Afghanistan, it remains weak. It carries the legacies of its turbulent history and lacks capacity to address the challenges it faces, challenges which are magnified in the unstable environment of Afghanistan. The reasons for this are numerous and include:

    —  The impoverished context of the justice system must be considered.

    —  Illiteracy in Afghanistan of between 50% to 90% in parts, hinders reform efforts. The poor state of the legal education system, and the fact that not all justice officers, including judges receive a formal legal education and many legal officers and police are illiterate aggravates the situation considerably.

    —  Further the justice system is riven with corruption and are mistrusted by the people.

    —  There is little cohesion between the sectors of the system: police, prosecutors, judiciary and courts, and prisons. A lack of technical understanding, turf wars and distrust mean that the inter-linkages between the sectors is very weak.

  2.  Governance is weak and the influence of the Afghan Government is not country-wide:

    —  It is unable to provide its citizens with basic services in large parts of the country and is unable to protect its citizens against violence, extortion and intimidation by individuals, who include rogue commanders and government officials.

    —  Factional, ethnic, political and criminal networks (many related to the narcotics trade) compete for the control of state institutions; corruption and abuse of power are endemic, particularly in the justice and law enforcement institutions.

    —  Thus the State does not have the monopoly on the use of force.

  3.  Despite the extreme nature of the problems with the Afghan justice system, expectations have been high on the part of the Afghan people and the international community that reform efforts would produce considerably more improvement than has been the case.

    —  Billions of dollars will have been spent on security and justice sector reform, mostly on the "harder" security aspects, yet only between 10-40% of the population use the formal justice system; most use traditional fora such as tribal, religious or customary dispute resolution mechanisms, including for criminal issues. Thus the majority of the population are relatively untouched by reform efforts in the sector.

    —  Negative attitudes towards the formal system are compounded by the fact that it is seen as a threat by those who wield power. In significant areas of Afghan life, power is exercised not through state institutions but remains in the hands of individual powerbrokers, tribal structures and warlords, often connected to the narcotics trade. These groups have little interest in the rule of law and at times actively undermine the reform process aimed at strengthening rule of law. This dynamic has been most visible in the senior legal appointments system. Thus, the credibility of the State, and its ability to nurture and sustain the rule of law is greatly impaired.

    —  There is a culture of impunity which protects those abusing power, both within and without the State structures. Presently, the justice sector does not serve as a safeguard for individuals against such abuses, whether committed by the State or by non-State actors. Instead, the formal legal system is increasingly used by power brokers as a political tool to exert control and to galvanise their power and influence.

  4.  International assistance efforts to this sector are fragmented, and have lacked adequate coordination or comprehensive approach. In some respects it can be said that international assistance efforts have aggravated the situation.

    —  The Italians who were the key partner on Justice Reform have been criticised for amongst other things, failing to bring cohesiveness across reform activities, and because its reforms have lacked a strategic approach.

    —  On policing reform, Germany, as partner nation has been in a battle with the US, which has invested billions of dollars in police and security sector reform, over the policing philosophy to be introduced: the Germans favouring a more traditional, European policing philosophy and the US preferring a highly militaristic approach. The fact is that the former, with specialist gendarmerie-type elements is what is necessary, but the two have not been able to constructively find this solution and policing reform has suffered as a result.

    —  The lack of cohesive strategy has resulted in imbalanced reform across the sector, anomalies, inconsistencies and further confusion.

    —  Public administrative and civil service reform is also fragmented and hasn't been tied in with justice sector reform, such that anomalies have occurred there as well.

    —  As key partner on Counter-Narcotics (CN), the UK has lead on establishment of the Criminal Justice Task Force to enable the investigation and prosecution of medium-high level narcotics-related offences. This was a pragmatic response to the reality that the criminal justice system did not, and will not have for a while yet, the capacity to effectively deal with serious cases, on the one hand, and the political robustness to deliver on CN issues on the other. The UK has however come under some criticism as a result for creating a parallel system, which complicates the system and is not sustainable. The UK acknowledges this and an element of the strategy on CN now is to mainstream the activities of the CJTF.

  5.  There is recognition that the situation with the justice sector is critical. It is now being acknowledged that a more comprehensive and coordinated approach to police and justice sector reform are crucial for post-conflict stabilisation, though it has come late in the day.

  6.  EU Commission and Council will launch justice sector and police reform programmes this summer. It is hoped that they will bring some cohesion and coordination to reform as well as the weight to be influential in reform policy.

INTRODUCTION

  7.  This document aims to assist the Defence Select Committee of Inquiry into UK Operations in Afghanistan by providing a picture of the justice system in Afghanistan. Essentially it is in summarised form as the problems and activities in Afghanistan in this sector are so extensive and complex that detail would demand a far longer document.

  8.  My evidence will cover the context, including the historical, socio-political, developmental and legal; the current situation in the justice sector; it will summarise the international assistance efforts; and finally, it will form some conclusions.

  9  My evidence assumes the admission of evidence by the relevant departments of Her Majesty's Government relating to specific policies and programmes in Afghanistan.

CONTEXT

  10.  Any discussion on the justice sector in Afghanistan should be placed into the context of poverty and conflict from which that the country has, and continues to suffer, and also its rugged terrain.

  11.  The two decades of conflict have resulted in the decimation of the education system. Illiteracy rates in Afghanistan are upwards of 50% amongst male adults and upwards of 79% amongst women, in part due to the Taliban policy of denying women and girls the right to education. These statistics are significant because it is from this pool that the justice system draws its future administrators, judges, police, prosecutors and prison officers, and it is a largely uneducated, illiterate society that the justice system must service. A national Government of Afghanistan (GoA), donor assisted literacy programme, the Literacy Initiative is underway, but the challenges are huge and the creation of a pool of literate future jurists, lawyers, administrators and defendants/complainants is a long way off.

  12.  Afghanistan is a largely rural nation, with most of its population living in relatively small villages, isolated from each other by rugged terrain. Many of its regions are challenging to reach due to the rugged terrain and others are totally cut off for several months of the year due to the severe weather conditions. This physical isolation makes it extremely difficult for the Government administration to control its officials and civil servants and has contributed to Afghanistan evolving as a non-literate society, except in the major urban areas.

  13.  Low literacy rates and the general deficit in formal education impose severe limitations on the effectiveness of any assistance. The legacy of the near collapse of the educational system is also evident in the at times poor performance of decision makers. As a result, institutions charged with complex and demanding tasks experience difficulties in fulfilling their legal and constitutional duties.

  14.  At the beginning of 2002, Afghanistan's legal system barely existed. The Taliban had circumvented and avoided the official legal system to a large extent, preferring its own system of archaic Islamic justice and courts. The structures of the old, pre-Taliban legal order were still visible, in the form of buildings and personnel, but its staff had not been paid, were untrained and had not worked for many years. Its libraries and archives had been emptied, courts and prisons had fallen into disrepair, and its range of activities were limited. Even the most basic of resources such as a set of statutes and laws, were missing from most courts and libraries. There was no legitimate government in place to exercise state authority, infrastructure was in disarray, and militias and warlords were filling the functions of army and police. Many qualified personnel had left Afghanistan.

  15.  Justice and Security Sector Reform was a crucial issue in the effort to rebuild state institutions in this dire situation. The framework for the reform process, aimed at setting up functioning state institutions, was provided by the Bonn Conference in December 2001. [22]Five years after the beginning of the Bonn Process, while the institutions of a modern democratic state may technically exist, they are very weak at best in most cases and are unable to field international assistance let alone face the challenges of the security and development realities of Afghanistan. The administration is highly centralised, most decisions are taken at a very high level and any substantial work is done by very few individuals. New political institutions such as Parliament and the Provincial Councils are struggling to define their roles. Formal development of "civil society" is in its infancy.

  16.  Corruption is endemic and citizens have no effective avenues of redress. It ranges from petty corruption, for example to influence service delivery; grand corruption, influencing decision making processes; and political corruption, influencing legislation, elections, appointments. There is little opportunity for citizens to influence or challenge the actions and decisions of the government or other actors, including the donor community, or to seek redress in the case of grievances.

  17.  It is perhaps little surprise then that between 60-90% of the population do not turn to the formal justice system for resolution of their disputes; but rather to traditional/customary/religious/tribal fora. The issues dealt with by such fora include not only civil issues and disputes, but also those of a criminal nature. While their processes and decisions often fall short of minimum international standards, they are accessible and offer a degree of certainty and security in many communities.


21   References to the "justice system" in this documents includes the judiciary and court system under the jurisdiction of the Supreme Court; prison and legislative drafting departments under the Ministry of Justice; public prosecutors and detention centre oversight under the jurisdiction of the Attorney General's Office; the Afghan National Police and all its departments and adjuncts (including for example the Auxiliary Police). It excludes non-State justice fora. Back

22   Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions, Bonn, 5 December 2001. Back


 
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