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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