The Current Situation in the Justice Sector
INTERNATIONAL ASSISTANCE
EFFORTS
18. In early 2002, five G8-nations took
responsibility as lead nations (now key partners) in Security
and Justice Sector Reform: Germany—Police; Italy—Justice;
Japan—Demobilisation, Disarmament, Reintegration (DDR) (now
Disbandment of Illegal Armed Groups (DIAG); UK—Counter-Narcotics;
and the USA—Army. ISAF is also a major actor in the stabilisation
of Afghanistan and the EU (EC and Member States) is a significant
donor. The Commission and Council will launch a justice and police
mission (respectively) this summer. Other States involved in the
justice sector include Canada (mainly civil/commercial law), Norway
(linked to police), Denmark through its support for human rights,
and the Netherlands through its support for transitional justice.
UN Agencies involved in justice sector reform include the United
Nations Assistance Mission to Afghanistan (UNAMA), UNDP Justice
Project, UNODC, UNIFEM and UNICEF. In addition the World Bank
has done much work on anti-corruption. Considerable work in justice
sector reform is implemented by NGOs.
19. The Afghanistan Compact and the interim
Afghan National Development Strategy (i-ANDS) lay out the framework
for international engagement with Afghanistan over the next five
years in a number of vital areas: security, governance (including
human rights and rule of law), social and economic development
and cross cutting themes such as counter-narcotics, gender equity,
and anti-corruption. The GoA adopted a strategic framework for
the justice sector, entitled "Justice for All" in October
2005. This document constitutes a coordinating framework for reform
efforts and donor assistance for the next 10 years in the justice
sector and is directly linked to the benchmarks in the Afghanistan
Compact.
20. A high-level Joint Coordination and
Monitoring Board (JCMB) was established in April 2006 to oversee
and support the strategic implementation of the Compact. The JCMB's
network of sectoral working groups monitor progress and identify
activities to achieve the Compact's benchmarks. UNAMA leads the
support to this process. Lending political support to this whole
process is a group of key donors, including the US, Italy, UK,
Germany, European Commission and EUSR, Spain and Japan. Known
as the "Tea Club", this group meets informally at Ambassadorial
level under the chairmanship of UNAMA. The Tea Club aims to inject
momentum and direction into the implementation.
21. Although the JCMB/i-ANDS process provides
a framework for co-ordinating reform efforts, Afghan interlocutors
and the donor community alike have criticised it for its complexity
and the absence of a cohesive approach. The highly complex picture
of international assistance in some respects aggravates the situation:
the Afghan authorities do not have the capacity to field them
and short politically-lead deadlines do not always take account
of the pace at which the Afghan institutions can field and constructively
absorb the assistance offered, thus undermining Afghan ownership.
22. This is compounded by differing priorities
amongst the donors themselves and the project-driven approach,
often adopted by donors, which also leads to a fragmentation of
actions and the by-passing of Afghan institutions: The bulk of
the country's budget is paid by international donors, often in
a rather fragmented manner, thus inhibiting the administration
from formulating coherent policies. So far, donors have concentrated
on the central Ministries in the reform effort meaning that there
is now an urgent need to focus on Provinces.
23. This means that Government institutions
are not being strengthened and the sustainability of the assistance
given is questionable. This combination of factors has resulted
in little attention to systemic strengthening across the legal
chain or to sustainable capacity building.
24. In the recognition of the need for greater
coordination of GoA and international community assistance, President
Karzai created a small Policy Action Group (PAG) to act as a key
policy and decision-making body. It is chaired by him and therefore
Afghan-led. The PAG is designed to reach down to the provincial,
district and community levels in order to provide integrated programmes
to implement policy and serve the interests of the Afghan people.
25. Government reform is being addressed
through at least two programmes of public administrative reform,
and this is set to increase and additional programmes are pending.
The Public Administration Reform (PAR) process applies to Government
Ministries, Departments and Agencies, and their permanent civil
servants. This includes the MoJ and MoI, but excludes police (who
are not classed as civil servants), prison officers (who were
formerly within the jurisdiction of the MoI and had the same status
as police officers), or the judiciary, who are clearly not civil
servants. The approach of the international community in this
respect is fragmented and has left several anomalies, including
for example that police officers are paid more than judges.
THE LEGAL
FRAMEWORK
26. Afghanistan's legal landscape is shaped
by its cultures, conflicts and the legacy of external influence.
In its substantive laws it follows a civil law tradition, having
been influenced by Egyptian, Turkish and Italian laws since the
beginning of the 20th Century. In many instances these statutes
incorporate Islamic law. Procedural laws and the administrative
framework of the main legal institutions continue to be marked
by the legacy of the Soviet occupation and Taliban policies.
27. The current legal system is also the
outcome of a transitional process which started with the Bonn
process. The Bonn Agreement provided for the establishment of
the political and administrative institutions of government and
governance, including a new Constitution, in accordance with agreed
timetables. The new Constitution of Afghanistan was adopted on
4 January 2004. The Constitution determines the basic structure
of Afghanistan's legal and judicial system and constitutes the
basic law with which all other legislation and governmental action
must comply.
28. Several fault lines run through the
legal system which have not been addressed by the international
assistance provided. These include tensions between the official
legal system and traditional fora for the resolution of disputes;
between different sources of law, in particular Islamic law, custom,
constitutional provisions and international law; and between the
justice institutions: the Supreme Court, the Attorney General's
Office (AGO), the Ministry of Justice and the Ministry of Interior.
These tensions reflect Afghan society, its politics and economy,
including links to illegal narcotics-related activity.
29. Legal uncertainty and inconsistency
exists due to the complex hierarchy of laws and legislation introduced
by differing regimes. Significantly, some uncertainty and inconsistency
has been created by legislation introduced by international reform
efforts. This includes the 2006 Counter-Narcotics law, which contradicts
provisions of the 2004 Interim Criminal Procedure Law.
30. The tensions between the justice institutions,
including the MoJ, the AGO, the Supreme Court and the MoI are
in part due to unclear delimitations of mandates and different
political affiliations. The situation has improved recently, under
the leadership of the Minister of Justice, the new Chief Justice,
Azimi, and a new Attorney General.
31. Moreover ethnic and tribal allegiances
remain important even within state institutions; political alliances
influence appointments and promotions, and corruption influences
the way decisions are taken and implemented at every level.
THE JUDICIARY
AND COURTS
32. In August 2006, a new panel of Supreme
Court Justices, including a new Chief Justice were appointed by
President Karzai and approved by Parliament. The new Chief Justice,
Azimi has laid out a promising vision for Supreme Court reform,
in which he stressed that he wanted to see the Supreme Court supervising
the administration of justice in the provinces more closely. However,
the Supreme Court is all-male, despite the lobbying efforts of
the international community for the inclusion of female judges.
There is reason to believe that there is less factional influence
with the new court.
33. The Supreme Court heads the administration
and supervision of Afghanistan's judiciary and court system. While
the quality of the Supreme Court is fundamental to reforms, administrative
and remuneration reform programmes have not yet addressed the
judiciary. This is an urgent priority that will be addressed in
a reform programme planned by the European Commission, to be launched
in the summer of this year.
THE MINISTRY
OF JUSTICE
34. The MoJ has, amongst others, departments
for legislative drafting (the "Taqnin"), for the provision
of legal advice to the government and it has jurisdiction over
the administration of adult prisons.
35. The Taqnin is clearly critical for the
re-building of Afghanistan's legal system, but it lacks capacity
to address current challenges. However, there have been a number
of recent laws which were drafted not by the Taqnin, but by international
advisers and consultants, often with little or no communication
with the MoJ. This consequently sidelines the Taqnin, and negates
Afghan ownership in the building of its legal system. It has also
lead to a number of practical problems. For example, there are
difficulties in creating reliable translations of these laws into
Dari and Pashtu. Further, some newly drafted laws are informed
by concepts and ideas, which are foreign or incompatible with
Afghan legal traditions.
THE ATTORNEY
GENERAL'S
OFFICE
36. The Attorney General's Office (AGO)
has responsibility for the investigation and prosecution of crimes[23]
and for monitoring the legality of detention[24].
Of all the legal institutions, the AGO suffered most during the
reign of the Taliban, when it was almost completely ignored and
its functions were performed by the religious police.
37. As with the other justice institutions
it has received a considerable amount of badly or uncoordinated
international assistance which it has little capacity to field
or absorb. Indeed, as with the other justice institutions, the
AGO has little capacity to field the assistance offered. Significantly,
the AGO together with the ANP are key players in the challenge
of rooting out extrajudicial or arbitrary detentions which are
in turn linked with corruption and exploitation by power-brokers
and warlords in many provinces. However a particular difficulty
with the AGO is its responsibility with regard to investigations
and the procedural rules which link prosecutors and the police
has not been addressed. There is a lack of clarity and understanding
as to the role of police and prosecutors in investigations and
the situation is complicated by the impracticalities of the procedural
law. [25]Due
to lack of cooperation between prosecutors and the police, lack
of clarity between the roles and lack of training (a significant
proportion of prosecutors have not graduated from the Faculties
of Law or Sharia nor received criminal investigation training),
and resources, investigations are frequently not properly finalised.
POLICE
38. In 2002, the Afghan police had no functioning
infrastructures or organisational structures. The police force
consists mainly of an older generation of police trained in the
1960s and 1970s, and the vast majority have a Mujahideen background
and little or no police experience, were untrained, factional
and more than 70% illiterate.
39. In April 2003, the Afghan National Police
(ANP) was created by presidential decree. The decree defined the
role of the police and the Ministry of the Interior (MoI). It
set a target for the police of 62,000, reducing the number of
armed men affiliated with the police at that time from 150,000.
The ANP is structured into various separate departments including,
Border Police, Criminal Investigation Department (CID), Training,
Administration and Logistics, which themselves have various sub-departments.
40. Today most police personnel possess
very little if any knowledge of basic law. This corresponds to
the illiteracy rate within the police ranks. As a rule, police
work and criminal investigations lead to a confession and the
criminal justice system does not produce cases where the evidence
is gathered by forensic techniques or by other means. This state
of play is a result of unsatisfactory, often non-existing, cooperation
between the criminal branch of the police and the prosecution
service. Laws are not harmonised and interpretation of laws and
rules is arbitrary. Moreover organisational structures and institutional
procedures do not support effective cooperation between police
and prosecutors.
41. Much work has been done on police reform.
Over 70,000 policemen have been trained. Germany is the key partner
on reform of the ANP. Since 2002, it has spent about €70
million on police reform. Other large donors include the European
Community, which funds nationwide payment of police salaries through
the Law and Order Trust Fund for Afghanistan (LOTFA). [26]The
US has a formidable SSR and police reform programme that touches
all aspects of the reform process. [27]The
UK, as part of its CN programme, has lead the establishment and
training of the Counter-Narcotics Police (CNPA). [28]
42. The restructuring of the police and
the MOI are underway in two separate reform programmes: the MoI,
under the PAR programme described above, and the police, under
the pay and rank review process, which is funded by the Law and
Order Trust Fund (LOTFA) set up and administered by the international
community.
43. The ANP itself is undergoing significant
restructuring designed to rebalance the previously top-heavy structure
and introduce merit-based appointments and appropriate administrative
systems aimed at professionalising the police. However, there
is no comprehensive survey of all the equipment that has been
donated to the ANP, including a very large number of uniforms,
vehicles, communication equipment and weaponry; and the performance,
public perception of and the confidence in the police remain very
low. Despite the ongoing reform process, the continued influence
of factional politics and individual power brokers is in evidence
at the national and provincial levels. There are no effective
systems to deal with this; it is dealt with in an ad hoc manner
and the international community must apply considerable political
pressure in order to have the GoA address the problem in an appropriate
manner.
44. Little progress has been made however
in the restructuring of the civilian elements of the MoI and there
is a serious risk that continued failure to reform this Ministry
will undermine the wider police reform and the improvement in
rule of law as a whole. Further, the links between the police
and the rest of the justice sector are underdeveloped both between
the Afghan institutions, and amongst donors. To some degree these
problems are technical, requiring legislative reform, but it is
also as a result of the lack of overall coherent strategy between
the international community across the sector. [29]
45. Lack of coherent strategy specifically
for police reform, and the lack of coherence in international
community assistance has resulted in short-term measures employed
to address security needs which are not necessarily of medium-long
term benefit and may undermine reform efforts. For example the
ANP is expected to carry out very dangerous border duties and
to fight military battles in the South—tasks which they
either are not trained or equipped for. Consequently, ANP personnel
have suffered heavy losses in the south of Afghanistan. At the
same time, criminal or unprofessional behaviour by the ANP in
these same areas has fuelled the discontent that fosters local
support for the insurgency.
46. Part of the problem in police reform
is that two of the main sources of international assistance, Germany
and the US have a fundamental philosophical disagreement on the
type of police force to be created for Afghanistan, and as stated
above, the capacity of the Afghans through the MoI to form their
own vision is very limited: the US prefer a heavily militarised
police, while Germany preferring a more traditional western-style
police force. Further the US appears to prefer quantity of police
officers rather than quality, and this is reflected in the training
programmes the US provides, and brings additional problems. While
Afghanistan probably requires a police force with the professional
standards envisaged by Germany, it also needs a gendarmerie-type
wing to deal with the higher level of internal violence.
47. This disagreement has gone some way
to prevent the necessary leadership, coherence and strategic thought
and assistance from the international community. In the meantime
short-term measures have been introduced, such as the creation
of the Afghan National Auxiliary Police (ANAP) last year, which
was advanced by the GoA. The idea was that personnel would be
brought into the ANAP from illegal armed groups/militias, trained,
contracted and under the MoI/Chief of Police chain of command.
There risks of legalising irregular forces with questionable loyalties
are clear, but it is the lack of strategic thought behind such
measures that is of concern.
PRISONS
48. The penal system in Afghanistan reflects
25 years of conflicts, which have resulted in an extremely low
level of institutional capacity, managed by unqualified and untrained
individuals.
49. Prison administration falls under the
jurisdiction of the Prisons Department of the MoJ. Each of the
34 provinces has a prison, which fall under the jurisdiction of
the Central Prison Administration. Most of them are old and in
poor conditions, and some are uninhabitable. Furthermore, nationwide
there are an estimated 300 or so small district detention facilities
of which little is known in terms of standards or even number
of detainees. A cause of great concern is that many of these detention
facilities are controlled by the National Directorate of Security
(NDS) and the police, who are known to carry out arbitrary arrests
and detention.
50. The philosophy behind imprisonment in
Afghanistan is aimed at punishment: concepts of rehabilitation
and reintegration are practically unknown. While human rights
are limited in society in general, they are virtually non-existent
in the context of detention/imprisonment. Furthermore, there is
little independent oversight, including by the AGO, statutory
role of which is to oversee the legality of detention. The prison
system lacks transparency and offers an environment for violations
including unlawful and arbitrary confinement, corruption and torture.
The situation is particularly bad for vulnerable persons, including
women, who although constitute less than 3% of the prison population,
are often accompanied by their children.
LEGAL AID
AND THE
INDEPENDENT BAR
51. Minimum international standards of justice
and human rights require access to justice, which implies access
to an independent and effective lawyer. Only 170 lawyers are registered
with the Ministry of Justice; some assessments suggest that only
around 50 actually practice. Further the requirement that lawyers
must register with the Ministry of Justice in order to be licensed
undermines their independence.
52. The right of an accused to be represented
by a defence lawyer of his own choice is protected in Afghan law,
yet there is no State funded legal aid system, and in practice
the vast majority of defendants are tried without any defence
lawyers representing them at any stage of their trial or appeal.
Judges and prosecutors do not recognise the role of defence lawyers
in court proceedings. The establishment of an Independent Afghan
Bar Association is in its early stages and is being supported
by the International Bar Association (IBA) in collaboration with
the Union of Afghan Lawyers.
COUNTER-NARCOTICS
53. Counter-Narcotics (CN) is a political
priority for the GoA. CN appears as a major strand in all the
strategic thinking on Afghanistan, including the Afghanistan Compact,
the National Drugs Control Strategy (NDCS) and the i-ANDS. The
UK is the key partner to the GoA in this area.
54. One aspect of the UK's assistance on
CN is in the justice sector. Given the lack of capacity in the
criminal justice system, and in order to ensure that the appropriate
legal framework is in place, and that there is the capacity to
investigate and prosecute those involved in illegal narcotics
activity, the UK has developed, together with other international
partners, the Criminal Justice Task Force (CJTF). The CJTF seeks
to ensure the investigation, prosecution, trial and imprisonment
of those involved in a medium to high level seriousness of illegal
narcotics-activity.
55. This has put in place a specific legal
framework (the 2005 Counter-Narcotics Law), team of judges (administered
by the Supreme Court), prosecutors (administered by the Attorney
General's Office), police and investigators (administered by the
Ministry of the Interior) prison facilities (administered by the
Corrections department of the Ministry of Justice) and defence
lawyers have been trained. The Ministry for Counter Narcotics
plays a coordinating role, and has established regulatory bodies
and a sentencing commission.
56. The creation of this parallel legal
system has been criticised for creating procedural inconsistencies
between it and the mainstream system, [30]unsustainable
parallel structures, and a system which gives more serious criminals
greater protections of their rights than those who are dealt with
under the mainstream system. The UK and major players in this
field acknowledge the need to mainstream the CJTF system and to
increase sustainability and Afghan ownership, and this is now
a shared strategic objective.
TRADITIONAL DISPUTE
RESOLUTION MECHANISMS
57. The traditional dispute resolution mechanisms
are tellingly referred to as the "People's System" by
Afghans. They correspond to a deeply rooted system of self government,
still existing in Afghanistan, especially in remote districts
that the central government does not reach. Despite the very centralised
form of government reflected in the 2004 Constitution, Afghanistan
retains a highly fragmented structure at grass roots level.
58. The informal legal system is used by
around 60 to 90% of Afghans. Outside urban areas, the official
legal system is of little importance to the resolution of disputes.
Traditional systems for the adjudication of disputes form the
backbone of the legal reality for most people. These traditional
systems are deeply embedded in local customs and traditions, as
well as power structures and hierarchies. Whilst the official
legal system does not have any formal links with these traditional
systems, they are in practice interlinked and interwoven: outside
Kabul, even officials working in the state legal system readily
acknowledge the existence and importance of traditional justice
for the adjudication of disputes; for example, the decisions of
jirgas and shuras are often registered with local
courts. In practice, the sharp division between state law and
traditional/customary law is blurred and at times barely recognisable.
[31]
59. In spite of the fact that the majority
of Afghans use informal fora rather than the formal state justice
system, the GoA, and the international community have not adopted
a policy or strategy regarding informal justice. Opinions amongst
national and international stakeholders are divided and some are
reluctant to give any form of official recognition to the informal
system.
60. The difficulty is that while informal
justice is a legitimate source of Afghan law and ensures social
order and a degree of security and certainty, they are not always
consistent with other Afghan laws, international human rights
standards or with Sharia. Access to justice for women remains
scarce both in the formal and the informal systems. Women are
poorly represented in the formal system and not at all in the
traditional systems and discriminatory decisions are common in
both.
61. The reasons for the survival, and indeed
prospering, of the informal, traditional systems of justice and
dispute resolution, are complex and instructive to those assessing
progress in justice sector reform in Afghanistan. The formal system
is widely seen as inefficient, costly, and corrupt. It is also
often regarded as foreign to, and incompatible with, local customs,
values and traditions. To the vast majority of Afghans, who are
illiterate, the formal system is largely inaccessible due in part
to its lack of capacity to meet their additional needs. Furthermore,
the geography of Afghanistan makes it difficult for many Afghans
who live in rural areas to travel to urban centres where the formal
legal system is based. Thus there is little incentive or reason
for people to approach the formal legal system for the resolution
of disputes or the redress of wrongs.
62. Until the capacity of the formal justice
system to deliver justice fairly and effectively is sufficiently
improved, an interim approach adopted by several actors is to
address the informal system's shortcomings by raising awareness
on human rights and Sharia across the country, aiming at educating
people.
CORRUPTION AND
IMPUNITY
63. The formal legal system has so far failed
to address the legacy of human rights' abuses committed by almost
all factions in the course of decades of civil war. [32]This
is compounded by the fact that even current human rights abuses,
extortion and corruption remain unchecked.
64. Although low salaries are a structural
impediment to fighting corruption and enhancing the public's trust
in the justice sector institutions, (there are a number of schemes
planned or under way to address this), there are other more fundamental
problems such as the highly politicised nature of the Afghan justice
sector and the culture of impunity and plunder that seems to have
permeated all levels of government. Attempts to reform the justice
sector must acknowledge these facts and take into account that
many government representatives will not be in favour of reform
and increased accountability.
65. The legal institutions themselves lack
internal systems and mechanisms to address corruption, inefficiency,
systemic and structural weaknesses. There is a lack of capacity
in areas crucial for the establishment of accountability and ending
the prevalent climate of impunity that local, regional and national
persons of influence still hold. To date there has been little
work done in the development of systems to increase the Afghan
capacity to fight corruption.
PROSPECTS AND
CONCLUSIONS
66. The expectations of Afghans and international
partners alike have been wildly optimistic, and slow progress
has inevitably engendered resentment and increased vulnerability
to anti-government propaganda. The scale of the problem should
not be under-estimated. In the wake of decades of war, there are
shortages of capacity at all levels of the education system—which
impedes efforts to improve capacity in government or in the rule
of law institutions. The international community has to reassess
its expectations for where the Afghan legal system could be within
the next 10-20 years. There are still considerable challenges
after five years of sustained effort.
67. A number of prerequisites to make the
justice system in Afghanistan effective lie outside the responsibilities
of the sector itself: the weak Government and State structures,
undermined by official and unofficial power brokers who seek to
maintain the current state of de facto impunity and abuse their
positions, or political networks, in order to further their personal
economic interests or criminal activities.
68. There is a clear sense that the legal
institutions which have emerged from the Bonn process are failing
to fulfil their constitutional duties, and are still a long way
from being able to protect people and ensure rule of law. These
weaknesses mean that the political realities of a country which
is driven by power struggles and the corrosive influence of narcotics-related
activities are increasingly being reflected in formal institutions
both in Kabul and in the provinces. Where the state has continually
proved unable or unwilling to provide security, services or justice,
people rely on networks of personal relations, which are themselves
manifestations of ethnic, regional, tribal or criminal alliances;
the continued operation of these informal networks continues to
undermine the establishment of a rational state.
69. The State legal system provides no legal
gateways to fight governmental lawlessness, to complain about
or seek redress from government actions that they consider unfair
or arbitrary. To date the donor community had failed to tackle
corruption which has facilitated its growth at all levels. The
international community should identify an acceptable level of
tolerance for corruption with the GoA and then take a firm stand
against that which goes above this, making the continuation of
support dependent on proven efforts by the GoA to eradicate corruption.
Along with this is the need to strengthen institutional structures
and oversight mechanisms and avenues of redress for citizens.
70. An effective system of checks and balances
is needed, which is sufficiently robust to stem both lawlessness
and the abuse of power by those operating within and outside the
State. This requires greater attention be given by both the international
community and the GoA to developing the capacity of and access
to independent defence lawyers, which will have an impact on both
individual cases and on the legal process as a whole.
71. A well-performing police force is integral
to ultimate success in Afghanistan: a crucial element in any exit
strategy. It has been acknowledged that a more strategic and cohesive
approach to police reform is necessary to achieve this. It is
essential that the police institutions, in particular the MoI
are strengthened. It is hoped that the police reform programme
planned by the European Council, under its ESDP mechanism, to
be launched in summer 2007 will bring the necessary coordination
and cohesion and a more qualitative approach to police reform
than the numbers game currently being pursued by the US reform
strategy: Afghanistan doesn't need more well-armed men running
around pursuing their own political/tribal/factional power games.
72. The lack of strategic coherence and
coordination amongst the international community has aggravated
the situation. Justice and security sector reform must be carried
out as a seamless tapestry of inter-linking sub-systems and processes.
For example, having a reformed police service which is professional
and operates in accordance with acceptable codes of conduct is
of little benefit if the public prosecutors cannot progress cases,
the courts do not dispense justice or suspects and prisoners are
arbitrarily detained or mistreated in prisons and detention facilities.
73. The fragmentation of reform efforts
has meant that some categories have been excluded from reform
programmes; this is an unfortunate oversight rather than a strategic
decision, which is both symptomatic of the lack of cohesion in
the organisation of assistance, and also of the scale of the task
at hand.
74. Current international support for legal
reform activities has been heavily weighted towards those aspects
of the legal system which accord with the values, experiences
and models of Western donor agencies. Countrywide campaigns on
human rights need to be supported, in coordination with ongoing
efforts and through local NGOs, aimed at addressing the ignorance
and mentality that allows acceptance and gives legitimacy to traditional
and customary practices which violate the Afghan Constitution
and basic human rights.
75. Much of the international community
justice and security sector reform budget is spent on the harder
and more visible aspects of security. This has not resulted in
a greater degree of security. More attention and resources should
be given to the provision of qualitative and well-coordinated
support to the "softer" elements of security including
a cleaner government system which gives access to fair justice,
the officials of which do not prey on the people and redress for
the victims of those who do, and a degree of public service culture.
While it is hoped that the planned European Commission justice
programme will contribute the achievement of this, a different
focus is required from the international community and the GoA
in general.
3 April 2006
23 Article 134 of the Constitution and the 2004 Interim
Procedure Code. Back
24
2005 Prison Law. Back
25
The law requires the police to hand detainees over to the prosecutor
within 72 hours; the prosecutor may order the detention of prisoners
for up to 15 days before a judge becomes involved. The prosecutor
supervises and directs all investigative actions after the 72
hours period. Back
26
The European Community's annual contribution to LOTFA has been
around €30 million. Back
27
The US budget for 2006 was around US$1 billion and an estimated
US$1.6 billion for 2007. Back
28
The UK spent around €25 million in support of the CNPA in
2006. Back
29
For example, the Criminal Procedure Code requires detainees to
be presented to a prosecutor within 72 hours, along with a completed
supporting investigation file. In most parts of the country this
is simply a practical impossibility due to geographical challenges
and shortage of resources and professional expertise. Back
30
There are apparent inconsistencies between the 2006 Counter-Narcotics
law, the 2004 Constitution and other parts of the legal framework. Back
31
The informal system is traditionally administered by bodies like
jirga or shura, which are customary tribunals, composed
of village elders who enjoy the trust of the community and who
apply a set of rules accepted and recognised as fair by the members
of that community. The Pashtunwali, in the Pashtun areas,
is an example of this: their ruling is normally expeditious, free
of charge and accepted by the parties, thus ensuring social order
in the respective communities and reducing the workload of the
courts. Back
32
A recent law passed in Afghanistan which gives a degree of amnesty
for war crimes is a further set back for transitional justice. Back
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