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Afghanistan: Judicial Reform and Transitional Justice
Afghanistan: Judicial Reform and Transitional Justice
Table of Contents
  1. Executive Summary
Afghanistan’s Low-turnout Election, Insecurity and Unsettled Prospects for Peace
Afghanistan’s Low-turnout Election, Insecurity and Unsettled Prospects for Peace
Report 45 / Asia

Afghanistan: Judicial Reform and Transitional Justice

Afghanistan’s legal system has collapsed. Never strong to begin with, it has been nearly destroyed by 23 years of conflict and misrule.

Executive Summary

Afghanistan’s legal system has collapsed. Never strong to begin with, it has been nearly destroyed by 23 years of conflict and misrule. There are few trained lawyers, little physical infrastructure and no complete record of the country’s laws. Under successive regimes, laws have been administered for mostly political ends with few protections of the rights of individuals to a fair trial. Although the country has signed up to most international agreements on human rights, abuses have been widespread, and military commanders have enjoyed impunity.

The challenges in remedying the situation are enormous. No justice system can thrive in a state of insecurity and corruption since judges and prosecutors will be intimidated or bribed. There are deep divisions between those who favour a very conservative interpretation of Islamic law and those who want to revive the more progressive ideas in the 1964 Constitution. The loss of trained staff has been such that it will take a generation at least to rebuild a system that even before the conflict only really functioned in the main cities and towns.

Nevertheless, moving towards the rule of law is a vital part of peace building in Afghanistan. Abuses of ethnic and religious groups and the treatment of women suggest that no group can feel secure unless protected by a body of law and a functioning judicial system. The economy will be more likely to grow if property is protected; a fair system to adjudicate the many property disputes that have stemmed from war will be vital if this is not to become a new source of grievance and conflict. A functioning judicial system will also be essential for dealing with drug production. The country will likewise have to find a way of addressing past human rights abuses if it is to gain a durable peace.

The Bonn Agreement signed in December 2001 re-established the 1964 Constitution as Afghanistan’s key legal document and laid out a plan to rebuild the system. That plan called for the establishment of independent commissions to oversee the rebuilding of the judiciary, monitoring of human rights, drafting of the constitution and selection of civil servants. These bodies were to provide both expertise and some measure of oversight to a government in which executive and legislative powers are concentrated in the hands of the president and his cabinet.

So far the commissions have achieved little. Most of those named to the first Judicial Commission were linked either to ministries or the Supreme Court. That commission bogged down in bureaucratic and political rivalries and was disbanded after three months. A new commission, appointed in November 2002, appears more independent but begins with an ill-defined mandate and is handicapped by the fact that several critical laws were drafted or adopted in the intervening months. The Human Rights Commission has been more successful but faces formidable security concerns, which the Transitional Administration and the international community have not adequately addressed, and has been delayed in establishing a nation-wide presence. The Civil Service Commission is not yet functioning.

The commissions were an obvious channel for international technical and financial assistance, and the delay in establishing them has meant many lost opportunities. Their performance to date does not bode well for the future since they will have to tackle even more thorny issues such as disarming military forces, writing a new constitution and managing elections due in 2004.

While the international community has dithered on judicial development, the factions within the Transitional Administration that control the judiciary have moved swiftly to promote their interests. The Supreme Court is controlled by Fazl Hadi Shinwari, an ally of the Saudi-backed fundamentalist leader Abd al-Rabb al-Rasul Sayyaf. Shinwari was appointed in December 2001 by former president Burhanuddin Rabbani. President Hamid Karzai re-appointed him in June 2002, much to the surprise of many as the constitution requires that a Chief Justice be under 60, while another provision has been interpreted as requiring that the Chief Justice be educated in all sources of Afghan law, religious and secular. Shinwari is believed to be in his 80s and does not have formal training in secular sources of law.

Shinwari has rapidly placed political allies in key positions, even expanding the number of Supreme Court judges from nine to 137. Of the 36 Supreme Court judges whose educational qualifications are known, not one has a degree in secular law. Shinwari’s actions, together with the re-emergence of a ministry to promote Islamic virtue, have added to fears that the judicial system has been taken over by hard-liners before the Afghan people have had a chance to express their will in a democratic process. The Supreme Court has also established new National Security Courts that will try terrorist and other cases although it is unclear whether it had the right to create courts that are not mandated in law.

Tensions have emerged between the Supreme Court Chief Justice and the Minister of Justice, whose ministry drafts laws and who under the Law of Saranwal (Attorney General or Public Prosecutor), is the country’s chief prosecutor. Although the Attorney General was established as a separate office in the 1980s, the Minister of Justice disputes the constitutionality of this move.

The United Nations has done little to press accountability for past human rights abuses as senior figures believe it is more important to consolidate the peace process. Donors have been slow to embrace the issue – at the Tokyo conference there were no specific commitments. President Karzai has dismissed transitional justice as a “luxury” the country cannot afford until it is more settled. But taking justice for past crimes off the agenda has almost certainly contributed to a sense among commanders that they can act as they wish with no risk of punishment. Human rights abuses by commanders, many officially part of the government, continue across the country.

Most advocates for a process of transitional justice recognise the difficulties but believe that training and resources need to flow into the country now so that Afghans can eventually make informed decisions about which mechanisms might best address past abuses and help end the cycle of impunity. Training lawyers and investigators, protecting evidence and establishing archives are all essential if Afghans are to choose in the future from an array of possibilities that includes trials of abusers and a truth and reconciliation commission. Many difficult decisions about what to include and where to draw geographical or temporal boundaries can be put off until peace is more established but unless the international community builds a capacity among Afghans to deal with the issue themselves, all choices could be lost for good.

Rebuilding the justice system needs to move higher up the political agenda. The process requires conspicuous support from the United Nations and full implementation of the Bonn Agreement, which offers a mechanism to build a new justice system. Donors need to provide technical and financial support in a timely manner to ensure that Afghanistan develops a legal system that serves and protects all its people and reduces the risks of a return to conflict.

Kabul/Brussels, 28 January 2003

Afghan election commission workers count ballot papers of the presidential election in Kabul, Afghanistan on 28 September 2019. REUTERS/Mohammad Ismail
Q&A / Asia

Afghanistan’s Low-turnout Election, Insecurity and Unsettled Prospects for Peace

Afghanistan’s fourth presidential election since 2001 brought perhaps 26 per cent of the electorate to the polls. In this Q&A, Crisis Group consultant Graeme Smith and Senior Analyst Borhan Osman explain the weak participation rate and explore the contest’s implications for the country’s stability.

What happened in Saturday’s Afghan presidential election?

Results will emerge slowly in the 28 September Afghan presidential election – the country’s fourth in its short post-2001 democratic history. Although both leading campaigns have already claimed a first-round victory, official preliminary tallies are not expected to be released until mid-October. Even then, the vote count will be subject to certification, which will come after electoral bodies adjudicate complaints about the process. If the official count shows no candidate gaining more than 50 per cent of the vote, a second round will be required. It is unlikely that a second round could be held until the spring, because winter weather makes voters’ access to polling places too difficult.

The contest features an incumbent, President Ashraf Ghani, who enjoys a high degree of control over the state apparatus and a strong likelihood of fending off the dozen challengers seeking to replace him. Ghani’s strongest rival, Chief Executive Abdullah Abdullah, had become his reluctant partner in a unity government after disputed election results in 2014 led to a political crisis. That crisis ended with a U.S.-brokered power-sharing arrangement.

Election day came after an unusually muted campaign period. Campaigning ahead of previous presidential polls saw contenders charter aircraft, fill stadiums and deliver speeches across the country. In contrast, the 2019 season was relatively quiet, with few rallies, and with candidates who seemed uninterested in spending money or risking lives on large-scale campaigns.

How many people voted?

Turnout was low. Although preliminary results will not be out for weeks, election officials are already estimating that about 2 or 2.5 million voters came to the polls. Those numbers may decrease as some ballots are deemed fraudulent and other votes are thrown out for technical violations. The likely number of final valid votes is hard to forecast because this is the first time Afghanistan has used biometric systems for voter verification in a presidential election. The top end of the current estimated turnout range is 26 per cent of 9.6 million registered voters, a lower turnout than in any other election in Afghanistan – and, in fact, among the weakest turnouts for any national election around the world in recent history. (The largest database of turnouts is maintained by the International Institute for Democracy and Electoral Assistance, which contains only a few examples of voters staying away from the polls on such a scale.)

Afghanistan is a divided country, with all major urban zones under the central government’s control and a large portion of the countryside in the hands of the Taliban insurgency.

The turnout figures are likely to be weaker still when considered as a percentage of the eligible electorate. Registration efforts have had disappointing results, capturing only about half of the voting-age population. Approximately half of Afghanistan’s estimated population of about 35 million is eighteen or older and therefore eligible to vote. (Afghanistan has never had a complete census, so these figures are not precise and total population estimates vary by several million.)

Why was participation so low?

Afghanistan is a divided country, with all major urban zones under the central government’s control and a large portion of the countryside in the hands of the Taliban insurgency. The Taliban – who regard the Afghan government as a U.S. puppet and therefore see presidential elections as illegitimate – threatened to disrupt the polls violently and pressed their supporters to boycott. After reports of low turnout emerged, the Taliban issued a statement thanking Afghans for shunning a “staged” process. Election authorities kept almost a third of polling centres closed, attributing their decision to security concerns. Voter frustrations with politicians and apathy might have been factors as well.

The Afghan government blamed Taliban violence for keeping Afghans from reaching the polls, and to some extent this may have been the case. A New York Times tally suggested that casualties on election day so far appear to be roughly in keeping with recent daily averages for the war, which ranks as the deadliest armed conflict in the world (measured by people killed directly in fighting). Although there were no mass-casualty incidents, the Afghanistan Analysts Network has so far counted about 400 smaller attacks that appear to reflect a pattern of voter intimidation by the Taliban. A burst of gunfire or a few mortars landing near a polling station appeared to be sufficient in many places to dampen enthusiasm for the process. Although Afghan security forces were deployed in large numbers to secure the voting process, the Taliban probably could have done more both to disrupt the polls and to inflict greater casualties if the group had decided to mount full-throttled attacks on polling sites – along the lines, for example, of the 17 September Taliban suicide attack at a Ghani campaign rally that killed 26 people.

What does the election mean for stability?

The election does not have immediate consequences for the likelihood of success of the on-and-off diplomacy to end the war, although it might affect its timing.

Elections are usually a slow burn in Afghanistan, as results trickle out, how well (or not) the electoral bodies performed becomes clearer and politicians size up their opportunities. Street demonstrations or other forms of instability can occur weeks or months after voting. That said, the risk of a serious disruption to Kabul politics appears somewhat lower than in 2014, as Abdullah’s ability to challenge an unfavourable result may be weaker. As in the 2014 election, Abdullah quickly declared himself the winner, flanked by prominent supporters at a 30 September press event. This time around, however, Abdullah was missing his biggest supporter from 2014: the former governor of Balkh province, Atta Noor, a wealthy northern power-broker whose coterie has voiced support for President Ghani in recent days. Ghani himself has not declared victory in public, but one of his senior aides in Kabul told Crisis Group that the Palace is confident of a first-round win, and his running mate, Amrullah Saleh, has said so publicly.

What does the election mean for the peace process?

The election does not have immediate consequences for the likelihood of success of the on-and-off diplomacy to end the war, although it might affect its timing, especially in the case of serious contestation over the results. But the key question for now is whether and when the U.S. intends to revive its own efforts to negotiate a settlement of the conflict, and in particular its talks with the Taliban.

The U.S. suspended the peace process in early September when President Donald Trump declined to move ahead with an initial U.S.-Taliban deal aimed at opening the way to broader talks among the Taliban, Afghan government and other Afghan power-brokers. The ball remains in Trump’s court: Taliban officials have told Crisis Group they are still open to resumption of the process. Senior Afghan officials said they would be willing to explore a diplomatic short-cut after the election process is completed, skipping the U.S.-Taliban deal and moving directly to intra-Afghan negotiations – but this has been a longstanding red line for the Taliban, who refuse to negotiate an Afghan political settlement without first resolving with the U.S. the question of foreign troop withdrawal. The Afghan government will be no better able to get the Taliban to erase that red line after the election, even if the announcement of results and reactions to them cause little or no political disturbance. Still, the Afghan government has renewed its commitment, at least rhetorically, to forging ahead with the peace process. On the day after the election, Ghani’s regional peace envoy Omar Daudzai tweeted optimistically that peace would be “accomplished within 2019”.

Contributors

Senior Analyst, Afghanistan
Senior Consultant, Afghanistan
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