icon caret Arrow Down Arrow Left Arrow Right Arrow Up Line Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Crisiswatch Alerts and Trends Box - 1080/761 Copy Twitter Video Camera  copyview Youtube
Afghanistan’s Low-turnout Election, Insecurity and Unsettled Prospects for Peace
Afghanistan’s Low-turnout Election, Insecurity and Unsettled Prospects for Peace
Report 195 / Asia

Reforming Afghanistan’s Broken Judiciary

The Afghan government and the international community must prioritise the rule of law, which should be the primary pillar of a successful counter-insurgency strategy.

Executive Summary

Afghanistan’s justice system is in a catastrophic state of disrepair. Despite repeated pledges over the last nine years, the majority of Afghans still have little or no access to judicial institutions. Lack of justice has destabilised the country and judicial institutions have withered to near non-existence. Many courts are inoperable and those that do function are understaffed. Insecurity, lack of proper training and low salaries have driven many judges and prosecutors from their jobs. Those who remain are highly susceptible to corruption. Indeed, there is very little that is systematic about the legal system, and there is little evidence that the Afghan government has the resources or political will to tackle the challenge. The public, consequently, has no confidence in the formal justice sector amid an atmosphere of impunity. A growing majority of Afghans have been forced to accept the rough justice of Taliban and criminal powerbrokers in areas of the country that lie beyond government control.

To reverse these trends, the Afghan government and international community must prioritise the rule of law as the primary pillar of a vigorous counter-insurgency strategy that privileges the protection of rights equally alongside the protection of life. Restoration of judicial institutions must be at the front and centre of the strategy aimed at stabilising the country. The Afghan government must do more to ensure that judges, prosecutors and defence attorneys understand enough about the law to ensure its fair application. Reinvigoration of the legal review process and the adoption of a more dynamic, coordinated approach to justice sector reform are critical to changing the system. Justice is at the core of peace in Afghanistan and international engagement must hew to the fundamental goal of restoring the balance of powers in government and confronting governmental abuses, past and present. Urgent action is also needed to realign international assistance to strengthen support for legal education, case management, data collection and legal aid.

Legal institutions and legal elites have been deeply affected by the political paroxysms of more than three decades of conflict. The judiciary has been scarred by a legacy of political interference by both Afghan powerbrokers and external actors. Judicial independence has, as a result, been one of the main casualties of Afghanistan’s protracted war. The courts, for years, have suffered manipulation from an executive branch that has abused the law to fortify its position in the ongoing tussles between the secular and religious, the centre and periphery, the rich and poor. The Afghan government’s historic inability and persistent unwillingness to resolve conflicts between state codes, Islamic law and customary justice embedded in the legal culture have further destabilised the country. The critical leverage provided to fundamentalists in the constitution has concurrently had a deep impact on the evolution of legal institutions.

The strong presidential system adopted under the 2004 constitution has only exacerbated the weakness of judicial institutions. The lack of a clearly defined arbiter of the constitution has undercut the authority of the Supreme Court and transformed the court into a puppet of President Hamid Karzai. Given the wide range of powers granted the president and lack of checks and balances in the system, it is unrealistic to expect change will come from his quarter. The international community, meanwhile, has done little to create incentives for political restraint and accountability within the executive. The National Assembly must, therefore, consider its options for triggering constitutional review either through convening a constitutional Loya Jirga, or grand assembly, or through the adoption of a constitutional amendment requiring the initiation of a full-scale review of the founding document by 2014.

Friction between various stakeholders over the priority and content of rule of law reforms is blocking progress. There is a strong need to improve the legal review process by building capacity at the ministry of justice, with combined input from Afghan officials and expert international advisers. At the local level, the government and international community must deliver on the promise made at the 2007 rule of law conference in Rome to support better coordination between primary courts in the provinces and districts and high courts in Kabul.

Dysfunction at the provincial level has long been a hallmark of a system unable to resolve tensions between its highly centralised organisation and the diffusion of the population across difficult and often inaccessible terrain. Over the years, the Afghan government and the international community have endeavoured to resolve this problem, most notably through the introduction of regional trainings for Afghan judges and prosecutors. This is not enough. After nearly a decade of financial pledges and promises, neither the government nor the international community have a full picture of the demand for legal services at the provincial and district level. Province-by-province assessments of the courts, attorney general’s office and ministry of justice, including a focused look at caseloads, settlement and conviction rates, shortages in personnel, materiel and infrastructure should be regularly conducted and made available to the public. Developing a concrete, dynamic understanding of deficits in the system is the first step toward crafting an effective strategy for reform.

In its desperation to find quick fix solutions, the international community, and the U.S. in particular, has begun to look to the informal justice sector as a means to an undefined end. This is problematic for a number of reasons. While it is true that the use of traditional Afghan jirgas and shuras to resolve disputes, particularly in rural areas, is so widespread that it cannot be ignored, the current government is a long way from having the capacity to integrate the decisions of such councils into the formal system. Their multiplicity, the plurality of customs and the erosion of the social order during years of violent conflict have degraded the positive influence and real authority of such jirgas. Moreover, the exclusion of women from these informal judicial councils poses serious problems for the state’s constitutional obligation to defend the principle of equality under the law.

International involvement in this sphere will do little to enhance rule of law in the near term and it may, indeed, sow more confusion over the state’s legal authority and the real objectives of coalition partners. The task of monitoring and evaluating such councils has meanwhile fallen to a private U.S. contractor with an uneven track record in implementing rule of law programs in this and other countries. Outsourcing a task as delicate as monitoring the complex politics of tribal justice to a contractor with limited knowledge of the region is to nobody’s benefit.

The U.S. and its NATO allies must also acknowledge that stabilisation will depend as much on the legitimacy of state authority and re-establishment of the rule of law as it will on rebuilding Afghanistan’s police and military. To restore its legitimacy, the Afghan government will have to work much harder to eliminate corruption, ensure fair trial standards and curtail arbitrary detentions. Extrajudicial actions by the U.S. and its coalition partners against Afghan citizens have also distorted the justice system and are fuelling the insurgency. U.S. and NATO actions must conform to national and international laws, including an end to arbitrary detentions. There should be no expectation that Afghan officials and institutions will realign the justice system to conform to international norms until U.S. and NATO allies adjust their own policies and practices.

Kabul/Brussels, 17 November 2010

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
smithkabul