The Afghan justice system is in a state of disrepair, with corruption rife within both the judicial system and the government. Following the reconstruction of the judiciary in the post 9/11 nation-building phase, the state-power holders have benefited from a patronage-based system, enabling them to buy and maintain loyalty from the judiciary. As a result, the independence of the judiciary and its role as an independent arbiter has been compromised. This has resulted in growing instances of irregularities being observed in the judiciary’s conduct. Besides severely diluting the authority and public trust towards the courts, it has also led the judiciary to become a target of dissident groups. This was brought into stark focus on the 17th of January 2021, when two female Supreme Court judges were assassinated while on their way to work. Already subject to marginalisation within the judiciary and civil society in general, women judges are pivotal to female representation and empowerment. Assassinations such as these are likely to further dissuade women from seeking to join judiciary which will further alienate other women, especially within rural regions from accessing and understanding their rights under law. Understanding the correlation between these attacks, public dissatisfaction with the judiciary and the role of political inference im damaging the judicial system, we can gain an insight into the measures the Afghan judiciary must take to ensure they act as independent arbiter upholding the rule of law.
Post-2001 reconstruction
After the culmination of Operation Enduring Freedom, in which the Taliban was toppled in December 2001, the Bonn conference chose the leader to head the Afghan Interim Authority. The conference chose Hamid Karzai who was subsequently elected President in 2004. As part of this post war process, under the guidance of the US coalition and several international organisations, Afghanistan’s judiciary went through an institutional overhaul. This led to a wholesale reconstruction of the legal system – rebuilding tribunals, training judges, and codifying law (that is., the new Constitution and new Criminal Procedural Code, both promulgated in 2004). However, rather than setting a precedent for independence and internal stability the judiciary has been caught in political struggles. Back then, in return for supporting Karzai, Abdul Sayaf would be provided the power to nominate judges to the Supreme Court. The deal resulted in Fazl Hadi Shinwari (a man with no legal background), to be nominated as chief justice of the supreme court. In the four years before he was removed by parliament, Shinwari stacked the lower and provincial courts with conservative mullahs who had “little or no legal training, including Islamic legal training” while strictly having an eye on their “patronage networks”. As a result, the judiciary has become structurally highly politicised, leading to friction between the traditional forms of Afghani Justice and externally imposed values and procedures purported by the international community.
Article 116 of the 2004 Constitution of the Islamic Republic of Afghanistan dictates; “The judiciary shall be an independent organ of the state of the Islamic Republic of Afghanistan”. However, this independence has often been pushed into a political quagmire by the presidential office. Structural flaws exacerbate this issue, with the president able to nominate nine members of the supreme court prior to a parliamentary confidence vote. Due to Afghanistan’s patron-client system of control, appointees turn into allies as they feel pressure to support their appointer. This has effectively subverted the independence of the judiciary, tempting the presidents to exploit their authority over nominations.
This happened most recently in 2019, when the Afghani Supreme Court extended the term of President Ashraf Ghani. The court, following a long precedent of siding with the executive, promptly passed a verdict in Ghani’s favor and extended his term “until a new president is elected.” Ghani and his predecessor President Karzai have continually exploited the strong presidential system adopted under the 2004 constitution, which does not clearly define an arbiter of the constitution transforming the court into a puppet of the presidential office. As a result the Afghani population have grown to have no confidence in the formal justice sector amid an atmosphere of impunity, ranking last in Gallups 2018 Law and Order Index. Subsequently, many Afghans especially within rural provinces have been forced to accept the rough justice of the Taliban and other dissident groups due to the lack of a stable and impartial judiciary, further destabilising the region.
Patriarchy in the judiciary:
Political inference and patronage have had a considerable Impact upon the makeup of the judiciary. The Afghani judicial system severely lacks female representation, with between 250 and 300 female judges in the country, comprising only approximately 8–10 per cent of the judiciary, with the majority in Kabul. Due to the heavily patriarchal system present within Afghanistan, Female judges are often more highly targeted by dissident groups. On Sunday 17 Jan 2021 two female judges working for the supreme court were shot dead in Kabul. Killed by unidentified gunmen on their way to work, the attack is the latest in a series which have targeted members of Afghani civil society. Attacks such as these set a challenging precedent and are likely to dissuade other prospective female judges from joining the judiciary. Reacting to the shooting, the brother of Judge Herawi, 47, one of the victims stated: “The government has absolutely failed to protect the people. Where is the security?”. After a fresh wave of killings which started in September, the government’s inability to maintain the security and safety of its judiciary has further eroded trust in government functions. The government must act in providing the necessary protections and capacity building to ensure that female judges, law professionals and other members of civil society are given the requisite protection from attack or intimidation.
What can be done?
What is clear is that the Afghani Justice sector needs a rebuild. This can be done by addressing three key issues;
The first one is the challenge of accountability. Afghanistan is in a precarious domestic situation with the Taliban, ISIS and other dissident groups holding significant influence over certain regions. The government and judiciary’s difficulties in targeting former warlords and commanders has affected its legitimacy as the sole authority in the country. By directly pursuing them and prioritizing the rule of law as the primary pillar of a vigorous counter-insurgency strategy, the government could potentially demonstrate that those trespassing the law could no longer to continue to act with impunity. Additionally, it will undermine one of the attractions of the Taliban, that of harsh but fair justice, as its sympathisers perceive it and contribute to its popularity in some areas.
The second issue is constitutional. The judiciary has been scarred by a legacy of political interference by both powerbrokers and external actors. This has left it unable to act independently, and instead of being hamstrung by political patronage brought about by the lack of a clearly defined arbiter of the constitution. To restore its legitimacy, there must be action on the part of the government to restore the judiciary’s independence, which will support in a drive to eliminate corruption, ensure a free and fair trial and restrict the use of arbitrary detention as a means of justice.
Lastly, the role of women in the judiciary must be supported and protected. As we have seen how women remain greatly detached from the judicial system, with customary norms greatly dictating their lives and conduct leading women under duress to not see the judiciary as a means for justice. By supporting capacity building for prospective and current women judges and law professionals, women, especially in rural provinces outside Kabul will benefit from greater access to institutional legal redressal, dispelling some of the cultural bias towards both the judiciary and women’s role within it. This will positively impact the courts legitimacy throughout the country with women much more inclined to seek legal support.
However, there remains a significant way to go in creating an Afghan judiciary which truly dispels the rule of law fairly and equitably to all its citizens. Anisa Rasooli has shown some hope stating:
“I believe that the Afghanistan judicial system is regaining its decency. There are still problems, but considerable progress is being implemented. If the current situation continues, I am optimistic about the future of the judiciary in Afghanistan.”
But in this she places a caveat; “However, if this trend is interrupted because of conflict or political and social unrest, then no one knows what the future of the judicial system will be”.
This seems the crux of the problem, and that its propensity for social and political unrest will hamper any positive change. Without peace and stability, the ability to monitor and tackle corruption in the provinces will be severely impacted, preventing any tangible action on improving accountability and legitimacy of the courts among the populace, likely further entrenching issues of political patronage and mistrust towards the judiciary.