In order to facilitate a full transition from U.S.-controlled detention facilities to Afghan-run facilities, and ultimately Afghan-prosecuted detainees, the Afghan legal system needs to be able to handle the number and complexity of these cases. But there are numerous obstacles preventing the implementation of an organized legal system in Afghanistan. Some of the major problems include: deficiency of structural facilities such as legal books, buildings, and communication systems, and ignorance of the law by judges in the more remote localities; bribery and corruption; violence against legal authorities; lack of respect for the law; a lack of an established judicial hierarchy, and ambiguity as to which system of law applies, i.e., Shari’a- or civil-based.
In 2004, one commentator described the scope of the problem at stake as follows:
Reestablishing a legitimate justice system in this context presents enormous, if not insurmountable, challenges. Every aspect of the picture of a functioning judiciary is presently absent. There are few buildings to house judges, prosecutors, attorneys, police, prisoners. There are equally few skilled professionals to fill the buildings. There is no communications infrastructure, no files, or libraries. It remains unclear which laws are in force – but even those approved by Kabul aren’t in the hands of officials in the provinces. Fundamentally, a political culture that respects the rule of law is also missing.
Due to the mountainous terrain and often remote regions, administering a system of justice encounters numerous logistical problems. But even where there are systems in place, difficulties arise in basic procedures such as having witnesses traverse rugged terrain and transporting detainees from prisons to courthouses. Often, these geographic struggles delay trials for months because “witnesses and defendants either fail to appear or because local jails do not have sufficient vehicles or personnel to transport prisoners in a timely manner.” One report noted that “[m]ost judges have not received training or legal materials” to conduct their duties. As this report commented, judges in Afghanistan “do not have books indicating the applicable law—nor do they apply those laws even where they do have access.”
Another significant roadblock is bribery and corruption. Daud Sultanzai, an Afghan lawmaker, notes: “I think corruption and nepotism and Mafioso economy and the warlords and drug lords have given hands to each other, and they’ve gotten together, and the first sacrifice in this unholy alliance is justice. The first victim is justice.”
Security for the judges is a major roadblock preventing a robust independent judiciary. A report from Reuters documents threatened violent attacks against judges and courts that further undermine the credibility and security essential for a country struggling to establish respect for the rule of law: “If our man in Afghan custody is executed, we will launch a new operation to only target judges and courts,” stated Sirajuddin Haqqani, senior leader of the Haqqani network, referring to a potential execution of an Haqqani network fighter. In 2010, at least 69 primary district courts “shuttered as a result of insurgent activity.”
Another problem is a lack of respect for the law or a general ignorance or misunderstanding of the law. According to one interview with an Afghan ministry of justice official, “The problem is that our judges and prosecutors believe they personally are the highest authority in the land, not the law, and they abuse the law as a result of this thinking.”
This lack of judicial hierarchy and respect for the rule of law likely has roots in the Afghan Constitution because of certain provisions in the Constitution. According to the 2004 Constitution there is a three-tiered system of courts: a Supreme Court, Courts of Appeals, and Primary Courts. Within the high court, there are specialized divisions to handle different areas of law: “criminal, public security, civil, and commercial.” The provincial courts are split into divisions as well. Although the Constitution sets out a framework for an organized judiciary, it falls short of establishing a central arbiter of uniform Afghan legal precedent. One commentator notes that “lower registers of the court system are largely outside the direct control of the Supreme Court. The Court has limited administrative authority in the provinces, and has even less ‘legal’ authority—in the sense that it does not cast a legalistic or intellectual shadow over the judiciary as a whole.” For example, the Supreme Court may only review the constitutionality of laws, treaties, and decrees on a request from the President or from the lower courts. The lower court judges are appointed by the President and unlikely to rule in a manner hostile to the current administration.
The current legal system in Afghanistan is composed of a mix of civil and Shari’a-based formal legal systems. The 2004 Constitution interacts with century-old customary law and practices. One report notes that “[t]his non-state system [of customary law] is comprised of tribal custom and ‘folk shari’a’—local conceptions of Islamic law. These three bodies of law: state law, shari’a law, and customary law, overlap in subject matter, and each provides challenges of implementation for the other two.”
In practice, the tribal system often takes precedence over the uniform court system. This is largely attributable to a perception that the latter is ineffective and corrupt. But this hierarchical preference could also be due to tradition or convenience. One Afghan said, “We are Pashtuns, and we prefer to solve things through our jirgas.” An NPR story noted that jirgas—which in Pashto means “councils”—“are how Afghans have dispensed justice for hundreds of years. Tribal elders gather in a jirga to hear criminal cases, land disputes and family matters—then render a decision pretty much on the spot.”
There are numerous challenges facing the Afghan people. If the United States is to have a secure turnover of detention facilities and prosecution of terrorists under Afghan law and in Afghan courts, these challenges need to be addressed in order to ensure a successful transition and the long-term sustainability of the Afghan rule of law. One such example is the Afghan-run court within the protection of the U.S.-run Detention Facility in Parwan (the DFIP). The court offers the security and protection needed to operate an independent judiciary. But significant hurdles remain.