Rough Road Ahead For Afghanistan Legal System

The first of a three-part series.

Defense attorney Maleha Ebrahimi presents her case while defendant Mohammad Harun looks on. i i

hide captionDefense attorney Maleha Ebrahimi presents her case while defendant Mohammad Harun looks on. Harun was found guilty of alcohol consumption and threatening police, but acquitted of assault for lack of evidence.

Soraya Sarhaddi Nelson/NPR
Defense attorney Maleha Ebrahimi presents her case while defendant Mohammad Harun looks on.

Defense attorney Maleha Ebrahimi presents her case while defendant Mohammad Harun looks on. Harun was found guilty of alcohol consumption and threatening police, but acquitted of assault for lack of evidence.

Soraya Sarhaddi Nelson/NPR

About The Series

In Afghanistan, people say they are losing faith in their government amid growing insecurity and rampant corruption. But nowhere is people's mistrust of public institutions more pronounced than in the justice system.

Chief Judge Gholan Mahmoud Khan (left) i i

hide captionChief Judge Gholan Mahmoud Khan (from left), Assistant Judge Mohammad Edris Hemat, Assistant Judge Mohammad Yunis Amini, prosecutor Fahma Eshawghzi and a court employee in Khan's office and courtroom in Kabul.

Soraya Sarhaddi Nelson/NPR
Chief Judge Gholan Mahmoud Khan (left)

Chief Judge Gholan Mahmoud Khan (from left), Assistant Judge Mohammad Edris Hemat, Assistant Judge Mohammad Yunis Amini, prosecutor Fahma Eshawghzi and a court employee in Khan's office and courtroom in Kabul.

Soraya Sarhaddi Nelson/NPR
Assistant Judge Mohammad Yunis Amini i i

hide captionAssistant Judge Mohammad Yunis Amini listens to prosecutor Fahma Eshawghzi (center) read her case.

Soraya Sarhaddi Nelson/NPR
Assistant Judge Mohammad Yunis Amini

Assistant Judge Mohammad Yunis Amini listens to prosecutor Fahma Eshawghzi (center) read her case.

Soraya Sarhaddi Nelson/NPR

There are many indicators that things aren't going well in Afghanistan, despite an unprecedented global effort to get the country back on its feet. For Afghans, a key sign is the lack of a functional justice system.

It is a weakness, experts say, the Taliban and other militant groups are exploiting to strengthen their hold on the country.

The Courts In Afghanistan

A shackled prisoner in a pinstriped tunic enters Chief Judge Gholam Mahmoud Khan's cramped office, which doubles as his courtroom, in downtown Kabul. Save for the handcuffs, which the judge quickly orders removed, this feels more like an Afghan social gathering over cups of green tea than a trial for public drinking, assault and threatening the police.

Yet Western influence on such post-Taliban era trials is undeniable. For one, there's a female prosecutor. Even more unusual is the presence of a public defender, who also happens to be a woman. Both are dressed conservatively with Islamic-style head scarves.

Maleha Ebrahimi quickly pokes holes in the case against her client. She says he's illiterate and didn't understand the confession he signed with his thumbprint. She adds that neither a knife nor a bottle was found at the time of his arrest. Plus, the name on the toxicology report did not fully match her client's.

But her client blows it. Mohammad Harun tells the judge that he did drink alcohol, which is a crime here. He also openly threatens the police, whom he claims beat him up in jail. His attorney purses her lips, but says nothing.

After conferring with two assistant judges, Khan renders his verdict: Guilty of drinking alcohol and threatening the police, but acquitted of assault for lack of evidence.

The sentence is three months for the drinking and the equivalent of $60 for the threat.

"Be glad that I don't put you in jail for longer," the judge tells Harun.

For a court system that had to be rebuilt after a quarter-century of chaos, this trial went well. But Afghan and Western law experts here say such experiences are the exception rather than the rule. Most here describe the Afghan court system as a bureaucratic maze that is incredibly corrupt.

A 'D-Minus' Justice System

John Dempsey, an American lawyer who heads the Kabul office of the U.S. Institute of Peace, a nongovernmental organization that is working on Afghan judicial reform, says that if he were to give the Afghan justice system a letter grade, it would be a D-minus.

"It's not failed, but they are on the brink, and I say that not, you know, lightly," Dempsey says. "I think that there has to be more attention paid by the international community to rule of law in Afghanistan. I think it's critical to the overall efforts here to reconstructing the country and in defeating the insurgency. I think security and rule of law goes hand-in-hand."

He and others, like Afghan lawmaker Daud Sultanzai, believe fixing the court system could take a generation.

"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," Sultanzai says.

Sultanzai, who represents southern Ghazni province and may run in next year's presidential election, blames President Hamid Karzai and former warlords for the failure of Afghan justice.

He asks what Afghans are supposed to think when a powerful warlord refuses to surrender to authorities to face charges earlier this year stemming from the severe beating of a political rival. Uzbek strongman Abdul Rashid Dostum was dismissed from a largely ceremonial post in the government, but never went to trial.

Interference by strongmen is also alleged in the case of Parwez Kambakhsh, a university student who received a death sentence in northern Balkh province for blasphemy in January. The sentence was later commuted to 20 years in prison.

Dempsey says Kambakhsh, who was jailed for questioning Islam's treatment of women, has yet to receive a fair trial.

"How his case has been handled from the beginning up until now highlights the fact that the Afghan justice system isn't working," Dempsey says. "Nobody — from the prosecutors to the judges to the police — have followed the criminal procedure code as they should, and they've routinely neglected to provide Kambakhsh his rights."

Starting From Scratch

So why is the judicial system in such a mess? The story begins in 2001, at an international conference on Afghanistan that followed the ouster of the Taliban. At that meeting, Italy was given the task of rebuilding the justice system here.

As with most institutions in the country, that amounted to starting from scratch. The semi-Western system of law that was established in the 1960s was wiped out in a quarter century of war. Judges and lawyers fled or were killed. Most of the legal professionals left in Afghanistan were graduates of religious madrassas rather than from universities.

Many here say the Italians were overwhelmed. But few international partners stepped in to help. Most were busy with other major projects, like rebuilding Afghanistan's security forces.

"The Supreme Court was like a patient in a coma when it started to work seven years ago," says Abdul Malik Kamawi, an Afghan Supreme Court justice and chief administrator for the body, which is in charge of the judicial system here. "We had no courthouses, no professional experts and no way of implementing modern laws."

Nor were judges paid livable wages. Kamawi says that helped spawn a culture of bribe-taking that continues to this day. Nevertheless, he says there has been progress, especially in the past two years. Donors have pledged hundreds of millions of dollars to build courthouses and train judicial officers.

Bribes Still Widespread

But others, like Afghan law expert Wadir Safi, say that progress is negligible. Safi is executive director of the Italian-funded National Legal Training Center that opened recently at Kabul University.

He recalls a recent exchange between a donor and a colleague who was training judges. The donor wanted to know if the trainer saw any difference in the judges after their course.

"He, as a joke, said 'Yes, we see some difference.' They said: 'What?' He said, 'Before when we were training in a case, they were asking $1,000. And after you train them, they ask $10,000 for the same case because they know better now,' " Safi says with a laugh.

But to the defense lawyers at one Kabul legal aid office, bribes are no laughing matter.

The group called Da Qanoon Ghushtonky, which means Law Seekers in Pashto, says most of its clients are asked to pay bribes. That's similar to what the Asia Foundation found in its survey — 51 percent of the Afghans interviewed reported corruption-related experiences in the court system.

"Every time, whenever a defense lawyer is meeting their client at the beginning, they tell client they should not pay judge or prosecutor because it's also a crime," says Freshta Karimi, the legal aid group's director.

Equally challenging, she says, is to make sure judges and prosecutors respect defendants' rights.

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