EU halts Afghan judicial aid over corruption

Facing a Kabul courtroom in spring 2011, Meelad made the only plea he could. He placed his right hand on the Muslim holy book, and emphatically declared: “I swear on this Quran that I am not now nor have I ever been a member of the Taliban.”

It did little good. With no legal counsel to defend him, the 50-year-old was sentenced to one year in the capital’s Pol-e-Charkhi prison for affiliation with the armed group. He said the prosecution did not present any incriminating evidence and witnesses.

Even after he carried out his 12-month sentence, Meelad continued his stay in the overcrowded jail. He remained there for months, until by sheer luck he chanced upon Sayed Mohammad Saeeq Shajjan, a Harvard law graduate now running a law firm out of Kabul, who swiftly secured Meelad’s freedom by dispatching a letter to the attorney general.

Melaad’s run-in with Afghanistan’s failing legal system is a common tale. “His case is not unique, I have seen hundreds, if not thousands of others just like him”, Shajjan told Al Jazeera.

It is precisely cases like Melaad’s that lead the EU to announce on November 12 its suspension of $25m in aid aimed at the Afghan justice system due to a lack of progress in fighting graft and ensuring “justice for all”.

While that prognosis might seem grim, some rights groups and legal advocates believe it is actually a sign of hope, saying that international pressure could help correct many of the injustices carried out at the hands of Afghanistan’s legal system. 

Heather Barr, Afghanistan researcher at Human Rights Watch, said the suspension was the first conditions-based funds deferment since the Tokyo Conference in July, where donor nations promised $16bn in conditions-based aid to the Central Asian nation over a period of four years after the international troop withdrawal in 2014.

With rampant corruption in the country’s legal sector, Barr considers the EU suspension as a “really big deal” that could potentially lead other donors to place conditions on their contributions, which have the potential to be a positive step.

Inside Story: Afghanistan in transition

Shajjan, who says he has repeatedly seen “guilty criminals walking free while the innocent languish in prison”, also lauds the EU’s actions, but says that Meelad’s case serves as proof that the action has come “very, very late”.

Systemic failure

Shajjan is not alone in his disillusionment with the Afghan judicial system post 9/11, and human rights advocates have repeatedly highlighted incidents of torture and systemic failure in their reports.

A lack of proper training, technology and manpower has created a situation where in lieu of physical or circumstantial evidence, Afghan authorities rely heavily upon confessions for convictions, they say.

In its investigation on the jailing of women due to “moral crimes“, a Human Rights Watch report found repeated evidence of questionable confessions.

“You would see women who signed statements with their fingerprints, even though they were illiterate,” the report states.

In perhaps the most high-profile case of forced confessions, rights groups said the 15 people – including two 17-year-old schoolgirls – arrested in July for an alleged wave of poisonings in Afghan schools were tortured.

In a statement to the AFP news agency, the United Nations Assistance Mission in Afghanistan (UNAMA) expressed serious concern that those who confessed to the attacks – which affected over 1,000 Afghan students – were tortured by the National Directorate of Security (NDS), the Afghan intelligence service.

A number of other instances have also called the NDS’ tactics into question.

A October 2011 UNAMA report found “compelling evidence” of torture in NDS and ministry of interior jails dating back to 2010.

Treatment in NDS facilities apparently includes forced sleeplessness, tying detainees to chairs, threatening them with death or the imprisonment of their families, rights groups say. Shajjan says many of the inmates he has worked with prefer the overcrowded Pol-e-Charkhi over NDS detention centres, because “at least they aren’t tortured there”.

Wazhma Frogh, executive director of the Research Institute for Women, Peace and Security, says the judicial system runs off “personal connections and bribery” at every level, a statement Barr and Shajjan also repeatedly emphasised.

“Your fate in the justice system is largely determined by your ability to pay or the connections you have”, Barr said.

With the Kabul courts seeing unprecedented caseloads – the family court sees or registers an average of 300 cases per day – Frogh says there are severe shortcomings at the institutional level.

The exponential rise in the number of cases seen, coupled with many legal precedents unchanged since the 1970s and a lack of understanding of a newly re-written constitution, have all created a situation where the judiciary is “institutionally incapable of dealing with the emerging needs of the new Afghanistan”, Frogh explained.

“If the Afghan government doesn’t actually know what is expected of them and the donors cut funds, then it will be the Afghan people that suffer, not the government.” – Heather Barr, Afghanistan researcher at Human Rights Watch

Equal responsibility

However, Shajjan believes that the international community also bears responsibility for the poor state of Afghanistan’s justice system. 

While working on legal training and consulting programmes, Shajjan says unemployed Western lawyers who were “not fit for the job” came to train their Afghan counterparts.

He explained that while many of them were “good report writers”, the trainers failed to follow through and see if the best practices were truly implemented by the judges and prosecutors they worked with.

When judges are unsure of how to implement proper legal procedures they often turn to Article 130 of the constitution, which gives them the authority use Sharia to make their decisions, Frogh said.

Despite the foreign aid and training, Shajjan says, all of these factors have left the Afghan judiciary in a state where “freedom and the rights of the individual mean little”.

“If the aid is going to be wasted,” he said, “it’s better to defer it”.

Follow Ali M Latifi on Twitter: @alibomaye