Presentation by Nick Grono at the Foreign and Commonwealth Office, London Tuesday 26 April 2011.
Afghanistan’s justice system is in a catastrophic state of disrepair. The majority of Afghans still have little or no access to judicial institutions. Judicial institutions have withered to near non-existence and the lack of justice has destabilised the country. Many courts are inoperable and those that do function are understaffed.
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.
While there is now a clear understanding by Afghanistan’s international partners of the need to rebuild the justice sector and a willingness to commit significant resources to that end, many daunting challenges remain.
Given the time constraints I will focus my comments on three of the many challenges facing the system.
1. The first challenge is the political one.
Building the rule of law in Afghanistan involves challenging vested interests at the highest levels of the Afghan government. It is as much a political exercise as a technical one.
Many Afghan power holders – from President Karzai downwards – benefit from a patronage based system. It enables them to buy and maintain loyalty. Corruption is an integral part of such a system. So implementing proper rule of law reforms, including the establishment of an effective justice sector, is an existential threat to these interests.
Those reforms that support the existing power structures – such as building a national police force – will be enthusiastically supported. Those that will constrain the freedom of power-holders to dispense patronage will be strongly resisted, as we have seen with some of the high-level anti-corruption efforts. Reforms that challenge the centre – such as a more independent Supreme Court, reform of the Ministry of Interior, and anti-corruption efforts – will be fiercly opposed, though often obliquely rather than directly.
2. The second, closely related, challenge is that of accountability.
The objective of any rule of law effort must be equal treatment of all before the law. And while this is aspirational in Afghanistan, as in many other places, that’s no reason not to make a start on challenging the culture of high-level impunity in Afghanistan, as failure to do so will undermine all other rule of law efforts. International intervention encouraged and promoted that impunity by empowering formerly disempowered warlords and commanders. Afghans see that today’s reality is not much different from that of the last 30 years – that it’s still largely about powerful men with guns.
This reality will not change until some of those responsible for the worst abuses against the Afghan people are prosecuted.
The best option would be for the government itself to pursue some of these abusers. This would increase its legitimacy in the eyes its people and would send a warning to those in authority and those seeking to do deals with the government who believe they can continue to act with impunity. It would also undermine one of the claimed attractions of the Taliban – that it provides harsh, but fair, justice where none otherwise exists.
Unfortunately, there is no prospect of the government providing high-level justice. The Karzai regime has consistently opted for expediency over principle when it comes to accountability, most notably with the 2010 amnesty law. Most international actors have been largely silent on this law. In fact, it appears that a desire for a quick exit by NATO may have stifled all discussion of the critical need to link reconciliation with accountability and to tackle Afghanistan’s longstanding culture of impunity. But expediency will not promote stability, and a failure to genuinely pursue issues of accountability will lead to more instability not less.
3. The third challenge is the constitutional one.
The strong presidential system adopted under the 2004 constitution has 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 Karzai. He has adeptly exploited the Court’s relative weakness to blunt challenges from rivals and circumscribe the powers of other branches of government. The president has often turned to the court to settle political disputes, substantially weakening perceptions of its independence. For instance, he successfully used the Supreme Court to block parliament’s efforts to override presidential vetoes and assert its powers.
Encouraging the Supreme Court to publish and translate its decisions would be a start to building more transparency and accountability.
More substantive reform would require constitutional reform, as it’s unrealistic to expect the President to promote reform that would significantly constrain his powers. The National Assembly would be the institution best placed to push for such reform, but the President has successfully hobbled that following last year’s parliamentary elections, leaving little confidence that the parliament will push for substantive reform. And the international community for far too long has ignored the Assembly, contributing to its dysfunction.
There are many other challenges. I’ve just sought to highlight three of particular concern. And addressing them is daunting task. But if our objective is genuinely to help build the rule of law in Afghanistan, and not just to facilitate our rapid exit, then we already understand that our commitment will require many, many years of engagement beyond 2015.