Reforming the Justice Sector

When the National Unity government took office in 2014, its leaders promised to reform the justice sector in order to establish a transparent and impartial legal system built around the rigorous application of the Constitution and international conventions on human rights. The National Unity Government appointed a new leadership to execute judiciary reforms: Attorney General Farid Hamidi, a long-time human rights lawyer and Harvard-educated attorney (2016); Supreme Court Justice Sayed Yusuf Halim (2015), and Minister of Interior Affairs Was Barmak (2016).
The problems faced are immense: widespread corruption, inadequate human resources, parallel organizations with overlapping mandates, lack of infrastructure at the provincial and district levels, judicial professionals not able to travel and work in less secure areas. These issues deprived Afghans from accessing justice and increased the gap between Afghan citizens and the government.
The government laid out a detailed, long-term, strategic reform program for the justice sector in key documents such as the Afghanistan National Peace and Development Framework, the national Anti-Corruption Strategy, and the National Justice Reform plan. The overhaul includes a wide range of reforms designed to cut corruption, make the sector efficient and effective, expand rule of law and access to justice, and protect and increase women’s and humans rights. Goals of the plan include:
  • Citizens must come to trust the justice system and believe that their government will neutrally apply the rule of law to disputes,
  • Ensuring access to justice for all Afghan men and women, and
  • Establishing a transparent and impartial legal system that is built around the rigorous application of the Constitution and international conventions on human rights.

Achieved (4/6): 67.0 Achieved (4/6): 67.0 %Partially achievedand on-going (2/6):33.0 %Partially achievedand on-going (2/6):33.0 %Achieved (4/6)Percentage: 67.0
– Enhancing the professional capacity of law enforcement personnel at all levels
 PROGRESS: – Partially achieved and on-going.
  • Attorney General’s Office:
    • Appointment of new, reformist Attorney General Farid Hamidi in 2016
    • An internal Appointments Commission at the Attorney General’s Office (AGO) was created and all prosecutors were re-vetted and re-tested to assure their knowledge of the law and qualifications.  As a result, from 2016 to 2018, 34 prosecutors, including high-ranking ones, and 5 members of the AGO administrative staff were arrested on charges of bribe-taking and dereliction of duty and were tried and sentenced in courts. Seventy-two prosecutors and two administrative employees received written reprimands, 19 prosecutors received written warning letters and one was transferred from Kandahar province as a disciplinary measure.
    • Prosecutor salaries, some of the lowest in the justice sector, were doubled to decrease the incentive for corruption.
    • Educational standards were raised so prosecutors must now hold a bachelors or masters degree in sharia or law.
    • The AGO hired 250 new employees through a merit-based recruitment process, and now 40% of the AGO’s high-ranking employees are young people who met higher educational standards.
    • To oversee the on-going fight against corruption, a new position of Deputy Attorney General for Anti-Corruption was created, and is now filled by Mohammad Alef Irfani. The new deputy attorney general is responsible for shepherding anti-corruption reforms, and advancing the extradition and prosecution of convicted criminals living abroad.  
    • Supreme Court:
    • A new Chief Justice was appointed in 2015, Sayed Yusuf Haleem
    • 402 judicial officials were transferred, fired or replaced
    • 135 new judges were appointed in Kabul and the provinces, of which 16 are women.        
    • The Judiciary High Appointment Committee was established on October 11, 2017 based on a Supreme Court decree No. 50. This committee appoints the judiciary cadre, and has appointed 35 judges so far.
    • Police/ Ministry of Interior Affairs (MoIA):
    • ]Appointment of new minister, Wais Barmak, in 2017
    • In addition to all 34 deputy provincial police chiefs recruited through the civilianization process and now in place, a total of 14 new provincial police chiefs have been appointed and are now in place. In addition, the Kabul police chief and all Kabul province district police chiefs have been replaced.
    • Major personnel changes, civilianization reforms, and training programs at all levels have been undertaken at the MOIA. For more information, visit this link.

– Increasing the number of women in justice and law enforcement agencies
 PROGRESS: – Achieved.
  • •    Attorney General’s Office:
    • After a country-wide recruiting effort to bring gender balance into the justice sector, and instituting a women’s internship program, there are now 476 female prosecutors across the country, and the number of female employees increased from 3% to 21%. Female law professionals now work in 33 provinces of Afghanistan, an increase from just six provinces previously.
    • In August 2016, the country’s first-ever female deputy attorney general, Sina Sheena Mansoor, was appointed to lead the AGO’s efforts to extend access to justice for women facing violence across the country. Under her leadership, the AGO has taken a number of actions to ensure that the Elimination of Violence Against Women (EVAW) law, which was signed into law by presidential decree in 2009, is actually being implemented.
    • There are 14 women working in senior-level positions, including 1 Deputy and 13 Directors. In 33 out of 34 provinces, women are in charge of EVAW units.
    • Supreme Court:
    • Afghanistan has 264 women judges and 484 women that are defense lawyers.
    • In a first for Afghanistan, President Ashraf Ghani nominated a woman, Judge Anisa Rasouli, to the Supreme Court in 2015, though her nomination did not gain a vote of confidence in Parliament. In summer 2018, President Ghani re-nominated Judge Rasouli to the Supreme Court and she is yet to go before Parliament for a vote.
    • 23% of the Supreme Court staff are women (a total of 537 women). Out of these, 264 are judges, 215 are administrative staff, 38 are Central Service staff and 20 are Provincial Service staff.
    • Police/ Ministry of Interior Affairs (MoIA):
    • 30 women are in leadership positions at MoIA, and in July 2018, Ministry Barmak publicly promised to recruit a female into a deputy-minister position
  • The Ministry of Interior is over halfway towards its goal of recruiting 5,000 female police officers by 2020 to increase security personnel to serve women across the country. As of March 2018, 3,169 women were in the Afghan police at MOI (after 271 female border guard and ANCOP forcers were transferred to Ministry of Defense as part of reforms measures). 900 women completed basic training in Turkey, and 866 are currently receiving trainings in Turkey and Afghanistan. 30 women are working in positions of leadership at Ministry of Interior.
  • There are 11 training centers for women in the security forces around the country. In April 2018, General John Nicholson spoke at the groundbreaking ceremony of a new Women’s Police Township, which will be built on the grounds of the Ministry of Interior and provide housing, educational and daycare facilities and fitness facilities to women police officers and their families.
– Improving coordination between justice and law enforcement agencies
 PROGRESS: – Achieved.
  • Another reform area has been to reduce overlapping mandates and parallel organizations.  Following actions have been taken:
    • The High Council for Anti-Corruption and Rule of Law was established and meets regularly, chaired by President Ashraf Ghani, where all leadership of the justice sector, members of civil society, and other government bodies confer on matters of legislation, policy, and programming related to rule of law and justice.
    • The government is committed to supporting the Independent Joint Anti-Corruption and Evaluation Committee (MEC) and the Anti-Corruption Justice Center (ACJC), but the High Office of Oversight for Anti-corruption has been dissolved and its key staff absorbed into more effective and better functioning anti-corruption departments and organizations.
    • The ACJC, established in 2016 to investigate and prosecute high-level corruption cases, has made significant process to date, with over 475 cases received,  over 100 high-ranking previous government officials imprisoned or fined, and 21 million USD of stolen assets is being recovered, according to the Chief Executive of the ACJC Dr. Rohullah Abed.
    • The Attorney General’s Office hosted a consultative conference between the security sector and justice sector. Future conferences like this to increase communication and coordination are in the planning phase.
    • In 2017, the government amended the Law on Anti-Money Laundering and Proceeds of Crime to establish better coordination between government bodies that are working to prevent money laundering and access to illicit funds, namely from the sale of narcotics, corruption, bribery, illegal mining, tax evasion, forgery and the unlawful usurpation of lands.
– Transferring land management issues from the Supreme Court to ARAZI for professional adjudication
 PROGRESS: – Achieved.
    • Land-grabbing has been a prevalent problem in Afghanistan following mass displacement  during war and subsequent repatriation during the post-conflict era, with over 65% of civil disputes arising over land affairs. Following actions have been taken to address the issue:
  • Civil disputes over land are now the mandate of Afghanistan Independent Land Authority (ARAZI) and civil courts (not the Supreme Court)
  • ARAZI developed a five-year strategic plan that includes a 50-year roadmap on land registration. A Land Information Bank was established in February 2018—it is an electronic database where state and public properties are registered.  As of October 2018, a total of 240,000 hectares of state-owned land in 28 provinces of the country had been accounted for, and 60% of that land registered into the Land Information Bank with further registration on-going allowing the government to more effectively account for and utilize state-owned land.
  • As of October 2018, 500,000 jeribs of illegally grabbed land in 30 provinces had been repossessed by the government, and 18,823 land grabbers identified to the judiciary.
    • Legislative reforms include:
  • The Expropriation Law was passed in 2017 to address expropriation, the obligations of expropriator institutions, and valuation of and limitations on expropriated lands.
  • The Law on Managing Land Affairs was passed in 2017, which addresses issues such as land acquisition, distribution, maintenance, and management, as well as standardization and transparency processes. The law aims to reduce the number of disputes and provide clarification for the swift resolution of future cases.
  • The new penal code, enacted in February 2018, criminalizes land grabbing and land encroachment.

– Enhancing efficiency and responsiveness by restructuring judicial institutions and implementing an electronic case management system
 PROGRESS: – Partially achieved and on-going.
Case Management System:
  • To increase coordination and transparency, and to address gaps in case filing, tracking and management, the judiciary, (led by the Supreme Court), supported by the U.S. INL has developed an electronic Case Management System (CMS) was developed by the judiciary with support from the US State Department’s INL.
  • CMS tracks civil and criminal cases from the time of arrest in criminal cases to the final disposition of the case (such as release from prison). At each stage, relevant case data is recorded and becomes available to anyone with the authority to view that particular case.
  • It is designed to provide real time, nationwide data to the judiciary leadership to facilitate more efficient allocation of human and financial resources, monitor cases to ensure procedural due process, and monitor and facilitate timely releases from incarceration and detention.
  • The CMS is still in development, but it currently contains over 386,000 criminal cases and over 86,000 civil cases from all 34 provinces. an electronic management system is being maintained via the Attorney General’s Office.
  • The CMS has not been fully utilized as there has been an issue of uniform data entry and compatibiity, though in May 2016, the Attorney General sent a letter instructing all sub-offices to utilize the system.
  • To address the issues of inefficiency in the system, 80 additional administrative assistants through the provinces were hired to increase the accuracy and uniformity of data entry. 119 CMS sites have been established and staffed in the Attorney General offices in Kabul and the provinces.
  • Restructuring of Judicial Institutions:
  • To chart the reforms across the judiciary, the Judicial Structural Reform Plan was developed and approved.
  • Major structural reforms are underway in all three branches of the judiciary. Some of the highlights are as follows:
    • Attorney General’s Office:
    • To oversee the on-going fight against corruption, a new position of Deputy Attorney General for Anti-Corruption was created, filled in early 2018 Alef Irfani. This new deputy attorney general is a key person within the government for shepherding anti-corruption reforms, and advancing the extradition and prosecution of convicted criminals living abroad.
    • To oversee the implementation of the Elimination of Violence Against Women (EVAW) law, a new positions of Deputy Attorney General for EVAW was established and filled by Sina Sheena Mansoor.
    • Further structural reforms, including new directorates, are mentioned below.
    • Supreme Court:
    • Within a couple of days of his taking charge, the Chief Justice abrogated two rules that were perpetuating corruption: 1) the first allowed the Chief Justice to overrule any judgement reached by the Supreme Court, effectively ndermining the whole judicial system; and 2) the second allowed the Chief Justice to overturn any court ruling that specified a financial sanction or punishment.
  • •    The administrative structure of the Supreme Court was also overhauled with a redistribution of the various “Diwan” (departments) and the creation of a special Diwan for women headed by one of the Supreme court justices. This particular Diwan is helping to expedite the rulings on cases involving women as they used to notoriously take several years to be tried.
  • •    The Supreme Court has held 5,974 open hearings in 32 provinces, of which 105 were also aired through mass media. 1,493 of these trails were held within the last six months (as of July 2018). Up to 10,000 people have attended the open trials, and they have also streamed the trials through the local media.

– Taking serious steps to protect human rights and tackle violence against women
 PROGRESS: – Achieved.                                                        
Attorney General’s Office:
  • There have been major changes at the Attorney’s General Office to make sure that the EVAW law is implemented across the country, including appointing a new Deputy Attorney General for the Elimination of Violence Against Women, Shina Mansoor.  EVAW courts have been established in 15 provinces, with EVAW prosecutors and EVAW committees working in every province. As of November 2017, EVAW units had recorded and tracked 1,726 cases of violence against women in the previous eight months. As women have increased awareness of their rights, and further confidence in their ability to seek justice and the government’s credibility to deliver justice, more cases of violence against women are being self-reported and prosecuted.
  • There has also been a focus on gender equality and human rights, with new directorates established within the AGO for gender and human rights, addressing violence against children, and investigating international crimes. After a country-wide recruiting effort to bring gender balance into the justice sector, there are now 476 female prosecutors across the country, and the number of female employees increased from 3% to 21%. One female deputy and 13 female directors are working in AGO.
  • Deputy Attorney General Mansoor ran a pilot program in Kabul province to review the handling of EVAW cases at each police station, and provide training accordingly to law enforcement on how to handle such cases. A scaled evaluation is planned across the provinces.
  • New directorates were established within the AGO, including: gender and human rights, addressing violence against children, and investigating international crimes.
  • Another focus has been increasing access to justice across the country, especially for women. AGO now has a prosecutor assigned to every district of Afghanistan—in those districts that are insecure, the prosecutor occupies an office at the provincial level.
  • On Mondays, the Attorney General opens his doors to members of the public, so Afghans have direct access. Since implementing this new policy, he has met thousands of citizens and issued orders for over 6,000 petitions. A media access commission and new media access policies have also been implemented to increase transparency within the organization.  A new information center has been established in Darulaman area of Kabul city. AGO also established a hotline (180) so that members of the public who witnessed illegal action within the AGO can report it.
  • Supreme Court:
  • The Supreme Court has established Special Tribunals (Dewan Khas) for the elimination of violence against women in 22 provinces (Herat, Balkh, Kapisa, Jowzjan, Sarepul, Baghlan, Kunduz, Takhar, Ghazni, Bamyan, Ghor, Daikundi, Nangarhar, Faryab, Kandahar, Badghis, Badakhshan, Parwan, Panjshir, Samangan, and Logar).
  • 20% of the Supreme Court staff are women, with a total of 537 women, including 264 female judges.
  • Police/MoIA: 
    • In 2017, the Ministry of Interior prevented 136 underage persons from being recruited into its ranks and referred 130 violators of  such laws to Attorney General’s Office (AGO).
    • Human Rights departments have been established at police stations in Kabul and the provinces.
    • The National Directorate for Security (NDS) has paid more attention to human rights, and Afghanistan Independent Human Rights Commission, UNAMA, and the Red Cross have facilitated the ability for human rights violation victims to access to attorneys. The NDS no longer keeps children in its detention centers and five NDS officials violating this a rule have been convicted for their offenses.
  • Presidential decrees: 
    • In a first for Afghanistan, President Ashraf Ghani nominated a woman, Judge Anisa Rasouli, to the Supreme Court in 2015, though her nomination did not gain a vote of confidence in Parliament. In summer 2018, President Ghani re-nominated Judge Rasouli to the Supreme Court and she is yet to go before Parliament for a vote.
  • The President issued a decree ordering the review of all cases of women detained on accusation of so-called moral crimes. The support of the First Lady played a vital role in the establishment of the female prison at Pul-e-Charkhi. A special committee was set up to review all cases of women in prisons, headed by Judge Anisa Rasooli. As of May 2018, about 1,000 cases had been investigated throughout the country. About 500 women have been released or have had their sentences discounted. In the past, most of the women in prisons didn’t have lawyers. Following the review and with support of this committee, most of them have been assigned lawyers and a defense counsel. The committee created a prisoner’s database with fingerprints in order to systemize prison management, thus ensure transparency and better conditions for women prisoners. The database contains personal information, family and case information including their capture and release dates. These release dates are often delayed due to poor management of prisoner files. The purpose of the database is to have an alert system that will send a notification two days prior to the release date of the prisoner in question. Other interventions by the special committee included:
    • Approval by the Cabinet of a Draft Policy submitted by the Ministry of Women’s Affairs and addressing issues of female inmates and their children before and after imprisonment;
    • Establishment of a special committee of legal experts to review women’s cases in detention centers in all provinces;
    • Establishment of special courts in 34 provinces to expedite cases of women in detention centers;
    • Thorough review of all staff at detention centers and replacement of those not fulfilling their duties according to the rule of law;
    • Sexual harassment cases involving staff are directly scrutinized by the special investigators of the President’s Office.
  • •    In order to prevent the imprisonment of women accused of running away from their family, in 2015, the President ordered the Supreme Court to issue a ruling on the application of article 130 of the Constitution that has been the basis for the courts’ decision to sentence such women. In December 2015, the Supreme Court issued a judicial ruling that bars judges from imprisoning women for running away from family.  Running away from home is not defined as a crime by law, but sentencing had resulted from a misinterpretation of a constitutional provision—this has now been stopped.
  • •    In 2016, President Ghani and First Lady Rula Ghani inaugurated the country’s first Trust Fund for Victims of Violence against Women, by making the first donations to the fund in a ceremony at the Presidential Palace. The Fund supports women who have suffered from violence.
  • Legislative:
  • •    A number of legislative reforms have been undertaken to ensure women’s rights, including:
  • o    The new penal code, which was enacted in February 2018, was also a major achievement for increasing justice for women, and criminalizing more acts of violence against women. The penal code included a reduction in sentencing for so-called ‘moral crimes’ committed, and removed discretionary authority from judges to handle honor killings of women, rendering the act simply a crime of murder. It also recognizes war crimes and other crimes against humanity, including torture, as well as criminalizing sexual violence against children. The code also has the most up to date compliance with corruption crimes listed under the UN Convention against Corruption.
  • Afghanistan’s first Child Protection Law passed in 2017
  • A Child Protection Policy in Armed Conflict was put into action in 2017
  • The new penal code, published in February 2018, also recognizes war crimes and other crimes against humanity, including torture, as well as criminalizing sexual violence against children.
  • The Prevention of Torture law was passed
  • An anti-harassment regulation and anti-harassment law were enacted.
  • Amendment to some provisions of the Civil Servants Law to increase number of women
  • Gender integration policy launched by Civil Service Commission
  • Modification of Electoral Law to increase gender equality
  • The Passport Law removes obstacles for girls and women in obtaining passports  
  • Inheritance deprivation has been criminalized in article 33 of EVAW Law
  • EVAW Law has set penalties for underage marriages. It has also been incorporated in the draft Family Law
  • Article 40 of the constitution recognizes the right of all citizens, including women and men, to own property. It is now required that new property documents must include name of husband and wife
  • New Labor Law affords women 50 days family leave, on top of 90 days maternity leave, and Article 8 stipulates the equal right to work