In the current institutional development efforts going on in Afghanistan, reforming the Afghan judicial system is considered as a key component of the state-building process in the country. However, Afghanistan’s judicial system is one of the inefficient judiciaries in the world, suffering from widespread corruption and major structural constraints. In a gathering on judicial reforms held in Kabul, First Deputy Chief Executive Officer Mohammad Khan said judicial reforms and rule of law could help Afghanistan improve security and overcome the current challenges in the country. The gathering, attended by representatives from UNDP, UNAMA and the Justice Ministry, agreed on series of proposed reforms to a number of key laws in the country. The United Nations’ Rule of Law Unit head said that despite millions of dollars spent on judicial reforms in Afghanistan, there has not been sufficient progress in reforming the judicial sector.
Despite major efforts to bring reforms to Afghanistan’s judicial system, the justice system has not been able to overcome key structural challenges. In absence of an efficient judicial system, a large part of the Afghan population goes to local religious and customary justice authorities or in many cases to the Taliban for resolving their disputes. This has been a major challenge for the government of Afghanistan and the international community struggling to reform the judicial system as part of the long-term state-building process. Many believe it further fuels the insurgency and result to more corruption. Despite the international community spending millions of dollars on reforming Afghanistan’s justice system, there is no real hope for seeing substantial progress in salvaging Afghanistan’s judicial system.
Structural problems
The most challenging task for reforming the Afghan judicial system is addressing the existing structural challenges. In 2002, the United Nations Office on Drugs and Crime launched a criminal justice reform program for the first time to improve the Afghan judiciary. In a proposal to improve the judicial system in Afghanistan, the United Nations Office on Drugs and Crime describes the deficiencies of the Afghan judicial system. “Despite significant improvements achieved so far, the Afghan justice system still suffers from serious systemic problems. Due to more than thirty years of conflict and civil war, the country’s judicial system has been widely destroyed.” The UN program was an immediate response to reform the Afghan judicial system. It helped addressing key insufficiencies such as lack of laws, skilled personnel and other key requirements.
To address key structural challenges of Afghanistan’s justice system, there is need for a genuine political will to take concrete measures for reforming the judicial system. Reestablishing the rule of law, ending long-established culture of impunity in the country and creating a culture of professional justice are essential preconditions for peace and stability in Afghanistan. Given the recent Afghan history, traditions, culture and social norms, intensive reforms are required to reach these goals.
Major challenges of the Afghan judicial system are lack of high quality legal education, qualified staff, poor communication and coordination between Afghan state institutions and widespread corruption. These challenges create a disabling condition for a sound and viable justice system that could only be resolved by working on legal and judicial facilities and the people dealing with the facilities. However, to some extent, the situation has improved regarding structural issues such as establishing systems, developing laws and enhancing the professional capacity of the judicial system’s personnel.
The conflict in Afghanistan has had negative impacts not only on physical justice system, but also on the culture of rule of law. This applies in particular but not exclusive can be seen in the Afghan provinces. In this regard, a long-term approach and persistent efforts are required to improve rule of law and order in the society in the areas concerned with the judicial system.
Large-scale crimes
Dealing with large scale corruption has been the most difficult task of the Afghan judiciary in the past fourteen years. Due to lack of a political will in the country, there have been many cases of large scale corruption that are remaining unresolved. The Karzai administration is much blamed for the current widespread corruption in the country.
In August 2011, former president Hamid Karzai issued a decree for reforming the country’s judicial agencies. Based on the decree, a commission comprised of the anti-corruption oversight department, National Security Council, as well as Karzai’s legal advisor was authorized to launch investigations on large scale corruption cases. A new law to deal with cases of ministers accused of corruption was also developed at the time. The initial steps taken by Hamid Karzai’s government was initially promising a will in the Afghan government to fight large scale corruption in the government. However, the government at the time failed to take serious measures in dealing with the large-scale cases of corruption that even involved a number of ministers of the government. The other major challenge to Afghan judicial system is absence of women in the sector. Afghanistan cannot improve its justice system in absence of professional women lawyers and judges that could help the Afghan women access justice. There are claims that the Afghan judiciary is usually working in favor of men, which is a main obstacle discrediting the Afghan justice system. There have been achievements in training legal experts of Afghan women to be hired as employees of the Afghan judicial establishment. Whatever progresses are, they cannot meet Afghanistan’s need in this regard. And there is no real evidence to say that the issue is taken serious by the authorities.
The Afghan government and its international partners have so far treated the crucial judicial reforms as a secondary priority in the country. It is considered marginal. This is while justice is essential for the stability of Afghanistan. In fact, lack of justice further undermines the Afghan government and prolongs the ongoing conflict in the country.