Picture: President Karzai with Chief Justice Shinwari of Afghanistan
Bleak courthouse; Afghanistan.(Weaning Afghans off limb-lopping justice). The Economist (US) (April 15, 2006): p46US.
COPYRIGHT 2006 Economist Newspaper Ltd.
A DICKENSIAN mood pervades Kabul's legal world. Labyrinthine corridors give onto rooms stacked to bursting with dusty ledgers and hand-scrawled documents. With the business of the judiciary spread over 31 departments, case-files have a habit of being rarely, or never, sighted again once they enter the system.
In the courtrooms, things are little more orderly. During one recent trial, Western journalists watched as the judge frequently interrupted the flow of evidence to chatter on his mobile phone and smoke cigarettes out of the window. The defence counsel's faltering performance, officials explained, was due to the fact he couldn't read very well.
Afghan justice received poor reviews last month, after it emerged that a convert to Christianity, Abdul Rehman, faced a death sentence for apostasy. The case was dismissed on a technicality, and Mr Rehman bundled out of the country. Yet the incident drew attention to a reconstruction effort that is skimpier than Afghanistan's foreign sponsors care to admit. This week, America's Council on Foreign Relations, a think-tank, identified one problem as "a corrupt and ineffective administration without resources".
The justice system is extremely corrupt: unsurprising, since judges earn $60 a month, much less than the rent for a modest flat in Kabul. It is also ineffective; most judges are Islamic clerics with little clue about the secular laws they are supposed to enforce. Some are barely literate, and little helped by generally awful police.
That, cynics quip, is what you get for giving Italy--a nation not famed for its justice system--the lead in reforming Afghanistan's, though much of the problem stems from constant bickering between the various international partners involved. n fairness, Italy has not been wholly useless: it has retrained 450 judges and prosecutors; but this has so far made little improvement. A year's training has also been added to regular law-degree courses. But Afghanistan's judges are mostly graduates from sharia faculties.
In addition, over the past four years, Afghanistan has acquired new laws, including many aimed at securing a pleasant business-friendly society where human rights are upheld. A new anti-narcotics law was a typical example; drafted by Western lawyers, it runs to 55 detailed pages, which few Afghan legal practitioners can master, much less apply.
Outside Afghanistan's main cities, where there are few police and fewer functioning courts, customary justice is dispensed by tribal and religious leaders. These authorities sometimes order executions, but more often make confirmed miscreants compensate victims with land, animals, money or women. Otherwise, aggrieved Afghans settle their scores unilaterally. The country's well-armed drug barons are rarely troubled by any law--a state of impunity that, it is promised, will be threatened by the opening of a dedicated counter-narcotics court, with specially trained staff, later this year.
A major obstacle to reform lies in Afghanistan's jarring mix of Western-style secular and Islamic laws. On the one hand, the brave new constitution, drafted under the gaze of foreigners and introduced in 2004, promises freedoms of speech and religion, and sexual equality. On the other, conservative mullah-judges cite an article declaring that in Afghanistan "no law can be contrary to the beliefs and provisions of the sacred religion of Islam." Given that, in Islam, death is the prescribed punishment for apostasy, this put Mr Rehman in a decidedly sticky position. The clause is also a disincentive for female witnesses, whose testimony is worth, in Islamic law, half that of men.
Other Islamic states have found ways around sharia's prescriptions. In Malaysia, sharia courts take the view that apostasy is an impossibility: those accused of it are subject to remedial education and other punishments but not actually executed. Afghanistan's judges seem tougher. Since the downfall of the Taliban, the Supreme Court has been controlled by hardline clerics, led by the septuagenarian Fazul Hadi Shinwari, whose office is adorned only with a Koran and a whip. He said recently that women could not become Supreme Court justices because they menstruate, rendering them unfit to handle the holy book for several days each month. More cheerfully, several more reform-inclined lawyers have been nominated to join the court; and, for believers in the reforming power of technology, Mr Shinwari has acquired an e-mail address.
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