When Kabul's mayor was sentenced to four years in
prison on corruption charges this week, officials were quick to paint the
sentencing as evidence of the "serious steps" being taken to eliminate graft and
bribery in Afghanistan.
Deputy Attorney General Fazal Ahmad Faqiryar, speaking to RFE/RL's Radio Free Afghanistan after the December 7 verdict, said that the case of Mayor Abdul Ahad Sahebi showed the "positive effects on society" that would result from the government's efforts to fight corruption.
The very next day, however, Sahebi was back in the Mayoral Office after a higher court granted him bail. And despite official statements that he is not allowed to continue running the capital city, Sahebi did just that for nearly a week before finally resigning on December 13.
The fact that he stayed in office for so long astonished Afghans and, according to Kabul University law professor Najeeb Mahmood, it has placed the entire Afghan judiciary under the spotlight.
"Of course, the order to detain the Kabul mayor is a controversial matter. It has brought the power of the judiciary and justice system of the country under question," he says.
"When this order was issued, it was thought that the process of accountability and fight against corruption had begun. But when he returned to work, it raised concerns that the government lacks certain capabilities in its fight against corruption."
Inefficiency, Bribery, And Nepotism
With the help of considerable international funding, Afghanistan has over the past eight years established a network of primary and appellate courts that span the country's 34 provinces and 365 districts and which are subject to the Supreme Court in Kabul.
But efforts to improve a system plagued by inefficiency, bribery, and nepotism appear to be failing to the point that many Afghans are turning to another power for justice -- the Taliban.
The ranks of Taliban judges are often filled by barely literate mullahs, but benefit from a reputation for being available when needed, and for not taking bribes or contributing to bureaucratic red tape. And unlike the case of the Kabul mayor, there is no questioning the authority of Taliban judges, who can implement their decisions swiftly and decisively -- sometimes by shooting alleged murders and rapists.
Kabul University law and political science professor Nasrullah Stanekzai says the Afghan judiciary suffers from numerous complex and endemic problems. He tells RFE/RL that the country needs more court houses, along with the trained police officers, prosecutors, lawyers, and judges needed to help them function effectively.
"There are some deficiencies in our laws and it is a problem. There is nepotism and still there is the gun and the relationships flowing from it," he says.
"Corruption is another problem. And unfortunately, it is still seen [as rampant] in different Afghan institutions, including the police and judiciary."
Stanekzai says that the formal legal system is rooted in Islamic law, while also practicing secular law. At times, this places the mixed system in a compromising position of competition with Islamic and customary laws adjudicated by clerics and tribal leaders. The Taliban, meanwhile, forward their unique interpretation of Islamic Shari'a law.
'Not Like Building A Road'
The clash of three judicial ideals leads many Afghans to seek to settle their disputes in local councils, called jirgas and shuras, under local customary law. However, the Taliban has considerably weakened tribal leaderships, leaving its judges as the only viable alternative.
J Alexander Thier oversees Afghanistan and Pakistan at the U.S. Institute of Peace, an independent nonpartisan Washington think tank. Thier says this phenomenon is most evident in remote Afghan regions where the Taliban insurgency is most active.
Thier, who has researched the Afghan legal systems for years, says that the weakness and or absence of state courts push rural Afghans to seek arbitration from the Taliban, "who will resolve disputes quickly and definitively and would make sure that they are enforced."
In its role as the lead donor on judicial reforms in Afghanistan, Italy has over the years spent tens of millions of dollars building court houses and training Afghan lawyers and judges. Thier says that the efforts have made slow progress in the cities but little headway in the countryside.
"Building a justice system is not like building a road," he says.
"It takes people and training and systems and legitimacy to be put into place. The formal justice system has really not been rebuilt at all in the rural areas. They simply have not had the resources to do that," Thier maintains adding that the weakness or unavailability of the formal justice system in the rural areas leaves people "either to the traditional justice system or to the Taliban system."
He suggests that the short-term remedy for this problem is to link the traditional justice system made up of shuras and jirgas to the formal courts that fall under the authority of the Afghan state -- a throwback to the times of peace enjoyed before the onset of wars in late 1970s.
Reining In the Warlords
Thier says this will provide Afghans access to a justice system supported by the Afghan state and the international community. "Otherwise, if they secede the territory of justice to the Taliban, I think that's very dangerous," he says.
"The Afghan government will not be legitimate if it is not seen to be involved in the resolution of disputes; if it is not seen to be involved in justice."
Thier says that to permanently establish the rule of law, Afghan militia leaders and warlords who still control key government posts or exert significant influence must agree to abide by Afghan law.
Their successful resistance of this over the past eight years, according to Thier, bred a culture of impunity that "undermined the government and created space for the insurgency."
He still believes that establishing the rule of law is possible in Afghanistan. "But you have to have all of the key parties buying in to the idea of the rule of law and then implementing it. And we haven't yet seen that really since 2001."
Kabul University professor Stanekzai says that building a robust judiciary is a key prerequisite for restoring stability and moving forward with reconstruction and development in Afghanistan.
"Without a fundamentally strong judicial system we cannot find our way to justice. And people cannot trust their government," he says.
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