CommentarySahr MuhammedAlly [Senior Associate,Human Rights First, Law & Security Program]: "The recent events about a week-long hunger strike[JURIST report, AP] by hundreds of jailed men in Kandahar should be of concern to the international community. Their complaints are about unfair trials, indefinite detention, and lack of counsel.
The Afghan criminal justice system needs help. After thirty years of conflict, the formal Afghan justice sector is weak and faces serious difficulties including, lack of professional capacity and resources for judges, lawyers, police and prison officers; physical infrastructure devastated by years of war; and institutionalized corruption. According to the 2007 United Nations Human Development Report little more than half of the judges in Afghanistan have the relevant formal higher education and have completed the requisite one-year period of judicial training. The remaining judges are graduates of madrassas or faculties other than law, with 20 percent having no university education at all. In addition, 36 percent of judges have no access to statutes, 54 percent have no access to legal textbooks, and 82 percent have no access to decisions of the Afghan Supreme Court [UNDP report].
Afghan criminal procedure law does on its face meet international fair trial standards, but the problem lies in its application. For instance, the law allows pre-trial detention without charge up to one month. The 2004 Interim Criminal Procedure Code states that a detainee upon arrest must be charged within 72 hours and that within fifteen days of the arrest, the prosecutor must write up an indictment. An extension for detention may be granted for an additional 15 days. Defense lawyers in Afghanistan, however, have told Human Rights First that "in reality these timelines are not followed," and further that there is no recourse for persons who are in detention for violation of the pre-trial detention period.
Another common problem in criminal trials is the use of coerced evidence. Confessions are barred under Afghan law unless conducted before a judge. Yet, the reliance of confessions derived largely as a result of ill-treatment is common practice. Similarly, the right to counsel and legal aid for indigent defendants is provided for in the law but there are very few defense lawyers in Afghanistan. Thus many defendants are tried without counsel. Many trials are also conducted without any prosecution witnesses, thereby denying a defendant the right to confrontation [Human Rights First report].
Modest progress in justice sector development has been made since the December 2001 Bonn Agreement. Donor governments have been involved in professional training and capacity building programs, the distribution of legal textbooks and materials, rebuilding of courts and prisons, and the adoption of new laws. Experts on rule of law reform in Afghanistan, however, say that there is a lack of strategic vision for rebuilding the justice system and a lack of effective coordination among donors and Afghan justice institutions, which has complicated reform efforts. But the responsibility also lies with the Afghans. Afghan officials must be committed to be bound by the rule of law otherwise reform efforts will likely fail."
