JURIST EXCLUSIVE – Law students and lawyers in Afghanistan are filing reports with JURIST on the situation there after the fall of Kabul to the Taliban. Here, a lawyer in Kabul offers his observations and perspective on the state of the Afghan judicial system and the apparently-terminal plight of private law firms in the country under Taliban rule. For privacy and security reasons we are withholding our correspondent’s name and institutional affiliation. The text has been only lightly edited to respect the author’s voice.

When the Taliban appeared first in 1994, bringing justice was one of their political goals. However, they got too busy with building their political and religious legitimacy. They did not know or did not understand that a judicial system does not work in the middle of an insurgency, and even if it works it will not meet the high standards and accepted principles of the rules of law. The Taliban therefore never got used to following legal procedure or providing equal treatment for all.

The Judicial System 

Over the last two decades the US, as well as other countries, assisted the government of Afghanistan in developing a better judicial and prosecution system. Personnel involved in this system developed capacity and skills either inside or outside of the country. Additionally, foreign partners assisted the general development of the rule of law through different means, not always an easy task, especially in a country where the rule of gun and the rule of power preceded the rule of law for decades.

In particular, judges, prosecutors, and lawyers were trained in and outside of Afghanistan to better perform and run the judicial system of the country. For a long time, they were even paid by Afghanistan’s US and UK allies. Many facilities were also built and major regulatory framework reform was started. This directly resulted in the provision of professional and result-oriented legal services that later on helped decrease of the public’s negative perception of the formal justice sector.

Foreign allies also assisted in the enhancement of Afghanistan’s legal education system. Law students were provided with many opportunities to learn and acquire professional skills they could use in the practice of law.  A large number of law students got training in different fields of law – they obtained necessary knowledge, competencies, and ethical principles that promoted greater trust in the justice system.

With the Taliban takeover, the country’s legal, judicial, and prosecution systems have collapsed dramatically. The courts are closed, and many judges, prosecutors, and lawyers have already left the country. Female judges who are still in the country will certainly not be allowed to judge anymore.

The prisons were full of dangerous criminals who are now all freed. The Kabul prison, the biggest prison in the country, is now empty. The person who is now in charge of the Kabul prison was once an inmate imprisoned due to his connections with terrorist groups, including the Taliban. The same has happened with Mazar, Herat, Kandahar, Helmand and many major prisons across the country.

Upon the Taliban’s entrance into Kabul, they have instructed police departments to resolve any dispute between members of the public. This raised a lot of concerns because the police departments have engaged local councils to be involved into the dispute resolution mechanisms.  The biggest challenge regarding these entities – represented by one person only – is that most of the times these people are selected among elders without any capacity and competency considerations. They are people basically illiterate with no capacity of dispute resolution.

Moreover, the Taliban still did not introduce heads of the Supreme Court and the Attorney General Office. For the Taliban, this means they will have to bring in their own personnel to hold these offices who basically lack any capacity of handling those positions.

Currently, there is no judicial and prosecution system active and running in the country. All criminal, civil, and commercial cases are stopped. With the limited capacity that the Taliban have, re-start of this system will take a long period of time.

Private Law Firms

Over the past two decades private legal services firms also developed a lot in Afghanistan. These private firms handled a variety of criminal, civil, and commercial cases on behalf of both public and private person[s] in the country. After US and NATO troops came into Afghanistan some 18,000 contractors started providing services to the US/NATO forces all over the country. These contractors used to hire private law firms to handle local compliance issues.

For example, I used to work for a number of US/NATO contractors to form companies, draft joint venture agreements, shareholders resolutions and agreements, obtain work permits and secure tax exemption certification. I represented them before the courts, advised them on tax matters, local employment and labor matters, public procurement, banking, financial, etc.

Alongside the US/NATO contractors there were a large number of not-for-profit organizations as well on the ground that employed a considerable number of Afghans. These for-profit and not-for-profit organizations all hired local law firms and consultancy companies to handle their local compliance issues in the country. After President Biden’s decision to pull out the troops from Afghanistan these companies left the country and international NGOs started worrying about their safety and security in the country.

The situation got worse when the Taliban expanded their territory from districts to district centers and from there to provincial levels. Within a short period of time they attacked big cities such as Herat, Mazar, Kandahar, Helmand, and others.

During this time, we received contract suspension notices from our clients, both local and international companies and organizations. US/NATO contractors left first, the international NGOs second, and our local partners last. These entities have taken a large number of skilled employees out of the country which makes us worry about how the country will run.

We had to downsize the law firm I was in – even though it was small  – but we could not manage to pay our employees. Within a month we saw the firm closed with zero clients and no income. Lawyers left the country using the evacuation process, some left illegally via Iran, Pakistan, Tajikistan, Uzbekistan and other borders, and those who stay see no hope for their future in the country.

Now there are no clients for lawyers – not even local clients – because all the matters they had before the courts are either closed and/or will take at least a year or two for them to be resumed. All law firms face the same situation in Afghanistan right now.