Comparative law and justice/Afghanistan

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Greg.botelho 17:23, 20 September 2010 (UTC)


Flag of Afghanistan

Basic information[edit]

Geographical characteristics[edit]
Map of Afghanistan

Afghanistan is a landlocked country located in Southern Asia, northwest of Pakistan, east of Iran. It has a population of around 30 million. The total area is 652,230 sq km. Its climate is known as arid to semiarid which consists of cold winters and hot summers.[1]

Demographic characteristics, religious and ethnic characteristics[edit]

The sex ratio of the total population is 1.05 male(s)/female. The age structure is 43.6% 0-14 years of age, 54% 15-64 years of age and only 2.4% are over 65 years of age. The religions practiced in Afghanistan are Sunni Muslim 80-89%, Shia Muslim 10-19% and 1% other. It has two official languages, Pashto and Dari (Afghan Persian). Dari is spoken by about about 50% of the people and Pashto by 35%. Turkic languages such as Uzbek and Turkmen are spoken by 11% and lastly Bolachi and Pashai make up the remaining 4%. The ethnic makeup of Afghanistan is as follows: Pashtun 42%, Tajik 27%, Hazara 9%, Uzbek 9%, Aimak 4%, Turkmen 3%, Baloch 2%, other 4%.[1]

Brief history[edit]

In 1709, Mir Wais Hotak, a Ghilzai tribal chief, made much of the Afghan territory become independent from Persian rule. In 1747, Ahmad Shah Durrani created the modern state of Afghanistan. It was invaded several times by the British in the 19th century but remained independent. "A brief experiment in democracy ended in a 1973 coup and a 1978 Communist counter-coup. The Soviet Union invaded in 1979 to support the tottering Afghan Communist regime, touching off a long and destructive war. The USSR withdrew in 1989 under relentless pressure by internationally supported anti-Communist mujahedin rebels. A series of subsequent civil wars saw Kabul finally fall in 1996 to the Taliban, a hardline Pakistani-sponsored movement that emerged in 1994 to end the country's civil war and anarchy". The UN-sponsored Bonn Conference in 2001 established a process for political reconstruction that included the adoption of a new Constitution, a presidential election in 2004, and National Assembly elections in 2005. In December 2004, Hamid KARZAI became the first democratically elected president of Afghanistan and the National Assembly was inaugurated the following December. Karzai was re-elected in November 2009 for a second term".[1]

Economic development, health, and education[edit]

Afghanistan is one of the least developed countries in the world, with a $1,000 GDP per capita. Its GDP in U.S. currency was nearly 30 billion dollars in 2011, growing at 5.8%. About 78% of the Afghan labor force is made up of agriculture, followed by 5.7% industry and little over 15% services. The top exports are opium, fruits and nuts, hand woven carpets, wool, cotton, hides and pelts, precious and semi-precious gems. As of 2008, the unemployment rate was 35% and 36% of the population lived below the poverty line. The life expectancy for males is 48.45 years and for females 51 years which is 218th in comparison to the world. The birth rate is 20th in the world at 39.3 births/1,000 population and the death rate is 7th in the world at 14.59 deaths/1,000 population.[1] The major infectious diseases affecting Afghans are bacterial and protozoal diarrhea, hepatitis A, typhoid fever, malaria, and rabies. The total education expenditures are unknown. The total school life for Afghan children is 11 years for males and 7 years for females.[1]

Governance[edit]

Parliament of Afghanistan in 2006

The type of government in Afghanistan is known as an Islamic Republic. "The government consists of the ministers who work under the Chairmanship of the President."[2] This government is based on mixed civil and sharia law. The government is made up of three branches, Executive, Legislative and Judicial.[1] The Legislative branch is responsible for passing laws.

  • Law is what both Houses of the National Assembly approve and the President endorses unless this Constitution states otherwise.
  • In case the President does not agree to what the National Assembly approves, he or she can send the document back with justifiable reasons to the House of Representatives [Wolesi Jirga] within fifteen days of its submission.
  • With the passage of this period or in case the House of Representatives [Wolesi Jirga] approves a particular case again with a majority of two-thirds votes, the bill is considered endorsed and enforced.

According to the Constitution, "no law can be contrary to the beliefs and provisions of the sacred religion of Islam."[3] Afghanistan's Constitution was drafted from December 14, 2003 to January 16, 2004. "The present Constitution of the Islamic Republic of Afghanistan was agreed upon by more than 500 delegates representing Afghan men and women from across the country at the Constitutional Loya Jirga (December 13, 2003 - January 4, 2004). The Constitution was formally ratified by President Hamid Karzai at a ceremony in Kabul on January 26, 2004."[4]

The Taliban, a fundamentalist group, took control of Afghanistan in 1996 and controlled the country until the US-led invasion in October 2001. Under the Taliban, women had very little rights. Education of women was outlawed and women were required to wear head-to-toe veils. The Taliban still has influence on some of the Afghan people and is still fighting with the US-led forces, including with the Afghan government.[5]

Elections[edit]

Inauguration of President Hamid Karzai in December 2004

The president and two vice presidents are elected by direct vote for a five-year term; if no candidate receives 50% or more of the vote in the first round of voting, the two candidates with the most votes will participate in a second round; a president can only be elected for two terms. The election system for members of Parliament in Afghanistan is called Single Non-Transferable Vote. In this system each voter casts one vote for one candidate in a multi-candidate race for multiple offices. Posts are filled by the candidates with the most votes.[6] The President is elected directly by the citizens. The President has two Vice presidents which he or she will name. The following requirements listed in the Constitution must be met in order to become President: "(1) Presidential candidates should posses the following qualification: -- Should be citizen of Afghanistan, Muslim and born of Afghan parents, and should not have citizenship of another country. -- On the day of becoming a candidate, his age should not be less than forty years. -- Should not have been convicted of crimes against humanity, criminal act, or deprivation of the civil rights by a court. (2) No one can be elected as president for more than two terms. (3) The provision of this article is applied to the Vice Presidents as well [7]. The minimum voting age is 18 and women now have the right to vote since the new Constitution was established. Voting is not required in Afghanistan, registration is slowed by violence against election workers and overall security concerns [8].

Judicial review[edit]

According to Article 121 [Judicial Review] of the Afghanistan Constitution: "The Supreme Court upon request of the Government or the Courts can review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law."[9]

Courts and criminal law[edit]

As an Islamic law country, Afghanistan's trials are inquisitorial. The Judiciary in Afghanistan is composed of the Supreme Court, Courts of Appeal and Primary Courts[10]. "Article 40 of the Law on Organization and Jurisdiction of Courts: In the jurisdictional area of each Court of Appeals, there are these primary courts:

  • 1. Central provincial primary court
  • 2. Juveniles Court
  • 3. Commercial Primary Court
  • 4. District Primary Court
  • 5. Family Issues primary court [11]

"Article 6:

  • (1) The cases shall be resolved in courts taking into consideration the quality and nature of

the case in two stages, primary and appeal.

  • (2) The Supreme Court shall deal with the referred cases of courts of appeal only in terms of

accurate application of law (to see if any provision of law is breached or accurately applied), unless it has been authorized by law to resolve a case taking into consideration the quality and nature of the case.

  • (3) Cases in courts shall be handled as follows:

1. At the primary stage, with participation of three judges. Except less than three judges may decide a case when they are not available. 2. At the appeal stage, three judges shall decide any case. 3. At the cessation stage, shall take place by two or more persons [12]" Please note there is no role for a jury as it is up to the judges to decide each case.

Three defendants inside a court in Asadabad, Kunar Province, Afghanistan. Tow of the men were given 18 years in prison for sexually molesting a young boy, while one of the men was aquitted.

The Supreme Court in Afghanistan is made up of 9 individuals. These individuals are appointed upon agreement by the President and the Wilusi Jirga. The President is responsible for appointing the chief of the Supreme Court. The court is separated into 4 separate Dewans: General Criminal Dewan, Public Security Dewan, Civil and public Rights Dewan and finally Commercial Dewan. The court also has a judicial advisors who "shall analyze and study the cases filed and provide a report to the judicial meeting for decision to be made.[13]"

Article 25 of the Afghan Constitution states that the accused is considered innocent until proven guilty by the court.[14] Article 31 deals with the defendants rights at trial:

  • "(1) Every person upon arrest can seek an advocate to defend his rights or to defend his case for which he is accused under the law.
  • (2) The accused upon arrest has the right to be informed of the attributed accusation and to be summoned to the court within the limits determined by law.
  • (3) In criminal cases, the state shall appoint an advocate for a destitute.
  • (4) The confidentiality of oral, written or telephonic communications between an advocate and his accused client are immune from invasion.
  • (5) The duties and authorities of advocates shall be regulated by law"

[15]. The Constitution does not mention whether or not the defendant has to speak on trial.

Punishment[edit]

Inside a prison cell in the Parwan Detention Facility (PDF) at Bagram Air Base in the Parwan Province of Afghanistan

"Most governments in Afghanistan's recent history have been opposed to the punishments of stoning, amputation and flogging and the practice was generally believed to be rare occurring only in rural areas. However, following the revival of religious sentiments after the Soviet occupation of the country, some armed Mujahideen factions encouraged these punishments in the localities they captured. Following the emergence of the Taleban armed political group in late 1994 and their military success against opposing factions, the application of these punishments has appeared to increase. The strict interpretation of Islamic law applied by the Taleban includes stoning for adultery, amputation for theft and flogging for drinking alcohol or committing minor sexual offences. Men accused of sodomy have been crushed under a wall which had been toppled on them. All these punishments have been inflicted in public in Taleban-controlled areas after manifestly unfair trials."[16]

Fines and discretionary punishments can be administered for Tazir Islamic crimes or minor offenses. Although it does not specifically mention white collar crimes it seems it would fall under a Tazir crime. Depending on the evidence against a defendant in hadd, or most serious crimes, punishments can be sentanced to stoning. These offenses include theft, robbery, adultery, rape and fornication.[17] These punishments used in Islamic countries and justified in the Quran. Surprisingly, murder is not listed as a hadd crime, the victim's family is responsible for deciding whether the convicted is to be sentenced to death or pay compensation.[18] The imprisonment rate reported is surprisingly low at 44 people per 100,000.[19] The prisons in Afghanistan are were terrible conditions in 2002 but have improved in the last ten years.[20]

Legal personnel[edit]

Law enforcement[edit]

New graduates sitting at the Afghan Ministry of Interior in 2012
Police officers going on patrol

The Afghan National Police (ANP) is a force which is responsible for policing the entire nation. The ANP is broken up into specific departments: "The ANP includes several distinct entities operating under the direction of the Interior Ministry. These police forces include the Afghan Uniform Police, which is responsible for general police duties, and four specialized police organizations: the Afghan National Civil Order Police (ANCOP), the Afghan Border Police, the Counter Narcotics Police of Afghanistan (CNPA), and the Counter Terrorism Police."[21] This structure of policing is known as centralized multiple coordinated. The recruits do not seem to have any specific requirements as you will see in the information below that many officers are illiterate. In order to become a police officer in Afghanistan you must apply and go through training. "The Germans committed $70 million toward renovating the police academy in Kabul, provided eleven police instructors, refurbished Kabul police stations and donated fifty police vehicles. The first team of German police advisors arrived in Kabul on March 16, 2002, and the German Coordination Office was opened on March 18. The Coordination Office supervised the reconstruction of the police academy, which formally reopened on August 22, 2002 with 1,500 officer cadets enrolled in a five-year program.[21]

In 2003, the United States took the more diplomatic tack of creating a separate program to provide “in-service training” to those who were currently serving in police roles. The U.S. State Department established a police-training center in Kabul to provide in-service training for Afghan police currently serving in the capital"... "Few of the American instructors were professional police trainers, and there was little or no use of adult-learning techniques. Because more than 70 percent of the Afghan trainees were illiterate, most of those trained received only the fifteen-day program. The inability of recruits to read and write inhibited their ability to absorb information and learn basic police skills, such as taking statements from witnesses, writing incident reports, and maintaining records."[21] "In December 2006, a joint report by the inspectors general of the State and Defense Departments found that U.S.-trained Afghan police were incapable of conducting routine law enforcement and that American program managers could not account for the number of ANP officers on duty or for the whereabouts of vehicles, equipment, and weapons provided to the Afghan government. The report noted that the official Afghan figure of 70,000 trained police officers was inflated and that only about 30,000 were actually on duty and able to carry out police functions."[21]

Police corruption is a very big problem. "While too few police may indeed be a serious problem in some areas, a more serious problem is that the local police that are present are often corrupt and ineffective, and as far as the public are concerned do more harm than good."[22] The military of Afghanistan consists of the Afghan National Army and Afghan Air Force. The President of Afghanistan is the commander in chief of the military.

Crime rates and public opinion[edit]

Official homicide rates are unavailable for Afghanistan due to the ongoing war taking place there. The Islamic Republic of Afghanistan Central Statistics Organization website gives crime statistics however; the reliability of this data is unknown as there is no other data at this time to compare this with. According to these statistics from 2008-2009 there were 6,382 total crimes. The top crimes by category in Afghanistan at this time were injury with 1,499, theft with 1,496, and murder with 1,075.[23] Afghanistan is the number one producer of opium in the world. In 2004, it set apart 131,000 hectares of land towards opium production which was the largest increase for Afghanistan from the previous year of 80,000. In 2007, 193,000 hectares was used for opium production which was its highest number ever. As of 2010, the land usage is down to only 123,000 hectares for opium production. The southern provinces grow most of the poppy plants and many of the northern provinces are poppy free.[24] The Taliban as well as other antigovernment groups play a major role in the opium industry as it is a key source of revenue for the groups. In 2010, according to the World Incident Tracking System, the top types of attack were armed attacks at 3,144 incidents followed by bombings at 2,236 incidents. 84% of the incidents recorded were said to be carried out by religious extremist and the remaining 16% unknown.[25] The use of IEDs or Improvised Explosive Devices is the principle method of terrorist acts. Drug trafficking is still the largest criminal activity in the nation. [26]

Rights[edit]

Family law[edit]

The legal age to be married without parent's consent is 17 for women and 18 for men.[27] According to Article 143 of the Discriminatory articles of Shiite Personal Status Law: "Man can dissolve the marriage contract if he finds her wife affected to leprosy, crippled, madness and blindness... Man can dissolve the marriage any time. While women can ask the court to dissolve the marriage if the husband does not provide maintenance, or doing harms which cannot be tolerated."[28] Following a divorce, Article 194 states "mother can undertake the custody of her son until age 2 and her daughter until age 7. [In case of dissolution of marriage, after these ages, the children should be return to their fathers.]" Afghanistan, as well as other Islamic law countries, does not permit adoption.[29] "The government's willingness to recognize the right to marry varied according to nationality, gender, and religion. The family court could register a marriage between a Jewish or Christian woman and a Muslim man, but the court required the couple to accept a Muslim ceremony. A woman of any other faith had to first convert to Islam before marrying a Muslim man. The court could not register a marriage between a Muslim woman and a non-Muslim man. The court also could not register a marriage for citizens who stated they were not Muslim, even if they were born into other faiths. Non-Afghans could marry, and foreigners were permitted a civil ceremony as long as neither was Muslim."[30] Afghan families are patriarchal, meaning the father make the decisions and families are also patrilineal meaning inheritance runs through the male line.[31] “Women’s right to inheritance in Afghanistan may vary, depending on whether they are determined by Islamic and customary law. Under Islamic law, women may inherit from their parents, husbands or children, and, under certain conditions, from other family members. However, their share is always smaller than that to which men are entitled. This is commonly justified by the argument that women have no financial responsibility towards their husbands and children." [32] Although women are discriminated in Afghanistan, all citizens are said to have equal rights regardless of race.[33]

Social inequality[edit]

Human rights[edit]

The Afghan Constitiution mentions many specific fundamental rights. The following rights have been found in the Afghan Constitution.[34] Some of the major rights the Constitution mentions are the right against discrimination, the right of equality and liberty. No citizen should be deprived of life except by legal provision. Afghan citizens also have the right to free speech, according to Article 34. The following article, 35, states that citizens also have the right to hold unarmed demonstrations. The Afghan people have the right to privacy in their homes and nobody can enter without permission from the owner or from the court. All citizens have the right to an education according to article 43. Citizens also have the right to work and choice of their occupation as long as it is permitted by law. Article 58 states that Afghanistan "shall establish the Independent Human Rights Commission of Afghanistan. Every individual shall complain to this Commission about the violation of personal human rights. The Commission shall refer human rights violations of individuals to legal authorities and assist them in defense of their rights. Organization and method of operation of the Commission shall be regulated by law." Although the Constitution specifically mentions right of equality, women are still being discriminated against. "Gender discrimination in Afghanistan is due to a combination of factors such as poverty, local traditions and the effects of war. Violence against women has been persistent in Afghanistan and is due to low status of women combined with long exposure to hostilities and conflict" [35].

Rhetoric vs. Reality[edit]

Although Afghanistan's Constitution lists the rights that all Afghan citizens have, not everyone is guaranteed these rights. The reason for this is that the Afghan government suffers from severe corruption. According to research, "Drugs and bribes are the two largest income generators in Afghanistan: together they correspond to about half the country's (licit) GDP, said UNODC Executive Director Antonio Maria Costa as he released the report today in London."[36] Women suffer most significatly from discrimination. Since the United States entered Afghanistan in late 2001, substantial efforts have been made to improve the treatment of women. "So far, women have been allowed to return back to work, the government no longer forces them to wear the all covering burqa, and they even have been appointed to prominent positions in the government. Despite all these changes many challenges still remain. The repression of women is still prevalent in rural areas where many families still restrict their own mothers, daughters, wives and sisters from participation in public life. They are still forced into marriages and denied a basic education. Numerous school for girls have been burned down and little girls have even been poisoned to death for daring to go to school."[37]

Works cited[edit]

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  3. 2010. "Afghanistan Constitution". website accessed 12/7/2010. http://www.servat.unibe.ch/icl/af00000_.html
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  8. http://fpc.state.gov/documents/organization/50166.pdf
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  19. 2010. King's College London. "Prison Brief - Highest to Lowest Rates" http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php?area=all&category=wb_poprate
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  21. 21.0 21.1 21.2 21.3 2009. Perito, Robert M. Afghanistan’s Police The Weak Link in Security Sector Reform" http://www.usip.org/files/resources/afghanistan_police.pdf
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  33. 2003. Mariam, Nawabi A. "WOMEN’S RIGHTS IN THE NEW CONSTITUTION OF AFGHANISTAN" http://www.cic.nyu.edu/archive/pdf/E13WomensRightsShort%20VersionNawabi.pdf
  34. Islamic Republic of Afghanistan. "The Constitution of Islamic Republic of Afghanistan Chapter Two: Fundamental Rights and Duties of Citizens". http://www.president.gov.af/Contents/68/Documents/213/ChapterTwoFundamentalRightsAndDutiesOfCitizens.html
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  37. 2007. Qazi, Abdullah. "The Plight of the Afghan Women". http://www.afghan-web.com/woman/