Countries at the Crossroads 2004 - Afghanistan

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Executive Summary

Author

Karin Deutsch Karlekar is a senior researcher at Freedom House. She serves as editor of the annual Freedom of the Press survey and authors country reports on South Asia.

Afghanistan's trajectory changed course in late 2001, when a U.S.-led military intervention caused the fall of the Taliban regime. The UN-sponsored Bonn conference, which ended on December 5, 2001, provided for the establishment of a relatively representative transitional central government as well as a timetable of political events designed to lead to national elections by mid-2004. The Bonn Agreement also reestablished the 1964 constitution as the interim basis of law and mandated that a number of interim commissions oversee the process of drafting a new constitution, reforming the judiciary and civil service, and monitoring human rights abuses. The international community, led by the UN, has taken a lead role in providing security as well as the massive amounts of economic and technical assistance needed to reconstruct Afghanistan.

Thus far, the new government has generally adhered to the political timetable laid out at the Bonn conference. An Emergency Loya Jirga [(ELJ) a gathering of indirectly elected Afghan representatives] convened in June 2002 and elected Hamid Karzai as president of the Transitional Islamic State of Afghanistan, which is also referred to as the Transitional Authority or Transitional Administration (TA). The TA has a mandate to govern for two years, during which time a Constitutional Loya Jirga (CLJ) will debate and ratify a new constitution and preparations will be made to hold national elections. However, progress in other areas has been mixed. The daunting process of rebuilding the judiciary has proceeded slowly, and doubts remain regarding its prospects for independence and professionalism. During more than two decades of almost uninterrupted civil war and a breakdown in the rule of law, both state and non-state actors have systematically trampled on citizens' civil and political rights, and serious problems remain today, with the rights of women being a particular concern.

The TA, facing enormous challenges in its attempt to rebuild virtually every sector of Afghan life, confronts several obstacles. First, although reconstruction requires considerable amounts of financial and technical assistance from the international community, many observers believe that an insufficient amount of aid has been forthcoming. In addition, a prevailing climate of insecurity, in which pro-Taliban groups have targeted international organizations and their employees, means that the United Nations and other groups working on development projects are unable to operate in much of the country. Additional armed forces are urgently needed outside Kabul to provide a basic level of stability.

However, the most pressing issue is the absence of strong national government institutions and the continuing power of regional commanders and other armed groups. The International Crisis Group (ICG) has identified these warlords as the greatest threat to long-term hopes for building an accountable government and military, curbing current abuses, and allowing Afghan citizens to "express their will through political institutions and to pursue justice through legal institutions."¹ Without a concerted effort to reduce the power and influence of these armed men, many of whom occupy important positions in the TA, the majority of the recommendations made in this report will be untenable.

The other relevant issue facing the TA is maintaining a spirit of inclusiveness in government institutions and political processes. Although headed by Hamid Karzai, a Pashtun, the TA is dominated by members of the Northern Alliance, a grouping of forces that helped the United States overthrow the Taliban. Members of the Shura-yi Nazar faction of the Northern Alliance control several government ministries and are perceived to exert undue influence over official decisions. As the processes of political, judicial, and administrative reform continue, it is essential that the central government act to reduce the influence of certain factions while promoting a broad-based and inclusive power-sharing structure in which the needs and concerns of all Afghans can be addressed.

Editor's Note

After many months of drafting, internal government deliberations, and consultations with the public, Afghanistan held a CLJ from December 14, 2003, to January 4, 2004, in order to ratify a new constitution. In keeping with the precedent set before and during the ELJ, the 502 delegates to the CLJ faced some instances of harassment and intimidation, and many important discussions took place between power brokers behind closed doors. In addition, sustained disagreements broke out among delegates over the power of the presidency, the relationship between Kabul and the provinces, and the adoption of official languages.

Nevertheless, the 160-article constitution approved on January 4 is an important step forward for Afghanistan's democratic prospects. It establishes a presidential system of government in which a directly elected president has wide-ranging powers but is subject to some controls by the parliament. All references to Afghanistan's compliance with the Universal Declaration on Human Rights have been retained, and the document contains a number of provisions enunciating basic political, civil, economic, and social rights. In addition, it mandates equal rights for women and ensures their political representation through reserved seats in the parliament. However, Human Rights Watch has expressed concern that it does not include language that would empower institutions such as the Afghanistan Independent Human Rights Commission (AIHRC) to uphold these rights. A provision that "no law can be contrary to the beliefs and provisions of the sacred religion of Islam" has some analysts worried that a judiciary controlled by conservative elements could try to impose Sharia (Islamic law). As Afghanistan prepares for national elections to be held later in 2004, it is hoped that additional steps will be taken to ensure that implementation of the new constitution will not be overly impeded by the continued dominance of various political factions and regional warlords and by the insecurity that prevails in much of the country.

Civil Liberties – 2.48

The 1964 constitution prohibits torture, coerced confessions, arbitrary detention, and other forms of punishment "incompatible with human dignity." In addition, a provision in the Afghan penal code makes torture a criminal offense subject to 5-15 years' imprisonment. However, few mechanisms exist to ensure that people are systematically protected from these forms of abuse. As law-enforcement and judicial institutions function at varying levels in different parts of the country, procedures for taking people into custody and bringing them to justice do not follow an established code and often rely on the whims of local officials.³ Authorities subject Afghans to arbitrary arrest and detention, often with the aim of extracting bribes in exchange for a prisoner's release. Torture, which takes place predominantly during interrogation, is a continuing concern in both police stations and prisons. A report published by the ICG details high levels of arbitrary arrest, torture, and extortion in southern Afghanistan and notes that businessmen, shopkeepers, and other wealthy citizens not linked directly to the local commander in charge are all particular targets.⁴

According to Article 28 of the criminal procedure code of 1965, which remains in force, police can detain suspects without charge for up to 24 hours during the course of an investigation, which can be extended for up to a week if the police apply to the attorney general's office.⁵ However, in many police detention centers, suspects are routinely held for weeks or months on end. This is in large part due to the lack of a functioning judicial system (see below), as well as inadequate police infrastructure in terms of personnel, transport equipment, and holding facilities, especially in the remoter provinces.

In addition to abuse at the hands of police and security forces, armed groups, some of which are affiliated with high-ranking officials within the TA, arrest and detain criminal suspects and political opponents.⁶ Several human rights groups documented reports of intimidation, attacks, and killings of candidates during the ELJ process in mid-2002. Some officials and commanders also run private jails in which detainees are tortured. Violent criminal offenses committed by armed men (both state and non-state actors), including armed robbery, rape, and kidnapping, continue to contribute to a climate of insecurity for the majority of Afghans.⁷

Police and security forces have occasionally used excessive force when confronted with demonstrations or public protests. For example, in November 2002, police fired on student protesters who were demonstrating over poor dormitory conditions at Kabul University, killing at least two people and injuring a number of others.⁸ The following day, injured students who had been taken to the hospital were beaten by police after talking about the demonstration.⁹

One of the most pressing concerns in Afghanistan today is that both citizens and foreigners have little protection from terror by both quasi-governmental and non-state actors. In addition to what has been described above, numerous civilians have been killed as a result of bombings, rocket attacks, and other acts of terror by unknown assailants; as a result of fighting between ethnic factions, particularly in the north; or during skirmishes between Taliban supporters and government forces and the U.S. military. Both the foreign and the Afghan staff of a number of international organizations and nongovernmental aid agencies have been targeted for attack, particularly in the provinces with an active Taliban presence, and several dozen were killed during 2002 and 2003.

In the absence of an effectively functioning legal system, citizens are for the most part unable to seek legal redress when their rights are violated. In addition, no civilian oversight body currently has the powers or capacity to review the performance or conduct of the police and investigate complaints, which means that the public has no recourse against police brutality.¹⁰ However, one avenue for making their grievances known is by approaching the AIHRC, which was constituted as part of the Bonn Agreement and formed in August 2002. Currently, the AIHRC functions in Kabul and seven regional offices; it focuses on raising the awareness of the general public and law-enforcement personnel on human rights issues, as well as monitoring and investigating abuses and providing advice on cases before the appeals courts.¹¹

Despite a constitutional provision that all Afghans have "equal rights and obligations before the law without discrimination or preference," both women and minorities face considerable discrimination. Under the Taliban, the situation for women was arguably worse than in any other country, and the strictures under which women were compelled to live received widespread condemnation. Both the media and human rights groups have given attention to whether their condition has improved during the past two years. During 2002 and 2003 the Karzai government took a number of steps to improve women's positions and to facilitate their reentry into the public sphere. Women in some areas of the country regained access to available education, health care, and job opportunities and were able to participate more freely in public life. However, continuing problems with personal security, coupled by the strength of custom and the conservative attitude of some local authorities, mean that most Afghan women remain subjected to serious restrictions and discrimination. For example, Ismail Khan, the governor of Herat, imposed a number of strictures on women's freedom of movement and their ability to receive proper education, including forced virginity tests, as well as regulations on proper attire and gender segregation in schools.¹² Many women, particularly outside Kabul, continue to wear the burqa for reasons of custom or security, although it is no longer compulsory to do so. Women's choices regarding marriage and divorce, particularly their ability to choose a marriage partner, remain circumscribed by custom, and the forced marriage of young girls to older men or of widows to their husband's male relations is a problem.¹³ Domestic violence as well as rape and kidnapping by armed groups are widespread, and women's recourse to justice in such cases is limited.¹⁴ Furthermore, Afghanistan does not yet have legislation in place that prohibits trafficking, and the trafficking of Afghan women and children both within the country and to destinations abroad is a growing concern.

Afghanistan is made up of a mélange of ethnic groups, the largest of whom are the Pashtuns, Tajiks, Uzbeks, and Hazaras. Historically, there has been a certain level of inequality between ethnic groups, as well as discrimination based on ethnicity. The predominantly Shia Hazaras, who are believed to make up between 15 percent and 20 percent of Afghanistan's population, have traditionally been the most politically and economically disadvantaged group.¹⁵ Observers believe that protracted wars and instability have led to an increase in ethnic polarization, tension, and conflict.¹⁶

Pashtuns, who are the largest ethnic group in Afghanistan, are predominant in the southwest and southeast of the country. Pashtun leaders have controlled political power for most of Afghanistan's history as a state, and most recently some Pashtun leaders were broadly supportive of the Taliban regime. Following the collapse of Taliban rule, Pashtun civilians residing in the north were targeted in a wave of ethnically motivated violence that left a large number displaced and dispossessed of their land. Although the UN and central and regional authorities established the Return Commission in October 2002 to aid Pashtuns who wish to return to some provinces, there remain roughly 60,000 Pashtun internally displaced persons (IDPs) scattered throughout Afghanistan, mostly in camps near Kandahar. While Pashtuns in Kabul have not been systematically targeted to the same extent, they do face some harassment and discrimination by local police and intelligence officials.¹⁷

Islam was designated by the 1964 constitution as the "sacred religion" of Afghanistan, and although non-Muslims are guaranteed religious freedom, the constitution also states that they are required to "perform their rituals within the limits determined by laws for public decency and public peace." The state does not interfere in the appointment of religious leaders or the organizational activities of faith-related groups and members of the government have publicly stated a commitment to religious tolerance. Since the fall of the Taliban, the small numbers of non-Muslim residents in Afghanistan have generally been able to practice their faith, although Hindus and Sikhs have had some difficulty in obtaining cremation grounds and building new institutions of worship. Relations between Sunni Afghans and the minority Shias, who make up roughly 15-20 percent of the population, remain somewhat strained. Historically, Shias were not accorded equal rights under law and sometimes faced persecution from the majority Sunnis.

The 1964 constitution gives Afghan citizens the right to form and join organizations. The TA has allowed for freedom of association, and civic associations can operate with relative freedom in Kabul and with somewhat greater restrictions in other parts of the country. However, in provinces such as Herat, local groups have been subject to harassment and interference from officials.¹⁸

Although nongovernmental organizations (NGOs) must register with the ministry of either planning or justice, no regulations govern their functioning, rights, and responsibilities. The TA, in consultation with NGOs, has been involved in drafting legislation that would legally formalize these issues.¹⁹ Both local and international NGOs can operate freely, and some provide constructive criticism on a wide range of issues. However, the security situation in much of the country impinges on the ability of most NGOs and aid organizations to operate effectively.

Most workers are employed in the informal sector, and Afghanistan currently has very few large employers other than governmental structures and international NGOs. Although the constitution contains broad protections for workers, current labor laws do not comply fully with international norms regarding workers' right to form free trade unions. Labor rights are not well defined, and there are no enforcement or resolution mechanisms.

Recommendations

In the absence of an adequate legal framework to prevent the abuse of Afghan citizens' civil liberties, an essential first step is the provision of equal rights for women and ethnic minorities in the new constitution under discussion, as well as provisions that all Afghans be allowed to worship, assemble, and associate freely. Training for law-enforcement personnel needs to stress the importance of professionalism and adherence to human rights norms, and those who violate the law should be prosecuted. However, in addition to legal safeguards, the primary issue to be addressed is the present climate of fear and insecurity in which both non-state and state actors abuse the rights of people and enjoy almost complete impunity.

Rule of Law – 1.67

More than two decades of political instability, coupled with rule by those with scant respect for the law such as the armed mujahideen factions, the Communists, and the extremist Taliban, had left Afghanistan's legal system in a state of almost complete collapse by 2001, with "few trained lawyers, little physical infrastructure and no complete record of the country's laws."²⁰ The Bonn Agreement reestablished the 1964 constitution as Afghanistan's key legal document and called for the creation of a judicial commission to rebuild the legal system in accordance with Islamic principles, international standards, and Afghan traditions. The judicial reform and reconstruction process includes the drafting of a new constitution and other new laws; the training of judges, lawyers, and police; improving infrastructure, such as building prisons and refurbishing offices and courts; and the initiation of accountability for past human rights abuses.²¹

However, the past two years have seen little tangible improvement in the judicial system; adherence to the rule of law remains generally weak. There is no functioning nationwide legal system, and justice in many places is administered on the basis of a mixture of legal codes by judges with minimal training. In addition, the influence of armed power brokers and political factions remains strong. Military commanders enjoy impunity and are not prosecuted for their past or present crimes. Other powerful individuals remain above the law because of their place in the community or their ability to use intimidation and pressure to influence judicial proceedings.

Currently, Afghanistan has two parallel court systems – the general courts, which comprise the district, provincial, and Supreme courts, and special courts, which comprise family and children's courts and are used to adjudicate cases relating to family law. In addition, the Supreme Court has established national security courts to try terrorists and other cases. As most legal records had been destroyed, courts do not have access to the main laws and regulations of the civil and criminal codes and as a result tend to apply either Islamic or customary law.²² In the absence of a functioning formal legal system in many areas, Afghans also rely heavily on traditional structures such as the shura or jirga (provincial, district, tribal, or village level gatherings of elders) to dispense justice and resolve disputes.²³ However, shuras at the higher levels are often under the control of local or regional commanders.

The rule of law in Afghanistan remains extremely weak. While the 1964 constitution does provide for a number of basic legal rights, including the presumption of innocence and the right to defense counsel, in practice individuals have few protections for the right to a fair trial.²⁴ For example, the accused has the right to a public defender, but this provision is not routinely observed.²⁵ A legal fact-finding team who visited Afghanistan in February 2003 concluded that as few trials are conducted openly, it was not clear to what extent the courts were functioning and what laws are being applied.²⁶

While the 1964 constitution provided for an independent judiciary, it did not lay out checks on executive power and other measures to ensure this independence.²⁷ The Bonn Agreement reiterates that the judiciary should be independent and vested in a Supreme Court and other courts as may be established. However, the task of building an independent and professional judiciary is hindered by several factors. The primary obstacle is that a rival political or ideological faction dominates each of the major parts of the system – the ministry of justice, the Supreme Court, and the attorney general's office – and uses this influence to advance its interests. The Supreme Court is controlled by Fazl Hadi Shinwari, who was appointed chief justice by Karzai despite lacking the requisite qualifications (the constitution stipulates an age limit, as well as requiring the chief justice to be trained in both secular and religious law).²⁸ Shinwari has vastly expanded his influence over the court by placing political allies in key positions and by propagating a hard-line agenda. He has also increased the number of Supreme Court judges from 9 to 137, most of whom have minimal training in law and appear to have been appointed for political reasons.²⁹

Political influences lower down on the scale also have an impact on the selection of judges. Although judges in the provincial courts are nominated by the Supreme Court and approved by Karzai, many are appointed or confirmed only after consultation with local commanders, and their connection to a factional commander is often the key determinant of whether they are given a job.³⁰ Many qualified lawyers and judges left the country during periods of upheaval, shrinking the pool of high-caliber legal staff, and as a result many provincial judges are madrasah-educated mullahs trained only in Islamic law. Low remuneration and the tardy payment of salaries for judicial staff have encouraged corrupt behavior.³¹ In all areas of Afghanistan, and particularly in Kabul, judges or prosecutors routinely ask detainees for money in return for their release or accept bribes in exchange for a favorable decision on a case.³²

The Judicial Reform Commission (JRC), tasked with overseeing the process of rebuilding the judiciary, has thus far operated with limited effectiveness; the first commission was disbanded after three months when it became bogged down in political disputes. A new commission appointed in November 2002 appears to be more independent and representative, with two women, two Shias, and jurists from different parts of the country. However, it does not have a well-defined mandate, and its role thus far has mainly been limited to proposing strategies for reform and coordinating with international donors. Competition and a lack of communication between existing judicial institutions have also complicated the JRC's efforts.

Several decades of political strife, during which time armed factions fought for control of territory and resources, have left Afghanistan a heavily militarized society in which the rule of the gun largely supersedes the rule of law. Currently, however, no military force has authority throughout the entire country. Coalition forces based mainly in southern and eastern Afghanistan are focused on rooting out remnants of the Taliban rather than providing security. The 5,300-strong International Security Assistance Force (ISAF), mandated by the UN and currently led by NATO, is responsible only for security in Kabul.³³ Following the Bonn conference, some militias were reorganized into a loose grouping of units under the authority of the ministry of defense (MoD). The MoD, headed by Marshal Qasim Fahim, is dominated by Tajik commanders who were part of the Northern Alliance and is seen as unrepresentative and overly partisan. Reforms enacted in September 2003 did introduce more non-Tajiks and professionals into the ministry but left members of the Shura-yi Nazar faction in charge.³⁴

Elsewhere, regional commanders and warlords maintain local militias. These strongmen have declared their nominal allegiance to the central government. The majority have been given high-ranking positions within the TA but are unwilling to disband their private armies or coalesce them into a united force under central government control. In addition to their military clout, armed groups or parties dominate the political landscape through control of provincial governorships or central government ministries in Kabul. They remain economically powerful through extortion, the collection of customs revenues, and involvement in the narcotics trade. Some governors combine military and civilian authority in a way that is not mandated by current constitutional arrangements. For example, the governors of Herat and Kandahar do not have formal military positions but act as the de facto leaders of the armed forces in the provinces under their control.³⁵

The Bonn Agreement also provided a broad framework for the creation of an Afghan National Army (ANA), although it did not specify the details of how it should be constituted. The government intends to have the ANA reach a maximum size of 70,000 men by 2010, but training for ANA battalions has proceeded at a slow rate; by June 2003, only 6,500 personnel had been trained, of which only 4,500 were serving on active duty. In addition, critics note that a disproportionately high number of Tajiks have been recruited, thus raising questions about the representative nature of the army, and attrition levels are high.³⁶

In February 2003, the TA announced plans for a voluntary program of disarmament, demobilization, and reintegration (DDR), which is intended to target 100,000 of the estimated 200,000 armed men in Afghanistan.³⁷ Participants in the program, which is being overseen by the MoD with support from the UN, are required to be combatants in MoD-recognized military units. In exchange for disarming they are offered a severance package and training to either join the ANA or reintegrate into civilian life. Originally scheduled to start in July 2003, various DDR pilot projects were delayed until October 2003, as donors felt that MoD reforms should precede the process. In addition, analysts have questioned the ultimate effectiveness of the scheme given the heavy involvement of the MoD, which is viewed as dominated by the Shura-yi Nazar and not trusted by other military factions or commanders.

Many regional commanders who have been incorporated into the TA have installed their followers in the police and security services. As a result, the police forces in Afghanistan, which number approximately 50,000, are largely former mujahideen and militia linked to factional commanders who have little professional police training and who act with a high degree of autonomy.³⁸ In addition, one important legacy of the Soviet and civil war periods is that secret police activities and intelligence agencies have replaced ordinary criminal investigations and civilian police procedure.³⁹ The current interior minister, Ali Ahmad Jalali, is in charge of reforming the police and has been fairly proactive in this regard.⁴⁰ However, extensive police reform remains constrained by a lack of available finances – donors have been exceedingly slow to provide for the Law and Order Trust Fund for Afghanistan (LOTFA), the main funding mechanism for supporting police reform – as well as by insufficient security for foreign donors to work on retraining projects outside Kabul.

The 1964 constitution grants equality to all citizens without discrimination or preference. It also provides for fundamental freedoms such as speech, press, association, and due process. However, it does not provide for equal protection under the law.⁴¹ In the absence of a functioning and impartial legal system, citizens are not treated equally, and some discrimination on the basis of ethnicity, religion, political affiliation, or gender does take place. For example, customary restrictions on interaction between women and unrelated men inhibit "women's access to both formal and informal justice mechanisms as these bodies are almost exclusively male."⁴²

The issue of property rights and the instability caused by disputes over land ownership are important areas of concern. During the decades of civil war, land registers were lost or manipulated, and the majority of people do not have valid land titles.⁴³ Many property disputes have also arisen as a result of flight and displacement and the expropriation of property by combatants during periods of conflict. Particularly in the urban areas, land grabbing and the illegal production of ownership documents seem to be increasing.⁴⁴ As a dysfunctional legal system is not equipped to mediate or enforce property disputes, the state is largely unable to protect property rights. In addition, senior government officials have been accused of illegal property grabbing in Kabul.⁴⁵ In response, Karzai sacked the municipal police chief and appointed an independent commission to investigate the claims.

Recommendations

International donors should continue to make a sustained financial commitment to legal reform. To boost their efficacy and independence, both judicial staff and law-enforcement personnel should receive reasonable and timely salaries as a way of lessening the attractiveness of engaging in corrupt behavior. More important, the process of appointing judges at all levels needs to be subject to well-defined rules; eventually, the establishment of an independent judicial services commission would improve transparency in the appointments process. In addition, the inclusion of women in the justice sector as judges and lawyers should be made a priority. Further reforms of the ministry of defense are needed to reduce factional dominance, and care should be taken that recruitment to the ANA is as ethnically diverse as possible and that soldiers who have already been trained can be retained. The TA should develop a land policy, possibly by addressing the issue of land ownership in the new constitution.

Anticorruption and Transparency – 1.56

Given the challenges facing Afghanistan, issues of corruption and transparency have taken a backseat to more basic priorities such as improving security, the rule of law, economic opportunities, and access to health and education. However, the current dependence of the central administration on foreign assistance from donors who encourage accountability, coupled with the importance of the government as an employer and provider of services for many Afghans, means that these issues deserve some attention. Afghan civil servants have expressed concern that corruption is a growing problem in the state sector, noting "bribes often need to be paid every step of the way to get government paperwork processed."⁴⁶ Outside observers have criticized the nepotism and cronyism that appear to be widespread in all levels of the transitional government, as well as in many NGOs. According to one news report, certain appointments to key decision-making positions in government are made because of the support of close relatives who already hold high positions rather than being based on merit.⁴⁷

In the absence of an effectively functioning judicial system, the TA has not yet been able to establish a legal framework that addresses issues of corruption. However, the interim government has made a commitment to improving transparency and accountability as part of its overall development strategy. A World Bank-funded public administration project aims to assist the TA with creating independent regulator activities, improved financial management, and procurement, audits, and civil service reform.⁴⁸ A project to improve the "National Infrastructure of Governance" is intended to restore the presence and capacity of the central government throughout the country so it is able to deliver services in an accountable and efficient way. As part of the project, the TA plans to deploy international consultants with specializations in financial management, procurement, and audits, as well as placing up to 10 internationally trained CFOs in key development ministries.⁴⁹

Historically, the ministry of finance (MoF) has had responsibility for drafting the ordinary budget, while the ministry of planning has prepared the development budget. However, there has been discussion of integrating the two so that ongoing costs associated with development projects can be properly factored into the recurrent budget.⁵⁰ Existing budget and accounting law and procedures provide appropriate checks and balances, and other regulations are in place for proper auditing procedures, although the lack of a banking system and the use of cash accounting are major obstacles to effective implementation.⁵¹ Although local actors have usurped much political authority, the structure of public administration in some provinces has shown great resilience during the past two decades, with fiscal and administrative arrangements having continued during periods of war and upheaval despite the lack of an ongoing relationship between provinces with various central governments.⁵² The structure of the administration that survives is centralized, with ministries in Kabul having complete control over budgetary allocations. As a result, provincial employees are dependent on the central government for money for salaries and other spending.⁵³ Local control over customs and finance departments, however, which are primary sources of revenue in Afghanistan, is a significant concern. Most of this revenue never reaches the central government and is instead siphoned off by regional commanders to fill their coffers. In May 2003, the Karzai administration made a concerted effort to induce these commanders to hand over revenue from customs and from state enterprises in their areas to the central government.⁵⁴

Because most domestically generated revenues do not reach the central government, the national budget as well as many other reconstruction and humanitarian assistance projects are primarily financed by foreign aid.⁵⁵ In 2002, donor commitments totaled almost $2 billion, of which approximately 72 percent was disbursed.⁵⁶ The TA has been proactive in drawing up realistic budgets and a reconstruction strategy, setting priorities, and attempting to coordinate with donors.⁵⁷ For example, it was intended that donors could fund the TA through a single channel, the Afghanistan Reconstruction Trust Fund (ARTF), a funding mechanism established in April 2002. Administered by the World Bank and other multilateral institutions, the ARTF was designed to help the government prioritize areas of funding support while ensuring accountability and transparency.⁵⁸ However, as of March 2003 only 16 percent of foreign aid disbursed since the January 2002 Tokyo Conference had been channeled through avenues controlled by the central government (the rest is spent on donor-controlled relief and reconstruction efforts), leaving it with limited legitimacy and capacity.⁵⁹ In addition, pervasive insecurity outside Kabul, particularly in the south and east, continues to hinder reconstruction efforts.

Recommendations

In the absence of firmly established government institutions and an effective judiciary, detailed recommendations on how best to combat corruption are premature. However, when drafting the new constitution and other legislation, the Afghan government should include administrative structures to investigate allegations of corruption as well as legal provisions that would enable prosecution for corrupt behavior. Of particular importance would be a commitment to pass Freedom of Information legislation. The TA's current commitment to accountability, particularly in regard to disbursing foreign assistance funds, should be carefully monitored. Mechanisms to ensure transparency in the awarding of government projects and contracts must be implemented as well.

Accountability and Public Voice – 2.21

Following the fall of the Taliban, the UN-sponsored Bonn conference held in November and December 2001 established an Afghan Interim Administration that was given a mandate to function as a central government for six months. The present government came to power at the June 2002 ELJ, a gathering of Afghan representatives that elected Hamid Karzai as president and is expected to serve until national elections, currently scheduled for June 2004. Karzai then selected a cabinet composed of four vice-presidents and 30 ministers that was approved by the delegates. He has also formally appointed governors to all 32 provinces since becoming president.

The ELJ process was deemed to be generally free and fair. More than 1600 delegates took part, including more than 200 women; of this total, a special commission selected 600, while the remainder were elected by a process of local nominations followed by regional secret ballot elections from among the nominees.⁶⁰ Both men and women were able to engage in free discussion, to question political leaders, and to distribute political literature. However, there were reports of some interference and intimidation during the elections themselves, as well as violence, bribery, and irregularities during the delegate selection process. In the months leading up to the Loya Jirga, warlords and local political leaders carried out threats and arrests, and sometimes murdered their opponents, including some elected delegates.⁶¹ The presence at the proceedings of the national security directorate, the country's internal security agency that is controlled by the Shura-yi Nazar, undermined the confidence of some delegates that the Loya Jirga process was fair and neutral.⁶²

Crackdowns on political activity have continued since the Loya Jirga in Kabul and other provinces. Political parties have faced threats after distributing publications critical of certain government officials, and ordinary citizens have been threatened after speaking openly about political issues.⁶³ Nonmilitarized and pro-democracy political parties are finding it difficult to campaign openly due to the security situation as well as pressure from military factions.

In the absence of a national legislature, both executive and legislative powers are concentrated in the hands of the president and his cabinet ministers. Currently, ideas for new legislation originate in each ministry and are then sent to the ministry of justice for drafting. The cabinet meets weekly to debate new legislation and approves or rejects it by majority, given a quorum. Decrees are then sent to the president for his approval before they become law. In exceptional cases, the president issues decrees without cabinet approval.

Ensuring a balance of ethnic groups and some representation for women in the structures of the central government has been an ongoing concern. The cabinet appointed by Karzai in June 2002 included two women and a broad range of ethnic groups. Likewise, care has been taken to include women in the independent commissions charged with overseeing judicial reform, monitoring human rights, and drafting the new constitution. Female delegates actively participated in the Loya Jirga, despite harassment directed at some of them, and one, Dr. Masouda Jalal, stood as a candidate for the presidency.

The ethnic issue is more problematic. The TA is seen to be dominated by Tajiks rather than by Pashtuns, who are the largest ethnic group, although Karzai is an ethnic Pashtun.⁶⁴ It was hoped that the Loya Jirga would install a more broadly representative administration, but instead it ended up reinforcing the domination of the Panjshiri Tajik Shura-yi Nazar faction in the cabinet, and particularly over the state security apparatus. Pashtuns have been given important portfolios in the finance ministry; however, national financial institutions remain heavily dependent on international aid and have limited leverage over regional warlords, who have independent sources of revenue, such as taxes and customs duties, that they remain reluctant to share with the central government.

Many civil servants feel that the current system of selecting and appointing government staff is overly centralized, cumbersome, and subject to nepotism and that it results in the appointment of many unqualified personnel.⁶⁵ A presidential decree established the Independent Administrative Reforms and Civil Service Commission (IARCSC) in June 2003 to appoint senior civil officials; evaluate government proposals for employment, transfers, and promotions of senior civilian officials; and monitor the employment and complaints of low-ranking officials.⁶⁶ The commission has the authority to make decisions that are considered binding by all government departments and ministries, with the exception of the armed forces and elected municipal staff. However, it is not yet functioning.

The civic sector, which includes a large number of domestic and international NGOs, often works with the TA on reconstruction efforts and advises on larger policy debates. However, members of the TA and regional warlords have on occasion harassed critical political activists and other civil-society actors. In addition, critics have charged that government decisions, particularly the selection process for appointing members of the various reform commissions, have been overly opaque.⁶⁷ Concern was also raised that the consultative process for the new constitution was given inadequate time and resources, with little effort made to involve NGOs or engage in outreach to the public through the media.

Although the situation for free expression and for independent media has improved dramatically over the past two years, a number of concerns remain. A new press law approved in February 2002 included restrictions on press freedom such as onerous registration requirements and a prohibition on publishing anything that could be considered blasphemous.⁶⁸ In June 2003, two editors of the Kabul-based newspaper Aftab were held briefly and charged with blasphemy, and in July the Fatwa department of the Supreme Court recommended that they be sentenced to the death penalty.⁶⁹

A state monopoly on media has ended, but the central government and various political factions own most newspapers and almost all broadcast media outlets. Criticism of the authorities is rare in state-owned media, and self-censorship is common.⁷⁰ Journalists have faced threats and harassment by both state and non-state actors. Advocacy groups have documented several cases of senior officials and regional warlords intimidating journalists in an attempt to influence their reporting.⁷¹

Recommendations

With preparations under way for national elections in 2004, electoral laws must be drafted that allow political parties to compete fairly and ensure an adequate level of participation and representation for women and all ethnic groups in the new government. The newly formed IARCSC should be allowed to undertake its duties without interference from the various factions within the TA. A further review of all existing legislation regarding the media is needed, and the right to freedom of expression should be enshrined in the new constitution. Government officials should display greater latitude in allowing criticism from independent media outlets and from civic activists.

Notes

1 Disarmament and Reintegration in Afghanistan (Brussels: International Crisis Group [ICG], 30 September 2003), 1; see also Judicial Reform and Transitional Justice (ICG, 28 January 2003), 17.

2 "Afghanistan: Constitutional Process Marred by Abuses," press release (HRW, 8 January 2004).

3 Afghanistan: Country Reports on Human Rights Practices – 2002 (Washington, DC: U.S. Dept. of State, Bureau of Democracy, Human Rights, and Labor, 31 March 2003), 5.

4 Afghanistan: The Problem of Pashtun Alienation (ICG, 5 August 2003), 14.

5 Afghanistan: Police Reconstruction Essential for the Protection of Human Rights (London: Amnesty International [AI], 12 March 2003), 20.

6 Police (AI), 17; see also Afghanistan: Crumbling Prison System Desperately in Need of Repair (AI, 8 July 2003).

7 These abuses have been documented extensively in 'Killing you is a very easy thing for us': Human Rights Abuses in Southeast Afghanistan (New York: Human Rights Watch [HRW], July 2003).

8 "Kabul student protest turns bloody," BBC News, 12 November 2002.

9 Police (AI), 19.

10 Ibid., 16.

11 Interview with Dr. Rafiullah Bidar, Regional Program Manager, AIHRC, Mazar-e-Sharif, 29 May 2003.

12 We Want to Live as Humans: Repression of Women and Girls in Western Afghanistan (HRW, December 2002).

13 Peacebuilding in Afghanistan (ICG, 29 September 2003), 10.

14 Afghanistan: 'No one listens to us and no one treats us as human beings' – Justice Denied to Women (AI, October 2003).

15 Pashtun Alienation (ICG), 1.

16 Peacebuilding (ICG).

17 Pashtun Alienation (ICG), 14.

18 All our Hopes are Crushed: Violence and Repression in Western Afghanistan (HRW, November 2002), 30-36.

19 The A to Z Guide to Afghanistan Assistance (Kabul: Afghanistan Research and Evaluation Unit [AREU], August 2003), 43.

20 Judicial Reform and Transitional Justice, (ICG), i.

21 Ibid., 1.

22 "Report from a visit to Afghanistan 11-20 February 2003" (Stockholm: International Legal Assistance Consortium [ILAC], 2003), 2.

23 Peacebuilding (ICG), 12.

24 Judicial Reform and Transitional Justice (ICG), 7; see also Afghanistan: Re-establishing the rule of law (AI, October 2003), 16-22.

25 "Report from a visit to Afghanistan" (ILAC), 2.

26 Ibid.

27 Judicial Reform and Transitional Justice (ICG), 8-10.

28 Ibid., ii.

29 Re-establishing the Rule of Law (AI), 9.

30 Peacebuilding (ICG), 11.

31 Ibid.

32 Re-establishing the Rule of Law (AI), 14.

33 However, in October 2003, the UN approved a resolution allowing ISAF to operate beyond Kabul. "Afghan peace mission expanded," BBC News, 14 October 2003.

34 Disarmament and Reintegration (ICG), 1.

35 A Guide to Government Functioning Outside of Kabul: Early Observations Based on Missions to Herat and Faryab (AREU, March 2003), 10.

36 Disarmament and Reintegration (ICG), 5.

37 The A to Z Guide (AREU), 12-13; for more detail on the DDR process, see Barnett R. Rubin, "Identifying Options and Entry Points for Disarmament, Demobilization, and Reintegration in Afghanistan" (New York: Center on International Cooperation [CIC], New York University [NYU], March 2003).

38 Police (AI), 3-4; see also Peacebuilding (ICG), 11.

39 Judicial Reform and Transitional Justice (ICG), 5; see also Police (AI), 5.

40 Disarmament and Reintegration (ICG), 5.

41 Police (AI), 6.

42 'No one listens to us' (AI), 17.

43 Peacebuilding (ICG).

44 Liz Alden Wily, Land and the Constitution: Current Land Issues in Afghanistan, Policy Brief (AREU, August 2003), 1.

45 Peacebuilding (ICG), 8.

46 How Government Works in Afghanistan: A Study of Sub-National Administration (AREU, October 2003), 2.

47 Farangis Najibullah, "Nepotism, Cronyism widespread in Afghanistan," Afghanistan Report (Prague and Washington, DC: Radio Free Europe/Radio Liberty [RFE/RL], 15 May 2003).

48 Afghanistan Transitional Support Strategy [ATSS] (Washington, DC: World Bank, March 2003), 20-22.

49 A to Z Guide (AREU), 106.

50 A Guide to Government Functioning Outside of Kabul (AREU, March 2003), 11.

51 Ibid., 11-12.

52 ATSS (World Bank), 4; see also How Government Works in Afghanistan (AREU), 2.

53 How Government Works in Afghanistan (AREU), 4.

54 Carlotta Gall, "Kabul Announces Push to Gain Revenue and Combat Corruption," New York Times, 24 May 2003.

55 Statement by the International Monetary Fund (Dubai: Afghanistan Development Forum, 21 September 2003), 8-9.

56 ATSS (World Bank), 6.

57 Ibid., 9.

58 A to Z Guide (AREU), 16.

59 Barnett Rubin, Humayun Hamidzada, and Abby Stoddard, Through the Fog of Peace Building: Evaluating the Reconstruction of Afghanistan (New York: CIC, NYU, June 2003), 5.

60 A to Z Guide (AREU), 30.

61 Judicial Reform and Transitional Justice (ICG), 16; also, several reports by Human Rights Watch have documented cases of political intimidation and violence that took place during the ELJ process.

62 Pashtun Alienation (ICG), 9.

63 'Killing you' (HRW, July 2003), 49-55.

64 Pashtun Alienation (ICG), i.

65 How Government Works in Afghanistan (AREU), 1.

66 A to Z Guide (AREU), 32.

67 Afghanistan's Flawed Constitutional Process (ICG, 12 June 2003), 17.

68 "WPFC expresses concern over deficiencies in 'new' press law" (Reston, VA: World Press Freedom Committee, 9 May 2002).

69 "IFJ protests journalists' death sentences" (Brussels: International Federation of Journalists, 13 August 2003). The two editors fled to Pakistan after they were released from detention.

70 'Killing you' (HRW, July 2003), 12.

71 Ron Synovitz, "Afghanistan: Rights Groups Criticize Kabul for Attacks, Threats on Journalists," RFE/RL, 2 May 2003.