Justice In Afghanistan: Examining The Fair Enforcement Of Laws

Afghanistan's justice system is in a state of disrepair, with the majority of Afghans having little to no access to judicial institutions. The lack of access to justice has destabilised the country, and the public has no confidence in the formal justice sector. The country's legal system is a mix of Islamic, statutory, and customary rules that have evolved over centuries and are currently changing as the Afghan state is rebuilt.

The Taliban, who rule Afghanistan, have imposed strict interpretations of Islamic law or Sharia, which is the supreme law of the land. They have issued codes of behaviour and dress for both men and women, with harsh punishments for those who do not comply. Women, in particular, face severe restrictions on their rights and freedoms, with reports of gender persecution amounting to crimes against humanity.

There is a high perception of impunity in the country, with corruption across institutions. The police and criminal justice system are not trusted by the Afghan people, and due process during arrest and trial is weak, though it has been improving over time.

The challenges to building the rule of law in Afghanistan are political, involving challenging vested interests at the highest levels of government, and constitutional, with a strong presidential system that has weakened the authority of the Supreme Court.

The state of Afghanistan's justice system

Afghanistan's justice system is in a state of disrepair, with the majority of Afghans having little to no access to judicial institutions. The public has no confidence in the formal justice sector, and a growing number have been forced to accept the rough justice of the Taliban and criminal powerbrokers in areas beyond government control.

The country's legal system has developed over centuries and is currently changing in the context of the rebuilding of the Afghan state. The supreme law of the land is Sharia, or Islamic law, with complex legislation stemming from different historical periods.

The judiciary of Afghanistan consists of the Supreme Court, appeals courts, civil courts, and city courts. The Supreme Court is the highest judicial organ, with the power to head the country's judicial power. It is composed of nine members, appointed by the president with the endorsement of the House of People.

The Court of Appeals is the court of second instance at the provincial level, presided over by a chief justice appointed by the Supreme Court.

Civil Courts operate at the provincial level as a civil court of first instance, handling civil cases in their respective provinces.

City Courts function as the court of first instance at the municipal level across Afghanistan and are also presided over by a chief justice appointed by the Supreme Court.

Under the Taliban, the courts both prosecute and decide the result of criminal cases, whereas under the Islamic Republic of Afghanistan, there was an independent attorney general and a system of prosecutors.

There are no formal rule of law structures or processes in place in Afghanistan, and foreign nationals have been detained without due process.

The country's legal system has been described as "dysfunctional, corrupt and unable to deliver fair justice". Since 2001, the United States and other international donors have spent more than $500 million establishing new courts and training judges and prosecutors. However, the system still lacks adequate evidentiary standards, enough defence lawyers, the right to cross-examination, and protocols for ensuring suspects have enough time to prepare a proper defence. Afghan courts are also easily influenced by public opinion and political leaders.

The attorney general's office, which is supposed to be the highest enforcement agency of the law, has been seen as breaking it at every turn, acting as a "systematic" clearing house for graft by the elite.

However, the new attorney general, appointed in 2023, has been working to curb corruption and depoliticize his office. He has targeted his staff for investigation, pushed those with tainted reputations to less influential positions, and promoted a young cadre to new posts.

Despite these efforts, the system continues to face significant challenges, including a culture of impunity, entrenched corruption, and a lack of access to judicial institutions for most Afghans.

The Taliban's interpretation of Sharia law

Under the Taliban's interpretation of Sharia law, women are effectively put under house arrest, as they are banned from working, receiving an education, or leaving their homes without a male chaperone. They are also forced to wear a burka from the age of eight and are forbidden from wearing high-heeled shoes. In addition, women are banned from appearing on radio, TV, or at public gatherings, and they are not allowed to have their photographs or images displayed in newspapers, books, or shops.

Human rights violations

Afghanistan's justice system is in a state of disrepair, with the majority of Afghans having little to no access to judicial institutions. The public has no confidence in the formal justice sector, and a growing number have been forced to accept the rough justice of the Taliban in areas beyond government control.

Since the Taliban's takeover of Kabul in August 2021, human rights abuses have increased exponentially, particularly against women and girls. The Taliban's policies towards women are usually termed as gender apartheid. Women's rights and freedoms are severely restricted, as they are banned from most public spaces and employment. Afghanistan is the only country in the world to ban education for women over the age of eleven.

The Taliban has decreed strict codes of behaviour and dress for both men and women. In public places, women are expected to be fully covered, including their faces. Their bodies, arms, and legs must be concealed by loose clothing, their hair covered with a headscarf, and a veil must cover their face. Men are expected to dress modestly and remain sensitive to Islamic culture.

The Taliban has also banned women from travelling without being accompanied by a mahram (a husband, father, or brother). This affects a woman's ability to depart from Afghanistan unless escorted by a male relative.

The Taliban has carried out broad censorship and has detained and tortured journalists and activists. They have also settled disputes over land and livestock in favour of Pashtun communities, forcing local Hazara communities off their land.

The Taliban has further eroded freedom of expression, with those expressing views critical of the Taliban facing enforced disappearance, unlawful detention, arbitrary arrest, torture, and other ill-treatment.

The Taliban has also eroded freedom of religion, with religious minorities facing increasing marginalization, prejudice, and forced evictions.

The Taliban enforces public executions and corporal punishment such as stoning and flogging.

Freedom of expression

Afghanistan's constitution includes provisions for freedom of expression, which is also supported by the Universal Declaration of Human Rights (UDHR), stating that "everyone has the right to freedom of opinion and expression".

However, in practice, freedom of expression is severely restricted in Afghanistan, particularly since the Taliban's takeover of Kabul in 2021. The Taliban has imposed strict codes of behaviour and dress for both men and women, and women are banned from most public spaces and employment. The Taliban has also decreed that women are not permitted to move around Afghanistan or travel without being accompanied by a male relative.

Journalists and media workers face particular challenges in Afghanistan. In 2023, the country was ranked as the most dangerous in the world for journalists, with over 15 killed. Insurgents and security forces pose a threat to journalists, who are subject to harassment, threats, and physical violence. Many Afghan journalists practice self-censorship to avoid reporting on sensitive issues.

Despite these challenges, the media landscape in Afghanistan has grown significantly since 2001, and the press is freer than in many other countries in the region. Afghan journalists play a crucial role in reporting the news and holding those in power to account.

The Afghan government has taken some steps to address the safety and protection of journalists, such as forming a joint committee with the media to monitor cases of violence. However, more efforts are needed to ensure the safety of journalists and enforce freedom of expression laws.

The treatment of women and girls

After the Taliban's takeover of Afghanistan in August 2021, they initially allowed women to attend universities, but with gender-segregated classrooms and the condition that they followed "Islamic standards". However, by September 2021, they restricted access to education for girls, allowing only boys to resume schooling. They also prohibited women from working in most sectors outside of health and education.

The Taliban's edicts have imposed widespread restrictions on the rights of women and girls, including their freedom of movement, attire, behaviour, access to education, work, health, and justice. Women are not allowed to move around in public spaces unless they are in the company of a male relative, and they are only allowed to leave their homes for urgent matters. They are also required to wear full veils when they do leave the house.

The Taliban's restrictions have had a significant impact on the mental health of women and girls, with widespread reports of depression and suicide, especially among adolescent girls who are prevented from pursuing education. The restrictions have also limited women's and girls' access to routine and emergency healthcare, putting their health and sexual and reproductive rights at risk.

Women's rights activists in Afghanistan report that there have been detentions, child marriages, forced marriages, and rapes. They are facing serious threats, but Afghan women continue to fight for their rights and against the fundamentalism of the Taliban, even in the face of severe reprisals.

The treatment of women by the Taliban may amount to ""gender apartheid", according to the United Nations. The severe restrictions and unlawful crackdown on women's and girls' rights should be investigated as possible crimes under international law, including the crime against humanity of gender persecution.

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