Corrections and the Rule of Law in Afghanistan
The separation of policing and corrections — though at first glance, similar in their role related to detention – is fundamental to prevent abuse and provide a countervailing force between illegal overuse of the detention capacity by police and illegal or inhumane treatment by the prison service. International standards promote the required separation of the investigation of criminal activity and arrest of suspects from the ongoing detention and management of accused and sentenced persons.
Achieving that balance in Afghanistan, where internal power struggles pit ministry against ministry and warlords still delegate justice over considerable swaths of the country, is especially challenging. In such countries, where the consolidation of power has been the number one imperative, it seems counter-intuitive to share or divide state power between ministries.
Establishing and maintaining stable and safe communities are shared responsibilities between the military, police, judiciary and corrections. The police role is primarily concerned with compliance with the country’s criminal code. Capacity building of the country’s justice system is the overall goal.
Unfortunately, as is often the case, corrections seem to be an afterthought (or last thought) in the development of an integrated criminal justice system. Within post conflict situations, donors and the United Nations have been hesitant to support the strengthening and reform of the prison system. A viable and human prison system is a key element of any effective criminal justice system. The need for short-term detention capacity for the police is often the first consideration. But without a functioning criminal justice system, this usually results in long and unjustified periods of detention and delayed justice.
Prisons are closed systems and places where the state exercises substantial control over citizen’s freedoms for considerable periods of time. This responsibility must be exercised in the context of the rule of law and due process if it is to function with integrity and effectiveness. Once the police and the courts are finished their work, the prisons must be left to carry out the sentence of the courts and leave the interrogation process behind.
Unfortunately, arbitrary detention remains a serious problem in Afghanistan. Not only are people held in Ministry of Justice prisons and detention facilities without proper legal authority, but also in police detention cells and the National Security Directorate facilities. As well, corruption and nepotism remain high within different elements of the justice system.
Private prisons run by warlords or former police commanders operate outside the formal system. They are difficult to find and are quickly evacuated or moved before authorities arrive. The power dynamics in many remote and isolated parts of Afghanistan still see the tribal system solidly at the centre. In these areas, it is hard to believe that a functioning formal justice system, be it police or prisons, as we understand them, will ever occur. Tribal and community groups will continue to provide local security.
Distinct strategies were established to address this dichotomy. Resources have been focused on locations where opportunities and a level of integrity already existed, as well as those unstable areas where even basic security cannot be provided and lawlessness abounds. There has also been considerable effort stabilizing and providing security for areas adjacent to Kabul, as well as critical southern border areas and locations where poppy cultivation is rife. Disappointingly, many interventions have stalled or been delayed by security concerns.
The transfer of responsibility for prisons to the new Ministry of Justice in June 2003 brought a number of policy issues into focus, including weapons in prisons, police interrogation techniques, prisoner transportation, communications systems, uniforms, salary funds.
The challenging transition also brought out the existing power relationships and preoccupations of major stakeholders. Just prior to the presidential elections, the fragility of the transfer was evident as the repatriation of the Prison Service to the Ministry of the Interior was seriously considered, further evidence of the uncertainty and discomfort with the division and sharing of this type of state power.
During my one-year assignment in Afghanistan, a number of assessment and strategic planning missions were conducted, each with a multidisciplinary team and thematic approach, representing rule of law, police, human rights and civil military advisors.
Much time and energy was spent on review, assessment and monitoring activities in the context of United Nations and related international standards, recommending solutions and strategies to the UN and, most importantly, to the Afghan government.
The adoption of a Penitentiary Law provided a clear direction for the Prison Administration to follow. The rights and obligations of detainees and those serving a sentence were clearly established and delineated. An interim criminal procedure code was promulgated. It allows for a streamlined procedure, establishes explicit timeframes for the processing on each case and allows for the transfer of jurisdiction for serious crimes in areas where courts and the judiciary do not exist.
An equal amount of effort was focused on the revision of the Juvenile Delinquents Act. It established community-based alternatives for lower risk delinquents. Higher risk youth between the ages of 14-17, however, will still be kept in more secure correctional facilities.
One of the most challenging aspects was attempting to harmonize certain principles of Islamic law with those of a modern democratic and rights-based society. Two areas where existing Islamic law and principles come into conflict with the Universal Declaration of Human Rights are:
• Article 16 of the Declaration which states that men and women are equal; Islamic law only allows the man to divorce his wife and not vice-versa.
• Article 18 speaks to freedom of religion whereas Islamic law indicates that if a person changes religion, they should be treated as an infidel and even justifies killing them.
Only through a gradual and progressive interpretation of these articles could the apparent contradictions eventually be reconciled.
Presidential amnesty decrees were used on a fairly regular basis to release different types of prisoners. These decrees were directed towards young offenders, women and elderly prisoners and took effect on key religious dates celebrated in Afghanistan.
Afghanistan is experiencing its first opportunity in many years to determine how it wants to govern and what role it wants to play in this global community. And the international community is trying to provide the time and stability for these important decisions to be made. Ultimately, the future is in the hands of a number of powerful government and community leaders and it will be up to them to provide the peace, security and sense of well-being to allow them to create a common goal and government that has the confidence of the people and capacity and willingness to govern with integrity.
Drury Allen is presently Director General, Incident Investigations at the Correctional Service of Canada. He served as the Corrections Advisor to the United Nations in Afghanistan between June 2003-June 2004. He has also worked on other international projects, as the Executive Director of the Society for the Reform of the Criminal Law and as the project leader on a major criminal justice reform project in Lithuania.