Report on Progress toward Security and Stability in Afghanistan

June 2008
Report to Congress in accordance with the 2008 National Defense Authorization Act (Section 1230, Public Law 110-181)

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Section 2: Governance, Rule of Law, and Human Rights

2.1 Governance Strategy.

The US seeks to build an Afghan Government that is stable, at peace, capable of governing its territory, democratic, and that protects human rights. The Afghans and the United States have committed to these goals in the Bonn Agreement of 2001, the US-Afghan Strategic Partnership of 2005, the Afghanistan Compact of 2006, and the Afghanistan National Development Strategy (ANDS) of 2008. Building an effective Afghan Government is an integral part of counterinsurgency strategy because it will become the international community’s most effective partner in protecting the population, retaining their loyalty by enabling growth and development, and delivering services. The US’s governance assistance strategy focuses on building capacity in the executive, legislative, and judicial branches; supporting subnational governance; fighting corruption; and promoting human rights.

2.1.1 Progress since the Taliban

Between 1996 and 2001, Afghanistan did not have a functioning, legitimate government. After the Bonn Agreement established the Afghan Interim Administration in 2001, the nation successfully held an Emergency Loya Jirga to ratify the Agreement; wrote and ratified a new Constitution in 2003 and 2004; and held presidential and parliamentary elections in 2004 and 2005, respectively. The next presidential election is scheduled for fall 2009; legislative elections will follow in summer 2010.

Much still needs to be done. Most Afghan officials are not trained or experienced in what westerners would consider to be traditional managerial functions or leadership. This results in inconsistent leadership quality across regions and levels of government. There is a cause and effect relationship between good governance and security. In areas in which capable GIRoA officials exercise the full scope of the duties and powers of their appointed office, the population turns to the government for answers to their problems. The inverse is true for weak or ineffective leaders, or in areas where lack of security does not allow for effective exercise of GIRoA authority.

2.2 Legislative Branch

The rule of law begins with the creation of the law by a competent, honest, and representative legislature. Afghanistan’s National Assembly recently celebrated its second anniversary after a 32 year hiatus. In creating the laws of Afghanistan, the National Assembly has become the primary national forum for the discussion of the major challenges facing the nation, from long-standing inter-ethnic disputes to plotting Afghanistan’s course into a stable future. Groups who at one time were in violent conflict with one another now debate the issues confronting the country peacefully. Parliamentarians include former warlords, ex-Taliban, former communists, Tajiks, Pashtun, and Hazaras.

Much progress has been made, though there are some hurdles that remain to be overcome. As do other parts of the government, the National Assembly suffers from corruption and a lack of trained human capital. As the contest between President Karzai and the Tajik-dominated United Front has become more acute, the National Assembly’s lower house has become more politicized and distracted from its primary task of legalizing pre-2005 presidential directives.

USG assistance to the National Assembly includes direct assistance to five parliamentary commissions, establishing a Parliamentary Institute which will be the focal point for long-term technical training of members of parliament and parliamentary staff, and strengthening parliamentary budget oversight and analysis.

2.3 Executive Branch

The rule of law depends on its execution by capable and fair executives. The Afghan population’s perception of the impartiality, probity and effectiveness of the presidency and line ministries contributes significantly to its willingness to support the government and resist insurgent inducements or coercion.

Great strides have been made in the executive branch of the GIRoA. The President understands the importance of moving away from the traditional Afghan practice of distributing senior ministerial positions, including governorships, on the basis of political connections. The establishment of the Independent Directorate of Local Governance (IDLG), described in section 2.7 of this report, in August 2007 has led to significant improvement in gubernatorial appointments.

USAID is supporting capacity development at the Office of the President and several ministries. Offices at the Presidency that benefit directly from USAID programming include the Office of Administrative Affairs Department of Monitoring and Evaluation, the Office of the Minister of State for Parliamentary Affairs, the IDLG, the Chief of Staff’s Office, the National Security Council, and the Office of the Presidential Spokesman.

2.3.1 Ministerial Capacity

Ministerial capacity is improving, but challenges remain. The Ministries of Health and Education continue to demonstrate to remote rural populations the central government’s ability and willingness to improve their lives. Additionally, the establishment of the IDLG is catalyzing improvements in the ministries’ delivery of services in the provinces.

The biggest threats to the rule of law in the Ministries include corruption and a lack of human capital. Afghan ministries and institutions are currently challenged with minimal organization and a lack of fundamental management and leadership skills. The majority of national and provincial leaders have some education, but the government faces a shortage of adequately qualified civil servants. District-level leadership largely lacks sufficient education and training. Approximately 60 percent of Afghan civil servants are over the age of 50. The government of Afghanistan continues to suffer from a shortage in experienced staff at all levels due to a low national literacy rate, low wages in government service, and existing salary imbalances. With the high demand for manual labor as a result of reconstruction efforts along with demand from international organizations and non-governmental organizations (NGOs), laborers can earn more than teachers and civil servants. USAID funds two major public management initiatives, the Capacity Development Program and the Local Governance and Community Development Program to provide advisory support and technical assistance to 14 national ministries at the national and provincial levels to improve basic governance and public service delivery. In addition, the Afghan Civil Service Commission, also supported by USAID, is improving the process of training and testing civil servants for their ability to meet certain qualifications. Concurrently, training programs at the national and provincial level are being strengthened with support from USAID to develop basic skills among government workers and managers to grow the necessary human capital to form the basis for a future civil service system.

2.4 Judicial Branch

An effective Judicial Branch is essential to establishing the rule of law and good governance in Afghanistan. This sector is a major focus of Afghan, U.S., and international efforts in the country. Currently, the central justice institutions have competent leaders willing to work with the international community. Several key laws have been passed or are being revised that will lay the foundation for an effective justice sector, and the institutions are generally supportive of organizational restructuring and civil service reform. In addition, the GIRoA is advancing narcotics prosecutions under the Central Narcotics Tribunal (CNT) and Criminal Justice Task Force (CJTF) in Kabul. Since March 2005, when the CJTF was set up, it has investigated and prosecuted more than 1,200 cases involving 1,600 defendants from 33 provinces for narcotics-related crimes. Of these, 1,450 defendants were convicted.

2.4.1 Civil Legal System

Land disputes represent the largest single source of cases before Afghan courts, involving both private individuals and the government. These cases include land seizures by powerful interest groups and persons, the return of refugees and internally displaced persons to homes occupied by others, and landlord and tenant disputes. Resolving these land disputes is one of the most pressing civil law issues in Afghanistan, as the efficient and equitable restoration and re-distribution of land is essential to the resettlement of returning refugees and internally displaced persons to their homes and provinces of origin, and the future stability of the country.

The current civil legal system faces many challenges: a lack of clarity as to who is responsible for land rights; an overall lack of financial support, administrative personnel, educated government (and private) attorneys, and judges in the area of land dispute resolution; and facilities for the Afghan court system. The Ministry of Justice (MoJ) lacks the skills, training, and support staff to evaluate and review land disputes.

The ANP are currently increasing their capacity and capability to bring peaceful resolution to disputes and respect the due process of suspects’ and plaintiff’s rights. The ANP possess the same responsibility and authority in both civil and criminal legal systems. Given a civil matter such as a land dispute, the ANP may effectively resolve the dispute between the concerned parties. If the parties cannot agree to the resolution then the case must be presented for adjudication in the given system of law in that area. The Afghan Justice system struggles to balance three types of law -constitutional, sharia, and tribal- while protecting the rights of all Afghans. Hence, although it is a national police force, the ANP must work within the system of justice that takes precedence in their jurisdiction.

Afghanistan’s legal system has inadequate commercial dispute resolution mechanisms. A lack of education and procedures inhibit the enforcement of consistent commercial law on such issues as banking, intellectual property, technology, energy, corporate law, corporate finance, leasing, and bankruptcy. Currently, commercial courts operate in two regions, Kabul and Mazar-e-Sharif. The lack of efficient procedures and resolution for commercial disputes is discouraging to international investors, who fear the risk of doing business in Afghanistan without a court system to enforce commercial rights.

The ANDS proposes several solutions to the challenges facing the justice sector. With regard to land disputes, the Supreme Court will develop judicial capacity in property dispute issues, increasing the number of judges trained in this area in all provinces. The courts and the MoJ will also encourage jirgas and shuras to certify and record the decisions they reach in disputes. Finally, the MoJ will improve the government’s ability to defend its interests in land dispute cases and will encourage the adoption of improved laws, regulations and procedures for land ownership and land dispute resolution.

More broadly, the ANDS will not only set the roadmap and strategy for establishing the rule of law in Afghanistan, but also provide a sense of security for international donors and international investors. The “Law of Organization of Courts” created by the MoJ, establishes eight commercial courts throughout the country. The timeline for the initiation of these courts will be set in the final ANDS. Once the courts are established, the MoJ plans to increase the capacity of these courts to hear cases and increase the number of qualified commercial court judges with specialized skills in the areas of both national and international market economies. Furthermore, the Independent Bar Association and Afghan Investment Support Agency both plan to develop private commercial law and train attorneys in these areas. A viable commercial bar of attorneys, with regional commercial courts and qualified judges, will enhance the appeal and reduce the risks of doing business in Afghanistan.

The international community has not yet done a great deal to assist Afghanistan in the areas of land dispute resolution and commercial law. Although UNAMA, USAID, and private initiatives by NGOs around the world have offered support, available donor funds are waiting for completion of the plan for the way ahead.

2.4.2 Criminal Justice System

While the Criminal Justice system is in the early developmental stage and requires substantial assistance from the international community, some progress has been made. Currently, the most visible progress has taken place in areas with large populations. With USAID assistance, judges are being trained, forty judicial facilities in 16 provinces were built, the laws of the country have been published and distributed in a Judicial Reference Set, the Kabul University Law School is updating its curriculum, and a new court administration system is being implemented. Significant progress has been made in strengthening counternarcotics judicial and enforcement capacity at the national level.

However, work remains to be done. In many provinces, most Afghans are not aware of their rights under the constitution nor do they have a basic understanding of the justice system. Nationwide, fully functioning courts, police, and prisons are rare. Municipal and provincial authorities as well as judges have minimal training and little or no access to published law, often basing their judgments on their personal understanding of sharia law, tribal codes of honor, or local custom. Judges and prosecutors with jurisdiction over the districts often reside in the provincial capital. The lack of trained and qualified judicial personnel hinders the courts and results in very few cases being processed. Renovation of existing judicial infrastructure is needed and utilities, communication equipment, and basic office supplies are lacking. Prison conditions remain poor. Most Afghan prisons are decrepit, severely overcrowded, unsanitary, and fall well short of international standards. Many prisons hold more than twice their planned capacity.

At the local and municipal levels, there are still no functional standardized criminal justice procedures in place in Afghanistan because the focus of establishing the rule of law has been primarily on the provincial and national levels. Once a suspected criminal has been arrested the subsequent process is inconsistent and ill-defined. The arrest of a suspect for any offense requires a viable form of detention but jails and prisons are overcrowded and under-equipped. A viable and complete investigation is dependent on having trained, capable, and honest investigators as well as forensic specialists. Although the police manning document authorizes specialists in each province, the training and availability of these personnel vary. Pending the outcome of the investigation the individual is either released or the case is referred to the system of justice that takes precedence in that area, usually sharia or tribal law. In the absence of a viable criminal justice system these non-constitutional legal mechanisms fill a gap and are somewhat effective in deterring criminality and dispensing justice, though they often violate the rights of women and minorities. As the rule of law in Afghanistan matures, standardized procedures for the prosecution of all serious crimes must be established throughout the country at the provincial, regional and national levels.

At present there is no reliable data to estimate the cost of the long-term reconstruction and development of a comprehensive justice system in Afghanistan. Efforts are currently underway to assess the shortfalls of judicial infrastructure, training, and equipment throughout the country. In February 2008, ISAF directed the Regional Commands and Provincial Reconstruction Teams (PRTs) to conduct a survey of judicial infrastructure, equipment, and other capacity to identify deficiencies and areas in need of improvement. The survey questionnaire was closely coordinated with the interagency, the international rule of law community, and, most importantly, the World Bank. The World Bank will utilize the information gathered from the survey to determine how best to commit resources from the Afghan Reconstruction Trust Fund. The surveys will be completed by May 2008 and should provide an adequate assessment of progress made thus far in establishing the rule of law in Afghanistan.

2.4.3 Efforts to build Judicial Capacity

The GIRoA has made strides in drafting and consolidating a National Justice Sector Strategy (NJSS). However, disproportionately low salaries, widespread corruption, poor infrastructure, inefficient organizational structures, untrained professionals, and a lack of equipment and supplies plague the system. The NJSS is an element of the ANDS and sets development goals to be met by 2013. To implement these goals, the GIRoA and international community are finalizing the National Justice Program (NJP) which will use a combination of Afghan and donor programs (both bilateral and multilateral) to develop and reform the justice system. The World Bank is establishing a justice program that will support the NJP, using pooled donor funding to reduce the number of small-scale implementers.

With the NJP providing a new strategic framework for the justice sector, the U.S. Government (USG) is developing its own strategy to support the NJP that is coordinated through the U.S. Embassy and incorporates U.S. military efforts. Priority areas of the U.S. strategy include: accelerating institutional reform; building provincial infrastructure and capacities; bolstering counternarcotics and anti-corruption prosecutions; investing in the corrections system; improving linkages between police and prosecutors; and focusing on public awareness and legal aid to improve public confidence in and access to the justice system. These efforts support the overall USG push to project governance to the provincial and district levels, which in turn will build nationwide confidence in the central Government’s ability to provide security and services.

To effectively move the justice sector forward, the GIRoA and the international community must coordinate the development of the central, provincial, and district justice systems to ensure standardized training and application of laws. At the central level, our programs and Embassy are working closely with the Afghan Government and international community, and are making progress. At the provincial level, our programs are leading the way, but the needs far exceed available donor resources and programs at present. The GIRoA and its partners must build 34 provincial justice systems. At the district level there is little established judicial capacity, but a plan to train district-level personnel at the provincial level will be launched starting in the summer of 2008. In summary, notable progress has been made and U.S. Government assistance programs have been carefully prioritized, although the overall needs of the justice sector and demands placed on it outpace available international resources.

U.S. Government assistance to the justice sector has gradually grown over the years, with an FY07 budget of $67.35 million ($55 million in International Narcotics Control and Law Enforcement (INCLE) funding and $12.35 million in USAID funding). For FY08, the projected INCLE funding level for justice is $68 million, while USAID is projected to provide $4 million. This level of funding makes the USG the largest donor to the Afghan justice sector, not including the substantial contributions made by DoD in establishing the rule of law.

There are four U.S. agencies primarily involved in building Afghanistan’s justice system: INL, USAID, the Department of Justice (DoJ), and DoD. These agencies and their programs are coordinated through the U.S. Embassy Special Committee on the Rule of Law, chaired by the U.S. Rule of Law Coordinator.

The INL Afghanistan Administration of Justice program is primary concerned with building and reforming the criminal justice and corrections systems. Two major assistance platforms support this program: the Justice Sector Support Program (JSSP) and the Corrections System Support Program (CSSP), described in greater detail below. Both programs are implemented by Pacific Architects and Engineers (PAE) Government Services and have been in place since mid-2005 and early 2006, respectively.

In addition to these two primary programs, INL also supports several smaller initiatives, including: (1) a grant to the University of Washington – Seattle which brings Afghan law professors to the United States to earn certificates and Master’s of Law (LLM) degrees; (2) a grant with the International Association of Women Judges (IAWJ) to support women in the legal profession; (3) an agreement with the United States Institute of Peace (USIP) to focus on specific policy and reform issues; (4) contributions to two multilateral trust funds to address disproportionately low salaries for judges, prosecutors, and corrections personnel; and (5) funding to support three field offices of the Provincial Justice Coordination Mechanism mentioned above. INL also funds the DoJ Senior Federal Prosecutors Program in Afghanistan.

The JSSP supports 30 U.S. justice advisors (prosecutors, judges, defense attorneys, and criminal justice systems experts) and 30 Afghan legal advisors, and has permanent teams based in Kabul, Herat, Balkh, Konduz, and Nangarhar provinces to build Afghanistan’s criminal justice system. JSSP provincial teams as well as DoJ prosecutors are conducting police-prosecutor training and mentoring, and will soon establish a new training program to improve justice capacities at the district level, working closely with the police program’s Focused District Development initiative. To date, DoJ and the JSSP have trained more than 1,000 Afghan lawyers. The Kabul JSSP team is split into three sections. The first section consists of 16 U.S. and Afghan advisors who are reorganizing the Attorney General’s Office, providing training and mentoring, and advising the Afghan Attorney General on key issues. The second section supports the Ministry of Justice and its key directorates with three U.S. and 11 Afghan advisors, including the recently established and entirely Afghan staffed Policy and Strategy Unit. The Policy and Strategy Unit provides policy and organizational reform advice to the Minister. The third JSSP section focuses on improving access to justice, which includes mentoring and capacity building for private legal defense organizations, legal education and training, and organizing provincial justice conferences. The JSSP also has a gender justice advisor who is developing linkages between police Family Response Units and the prosecution services, as well as a military liaison to coordinate joint police-justice efforts.

The CSSP supports more than 30 U.S. corrections advisors in Kabul, Herat, Balkh, Nangarhar and Paktia provinces. This support is focused on four areas: training, capacity-building, infrastructure support, and operations and maintenance for a new facility in Kabul. The provincial teams have trained more than 1,300 corrections officers to date in a basic 8-week course and a “train the trainers” course. The training program is based on international and United Nations human rights standards and was developed specifically for (and with) the Afghan Government. The program launching numerous advanced and specialized courses in 2008. The CSSP also supports a capacity-building program which is advising the Ministry of Justice’s Central Prison Directorate (CPD) on prison policies, prison management, establishing a prisoner tracking system, and organizational reforms. The third CSSP component is the infrastructure team, which has refurbished the national corrections training center, completed numerous small-scale renovations of prisons, provided a new annex for the CPD headquarters for staff, and established an Afghan Engineering Office within the CPD. Together with Afghan architects and engineers, the CSSP has developed a “hybrid” prison design that incorporates international human rights standards with Afghan realities and cost-effectiveness to create a sustainable, humane, and secure prison design. In addition to constructing two prisons over the coming year, the CSSP is also advising other donors to ensure that their designs and construction of prisons implement this Afghan-approved sustainable model. Lastly, the CSSP will support the operations and maintenance of the Counternarcotics Justice Center (CNJC) in Kabul, a secure facility built by the Army Corps of Engineers that will house the Counternarcotics Criminal Justice Task Force (CJTF) and Central Narcotics Tribunal (CNT) as well as a detention center.

Finally, INL entered into an agreement with the United States Institute of Peace in mid-2007 to work with Afghan and international actors to develop policies and possible linkages with the non-state system of dispute resolution. Although the focus of U.S. assistance must be on building the central government’s reach through the formal justice institutions, there may be linkages with the informal system for certain civil (but not criminal) disputes that could maximize efficiency and utilize the legitimacy that many customary systems enjoy, so long as human rights and gender rights are respected and enforced.

The USAID-funded Afghanistan Rule of Law Project assists in the development of a democratic Afghan government, which has broad citizen participation and a vigorous economic sector, by improving the country’s legal infrastructure. Working with the Ministry of Justice and the Supreme Court, as well as with faculties of law and Sharia in five provincial universities, the project works to improve the formal court system, strengthen institutional capacity for lawmaking, and increase citizens’ awareness of their legal rights and how the judicial system operates.

The project is divided into seven components:

• Court administration, which simplifies and standardizes court administration procedures to improve access to court information;

• Judicial Training and Professional Development, which creates opportunities for improving judicial professionalism, knowledge and skills;

• Commercial Dispute Resolution, which lays a foundation for the effective resolution of commercial disputes;

• Legal Education, which strengthens the formal legal education system;

• Legislative Process Reform, which improves the legislative process and access to legal information;

• Women’s Rights Under Islam, which increases knowledge of women’s rights under Islam; and

• Access to Justice and Building Links to the Informal Justice Sector, which ensures that the appropriate sector for resolving disputes is recognized.

Starting in 2007, the Supreme Court began sending its justices on inspection tours of provincial courts to ensure that they are in compliance with judicial regulations. The inspections are followed by 3-day conferences, where the visiting Supreme Court justice will discuss the inspection results and recent or upcoming changes in court policy and operations. Judges participating in these conferences, which are supported by the Afghanistan Rule of Law Project, also receive training in the Regulation of Judicial Conduct and the recently adopted Afghan Court Administration System for streamlining the courts’ case-management processes.

Since 2005, DoJ has assigned up to four senior Assistant United States Attorneys as Senior Legal Advisors and three senior experienced criminal investigators to Kabul to assist in law reform and training and mentoring of the Criminal Justice Task Force (CJTF) and the Central Narcotics Tribunal (CNT), a special task force of Afghan judges, prosecutors, and police investigators responsible for cases against mid- and high-level drug traffickers. DoJ’s Senior Federal Prosecutor Program also provides criminal law advice to the Embassy and Afghan leadership and U.S. law enforcement, upon request. The prosecutors have succeeded in 1) drafting and enacting a comprehensive counternarcotics law that also provides for the use of modern investigative techniques (e.g., electronic surveillance, and the use of informants and undercover officers); 2) establishing a specialized narcotics court with nationwide exclusive jurisdiction for cases against mid- and high-level traffickers; 3) achieving the first-ever extraditions of major drug traffickers from Afghanistan to the United States and 4) working with U.S. and international partners to establish, train, and mentor the CJTF and CNT.

Department of Justice prosecutors have:

• Drafted (in consultation with Afghan legal advisors, DoJ's Criminal Division, and the international community) and had signed into law a Comprehensive Counternarcotics Law that builds upon former Afghan law to criminalize all narcotics and narcotics-related offenses, sets controls on processing chemicals, authorizes the use of modern investigative techniques, and confirms the use of the 1988 U.N. Convention against Narcotics and Psychotropic Substances in extradition;

• Drafted and had signed into law the Presidential Decree establishing the Central Narcotics Tribunal with exclusive nationwide authority for the trial of all mid- and high-level narcotics trafficking cases;

• Refined and had signed into law the Military Courts Legislation and Military Courts Penal and Procedural Law that established a separate court and its law and attendant procedures for the Afghan National Army that meet international standards;

• Drafted counter-terrorism and extradition laws now under review by the Afghan legislative unit at the Ministry of Justice;

• Prepared a legal analysis of Afghanistan’s former, interim, and proposed criminal procedure codes, highlighting areas for reform;

• Deployed a DoJ expert team to Kabul to assess current capacities and make recommendations for assisting the Afghan Attorney General and the CJTF with an anti-corruption initiative. As a result, DoJ has now assigned one of the federal prosecutors full-time to the Attorney General’s Office and will be establishing a sub-unit within the CJTF dedicated to investigating and prosecuting narcotics-related corruption cases upon country clearance approval from the Department of State for additional DoJ attorneys;

• Provided and continues to provide prosecutorial advice to the Embassy leadership, Afghan officials, and U.S. law enforcement (DEA and FBI) and prosecutors in the development of criminal investigations for prosecution in Afghanistan, the United States, or elsewhere;

• Prepared an in-depth training regime and conducted training for the CJTF and CNT focused on the new Afghan Counternarcotics Law and proactive investigations. In addition, the DoJ attorneys provide in-depth special topics seminars for the CJTF, CNT, and provincial prosecutors on regular basis to improve understanding of fundamental concepts and the implementation of investigative modern techniques;

• Advised on the design of Afghanistan's Counternarcotics Justice Center in Kabul that is under construction and will soon house the CJTF and CNT; and

• Assisted in the development of an adjunct project by the U.S. Marshals Service that has been deployed to train a protective corps drawn from the Afghan National Police to provide court security at the CNT and protection to CNT judges and CJTF prosecutors.

The Department of Defense has increased its activities in providing rule of law assistance over the past year in two main areas: improving linkages between the justice and police sectors, and expanding rule of law programming by the Judge Advocate General Corps in eastern Afghanistan.

On police-justice integration, CSTC-A has played an important role in furthering joint initiatives to support the justice sector, building the ANP and the Ministry of Interior (MoI). In this capacity, CSTC-A has advised the MoI Legal Advisor’s Office on key legislation and procedures that govern law enforcement, and is working closely with other U.S. agency efforts and the international community on advancing overall justice sector development and reform.

In addition, Combined Joint Task Force (CJTF)-101 is implementing rule of law initiatives in its area of operations in Eastern Afghanistan. CJTF-101 has worked with the U.S. Embassy and programs listed above on legal training, distribution of legal texts, and infrastructure support to improve provincial and district level justice systems.

2.5 Corruption

Corruption is a significant problem in Afghanistan and erodes the legitimacy of the GIRoA. Insufficient analytical work has been completed to give the exact scope and extent of corruption in Afghanistan. Some analysis conducted by the members of the donor community and the Afghan government, as well as anecdotal evidence, suggest that Afghanistan’s sources of corruption are composed of both typical sources of corruption as well as corruption that is unique to Afghanistan. The sources and forms of corruption includei:

• Low public sector salaries and unqualified public officials;

• Discretionary power of public administration;

• Weak legal, legislative and regulatory frameworks;

• Weak or non-existing mechanisms and systems for public scrutiny;

• Dysfunctional justice sector and insufficient law enforcement;

• The narco-economy;

• Fraudulent NGOs that are actually for-profit businesses;

• Limited oversight of the central government over the sub-national administration;

• An unprecedented amount of international assistance;

• Corruption in the management of natural resources;

• Political, social, and economic uncertainty; and

• Tribal and regional leaders outside the central government’s control.

Advancement to higher positions in some government agencies is often tied to bribes and influence. This limits the advancement of those who can not afford to pay for it, and creates a perception of unfairness and inequality by those who see corrupt officials advance while their position remains unchanged for years at a time.

Anti-corruption efforts in Afghanistan have been the focus of much discussion at recent meetings of the U.S. Embassy’s Special Committee for the Rule of Law (SCROL). Examples abound of corrupt public officials who are immune from prosecution, judges and prosecutors whose discretion is subject to influence, and police who not only refuse to take action to stem corruption, but also engage in corrupt activities themselves. It should be noted that what is perceived as corruption in need of correction by Western standards may simply be indicative of the way Afghan society operates. The real issue is not whether corruption exists, but whether the amount of corruption that does exist has reached the point where it undermines the legitimacy of the Afghan government.

2.5.1 Anti-Corruption Efforts

The primary focus of anti-corruption efforts has been the removal of corrupt government officials from public service. This process, however, has been significantly hampered by Afghan law. The Afghan Civil Service System does not contain a mechanism for the administrative removal of civil servants. There are only two ways that a civil servant can be removed from office. The first method involves direct removal by the President of Afghanistan. The second method is via a criminal conviction. The employee must be found guilty of misconduct by an Afghan court, the authorized punishment for the offense must include dismissal, and the court must determine that dismissal is, in fact, warranted. CSTC-A is currently working with the MoI on redrafting the personnel regulation that governs MoI employees, specifically, the ANP. These efforts are aimed at empowering lower-level officials to make removal decisions while providing sufficient administrative due process to the employee subject to termination. The creation of an administrative separation mechanism will dramatically speed the process of removing corrupt government officials. Unfortunately, implementing this new process is likely to take at least two years. Once adopted, these laws will serve as a model for reforming the remainder of Afghanistan’s personnel laws. Anti-corruption efforts for agencies that do not fall under the MoI are the responsibility of the Civil Service Commission, the Ministry of Justice, and the Independent Directorate for Local Governance (IDLG) at the provincial level.

Judicial corruption remains endemic in Afghanistan. Since his appointment to the Supreme Court in August 2006, Chief Justice Abdul Salam Azimi has made cleaning up the courts his top priority. Working with USAID, he has instituted an aggressive, two-pronged approach to reduce the level of corruption in the courts and to raise the level of public trust and confidence in the judiciary. The strategy includes instituting a new code of conduct for judges and raising judges’ salaries so the judges are less inclined to accept bribery.

The two-pronged approach to fighting judicial corruption:

• New Regulation of Judicial Conduct: The first part of the Supreme Court strategy focused on developing a modern code of judicial conduct that establishes ethical standards for how all of Afghanistan’s judges are to conduct their affairs. On June 19, 2007, that code, entitled the Regulation of Judicial Conduct for the Judges of the Islamic Republic of Afghanistan, was adopted. Each of Afghanistan’s 1,280 judges will receive training on the Regulation’s meaning and importance by the end of September 2008.

• Improving Judicial Salaries and Working Conditions: The second part of the strategy focuses on securing funds from the international community to increase judges’ wages and improve their working conditions so that they are less inclined to accept bribes. Donor money for judges’ salaries was incorporated as one of the court’s highest funding priorities in July 2007 when the Supreme Court presented its Afghanistan National Development Strategy (ANDS) to international donors at the Rome Conference on the Rule of Law in Afghanistan, July 2-3, 2007.

Building GIRoA capacity to manage its own justice system is an integral part of a secure and sustainable Afghan state. However, without high-level political will on the part of the GIRoA to tackle corruption from the top down building justice sector capacities and strong public demand for a functional justice system will have very little effect. To that end, the U.S. strategy emphasizes using diplomatic, political, and law enforcement tools to strengthen Afghan political will to institute true reforms and tackle corruption within their government. We have seen several positive signs, including the recent passage of the Advocates Law (establishing a national bar and legal defense service). The GIRoA recently became a signatory to the United Nations Convention Against Corruption (UNCAC), an important step in the right direction.

2.6 Human Rights

Since the fall of the Taliban some important progress has been made in protecting human rights in Afghanistan. Under the Taliban regime women were removed from all forms of public life. Today while women’s active participation in Afghan society has gained a degree of acceptance, women who are active in public life continue to face disproportionate levels of threats and violence. Currently women work as teachers, health care providers, hold 91 seats in the Afghan Parliament, and a woman serves as chairperson of the Afghan Independent Human Rights Commission (AIHRC). As described in section three of this report, access to education for girls and women has increased dramatically. Police and other security forces receive training in how to respect the rights of individual citizens. In the country as a whole there is increased space and scope for a functioning civil society. Media freedom, despite recent setbacks, is still much more vibrant than it was under the Taliban.

Although progress has been made, Afghanistan's human rights record remains poor and serious abuses continue. The GIRoA and its partners are fighting an insurgency that respects no boundaries in perpetrating violence upon civilian populations. Human rights abuses include extrajudicial killings, arbitrary arrest and detention, poor prison conditions, official impunity, prolonged pretrial detention, torture, and abuse of authority. Restrictions on freedoms of movement and association continue as does violence and societal discrimination against women, minorities, and religious converts; trafficking in persons; abuse of worker rights; and child labor. Women and girls face severe discrimination. Violence against women including domestic violence, sexual violence, forced marriages, kidnappings, trafficking, and honor killings remains rampant. Although women's political participation has gained a degree of acceptance, women who are active in public life continue to face disproportionate threats and violence. The media faced increased restrictions in 2007, including heightened detention of journalists and government interference in media coverage. Government repression and armed groups prevent the media from operating freely. A draft media law sent back to Parliament by Karzai in December 2007 could place greater restrictions on media content and create a climate of government intimidation and media self-censorship.

The Ambassador and other senior U.S. officials consistently emphasize the importance of human rights to their Afghan counterparts. During Secretary Rice's visit in January 2008 she delivered both public and private messages underscoring governance and human rights themes. The U.S. continues to support the AIHRC, as well as the Ministry of Women's Affairs and the Ministry of Refugees. The U.S. integrates women’s issues into virtually all of its programs, aiming to increase female political participation, education, economic opportunities, and their role in civil society. U.S.-funded NGOs hold workshops to educate women on their legal rights and the justice system, the new Constitution, and the National Assembly and Provincial Council Elections. U.S. programs promote independent press and electronic media by facilitating the development of a network of independent community-based radio stations and investing in training and business plan development to ensure the sustainability of independent media organizations.

2.7 Subnational Government

One of the central programs intended to improve governance at the provincial, district, and municipal levels is the Independent Directorate for Local Governance (IDLG). President Karzai issued a decree on August 30, 2007, establishing the IDLG as a focal point for governance policy under his presidency and a new home for the MoI’s dysfunctional Civil Administration Division. The IDLG oversees provincial governors, district governors, provincial councils, and municipalities (except Kabul). The IDLG has established specific assessment criteria for selecting and evaluating district and provincial governors. Those criteria include loyalty to the president and the constitution, freedom from corruption, good management and leadership skills, success in working with the international community and good public outreach. This codification of core values required for the selection and evaluation of provincial governors and sub-governors represents a step towards establishing standards to which current and future governors will have to adhere. Using the established criteria, the IDLG has removed and replaced many provincial governors in the past six months. With few exceptions, these changes have resulted in more effective governors and, by extension, improvements in overall governance. The long-term effect of these changes cannot yet be precisely determined but the outlook is very positive. The impetus behind this approach is in keeping with the IDLG’s mandate of providing good governance by establishing and strengthening government institutions at the subnational levels to achieve open, transparent, participative, accountable and effective governance structures that are based on consensus and rule of law.

Recently, the IDLG targeted six governors for replacement or reassignment. The IDLG recently played a pivotal role in the replacement of the governor of Ghazni province due to consistently poor performance. Conversely, the IDLG capitalizes on the strengths of top-performing governors by reassigning them to provinces that are in need of sound leadership and management. A case in point was the recent relocation of the Laghman governor to Helmand province.

The IDLG staff frequently travel to each of the 34 provinces to monitor the performance of provincial governors and district governors. The IDLG uses this visibility and awareness to appoint capable and respected members of the community to village and district shuras that serve to link the village community to the government. To this end, the IDLG has effectively spearheaded several district-level shuras, aimed at promoting the capacity of local governance. The IDLG also participates in frequent working group meetings that bring together various stakeholders—ministries, agencies, international organizations, and embassy officials to discuss governance challenges and solutions. In collaboration with IDLG, USAID, through the Local Governance and Community Development (LGCD) program is strengthening the capacity of provincial and district level officials to govern effectively, more transparently, and to provide better services to constituent communities.

Last year, no province in Afghanistan had a viable plan for development. The central government, supported by the United Nations Assistance Mission to Afghanistan (UNAMA) and United States Agency for International Development (USAID), organized an effort to facilitate, mentor, and oversee the completion of Provincial Development Plans (PDPs). After less than three months’ effort, through aggressive interaction with the Provincial Development Committees and elected Provincial Councils, every province now possesses an initial PDP. Much work remains to expand the PDPs into comprehensive, actionable documents, but progress has been remarkable.

On the anti-corruption front, the IDLG recently signaled its intent to foster public sector accountability when it filed suit with the Attorney General’s office against six non-performing firms that were contracted under the Afghan Stabilization Program to construct government facilities. Eight additional companies are expected to face prosecution in the short term. With technical assistance and support from a growing consortium of donors, including USAID, key IDLG leaders are implementing measures aimed at advancing the mandate of the GIRoA as it relates to the promotion of good governance, rule of law and anti-corruption initiatives.

As part of its mandate, the IDLG has established other short and long-term goals aimed at achieving the following:

• Ensuring that Afghan women enjoy greater equity in education, political participation and justice;

• Elimination of discrimination against women and promotion of their involvement in leadership activities;

• Ensuring participation of the people at all levels of government;

• Promotion and advancement of security;

• Improving the performance of service delivery institutions at the provincial, district and village levels; and

• Fighting public and private sector corruption to improve the effectiveness, transparency and accountability of government, thus creating the conditions for investment.

2.8 Key Measures of Political Stability

Progress in government effectiveness is one of the most difficult areas to measure. Most indicators are subjective in nature primarily because they require a measurement of human capacity, leadership and effectiveness. Although public perception surveys provide quantifiable insight into government effectiveness as it relates to the population, other quantifiable indicators can cause an inaccurate assessment of overall government effectiveness as they fail to consider the inherent qualitative nature of leadership.

Any subjective measurement of governance should include the population acceptance of government authority, government capability to provide for and/or protect the population, effectiveness and use of the judicial system to resolve disputes, and the level and effect of corruption. Though down from a high of 83 percent in 2005, 63 percent of Afghans polled approved of President Karzai’s leadership in 2007. A point of concern is Afghans’ perception of corruption as a major problem for the country. 25 percent of Afghans believed that corruption was the biggest problem facing their country, down slightly from 27 percent in 2006, but a large increase over previous years.

Objective measures of the government’s institutional effectiveness vary across ministries and organizations according to the outcome they are charged with accomplishing. For example, the Ministry of Finance’s effectiveness could be measured by the population’s tax compliance rate; the government’s tax revenue as a percentage of GDP; or the government’s budget execution and disbursement rates. The Ministry of Refugees’ effectiveness could be measured by the number of refugees successfully resettled. The Ministry of Education’s effectiveness could be measured by the number of schools built, teachers hired, students enrolled, or students graduated.

Unfortunately, Afghanistan is a data-poor environment and it is difficult to create a comprehensive or systematic picture of the quality of institutional performance in the Afghan Government. Most ministries do not track their own performance, make data widely available, or keep accurate statistics. The lack of a solid baseline of data continues to hamper reconstruction efforts. Better information, statistical analysis, and intelligence will help create a clearer picture of Afghan governance in the future. We aim to make improvements in data collection a key part of continuing capacity development programs.

Difficulties persist in implementing reform at both central and provincial levels. Improving sub-national capabilities remains an essential component of continued progress. Success in the fight against corruption is central to maintaining popular support for both the existing political system and the GIRoA. Success in developing the government’s capacity is essential to sustaining the progress that has been made to date.