The following information is taken directly from a U.S./NATO wiki used by contractors and other military personnel involved in Afghanistan’s provincial reconstruction.
Afghanistan’s government structure is designed around a strong, democratic national government. At the national level, the three branches (Executive, Legislative, and Judicial) form the foundation of the government, but other entities, such as ministries, the Afghan National Security Forces (military and police), and commissions also carry out government obligations.
Below the national level, the public sector consists of provincial-level governments, municipalities, and finally district-level government. However, unlike the U.S. government, each of the 34 provinces does not operate independently of the national government.
Kabul, the capital, is the seat of power. Each province answers to the national government.
Executive Branch
The executive branch is comprised of the Office of the President, two Vice Presidents, the Attorney General, and 25 Ministers, as well as several independent bodies and other central government agencies.
The President
The President is the head of the executive branch. The current President is Hamid Karzai. The President serves as the head of state and the Command-in-Chief of the Armed Forces of Afghanistan. As head of state, he determines the fundamental policies of Afghanistan. He has the power to convene a Loya Jirga. The President signs laws and decrees as well as establishes commissions for the improvement of the administrative condition of the country. As Commander-in-Chief, he has the power to declare war and cease fires (with the approval of the assembly) in order to “protect the independence” of the country.
Approval of the National Assembly is required when declaring war and peace, dispatching armed forces units outside of Afghanistan, and proclaiming/terminating a state of emergency. Importantly, the President is not authorized to dissolve the National Assembly.
The President appoints cabinet ministers, diplomatic positions, and the Attorney General, Director of the Central Bank, and the Justices of the Supreme Court; with the approval of the Wolesi Jirga.
A candidate is elected President by receiving more than 50% of the votes cast through free, general, secret, and direct voting. If none of the candidates receives more than 50% of the votes in the first round, a run-off election is held within two weeks. Only the two candidates with the highest number of votes are allowed to participate in the run-off, and the candidate who gets the majority of the votes will be elected as the President. The President serves a five-year term and can serve a maximum of two terms. Candidates for the presidency name their two vice presidential candidates at the time of nomination.
Vice Presidents
Two Vice Presidents serve directly under the President, and are first and second in line to the Presidency if the President were to lose the office. The first in line is called the Vice President. The current Vice President is Ahmad Zia Massound. The other is known as the Second Vice President (currently Mohammed Abdul Karim Khalili). In the case of resignation, impeachment, or death of the President, or a serious illness that could hinder the performance of his duties, the Vice President assumes the office and all his authorities. The Second Vice President would then become the Vice President. Pursuant to Article 67 of the Constitution, the “serious illness shall be proved by an authorized medical committee appointed by the Supreme Court.”
Policy Action Group
President Karzai created the Policy Action Group (PAG) as a mechanism for integrated policy-making and strategic direction. The PAG ensures that work by different groups in their respective fields of competence is properly coordinated and mutually supporting. The PAG consists of selected government ministers and invited representatives from interested international actors, including allied countries and non-governmental organizations. It is chaired by the President once a month and meets at ministerial level every week. It is supported by a full-time coordination team tasked to provide coordinated advice and products to PAG and to ensure the coordinated implementation of policy. PAG is divided into pillar groups led by a nominated minister. The groups are the Intelligence Fusion Group, Security Operations Group, Strategic Communications, and Reconstruction and Development.
Scope and Function of the Ministries
The ministries are divisions of the government dedicated to one area of national concern. The President has the authority to appoint the head of each ministry. These ministers form the President’s “cabinet,” who meet with the President in order to present issues, concerns, and ideas in their particular field to the President in return for his guidance. The President’s cabinet consists of the following ministers: Commerce & Senior Advisor to the President, Foreign Minister, Defense, Interior, Finance, Education, Borders & Tribal Affairs, Economics, Mines and Industries, Women’s Affairs, Public Health, Agriculture, Justice, Communications, Information & Culture, Refugees Affairs, Haj and Religious Affairs, Urban Affairs, Public Work, Water and Power, Labor and Social Affairs, Energy, Martyrs and Disabled, Higher Education, Transportation, Rural Development and Rehabilitation, Counter-Narcotics, National Security Advisor, and Chief Justice of the Supreme Court.
Ministers are appointed by the President and approved by the National Assembly. Each ministry plays a role in carrying out governmental duties set forth in the Constitution. These duties include maintaining public law and order, preparing the budget, regulating financial affairs, devising and implementing programs for social, cultural, economic, and technological progress, protecting independence & territorial integrity and safeguarding the interests of Afghanistan. Overall, each ministry plays a role in executing the laws and upholding the Constitution by serving the people of Afghanistan.
Ministers can also participate in sessions of the National Assembly. The Assembly also has the power to demand that a minister take part in its sessions if it feels that the minister’s presence is necessary to the law-making process. Ministers, however, cannot vote.
There are 25 ministries within the Afghan government, whose role is to implement the fundamental lines of the policy of the country and regulate its duties, as well as approve regulations. Ministers perform their specified duties as heads of administrative units and are responsible to the President and House of Representatives for those duties.
| GOVERNMENT MINISTRIES |
| Ministry of Agriculture, Irrigation and Livestock (MAIL) – Responsible for managing Afghanistan’s agriculture policy, including food security, horticulture, and improvement agricultural infrastructure. Ministry of Border, Tribal and Ethnic Affairs – Responsible for cultivating cultural and other ties between Afghan minorities and their ethnic counterparts. |
| Ministry of Commerce – Responsible for facilitating and promoting the development of a competitive private sector and to integrate Afghanistan into the regional and global economy. |
| Ministry of Communications (MCIT) – Responsible for ensuring Afghanistan becomes part of the global information society while preserving its cultural heritage. |
| Ministry of Counter-Narcotics – Responsible for the coordination, policymaking, monitoring, and evaluation of all Counter Narcotics activities and efforts. |
| Ministry of Culture and Youth – Responsible for the national strategy for the preservation of the Afghan cultural heritage and generating income at the local level. |
| Ministry of Defense (MoD) – Responsible for overseeing the Afghan National Army. |
| Ministry of Economy – Responsible for the monitoring of expenditure and the development of the Afghan economy. |
| Ministry of Education – Responsible for the development of education in Afghanistan to include building schools and training teachers. |
| Ministry of Energy and Water – Responsible for coordinating an effort to reintroduce power to those areas of Afghanistan where it was cut-off. |
| Ministry of Finance (MoF) – Responsible for the management and execution of budget, collection of taxes, organization, and control of public expenditures and payments to the government, and the management of Custom Affairs. |
| Ministry of Foreign Affairs – Responsible for managing the foreign relations of Afghanistan. |
| Ministry of Haj and Islamic Affairs – Responsible for managing all government activities relating to religion. |
| Ministry of Higher Education – Responsible for the rebuilding and re-opening of universities and colleges. |
| Ministry of the Interior (MoI) – Responsible for the over watch of the Afghan Police forces. |
| Ministry of Justice (MoJ) – Responsible for upholding the rule of law, the country’s judicial affairs, and serves as the primary link between the people and the court system. |
| Ministry of Labour |
| Ministry of Martyrs and Disabled – Responsible for disability coordination, advocacy, and information dissemination in Afghanistan. |
| Ministry of Mines and Industries (MoM) – Responsible for the regulation of mineral activities in order to develop, promote, and ensure the efficient management of the minerals industry by the private sector for the benefit of the people of Afghanistan. |
| Ministry of Public Health (MoPH) – Responsible for matters concerning the health of the population of Afghanistan, including curative, preventive, and reproductive health. |
| Ministry of Public Works (MoPW) – Responsible for the civil works projects to include roadways and highways within Afghanistan. |
| Ministry of Refugees and Repatriation – Responsible for devising and executing the strategy for the return of Afghan refugees |
| Ministry of Rural Rehabilitation and Development (MRRD) – Responsible for improving socio-economic, political, and cultural conditions for rural communities and access to basic social services. |
| Ministry of Social Affairs |
| Ministry of Transportation and Civil Aviation – Responsible for the rehabilitation, organization, and management of Afghan Airspace. |
| Ministry of Urban Development and Housing – Responsible for sound urban management, including facilitating access to housing for all of Afghanistan’s citizens. |
| Ministry of Women’s Affairs – Responsible for promoting women’s advancement in Afghanistan and ensuring women’s legal, economic, social, political, and civic rights. |
Comparison with the United States
Similar to the American document, the Afghan Constitution mandates a presidential system with a bicameral parliament, a highly centralized administration, and legal system safeguarded by a Supreme Court with powers of judicial review. However, there are several distinct differences between the two documents and systems. Aside from the apparent difference of having two vice presidents, the Afghan Constitution clearly subordinates Afghanistan and all its citizens to the Islamic holy book, and its related civil laws, whereas the US Constitution provides for the separation of church and state and goes to great length to protect individual liberties.
Legislative Branch
The 2004 Constitution mandates a strong presidential system but also gives important law-making, representative, and oversight functions to a bicameral National Assembly (Shura-e Milli). The National Assembly consists of two houses: the elected lower Wolesi Jirga (House of the People), with 249 deputies, and the appointed higher Meshrano Jirga (House of the Elders), with 102 deputies.
As well as law making, the two houses that make up the National Assembly are responsible for:
- creating, modifying, and/or abrogating administrative units;
- granting permission for obtaining or granting loans;
- ratifying treaties and or other international agreements;
- confirming presidential declarations of war and ceasefire and the sending of troops abroad; and
- confirming presidential declarations of states of emergency.
Relationship to the other branches
The legal framework lacks both formal and informal linkages between the executive and legislature. Legislators cannot sit in the cabinet, and vice versa. The Afghan political system has downplayed the role of political parties, and thus has no large blocks that straddle government and parliament and can shape policy and ensure that bills are passed. A joint committee would be tasked to break a deadlock between the two houses of the National Assembly, but there is little explicit guidance on what to do in case of deadlock between the executive and legislature.
The 2004 Constitution recognizes the National Assembly “as the highest legislative organ is the manifestation of the will of its people and represents the whole nation.” Even within the presidential system, it has some powerful functions of oversight, and the President is required to determine fundamental state policies with the approval of the National Assembly. The President and his ministers are also held responsible to the Wolesi Jirga. According to the Constitution, ministerial appointments require Wolesi Jirga confirmation, and ministers are subject to a vote of confidence at any time. The Wolesi Jirga also is responsible for confirming Supreme Court appointees; but, unlike the ministers, the Judges are appointed for a period of ten years.
There has been friction and some disappointing lack of coordination and cooperation between the National Assembly and the executive, partly due to personal rivalries. Several 30-day deadlines have been treated with a degree of flexibility. There has also been a lack of thorough scrutiny in some cases due to fear of deadlock and a desire to press ahead. As experience and expertise is gained, more oversight will be demanded and such deadlines as the 30 days within which legislation proposed by the executive becomes law unless it is stopped could provoke an aggressive response.
How a bill becomes a law
A bill can be initiated by the government, or by members of the National Assembly, or, if pertaining to regulation of judicial affairs, through the Supreme Court by the government. In the National Assembly, a bill needs to be initiated by ten members of one of the two Houses and then approved by one fifth of the members of the respective Houses before being admitted to the agenda of the respective Houses.
Proposals for budgetary and financial affairs can only be initiated by the government. Bills initiated by the government are submitted first to the Wolesi Jirga. The Wolesi Jirga approves or rejects a bill as a whole, including proposals for budgetary and financial affairs and the proposals of taking or giving loans. The Wolesi Jirga has 30 days to act on a proposed bill. After approval by the Wolesi Jirga, the bill is submitted to the Meshrano Jirga. The Meshrano Jirga has 15 days to decide on a bill. If either House does not take any decision on the bill within the allotted time, the proposal is considered to be approved.
The state budget and development plan of the government are submitted through the Meshrano Jirga first, the reverse of other legislation. The plan, along with advisory notes from the Meshrano Jirga, is then sent to the Wolesi Jirga. The decision of the Wolesi Jirga, regardless of whether the Meshrano Jirga agrees, becomes law once signed by the president.
If the decision of one House is rejected by another, a joint committee composed of equal members of each house is formed to resolve the differences. The decision of this committee is enforced after its approval by the President. If the Joint Committee cannot resolve the differences, the bill is considered defeated. However, if the bill was approved by the Wolesi Jirga in the first place, it can be approved in the next session by a majority of its members. This bill is then submitted to the President for signature, without submission to the Meshrano Jirga.
If the President does not agree with a bill passed by the National Assembly, he can send back the bill with justifiable reasons to the Wolesi Jirga within 15 days of its submission. If the Wolesi Jirga approves the bill again with a majority of two-third votes, the bill is considered endorsed and enforceable.
Qualifications
To be nominated a member of the National Assembly, one must be a citizen of Afghanistan, or have obtained the citizenship of the state of Afghanistan at least ten years before becoming a candidate. Cannot have been convicted by a court for committing a crime against humanity, a crime, or sentenced of deprivation of his civil rights. Members of the Wolesi Jirga must be 25 years old at the date of candidacy, and members of the Meshrano Jirga must be 35 years old at the date of candidacy or appointment. There were – and still are – some calls for an educational requirement. However, in a largely illiterate country this would work against true representation of the nation.
In cases of death, resignation, or dismissal of a member of the Wolesi Jirga, and/or disability or handicap, which prevents performance of duties permanently, an election is held for a new representative for the rest of the legislative period. In the above situations, a new member of the Meshrano Jirga would be appointed in the same manner as the original member.
International Partnerships
Partnerships to assist in development of the Afghanistan legislative system include USAID’s Democracy and Governance Program which is designed to foster democratic political parties that are responsive to their constituents; provide critical support for the new Parliament, both its members and professional staff; enact effective legislation and exercise oversight of the executive branch; and increase the capacity of Afghan civil society to serve their communities and advocate on behalf of citizens.
The United Nations Development Programme has been assisting parliament through the SEAL project (Support of the Establishment of the Afghan Legislature). This project aims to support the activities of the parliament, its members, and staff, with training and equipment so that an effective legislature can take shape in Afghanistan.
The Asia Foundation supports the development of the central executive institutions and the parliament by upgrading organizational structures, procedures, office equipment and facilities, information technology, and policy coordination processes.
The Government of India has recently pledged funds to support the construction of a new building for housing the National Assembly. Other governmental departments and agencies providing funding and assistance include: Australian Agency for International Development, Canadian Department of Foreign Affairs and International Trade, European Union (European Commission), German Foreign Office, Japanese International Cooperation Agency, Republic of China Ministry of Foreign Affairs, the United Kingdom Department for International Development, and numerous others.
Comparison with U.S. structures
The Afghan legislative system shares some similarities with that of the United States. The Afghan Parliament is composed of two separate houses like that of the U.S. Congress. Afghanistan’s parliament is made up of the Wolesi Jirga (House of People) that is similar to the U.S. House of Representatives. Like in the U.S. House, the Wolesi Jirga represent direct election of candidates proportional to the provinces’ population total, and the members are elected in free, general, secret, and direct elections. The Meshrano Jirga (House of Elders) shares a similarity with the U.S. Senate in that two representatives come from each province, though their method of selection differs from that of the United States. The Afghan legislative process for the transformation of a bill to law also shares some similarities with the United States. And, similar to the United States, the parliament has approval authority for the appointment of ministers and Supreme Court Judges.
To be nominated a member of the National Assembly, one must be a citizen of Afghanistan, or have obtained the citizenship of the state of Afghanistan at least ten years before becoming a candidate. Cannot have been convicted by a court for committing a crime against humanity, a crime, or sentenced of deprivation of his civil rights. Members of the Wolesi Jirga must be 25 years old at the date of candidacy, and members of the Meshrano Jirga must be 35 years old at the date of candidacy or appointment. There were – and still are – some calls for an educational requirement. However, in a largely illiterate country this would work against true representation of the nation.
In cases of death, resignation, or dismissal of a member of the Wolesi Jirga, and/or disability or handicap, which prevents performance of duties permanently, an election is held for a new representative for the rest of the legislative period. In the above situations, a new member of the Meshrano Jirga would be appointed in the same manner as the original member.
Way forward
The World Bank has stated that a closer link is needed between donors and the government of Afghanistan. According to the World Bank’s Country Director for Afghanistan, “Experience demonstrates that channeling aid through government is more cost effective.” About 75 percent of foreign aid in Afghanistan bypasses state organizations, and the World Bank is concerned that if the government continues to be circumvented, it will face extra strain, and its authority will be undermined. However, the World Bank acknowledged that for donors to be willing to funnel money through the Afghan government, all parts of the budget process will have to be improved and corruption dealt with.
The constitution envisages simultaneous National Assembly and presidential elections. If they are to be held at the same time, the parliament’s term will have to be shortened or the president’s lengthened. Since this did not happen, the polls are now a year apart, while the exact length of the five-year terms also differs. The presidential term expires on the first of Jawza (mid-May to mid-June) and the National Assembly’s on the first of Saratan (mid-June to mid-July). Having two separate national elections so close together would be an enormous technical and financial burden.
Judicial Branch
The Law
The Constitution is the basis for the laws of Afghanistan. This document establishes the judiciary, citizen’s rights, and the protections the government is obligated to enforce. Besides the Constitution, Afghanistan has a codified criminal code, criminal procedure law, civil code, tax laws, and other laws.
Since Afghanistan is an Islamic republic, Islamic law, or “Shari’a” law is also part of the judicial system. It addresses laws and punishments that are specifically prescribed by either the Koran or the teachings of the Prophet Mohammed (pbuh) and thus must be followed accordingly. There are some laws that are specifically prescribed by either the Koran, the sunna (the collected teachings of the Prophet Mohammed (pbuh)), or the hadith (the collected teachings of Mohammed’s (pbuh) followers).
In the section of the Constitution that establishes the Supreme Court, it states that justices can be educated in civil law or Islamic law. While the new Afghan government has clearly established a centralized, civil code of law for its citizens, it also continues to use Islamic law. If legal issues arise and there is no provision in the Constitution or codified law that addresses it, Hanafi jurisprudence shall be followed. Hanafi is the oldest of four schools of Sunni Islamic law. However, if a dispute arises between two Shi’ites, Shia law will be used.
Many of Afghanistan’s law have been codified and published in the Official Gazette, the official MoJ publication of laws, which also includes decrees and other documents that must be published according to Afghan law. For example, the criminal code (or penal code), which lists criminal offenses, the elements of each crime, and punishments, is the same as it was when it was published in the Official Gazette in 1976. Although attempts have been made to update the criminal code, it has yet to be changed from its 1976 incarnation. However, there are often inconsistencies within the court system with regard to what laws should be used. In 2004, the international community created the Interim Criminal Procedure Law, which was supposed to replace the criminal procedure code of 1974. However, the much of the Afghan legal community rejected this code and continued to use the 1974 code. The international community and Afghanistan are attempting to create a new criminal procedure code, but until then, judges often vary on which code is used in that particular court. There are also inconsistencies on when Shari’a law applies. Some judges choose to rule based on codified IRoA law, while others use Shari’a exclusively.
Penal Code
Article 1 of the Penal Code makes a clear distinction between the crimes and penalties covered by the Code itself, and those crimes and penalties that are to be administered according to Hanafi jurisprudence. Hanafi is the Islamic law most widely followed in Afghanistan (see below). The crimes covered by the Code are those that the Shari’a considers less serious (tazir) and leaves to the discretion of legislature and judiciary. The crimes that the Code does not cover, the Shari’a laws, are those that according to the Shari’a, once proved, are to be punished in a mandatory way (Hudud, Qisas, and Diat are examples of different areas of Shari’a law that identify different crimes in order of seriousness).
Therefore, through Article 1 of the Penal Code, the applicable Islamic provisions are legitimized.
To be more specific, Islamic penal law consists of four systems or categories. In the first, that of Hudud, crimes deemed to threaten the very existence of Islam are punishable with penalties set by the Koran itself, or by the Sunna. “Hudud” literally means prohibition, however some jurist’s opinions have reduced hudud to the meaning of mandatory punishment. In fact, Islamic jurists consider that these sanctions are set and immutable, and conclude that the judge is left with no discretion, which again leads to the judicial inconsistencies discussed above.
Hudud crimes consist of:
- Sariqah – theft;
- Hirabah – armed robbery;
- Zina – illicit sex by unmarried persons; and adultery;
- Qazaf – defamation, accusation of zina that cannot be proved by four witnesses;
- Syurb – alcohol consumption;
- Irtidad or riddah – apostasy or blasphemy
The second system, Quisas, concerns intentional crimes against the person, which include: murder (premeditated and non-premeditated); premeditated offenses against human life, short of murder; murder by error; offenses by error against humanity, short of murder.
It is often difficult to ensure the proper law is followed because it is often dependant on the judge. Either civil law or Islamic jurisprudence can be followed, which creates inconsistencies between courts. Islamic law should be applied only where the written penal code is silent, subject to the limitations placed on it from the Constitution. If Islamic law is used, the codified Afghan criminal procedure rules should be followed.
Afghan penal law has felonies (imprisonment of more than 5 years), misdemeanors (3 months up to five years; more than 3,000 Afghani fine), and “obscenity” (confinement for 24 hours to three months and fines of less than 3,000 Afghanis). The penal code lists both crimes and their punishments.
Criminal Procedure Law
Afghanistan has criminal procedure law that addresses the rules for how a criminal case is investigated, evidence gathered, charges filed, bail, dismissals, the rights of defendants, the rules for the court proceeding, sentencing, appeals, and also rules for civil actions arising out of a criminal action. As discussed above, however, two criminal procedure codes exist and there is disagreement as to what code should be used.
Pursuant to the Constitution, a criminal defendant has the right to an attorney. However, there is such a shortage of free criminal defense attorneys that this often does not occur. The current criminal procedure laws do not set a burden of proof, such as “beyond a reasonable doubt.” The conviction only has to be supported by the evidence presented. Afghan courts do not have juries. They are required to have one judge, but should preferably be three judges who rule on the merits of the case. Defendants can appeal a verdict. This appeal goes up to the Courts of Appeal, which are at the provincial level. If the defendant disagrees with their ruling as well and has sufficient grounds, the defendant can they appeal to the Supreme Court.
Civil Procedure Law and other laws
Besides its criminal laws, the MoJ has published laws that cover many areas of law, including civil procedure, taxes, anti-narcotics, a commercial code, and laws that govern different bodies of the government, including courts and the AGO (discussed below).
Tribal or “Shura” law
Tribal, or Shura, law is administered by the elders of each tribe. This type of “law” does not resemble the modern court system, but instead involves going to tribal elders, mullahs, or other religious leaders to ask for their ruling on a particular dispute. While the Afghanistan government does not have any provisions giving Shuras the power to adjudicate claims, the nature of Afghanistan is that many citizens, residing in rural areas, still live in a tribal society where Shura law is still the prominent or only legal system. In fact, it appears that tribal law will remain a component of the rule of law and be integrated in government’s justice system.
Shura law is based on historic tradition and can be a good thing in the rural areas where the GIRoA judicial system does not exist. However, Shura law is usually not monitored by any government entity, which could cause inconsistencies. Shura law often violates tenants of human rights, especially in their attitudes towards women and children.
The Court System
The Supreme Court is comprised of nine justices, one of which is the Chief Justice. Each justice is appointed to ten-year terms by the President, but also must be approved by the Wolesi Jirga. The Chief Justice (currently Abdul Salam Azimi) is selected by the President. Pursuant to the Constitution, a justice must be educated in law or Islamic jurisprudence. Their job is to interpret the law in cases originating in lower courts.
The Supreme Court is not only the highest court in Afghanistan, but – unlike the U.S. Supreme Court – also oversees all of the subordinate courts and judges down to the local level. This includes managing their personnel, budgets, training, and any major policy decisions.
Besides the Constitution, the court system of Afghanistan is also governed by a codified law, “Law of the Organization and Authority of the Courts of Islamic Republic of Afghanistan.”
The Supreme Court has four sub-courts, called “dewans,” which are groups headed by a justice that specialize in different areas of law. The four dewans are the General Criminal Dewan, Public Security Dewan, Civil and Public Rights Dewan, and the Commercial Dewan. Their job is to manage and hold “judicial sessions” in their area of expertise and then report directly to the entire Supreme Court.
Beneath the Supreme Court are the courts of appeal. There should be a court of appeal in every province. Like the Supreme Court, these courts have dewans for specific areas of law. The courts of appeal oversee the ruling of primary courts (discussed below) and have the authority to overturn, amend, confirm, or repeal these lower courts decisions. They also resolve issues of jurisdiction that arise from the lower courts.
Beneath the courts of appeal are the primary courts, which are the trial courts. The primary courts cover five different jurisdictions: central primary provincial courts, commercial courts, family issues courts, juvenile courts, and district courts. Each central primary court should have five dewans: general criminal, civil, public rights, public security, and traffic. Ideally, each province should have each one of these courts, but the present political situation in Afghanistan makes this impossible for most provinces. District primary court jurisdiction deals with the “primary stages” of all criminal, civil, and family case presented.
Besides those three levels of courts, the government also has “huqooqs,” which are courts who serve to facilitate the adjudication of disputes and civil rights cases and reach a resolution without going to court. Huqooqs fall under the MoJ, and are overseen by the General Directorate of Huqooq. It is similar to the arbitration that occurs in the U.S. justice system. Evidence is presented by the parties in dispute, but if a resolution cannot be reached, the cases are referred to court.
| Supreme Court Snapshot – 23 December 2009 |
| According to the General Chief Administer of Judiciary, there are currently 2,203 judges in Afghanistan. There are 558 vacant positions.
Approximately 1,200 students graduate from Afghanistan’s seven law schools in these provinces: Kabul (3), Herat, Nangarhar, Paktia, and Parwan. Judges receive two years of training in Kabul prior to assuming their district assignments, and court clerks complete a six-month training program. |
The Attorney General
The Attorney General is the top prosecutor in Afghanistan. The Office of the Attorney General oversees all of the prosecutors in the country. They are also responsible for investigating crimes. Pursuant to the Constitution, the police “discover” crimes and then hand them over to the AGO for investigation. The Attorney General is also the lead on the President’s Anti-Corruption Initiative.
The Attorney General, also known as the “Saranwali,” is technically part of the Executive Branch, but, pursuant to the Constitution, it operates independently of the other entities of that branch. This autonomy was established because of the nature of the Attorney General’s responsibilities. Especially with respect to investigations and anti-corruption campaigns, the ability of the Attorney General to operate without undue influence from other government offices is critical. The law that governs the AGO is “Law of the Structure and Authority of the AG’s Office.”
The AGO consists of the following: the AG and deputies; the Advisory Body (which evaluates issues and initiatives); administrative sections, prosecutors, and interrogators. The prosecutor’s offices operated at the following levels: Central Prosecutor’s Office (the highest prosecutorial office); Appellate Prosecutor’s Office; Provincial Prosecutor’s Office; and Primary Prosecutor’s Office (the lowest level). Not only do these offices prosecute crimes, they also investigate them, monitor other government agencies to prevent corruption, and may play a role in military affairs. Other duties of the AGO include protecting the civil rights of Afghanistan’s citizens, participating in legal awareness campaigns to enhance the level of legal knowledge of Afghan citizens, and evaluating citizen’s complaints against the government, among others.
Besides the main AGO, there are provincial and primary prosecutor’s offices. There is one office in each province and one in Kabul. This office consists of three sub-offices: an investigation prosecutor office, a judicial prosecution prosecutor office, and a monitoring office. In some instances, there may be an Appellate Prosecutor Office, which is composed of a judicial prosecution prosecutor office and a monitoring office. The Appellate Prosecutor’s Office handles the government’s case in an appeal. The Primary Prosecutor office is located in the capital, city, precincts, and districts. Its staff includes a head officer, prosecutors, interrogator, and administrative personnel.
A prosecutor in the office the Attorney General, or “Saranwal,” should have a bachelor’s degree in law or in Islamic jurisprudence, or have a degree from a madrassa. The current Attorney General is Dr. Abdul Jabar Sabit. Dr. Sabit was appointed by President Karzai specifically to take the lead on Karzai’s new anti-corruption initiative, which is an area of rule of law that been a major problem in Afghanistan.
The Afghanistan Compact
The Afghanistan Compact, which was presented in London and endorsed on 31 January 2006 by more than 70 countries and international institutions, lays out the framework for continued international engagement with Afghanistan over the next five years in security, governance (including rule of law), social and economic development, and overarching themes such as counter-narcotics, gender equality, and anti-corruption. The Compact commits GIRoA to achieve several goals by 2010, including ensuring the legal framework set up by the Constitution is in place, establishing functioning judicial institutions, and reforms intended to achieve oversight to ensure transparency and consistency and increase the credibility and integrity of the judicial system.
The Afghanistan Compact is not legally binding. It was strategically referred to as a “compact” so as to avoid Afghan Constitutional provisions relating to ratifying treaties and international agreements.
Roughly 10.5 billion in foreign aid was pledged for this initiative ss a result of this agreement.
ANDS and Justice Reform
The Afghanistan National Development Strategy (ANDS) is the strategic directive from the Islamic Republic of Afghanistan that addresses reform in all aspects of the central government. Pillar Two (Sector Two) of this document states that the overall strategy and goals to establish and strengthen government institutions (including Rule of Law) at the central and sub-national levels. The main reform goals include assuring Afghan citizens that they have access to formal justice and judicial supervision on informal dispute resolution mechanisms, and strengthening human rights protections, especially for women and children.
The ANDS sets a timetable for Rule of Law goals and projects to be completed by the end of 2010. The first goal is for the legal framework required under the constitution, including civil, criminal, and commercial laws, to be in place, distributed to all judicial and legislative institutions, and made available to the public. The next goal is for the functioning institutions of justice to be fully operational in each province of Afghanistan; and the average time to resolve contract disputes reduced as much as possible. A review and reform of oversight procedures relating to corruption, lack of due process, and miscarriage of justice is supposed to be completed. The justice infrastructure is to be rehabilitated, and prisons are supposed to have separate facilities for women and juveniles. Finally, by end of 2010, GIRoA will increase the number of arrests and prosecutions of drug traffickers and corruption officials.
“Justice for All”
“Justice for All” is the main justice reform strategic document. GIRoA’s justice institutions created this document in October 2005 with guidance from the international community, including OGAs, the UN, and donors. This forms the basis of policy development and financial planning for the justice sector, facilitates planning of international partners, and informs the public of the government’s plans. This policy paper sets out 10 years of justice sector reform, to include GIRoA’s vision for justice; gaps, dimensions, and phases; and partners, strategies, and costs.
Additionally, each of the three main components of the justice sector – the MoJ, the Supreme Court, and the Attorney General – have written 5-year strategies that provide detailed guidance to serve as a supplement to “Justice For All.”
Ministry of Justice Strategy
The vision of the MoJ is to strengthen the rule of law and justice in the country in order to safeguard the legal rights and interests of all natural and legal persons. The goals for their 5-year strategy are: 1) strengthen the rule of law through drafting, revision, publication and distribution of legislative documents; 2) reform and develop human resources and build physical infrastructure; 3 create reform and rehabilitation programs for adult prisoners and juveniles; 4) increase the capacity to resolve disputes prior to referral to courts and expedite the enforcement of court decisions in civil and commercial cases; 5) expand and coordinate public legal awareness programs; 6) build a system of legal aid services in all provinces of the country; 7) increase the capacity to defend state properties; and 8) enhance cooperation and coordination with other programs of the state.
The MoJ expects to achieve the following prioritized results by end-2010: 1) the legal framework required under the constitution – including civil, commercial, criminal law – will be put in place, distributed to all judicial and legislative institutions and made available to the public; 2), all offices of the MoJ will be fully operational; 3) MoJ infrastructures will be rehabilitated and prisons will have separate facilities for women and juveniles; and 4) reforms will strengthen the professionalism, credibility and integrity of the MoJ.
Supreme Court Strategy
The goals of the Supreme Court for the Afghan judiciary are: professional judges, trained in ethics and held accountable for their actions; efficient and effective systems, including modern case management procedures, for administering the court and managing cases in an open and transparent manner; an established institute for training judicial officers and court staff; and adequate salaries, facilities, security, and other systems vital to the efficient administration of the courts.
The Supreme Court expects to achieve the following results in the coming five years. Within each goal, the Afghan judiciary will develop an integrated approach to increase women’s representation at all levels of the justice system and will develop and adopt policies addressing special needs of women, particularly victims of domestic violence and violence against women. These prioritized anticipated results are: 1) improve the competency of the Afghan judiciary; 2) provide a properly functioning judiciary in each province in Afghanistan; 3) Strengthen the professionalism, credibility, and integrity of the judiciary; and 4) increase the efficiency and uniformity of court administration. Other anticipated results are an increase in the public’s awareness of and confidence in the judicial process and improved transparency of and access to the judicial system, particularly for those who historically have had their rights least protected.
Attorney General Strategy
The AGO, which both investigates and prosecutes criminal cases, has set a goal to build, by 2012, a “modern professional prosecutorial service by improving its capacity to function effectively, efficiently, fairly, ethically, and impartially, while doing so transparently, in the discharge of its constitutional mandate and legal competencies; through the highest levels of cooperation and collaboration with other national and international law enforcement and Justice agencies ,with priorities of anti-corruption and anti-narcotics, thus earning the trust of the public and facilitating the reinstitution of the rule of law in Afghanistan.”
Their strategic goals are: reform to strengthen professionalism, integrity, and credibility of AGO; oversight procedures relating to corruption, lack of due process, miscarriage of justice reviewed and reformed; functioning AGOs in all provinces of Afghanistan; infrastructure rehabilitation (including physical, transportation and equipment resources); and rehabilitation of human resources.
Implementation
All development plans and initiatives by the U.S. military are coordinated through the U.S. Embassy and will be nested with the ANDS, the “Justice for All” strategy, and each justice sector’s published strategy.
Sub-National Governance
Afghanistan’s Constitution outlines a unitary state where all political authority is vested in the government in Kabul. The sub-national government structure consists of provinces, municipalities, districts, and villages. The central government ministries and institutions retain authority over these structures, primarily through their control of the budget, which they apportion to the provincial ministries.
Each of Afghanistan’s 34 provinces is run by a governor, appointed by the President. The provincial government structure below the governor is a collection of branches of central government ministries. Likewise, the provinces are subdivided into districts, with the district staffing allocations determined in the central ministry in Kabul. Theoretically, this centrally directed and financed system gives Kabul a considerable amount of political authority over provincial expenditure policy. In reality, since few provinces are remitting all of the revenues owed to the central government, they retain a valuable source of their own income and remain relatively autonomous from central government authority. This will likely change in the next few years as government reforms and enforcement of submittal laws are expected to increase overall central government control. Furthermore, although the structure of the provincial and district governments is supposed to be formalized, the ground truth is that most sub-national structures are ad hoc constructs, frequently reflecting person relationships. In addition to the formal power structures, community shuras, jirgas, and other traditional structures remain influential actors at the local level.
Afghanistan’s public sector below the central government consists of provinces, municipalities (urban sub-units of provinces) and districts (rural sub-units of provinces), as well as state enterprises (wholly and majority owned). State agencies, including central government ministries and institutions, are considered primary budgetary units with their own discrete budgets.
Afghanistan is a unitary state: all political authority is vested in the government in Kabul. The powers and responsibilities of the provincial and district administrations are determined (and therefore may be withdrawn) by the central government. Though provinces and districts are legally recognized units of sub-national administration, they are not intended to be autonomous in their policy decisions. Given the political and military strength of some regionally based power-holders, however, the practical reality is that certain provinces have considerable authority over their own decision-making.
The Constitution explicitly allows a measure of decentralization by stating that “the government, while preserving the principle of centralism — in accordance with the law — shall delegate certain authorities to local administration units for the purpose of expediting and promoting economic, social, and cultural affairs, and increasing the participation of people in the development of the nation” (Article 2, Chapter 8). It specifies that a provincial council with elected members be formed in every province and that district and village councils be elected.
Provinces
The country’s 34 provinces are the basic units of local administration.
The chief executive at the provincial level is the governor, who is appointed by the President. They may be removed or reassigned at the discretion of the President. The Independent Directorate of Local Governance (IDLG) maintains lists of potential candidates for governor, drawn mostly from inside the province. If nominated, the person goes before a senior appointment panel; if approved, the name then goes to the President for appointment.
The provinces are not distinct political entities in any legal sense and have a very modest formal role in decisions concerning their own structure, recruitment of senior staff, and size and composition of workforce. In effect, each province is a collection of branches of central government ministries.
All decisions on provincial staffing are made in Kabul by the parent ministry, in negotiation with the Office of Administrative Affairs and with oversight by the head of the Independent Administrative Reform and Civil Service Commission (IARCSC). Although the governor approves junior staff appointments (grade 6 and below for permanent staff, grade 3 and below for contract staff) and transfers, mid-level staff appointments (permanent staff grades 3–5) are approved by the relevant minister, and senior staff appointments (grade 2 and above) are approved by the President. Beginning in SY 1386 (2007–08), certain key posts required ratification by the Independent Appointments Board of the IARCSC.
Province-level governance entities include provincial council, provincial courts, provincial administration, AIHRC provincial offices, IARCSC regional office, PRTs, the private sector, and civil society – to include shuras, assemblies and councils, the media, and communities. The provincial administration includes the provincial governor, Provincial Development Committee (PDC), Provincial Administrative Assembly (PAA), provincial police chief, mustofiat, provincial line departments, and the provincial prosecution office (provincial AGO).
Provincial Councils
Afghanistan’s 34 provincial councils (Woleyati Shuras), established in September 2005, are the first elected subnational governing institutions in the country. In total, they consist of 420 members nationwide (proportional to each province’s population). By law, a quarter of the provincial councils’ seats are reserved for women in order to insure female participation. 3,324 candidates competed for 420 provincial council seats in the 20 Aug 09 elections.
The 34 provincial councils have between 9 and 29 members, depending on the size of the province’s population, elected in a single provincial constituency. Candidates must reside in the province in which they stand for election, and cannot stand simultaneously for both Wolesi Jirga and provincial council elections. The revised election law states that one quarter of the seats on a provincial council should be reserved for women.
The provincial councils’ initial mandate was to act as advisory bodies to the provincial governors and assist in achieving development objectives. Revisions to the provincial council law in 2007 added an “oversight” role over the governor’s office, but did not include any enforcement mechanisms. This poorly defined relationship between the provincial administration and the councils is reinforced by a severe lack of resources, which has made many of the councils almost completely ineffective. However, some provincial councils seem to enjoy a degree of credibility amongst the populace. In several provinces, they have played an important role in resolving disputes between the government and its citizens, as well as amongst various local powerbrokers. In other cases, they have managed to fulfill some of their oversight responsibilities by challenging governors and local officials. By reporting directly to the Meshrano Jirga (the National Assembly’s upper house), and the mass media, some provincial councils have brought limited accountability to their local governments.
To date, the role of the provincial councils has been to: elect by majority, from amongst its own elected members, provincial representatives to the Meshrano Jirga; participate in the development of the provinces and the improvement of administrative affairs; and advise and cooperate with the provincial administrations on a variety of issues, including development planning.
Districts
The provinces are further subdivided into districts. Administrative arrangements between the province and its districts are similar to those in the centre-provincial relationship. However, provincial officials have relatively little discretion with regard to districts as the central ministry in Kabul determines district staffing allocations.
District governor nominations are made largely by the provincial governor, or other influential persons; IDLG does maintain names of potential candidates. Once nominated, and vetted by the Director of IDLG, the person’s name goes before the senior appointment panel; if approved, the name then goes to the President for appointment.
District-level governance entities include district council, district courts, district administration, the private sector, and civil society – to include shuras, assemblies and councils, the media, and communities. The district administration includes district governor, District Administrative Assembly (DAA), district police chief, district offices of provincial line departments, and District Prosecution Office (district AGO).
District Councils
District Councils will have between 5 and 15 members depending on the size of the district’s population. Candidates must reside in the district in which they stand for election. District councils elect one third of the members of the Meshrano Jirga.
Both the district and mayoral elections that were originally announced in the President Karzai’s inaugural address will not occur in 2010. The IEC concluded that it would be impossible to hold district elections given that the voter registry does not include residency information, making it impossible to determine what districts voters are able to cast ballots.
Municipalities
Municipalities (sharwali) are defined as distinct legal, political and administrative entities with well-defined geographical/territorial boundaries, created for the purpose of providing for the general welfare of constituents. According to Article 141 of the 2004 Constitution of Afghanistan, municipalities are created to “administer city affairs.” In the administrative and governance hierarchy, a municipality can either fall below a province and district or between a district and village. As such, there is no clear vertical structure in the provincial hierarchy for municipalities.
The Independent Directorate for Local Governance (IDLG) in Kabul oversees municipalities (with significant influence by the governor in some provinces). The IDLG approves staffing numbers and budgets in each municipality, despite the fact that municipalities are entitled to collect and retain their own taxes. In some provinces, such as Herat and Kandahar, rural municipalities also have a reporting relationship with the provincial municipality although this is contrary to the established government structure.
Each province contains, in principal, one provincial municipality (sharwali wonayat). Each district contains, at most one rural municipality (sharwali uluswali), although some have none.
There are currently 150 municipalities (both provincial and rural) in Afghanistan.
Municipalities operate under a mix of the 1957, 2000 and 2003 Municipalities Laws, but there is a push within IDLG and among the international community to write a new Law on Municipalities to clarify roles and responsibilities. The new law may change the parameters for the classification of municipalities, which may lead to a decrease in the overall number. IDLG has requested USAID assistance in amending this law, which we will likely provide under the next municipal governance program. USAID is in discussions with IDLG over the Scope of Work of this program, which is projected to be $150 million for five years, covering approximately 40 municipalities (plus Kabul).
Kabul Municipality will continue to be governed by the same laws as other municipalities but will be supervised by the Office of the President (instead of IDLG.)
Municipalities are self-sustaining entities that are authorized to collect taxes and raise revenue, have some budget autonomy (although this varies by municipality) and provide municipal services (e.g. garbage collection, sanitation, cleaning parks, recreation, etc.)
Municipalities do not currently receive intergovernmental fiscal transfers from the central government, although this may change based on the draft Sub-national Governance Policy (SNG Policy). Under the current system,
municipalities raise revenues from local sources and sustain their operations/services entirely out of such revenues. Per the draft SNG Policy, municipalities will begin to receive central transfers. This may mean that in the near future, municipalities will raise revenues that they remit for inclusion in the national budget. Municipalities would, in turn, be funded by transfers from the central government. Note that this is the way it works for provinces and districts.
Per the draft SNG Policy, municipalities will be authorized to set rates of taxes, fees and charges, subject to regulation by the national government. Municipal taxes, fees and charges will adopt progressive structures. Municipalities will also be authorized to create own-revenue sources (within the established guidelines).
Municipal budgeting and planning will be streamlined and include bottom-up identification of needs/priorities. Municipalities will follow established processes and procedures in development and execution of the budget. Private capital could be used to finance the delivery of essential services and municipalities could encourage investment through incentives. Municipalities would also be allowed to incur budget deficits to finance urgent expenditures and may access loans from foreign sources through the Ministry of Finance.
Mayors are currently nominated by IDLG (often in consultation with District and Provincial Governors) and appointed by the President. The exception is the Mayor of Kabul, who is appointed directly by the President and has a rank of Minister. Per the draft SNG Policy, Mayors will be elected every four years, beginning in 2010.
Municipal Councils serve an advisory role to Mayors. Per the SNG Policy, Municipal Councils will be elected every three years beginning in 2010. Municipal Councils approve annual budgets, create and set taxes for municipal taxes, fees and charges, monitor/evaluate municipal administration and assist in defining development goals. Municipal Councils do not exist in every municipality and vary in their capacity.
Municipal Administrative Councils (MACs) evaluate proposed municipal plans and programs, confirm management actions and approve policies, rules and regulations that will guide municipal administration. MACs are accountable to the Municipal Council.
Municipal Districts (Nahias) assist in construction and maintenance of public infrastructure, provision of services, enforcement, civil registration and surveys/census. Municipal districts are recognized as distinct governance structures.
Villages
Village-level governance entities include: village council, Community Development Councils (CDCs), civil society including shuras and councils, media, informal governance entities such as malik, arbab, qaryadar; khan; rish-i-safid, malik-i-gozar, kalantar; mirab, murab, khadadar; ulema, mullah; arbakai; qumandan and communities. Village council is village administration.
The Constitution calls for the election of village councils, municipal councils, and mayors through free, general, secret, and direct elections. Village councils are to be elected for three years. The terms of municipal councils and mayors are not yet specified, and the mandates of village and municipal councils are not elaborated on in the Constitution or the Election Law. Elections for these bodies are likely to be postponed for several years. As of early Feb 10, there has been no mention of when mayoral elections will be conducted.
Line Ministries
Central government ministries and institutions are primary budget units with specific budgets determined by law, while the provincial departments of the central government ministries are secondary budgetary units, and receive their allotments at the discretion of the primary budget unit. There are no specific provincial department budgets. Districts are tertiary budget units and are therefore subject to even more bureaucracy: their budgetary allotments depend on the decisions made by the relevant provincial-level departments of the Kabul ministries. In effect, both provincial and district staffing levels and budgets are determined based more on precedent than on rational planning.
In theory, this system gives Kabul considerable political authority over provincial expenditure policy. The legislation makes it clear that all revenues collected by provinces and districts are national revenues, and provinces are merely the tax collectors. In reality, as few provinces are remitting all of the revenues owed to the central government, provinces with revenue sources of their own (such as customs) sometimes remain relatively autonomous from central government authority. However, this tendency has decreased over recent years.
Unofficial organizations and extra-constitutional power
Although they do not hold formal power, community shuras or jirgas can also be influential local actors. Shuras (best translated as local councils) are longstanding features of Afghan political society. They are convened on an ad hoc basis and are rarely permanent bodies with identifiable members. Shuras of ulema (Islamic scholars) and shuras of elders are usually found at the provincial level, though there are often competing local and district shuras, some of which are run by unelected strongmen. As district councils are yet to be elected, many district administrators make use of shuras in their activities. Many districts are also effectively divided into manteqas, which correspond to areas of shared resources.
In addition to the provincial and district administrative structures, historically there has been a definition of regions or zones (hawza) in Afghanistan, primarily for military purposes. The decree establishing the Afghanistan National Army (ANA) places the President as commander-in-chief of the army, and does not recognize any other military or paramilitary units that are not part of the ANA. This decree formally recognizes that the army is based on four regional commands, though it does not specify exactly what the regions are. While the governor oversees the civil administration and the chief of police, the military units stationed in the provinces are run by the ANA and report via a regional structure to the Ministry of Defense in Kabul.
These hawza have no legal standing as administrative units and, unlike provinces, districts, and municipalities, are not mentioned in the 1964 Constitution or the new 2004 Constitution. At times, however, they have been used for administrative convenience. In the health sector, for example, the original national zonal structure was created around 1965 as part of a malaria program, after which it was used by a smallpox eradication program, the Extended Program of Immunization, and a TB control program. Formally, this zonal structure no longer exists, and President Karzai has endeavored to de-legitimize these unofficial administrative divisions. Nonetheless, some inter-provincial coordination and sectoral activities based on zones continue.
To the extent that some governors are also significant regional figures, they may combine military and civilian authority in a way that was not intended by the current constitutional arrangements. In cases where there is a powerful regional figure who is not a governor, militia forces can also be closely related to the political structure. In the north, for example, there has been some military influence over the appointment of governors and other senior officials, while in the west; governors without official military positions have acted as the de facto chiefs of armed forces in their respective areas.
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