April 5, 2017
By Claire Anderson
On March 17, the United Nations Security Council adopted a resolution to extend the United Nations Assistance Mission in Afghanistan (UNAMA) until March 17, 2018, citing the specific need to enhance governance and rule of law in the country.
The right to counsel is well-enmeshed in law and policy in Afghanistan, having existed in codified law since 1964 and reaffirmed as a constitutional right under Article 31 of the 2004 Constitution. The Afghan government has repeatedly re-affirmed the importance of the right to counsel in its subordinate legislation, its policy commitments, and its international treaty obligations. In addition, the right to legal assistance has roots in Islamic jurisprudence as well as Afghan culture and history.
However, nearly 30 years of war has prevented this right from fully taking root. When the Taliban were overthrown in late 2001, defense lawyers were virtually non-existent. Most accused persons were too poor to hire a lawyer and there was no functioning legal aid system. A Legal Aid Department (LAD), created in 1989 as a unit of the Supreme Court to provide indigent defense services, staffed less than a dozen individuals, most of whom lacked any higher education.
The fall of the Taliban was followed by a wave of international donor assistance. NGOs began to open legal aid offices in Afghanistan in 2003, and with them came a change in the adversarial system. Previously, the few lawyers who were practicing played a largely passive role, mitigating their clients’ sentences and pleading for mercy, but rarely fighting to prove their clients’ innocence. By 2005, there was a call for the creation of a national legal aid system. However, little was done to bring this call into action in a coordinated, consultative process.
In 2008, the management of the LAD was transferred from the Supreme Court to the Ministry of Justice (MoJ), and since then, the MoJ has steadily increased the number of legal aid offices. While the number of lawyers registered with the Afghanistan Independent Bar Association (AIBA) has risen from 530 in 2009 to over 2,600 in June 2015, the numbers are far from adequate to serve a population of 30.6 million people. As a result, the overall case capacity of legal aid providers has contracted.
At this moment when the Afghan government holds enormous potential but donor aid is shrinking, the time is ripe to support real change in legal aid. One particular strength in Afghanistan’s legal aid design is a strong legal and policy framework that includes a right to counsel in criminal cases, as well as the expectation of legal aid to indigent persons. There are also several laws, rules, and regulations that cover adequate and zealous defense standards, exclusionary rules, indigency determination, confidentiality, access to clients, and licensing of advocates. Nevertheless, the specific regulatory framework identifying the types of providers, models of delivery, governance systems, appointment systems, quality monitoring, and general coordination faces intractable challenges in meeting the needs of the Afghan population.
Last year, The Asia Foundation began assessing the legal aid environment of Afghanistan to determine a path forward. The mapping project includes in-depth analysis of the regulatory framework to assess the various models of legal aid delivery being used, and identify realistic interventions and reforms within the MoJ and the legal aid community to improve legal aid delivery in Afghanistan. The goal is to create a system that is realistic and flexible and that can grow and adapt based on available resources. It should also recognize the strengths and weaknesses of different actors and distribute the appropriate duties and tasks to them.
When finalized, the roadmap will present a sequenced set of recommendations that will assist the government of Afghanistan to meet its constitutional duty to provide legal aid, support Afghanistan’s developing defense bar, and clarify a set of priorities for donor agencies.
Where courts, legislative bodies, law enforcement agencies, and other public institutions operate in an open, equitable, and predictable manner, the rights of all citizens are more likely to be respected. A legal environment founded on the rule of law will help the Afghan government’s reform efforts and advance national development by ensuring that contracts are enforced, property rights are secure and transferable, resources are more equitably allocated, and public decision-making takes place in a more transparent manner.
Claire Anderson is the communication and program development specialist for The Asia Foundation in Afghanistan. The views and opinions expressed here are those of the author and not those of The Asia Foundation or its funder.