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A Status Report on Afghanistan Since the Taliban Takeover
Contrary to many popular assumptions, the courts in Taliban-ruled Afghanistan are currently operational, albeit with irregular procedures and without the use of clear legal authorities. Under these difficult conditions, Afghan lawyers are nevertheless finding ways to advocate on behalf of their clients. These lawyers are achieving concrete results including release from detention and reduction in punishments. Two conclusions are fundamental to this report: (1) the role of defense lawyers in Afghanistan today is a meaningful one, even under the severe constraints in which they must work, and (2) the ability of Afghan women to access the justice system remains severely constrained and in some cases is altogether denied.
During the 20 years of its existence, the Islamic Republic of Afghanistan created a functioning plural legal system, made up of sharia law, statutory laws and customary norms. The legal system incorporated various relevant international standards, including basic human rights protections. The criminal justice system, while far from perfect, attempted to provide basic due process standards. It was characterized by a trained, professional judiciary, a functioning prosecution service, and an active defense bar. Women were integrated into the judicial system at all points in many provinces of Afghanistan, including in the roles of judge, prosecutor and defense lawyer. There was an independent bar association and substantial progress was being made to provide legal aid services to the poor and marginalized.
The Taliban takeover in August 2021 has had devastating effects on the country and created tremendous challenges for the people of Afghanistan. In spite of this, the Afghan people have shown remarkable resilience. Notably, Afghan lawyers and civil society groups have persevered in their work and callings, including women lawyers and activists. In spite of increasing restrictions, they continue to fight for human rights and the rule of law, in some instances with notable outcomes.
In the immediate aftermath of the August 2021 takeover of Afghanistan by the Taliban1 , the existing legal system was effectively dismantled. Shortly after they assumed power in Kabul, the Taliban leaders announced that all laws of the Republic were nullified, all judges were removed from their jobs, the independent bar association was shut down, and all women were told to stay at home.
The intervening sixteen months have seen the Taliban slowly attempt to fill this legal vacuum. Courts have been reopened in provinces across the country, and an entirely new crop of madrassah-educated, all-male judges has been appointed from the ranks of the Taliban themselves. In addition, a cadre of muftis (religious-educated elders) have also been formally introduced into the legal system, charged with the role of investigating and reviewing cases, and also advising judges on how to rule and what punishments to deliver.
The role and function of the prosecutor has been dissolved. Some basic procedural and organizational rules have been issued by the Supreme Court, along with a handful of decrees on specific substantive matters. In general, however, the relevant law to be applied continues to simply be denoted as sharia (as interpreted by Hanafi jurisprudence) leaving to individual judges the complete discretion to interpret sharia principles as they see fit. As a result of the 1 Various terms are currently used to describe the present rulers of Afghanistan. The UN uses the term “the de facto authorities.” The Taliban themselves use the title Islamic Emirate of Afghanistan. For purposes of brevity and clarity, we have opted simply to use the common colloquial term, Taliban, for this report. 7 Justice Matters: A Status Report on Afghanistan Since the Taliban Takeover ILAC Rule of Law Report lack of clarity as to applicable laws and training of judges, there remain significant gaps in both substantive and procedural law, and inconsistencies in the application of legal and judicial measures. The day-to-day operations of the courts remain haphazard and vary greatly from one region to another. Court schedules and trial procedures are irregular and at the discretion of the individual judge. There are many reports of substantial case delays.
Male lawyers are slowly resuming their functions in society. After abolishing the independent bar associations, the Ministry of Justice has adopted procedures for re-licensing lawyers. The overwhelming majority of those who have sought such re-licensing have obtained it. These procedures are only available for men. Women continue to be excluded from the opportunity to renew their licenses or appear in court (though there are exceptions reported in a few provinces where women have been able to appear in court with their former licenses).
Private lawyers have begun to appear in Taliban courts on behalf of their clients. Some civil society legal aid organizations also are reportedly providing legal services. The experience of lawyers who have appeared in Taliban courts varies greatly. In some cases, they have had difficulty even finding when and where the court is meeting, or have been denied the right to fully participate in the proceedings. In other situations, however, defense lawyers have been able to advocate successfully on behalf of their clients, for example, obtaining releases from detention, acquittals, reductions in punishments and other relief.
Access by women to the courts and to full participation in the justice system remains greatly restricted. Women may only appear in matters in which they are a party, and in many cases, must then be accompanied to court by a male family member (or simply send a male relative in their place). Testimony of women is not always permitted and even if it is, is generally given less weight than testimony of a man. Women may not appear in court as lawyers or judges. And even the very laws that are applied often explicitly provide that women will be treated differently than men.
The vacuum created in the absence of a well-functioning legal system means that many disputes and other matters are being resolved through informal mechanisms. These include traditional jirgas2 and meetings of community elders. Imams are also called upon to adjudicate disputes. In some cases, these informal adjudications are being registered with the courts.
Of particular concern, there are widespread reports that many matters are being resolved through the extrajudicial actions of the police and the other security services.3 As one interview respondent in Kabul bluntly noted, “most cases are decided in police stations.” Police actions include enforcement and execution of extrajudicial remedies, such as infliction by non-judicial actors of those punishments dictated under hadud4 ordinances. Other types of punishments are also frequently decided on and delivered directly by the police or security services. Most detention decisions since the Taliban takeover are also being made by the police or security services without any judicial review.
by Christopher Lehmann
2 Pashtun term meaning council of leaders. 3 See, e.g., United Nations Assistance Mission in Afghanistan (UNAMA) report, “Human Rights in Afghanistan, August 15, 2021-June 15, 2022,” at p. 3 (“Since mid-August 2021, UNAMA HRS has documented persistent allegations of extrajudicial killings, arbitrary arrests and detention, and torture.”) 4 The Arabic language term hadud refers to a group of Pakistani laws (codified in the 1970s) that criminalize certain behaviors deemed to be in violations of the injunctions of Islam. These include fornication, adultery, blasphemy and the consumption of alcohol. The hadud ordinances also specify punishments, including whipping, stoning and imprisonment. The ordinances are particularly well-known by the general public throughout Pakistan and Afghanistan
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