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TO RUEHC/SECSTATE WASHDC IMMEDIATE 5828
INFO RUCNAFG/AFGHANISTAN COLLECTIVE IMMEDIATE

250363
2010-02-24
10KABUL677
Embassy Kabul
CONFIDENTIAL

C O N F I D E N T I A L SECTION 01 OF 03 KABUL 000677 

SIPDIS 

DEPARTMENT FOR S/SRAP, SCA/FO, SCA/A, EUR/RPM 
STATE PASS USAID FOR ASIA/SCAA 
USFOR-A FOR POLAD 

E.O. 12958: DECL: 02/22/2020 
TAGS: PGOV KDEM AF PK
SUBJECT: NANGARHAR RULE OF LAW CONFERENCE HIGHLIGHTS 
JUDICIAL SYSTEM,S PROBLEMS AND POSSIBLE SOLUTIONS 

Classified By: Interagency Provincial Affairs Deputy Director Hoyt Yee 
for reasons 1.4(b) and (d). 

¶1. (C) A two-day provincial justice conference in Nangarhar 
February 1-2 brought national justice representatives 
together with their Nangarhari counterparts to discuss 
systemic justice challenges in the province. A small-group 
format resulted in frank discussions of provincial government 
corruption and dysfunction, with plenty of finger pointing 
between line ministries. Lack of communication between 
justice officials, lack of enforcement mechanisms for 
judicial and ministerial decisions, lack of infrastructure 
and resources, and fiercely territorial attitudes towards 
cases (or prisoners) that offer the opportunity for large 
bribes were identified as major challenges. Next steps 
include more frequent and effective judicial coordination 
meetings, creation of a Provincial Development Council (PDC) 
technical working group, anti-corruption training and 
application of enhanced pressure on all instruments of 
government to press for judicial reform. Although the 
conference highlighted serious problems with Nangarhar,s 
justice system, the robust senior level attendance and 
intensity of the dialogue suggests that many provincial 
leaders want the justice system to function properly. End 
summary. 

GIROA Officials Present Provincial Perspective 
--------------------------------------------- - 

¶2. (C) More than 200 provincial justice officials gathered at 
Nangarhar Governor Gul Agha Sherzai,s conference hall on 
February 1-2 for a conference organized by PRT Nangarhar and 
INL,s Justice Sector Support Program (JSSP). The two-day 
event brought together national representatives from the 
Ministry of Interior (MOI), Ministry of Justice (MOJ), 
National Directorate of Security (NDS), Attorney General,s 
office and the Afghan Independent Human Rights Commission 
(AIHRC) with their Nangarhari counterparts to discuss 
systemic justice issues, and possible solutions. Prominent 
tribal and religious leaders, all 22 provincial 
sub-governors, NGOs, and the deans of Nangarhar University,s 
Sharia Law and Political Science faculties attended. The 
first day involved brainstorming and breakout groups 
(District Governors, Judges, MOJ and Corrections, Police, 
Prosecutors, tribal leaders and human rights groups). Day 
two consisted of presentations by the national-level 
officials who chaired each group. 

¶3. (C) The small group format resulted in an unusually candid 
series of public exchanges among police, prosecutors and 
judges, each of whom openly accused the others of corruption 
and/or incompetence. At one point, the dialogue became so 
animated that some provincial officials felt the need to 
hijack the microphone (and the agenda) to defend their 
reputations. Nangarhar,s Chief Prosecutor inadvertently 
highlighted the impotence of the provincial justice system by 
admitting that he had personally paid off squatters to leave 
his property, rather than deal with the laborious process of 
a lawsuit. The conference ended with a fiery speech from 
Governor Sherzai condemning the inability of provincial 
prosecutors and judges to convict criminals, and a frank 
discussion of corruption by Shinwari tribal elder Malik 
Usman, who laughingly admitted to having bribed district 
governors and many other provincial justice officials in 
attendance. 

MOJ: A Failure to Communicate? 
--------------------------------------------- ------- 

¶4. (C) Lack of justice sector coordination was the most 
common complaint raised at the conference. The MOJ (which 
runs the prison system) repeatedly cited arbitrary detention 
policies, claiming that some prisoners are incarcerated 
without trial for much longer than the nine-month legal 
limit. Others are kept in jail despite acquittal at trial or 
serving their full sentences - either because prosecutors or 
judges fail to inform corrections officials of the 
disposition of their cases, or because a monetary judgment 
against the inmates could not be paid. 

¶5. (C) Though the Huqoq department has lead responsibility 
for property disputes, some participants noted that claimants 
often go directly to district governors or the Ministry of 
Agriculture,s property department for resolution. In cases 
where land disputes lead to violence, the MOJ complained that 
prosecutors often take over both the criminal case and the 
underlying civil dispute. The MOJ lamented that in the rare 
cases they are permitted to resolve, they are powerless to 

KABUL 00000677 002 OF 003 


enforce the decisions. The MOJ proposed criminalizing 
land-grabbing so that police would enforce compliance. The 
MOJ also expressed frustration with the Afghan Supreme 
Court,s habit of reconsidering and revising its rulings in 
property cases, leaving the MOJ (which is tasked with 
enforcing the Supreme Court,s property decisions) to 
re-apportion land previously allocated or sold in conformance 
with the original holding. 

¶6. (C) MOJ Deputy Minister Hashemzai noted the constitutional 
guarantee of counsel for indigent defendants cannot be met 
without more resources. Participants agreed that 
international donor funding could resolve this issue, though 
of course this raises questions of sustainability. Hashemzai 
also delivered broad criticism of police, for detaining 
prisoners in excess of 72 hours for the purpose of extracting 
money from their families, and of prosecutors, for taking 
bribes to dismiss cases, and for failing to move cases 
through the system within the required month. The Deputy 
Minister also criticized judges for inappropriately hearing 
appeals of cases that received final judgments in trial 
courts in accordance with the law. 

Attorney General: Nothing Can Come of No Evidence 
--------------------------------------------- ---- 

¶7. (C) Prosecutors noted that police rarely comply with legal 
requirements to notify the Attorney General,s (AG,s) office 
within 24 hours of detaining a suspect, and often keep 
detainees well beyond the 72 hour statutory limit in order to 
extract bribes. Prosecutors defensively claimed that their 
own detainee releases are a result of insufficient evidence 
received from police, and not because they have taken bribes. 
They gave the specific example of an individual, 
Zabibullah from Chaparahar district, who was detained by 
police for possession of a special phone rigged to detonate 
IEDs, but whose evidence packet lacked an actual phone. 
Prosecutors also complained that police often failed to 
comply with the requirement to bring along a prosecutor on 
all search warrant executions. Prosecutors said that in 
cases where suspects are released on a guarantee (the 
Afghan equivalent of bail, using honor as collateral instead 
of cash), police are unwilling to track down guarantors when 
a defendant fails to appear for a hearing. 

¶8. (C) In an unscheduled speech, Nangarhar Chief Prosecutor 
Abdullah Qayum denied any coordination issues, claiming that 
his office had no problems with the police. Qayum,s 
speech, while rambling and at times incoherent, appeared to 
be an attempt to distance himself from the criticism 
articulated by his prosecutors of other ministries. He ended 
by discussing the importance of resolving property disputes 
in Nangarhar, inadvertently highlighting the impotence of 
Nangarhar,s legal system by admitting that he had personally 
paid off squatters to leave his property rather than deal 
with the laborious process of a lawsuit. 

Judges Also Frustrated 
---------------------- 

¶9. (C) The judges were by far the most organized and 
productive group at the conference. Justice Norzai, who 
chaired the group, discussed widespread dissatisfaction with 
the quality of evidence presented at trial, noting that even 
basic evidence such as crime scene photographs or physical 
evidence (i.e., guns or drugs) were rarely provided at trial. 
Rather than request financial assistance for the judiciary, 
the judges requested assistance in developing provincial 
forensic capabilities, including equipment, facilities and 
training for provincial crime scene investigators. The 
current system requires evidence to be sent to Kabul for 
forensic analysis, which results in frequent chain-of-custody 
problems, numerous errors and huge delays in the trial 
process. 

¶10. (C) The judges also voiced frustration with their 
inability to effect compliance with their decisions or compel 
court appearances. If a witness does not appear in court 
without justification, the Court is permitted to order the 
police to accompany them to trial, and impose a 500 Afghani 
fine. However, the judges explained that police seem 
unwilling or unable to serve process on witnesses or 
defendants, especially in tribal areas, and suggested 
developing a program permitting local tribal leaders to 
function as legal process servers (one who delivers or serves 
legal documents to a defendant or individual involved in a 
court case). Other issues raised by the judges included a 
need for increased security for high-profile judges dealing 

KABUL 00000677 003 OF 003 


with sensitive cases and the widespread dearth of defense 
counsel. 

Comment: Next Steps 
------------------- 

¶11. (C) The conference succeeded in identifying key issues 
impeding the rule of law in Nangarhar province. USG Rule of 
Law Advisors plan to work with Afghan counterparts and the 
United Nations Assistance Mission in Afghanistan to hold more 
frequent and more effective judicial coordination meetings. 
We will also work with Afghan officials to create a 
Provincial Development Council (PDC) technical working group 
on governance, rule of law and human rights, provide 
anti-corruption training and apply pressure on all 
instruments of government to reform. Although the conference 
highlighted serious problems with Nangarhar,s justice 
system, the robust senior level attendance and intensity of 
the dialogue suggests that many provincial leaders want the 
justice system to function properly. 
RICCIARDONE