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### Viewing cable 10KABUL677, NANGARHAR RULE OF LAW CONFERENCE HIGHLIGHTS

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
10KABUL677 | 2010-02-24 06:06 | 2011-01-28 16:04 | CONFIDENTIAL | Embassy Kabul

`

    VZCZCXRO1561
    OO RUEHDBU RUEHPW RUEHSL
    DE RUEHBUL #0677/01 0550612
    ZNY CCCCC ZZH
    O 240612Z FEB 10
    FM AMEMBASSY KABUL
    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

`