AI INDEX: ASA 11/021/2003     14 August 2003          

Afghanistan
Re-establishing the rule of law

1. Introduction

Re-establishing the rule of law, including ending impunity, is an essential pre-requisite for peace and stability in Afghanistan. Recognising this, the international community has pledged to assist Afghanistan in rebuilding and reforming its shattered justice system. The challenge of reconstructing a judicial system in the wake of 23 years of armed conflict is a formidable one. The lack of effective governmental control outside of Kabul, the existence of ongoing conflict and a de facto rule by commanders and armed groups in certain areas of Afghanistan are factors that are undermining the rule of law. Currently, the Afghan courts lack legitimacy and there is a perception among the people that the judicial system is unable to properly serve the interests of justice. The lack of public confidence in the court system is compounded by a history of reliance on informal judicial mechanisms in Afghanistan.

Despite the political and security problems undermining the rule of law, courts are operating in some urban centres in Afghanistan, albeit with limited capacity. However, in rural areas the judicial system is barely functioning. Where courts have been established, they are fragile and they lack the basic facilities necessary to ensure the administration of justice. The international community's promised program of judicial assistance lacks strategic direction and it has been delayed in its commencement. As a result, the Afghan courts still lack basic facilities such as premises, furniture and copies of legal texts.

The judiciary has not received the support necessary to ensure that it is able to resist the pressures upon it. The failure of the international community to provide effective security and bring an end to the influence of armed groups has left the judiciary extremely vulnerable. Furthermore, the current lack of arrangements for the protection of courts, judicial officers, witnesses and victims undermines the capacity of the judiciary to assert its independence. As a result, certain individuals remain above the law because of their place in the community or because they are able to use threats, intimidation and other forms of pressure to influence judicial proceedings. In addition, economic influences have led to a widespread problem of corruption.

The rights of defendants are currently not being protected by the criminal justice system. Defendants, including children, are being denied the right to a fair trial. There is also a widespread problem of arbitrary detention. Many judges and prosecutors lack the qualifications and training necessary to properly apply domestic laws let alone relevant international law. Furthermore, legal reform is required to ensure that all domestic laws fully comply with international law, including the International Covenant on Civil and Political Rights (ICCPR) and the Rome Statute of the International Criminal Court (Rome Statute).

The high level of discrimination against women in Afghanistan is reflected in the criminal justice system. Women victims and defendants are being denied access to justice and are discriminated against by both the formal and informal justice systems.

The international military intervention in Afghanistan led by the United States of America (US) resulted in the fall of the Taleban government, which had been responsible for grave violations of human rights. The military intervention was accompanied by a political and financial commitment to reconstruction, legal reform and human rights. In a speech in October 2001, British Foreign Secretary Jack Straw stated that, "Afghanistan's development needs will be huge. The cost of rebuilding Bosnia was $5 billion. Afghanistan has four times Bosnia's population......But we have to be ready to bear the cost, because if we do not, the price we pay will be far greater." Leaders of other governments made similar promises. However, at the Tokyo International Conference on Reconstruction Assistance of Afghanistan, half a billion dollars less was pledged by the international community for Afghanistan than it was for Bosnia. Furthermore, in the current financial year there is a $15 million shortfall for rule of law related projects in Afghanistan.

As the international community focuses its attention on post-conflict reconstruction in Iraq, it is crucial that it does not rescind promises made to the Afghan people. Afghanistan requires comprehensive, long-term support and assistance to ensure that it develops a criminal justice system that is based upon respect for the rule of law and which operates in a manner that is consistent with universally accepted human rights standards.

2. Background

In November 2001, US-led military intervention in Afghanistan led to the fall of the Taleban government. On the 5 December 2001, talks brokered by the United Nations (UN) resulted in the Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (the Bonn Agreement). The Bonn Agreement provided for a six-month Interim Administration. The Interim Administration was "intended as a first step toward the establishment of a broad-based, gender sensitive, multi-ethnic and fully representative government" and was required to respect international human rights law. The Interim Administration was entrusted with the task of preparing an Emergency Loya Jirga followed by a Constitutional Loya Jirga within 18 months.(1)

Under the terms of the Bonn Agreement, the Emergency Loya Jirga was to be convened to "elect a Head of the State for the Transitional Administration" and to "approve proposals for the structure and key personnel of the Transitional Administration". The Emergency Loya Jirga met in June 2002 and established the Afghan Transitional Administration (ATA), headed by President Karzai.

In December 2001 the UN Security Council authorised the deployment of an International Security Assistance Force (ISAF) in Kabul and its surrounding areas.(2) ISAF, currently led by NATO, is credited with increasing security in Kabul. However, in the rest of Afghanistan, factional fighting continues between rival armed groups. The ATA has been unable to establish control outside of Kabul, where powerful regional commanders wield power through the control of private armies. Some of these commanders have been incorporated into the ATA and they have placed their supporters in key positions within the police and local government. Commanders act with a high degree of autonomy and display little loyalty to President Karzai's government. The lack of security and control by the ATA outside of Kabul is widely seen as a major factor hindering Afghanistan's transitional process to a system that is based upon the rule of law. The ATA, the UN Secretary-General and international and national non-governmental organisations have repeatedly called for an expansion of ISAF's mandate. However thus far the Security Council and ISAF contributing countries remain unwilling to deploy troops outside of Kabul.(3)

In March 2002 the Security Council established the United Nations Assistance Mission in Afghanistan (UNAMA).(4) UNAMA was mandated to assist the ATA with the implementation of the Bonn Agreement. UNAMA is headed by the Secretary-General's Special Representative (SRSG), Lakhdar Brahimi, who oversees the work of two "pillars"; pillar one is responsible for political affairs, and pillar two is tasked with the co-ordination of humanitarian relief, recovery and reconstruction.

In his report to the Security Council setting out the mandate and structure of the mission, the Secretary-General stated that "a rights based and gender-sensitive approach would be integrated fully into the United Nation's activities in Afghanistan".(5) A number of political affairs officers were placed in the pillar one structure with terms of reference that included the promotion of human rights. In addition, the posts of a senior advisor on human rights and a senior advisor on the rule of law were included in the office of the SRSG. However, due to staffing problems both positions are currently vacant.

UNAMA has been criticised for its failure to fully integrate human rights into its activities.(6) In particular, the mission has been unsupportive of Afghan calls to end impunity for past human rights violations. In addition, the human rights' components of UNAMA, which are fragmented and lack strategic direction, have not ensured that human rights are integrated into UNAMA's activities. Moreover, rule of law activities have been perceived to be the sole responsibility of the senior advisor on the rule of law and there has been no input into rule of law issues from the human rights' components of UNAMA. As a result of this artificial fragmentation of human rights and rule of law, UNAMA has failed to engage in activities that support the protection of human rights within the criminal justice system. Furthermore, UNAMA has had mixed success in its efforts to support the implementation of the Bonn Agreement, in particular support to the judicial reform process.

The Bonn Agreement provided for the establishment of three Commissions. The Judicial Reform Commission, the Constitutional Commission, and the Human Rights Commission were each mandated to oversee the implementation of different parts of the Bonn Agreement. The Constitutional Commission was established in April 2003 with a mandate to draft a new Afghan Constitution in preparation for the Constitutional Loya Jirga. The Commission is believed to have completed a preliminary draft of the constitution. It has commenced a public consultation with the stated aim of gathering views from a broad section of the Afghan people but without sharing the draft text. The final draft of the Constitution is expected to be completed for presentation to the Constitutional Loya Jirga in October 2003.

The Constitutional Commission has been widely criticised for failing to carry out its mandate in a transparent and inclusive manner and for accommodating hard-line factional leaders.(7) The Commission has thus far not disseminated the preliminary draft of the Constitution and it has failed to conduct a meaningful public consultation with a broad cross-section of the population, including members of civil society and human rights advocates.

The Afghan Independent Human Rights Commission (AIHRC) was set up in June 2002. The AIHRC has a mandate to investigate and monitor human rights violations and to establish a programme of human rights education. The AIHRC has established regional offices and is receiving, and actively investigating, allegations of human rights abuses. The AIHRC has departments that are concerned with women's rights, the rights of the child and transitional justice. The AIHRC investigation unit has started to monitor the prison system from an international human rights law perspective. However, the AIHRC currently lacks the capacity to engage in an all encompassing judicial monitoring program, including court observation. The AIHRC has competent staff who have already carried out a significant amount of work. Progress has been made despite long delays on the part of the Office of the High Commissioner for Human Rights (OHCHR) in delivering a promised program of technical assistance to the AIHRC.

The Judicial Reform Commission (JRC) was established in November 2002 and is composed of 12 prominent Afghan legal experts. The JRC is mandated to "rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions." However, as a creation of the Bonn Agreement, the JRC has no formal role in the administration of justice. The JRC's role is limited to proposing reform strategies and seeking international donor assistance. Thus, the success of the JRC depends on the willingness of the formal judicial institutions - the Supreme Court, the Ministry of Justice and the Attorney General's Office - to implement its suggested reforms. Thus far the JRC has struggled to devise and facilitate the implementation of a coherent judicial reform strategy. However, the JRC has facilitated the compilation of applicable laws and it has convened working groups that are currently redrafting legislation, including the criminal law, for presentation to the ATA. The JRC has also successfully initiated the establishment of the Legal Education Centre and members of the JRC have recently carried out a survey of the judicial system.

The applicable law was set out in the Bonn Agreement as "the Constitution of 1964…the existing laws and regulations, to the extent that they are not inconsistent with the agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions of the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those regulations". Currently, however, there is confusion regarding the applicable law among legal professionals. This results, in part, from a recent history of non-reliance on written law and delays in the compilation and dissemination of applicable statutory law. Moreover, there is currently a lack of clarity among many legal professionals regarding the nature of, interpretation and interplay between, various sources of applicable Afghan law.(8)

3. Amnesty International in Afghanistan

This report is the third in a series of four reports on the criminal justice system in Afghanistan.(9) Amnesty International established a field presence in Afghanistan in June 2002 in order to facilitate reporting and campaigning on human rights. Preparatory research for this report was undertaken in March 2003 by a Legal Adviser from the International Secretariat. An expert on the administration of justice then visited Afghanistan from 15 April to 30 May 2003 and collected the information that forms the basis of this report.

Amnesty International delegates met with a wide range of Afghan legal professionals, including judges, prosecutors, independent lawyers and members of the JRC. Amnesty International also met with officials from the ATA, AIHRC, UNAMA, UNICEF, UNDP, UNHCR, donor governments and international and national non-governmental organisations (NGO).

Amnesty International is particularly grateful to the Supreme Court, Ministry of Interior and the Ministry of Justice and for facilitating access to courts and places of detention. Amnesty International is also grateful to the detainees and prisoners who shared their stories.

Amnesty International hopes that the analysis, observations and recommendations contained in this report will provide a constructive contribution to the protection of human rights in Afghanistan and ending impunity.

4. Judicial reform and reconstruction

photocaption: Kabul Welayat - one of the two main courts in Kabul. It houses some of the primary city courts, family court and public security court. ©AI



4.1. The Afghan courts

The Afghan courts have been established within the framework of the structure envisaged by the 1964 Constitution and other applicable laws.(10) The highest court in Afghanistan, the Supreme Court, sits in Kabul and is headed by the Chief Justice. The Supreme Court is constitutionally charged with the organisation and administration of the lower courts, including oversight of the judiciary. The Supreme Court is also responsible for nominating candidates for judicial appointment to the President. Within the Supreme Court, a Court of Cassation functions as an administrative Court of Appeal.

The High Court of Appeal is at the next level of the hierarchy underneath the Supreme Court. The High Court of Appeal, based in Kabul, has jurisdiction to hear appeals against decisions made by the Provincial courts. Each administrative province in Afghanistan has one Provincial Court which has appellant jurisdiction over decisions made by the lower Primary Courts.(11) Afghan law sets out that the Chief Justice is responsible for determining the number of Primary Courts in each province. There are currently 2,006 judges and approximately 3,000 prosecutors attached to the Afghan courts. It is reported that the courts have dealt with 5,310 criminal cases in the period April 2002-April 2003.(12)

Outside of Kabul, the Provincial Courts are in operation in some provincial capitals. For example, Provincial Courts have commenced work in the capitals of Kandahar, Kunduz, Herat, Nangarhar, Kabul, Balkh, Parwan, Badakhsan, Paktia, Farah, Logar, Badghis, Parwan, Logar and Wardak provinces. However, in many of these provinces, the Primary Courts have yet to be established. For example, in Mazar-e Sharif, Jalalabad and Herat only a very small number of Primary Courts are working. As a consequence, these Primary Courts and the Provincial Court are attempting to deal with the caseload of up to ten Primary Courts.

In some districts, such as Bamiyan and Khost, neither the Provincial nor the Primary Courts have been established. In addition, outside of the urban provincial capitals, courts have not been set up. Furthermore, logistical and resource constraints have hampered efforts to extend the activities of the urban based Provincial and Primary Courts to rural areas. As a result, the police and courts lack legitimacy and the ability to exercise their jurisdiction in rural areas. In these rural areas there is a heavy reliance on informal justice mechanisms.

In addition to the general courts, Afghan law also provides for the establishment of specialized courts. However, some of the envisaged specialized courts, most notably, the Juvenile and Family Courts, have not been established outside of Kabul. In the absence of the Juvenile Courts, cases involving minors are being adjudicated under adult procedures. While the Provincial and Primary Courts are currently attempting to deal with a small number of family cases, judges currently lack the legal expertise necessary to ensure that these cases are dealt with in a fair and effective manner.

Amnesty International recognises that logistical and financial constraints may have hindered the establishment of some specialized courts. However, in the areas visited by the organisation, it was evident that apart from the Family and Juvenile Courts, all other specialized courts, including Public Security and Commercial Courts, had been established. Amnesty International is concerned that the failure to establish the Juvenile and Family Courts stems from the reluctance, on the part of the Supreme Court, senior Afghan judges and the international community, to recognise and prioritise the work of these courts. The failure to establish the family and juvenile courts appears to reflect a wider lack of concern for the protection of vulnerable groups in Afghan society and, in particular, women.

There is an evident lack of proper premises and facilities for the courts that are in operation. Judicial personnel in many areas are working in buildings that lack electricity, water and heating. Furthermore, many courts visited by Amnesty International did not have proper flooring, windows, appropriate furniture, including desks and filing cabinets in which to store case files and other court documents. All the courts visited by Amnesty International lacked basic stationery supplies such as files, pens, paper and record books which are essential for ensuring the proper administration of the courts.

In addition, the courts are currently operating in extremely overcrowded conditions. In many areas, up to four courts share a room and administrative staff are cramped into offices. For example, in Kabul, up to three Primary Courts share one badly equipped room and in Mazar-e Sharif, up to 40 staff in the Attorney General's office share a single office.

The physical conditions of the courts visited by Amnesty International were extremely poor and tended to hinder the administration of justice. Amnesty International recognises that security and logistical constrains complicate the provision of assistance to the Afghan courts. However, the organization has observed that the international community has been slow in commencing its promised judicial assistance program. This means that the courts are currently operating without the basic minimum physical requirements. At the time of writing no emergency assistance to courts outside of Kabul had been provided.

4.2. Delays in formulating a judicial assistance strategy

"The development of a fair and effective justice system in Afghanistan is a vital requirement to meet the needs of the Afghan people and to protect their human rights, with special consideration for the most vulnerable sections of society, to ensure peaceful dispute resolution, to promote good governance.......... an effective justice system is essential not only for the successful development of Afghan society as a whole, but also to achieve lasting peace and security in Afghanistan." Final statement of the Rome Conference on Justice in Afghanistan, December 2002.

At the Rome Conference on Justice in Afghanistan attended by government and UN officials, the international community pledged its support for the reconstruction and reform of the Afghan judicial system. The Italian government has assumed the responsibility for coordinating international donor assistance in the justice sphere. In its role as "lead donor", the Italian government has chaired donor co-ordination meetings in Kabul, brought a number of legal experts to Afghanistan to assist the JRC and provided a considerable amount of financial assistance for judicial reform projects. The governments of Austria, Canada, India, Turkey, United Kingdom and US have also already provided, or pledged, funds for judicial reconstruction and reform in Afghanistan.

The Afghan cabinet approved $27 million for the justice sector in the development budget for the financial year ending March 2004. This $27 million represents the total amount of funds that the Afghan judicial institutions are authorised to seek from the donor community. However, at the time of writing, pledges had been secured for only $12 million. Thus, in the current financial year there is a $15 million shortfall for rule of law related projects in Afghanistan.

Delays in securing and distributing international assistance stems, in part, from a failure on the part of the international community to commit to providing the funds necessary to ensure that the Afghans can embark upon a comprehensive judicial reform programme. This, coupled with the delays on the part of some donor governments in fulfilling financial pledges they have already made has stalled the implementation of urgently needed assistance projects. Furthermore, a lack of co-ordination by the international donor community and delays on the part of the lead donor, the Italian government, in initiating regular donor co-ordination meetings in the period January-August 2003, has further delayed assistance.

There have also been delays in the distribution of some of the funds that have already been donated. At present international financial assistance to the justice sector is channelled through the JRC, rather than directly to Afghan judicial institutions. Development funds for judicial assistance projects are placed in the "justice fund", administered by UNDP. The "justice fund" provides a pool of money that is available for the implementation of projects identified by the JRC. At the time of writing, an estimated $7 million, which had been donated by the international community, remained unspent in the "justice fund". UNAMA officials and representatives of donor governments indicated that the delays had been caused by UNDP which has failed to ensure prompt implementation of projects identified by the JRC. However, UNDP blamed the JRC stating that it had failed to provide UNDP with clearly articulated projects for funding.

Since its establishment, the JRC, the body created by the Bonn Agreement to "rebuild the domestic justice system", has proposed and initiated a number of projects. For example, the JRC has facilitated the compilation of applicable laws and convened working groups that are currently redrafting legislation, for presentation to the ATA. The JRC has also played an important role in the establishment of the Legal Education Centre. However, the JRC has struggled to formulate other quick impact and long-term judicial reform projects for presentation to the international donor community and to devise an overall strategy for justice.

The failure of the JRC to formulate a coherent strategy for justice stems, in part, from initial delays in undertaking a comprehensive needs assessment of the justice sector. In the absence of a proper needs assessment, the JRC has not been able to prioritise needs. For example, a list of proposed projects recently circulated by the JRC includes 29 projects that are not explained in detail or prioritised in order of importance or given an expected date of implementation. As one senior ATA official explained, "the priorities of the JRC are wrong. Instead of formulating concrete plans for things that they can do they have come up with a list of everything that is needed to totally rebuild the justice system". In discussions with Amnesty International the JRC refused to acknowledge that it lacked strategic direction.

UNAMA, which was mandated under the Bonn Agreement to assist the JRC in carrying out its mandate, has failed to fully support the JRC and provide the technical assistance necessary to ensure that it has the capacity to devise a clear strategy for justice. The UNAMA rule of law component, currently staffed with one junior UN official, lacks the resources and capacity to provide appropriate technical assistance to the JRC. Although the government of Italy has brought a number of legal experts to Afghanistan, it has failed to ensure that technical experts are available to assist the JRC in formulating clear and precise proposals for projects for presentation to the donor community.

Strategic planning in the justice sector is also being hindered by a lack of co-ordination between the key Afghan institutions - the Ministry of Justice, the Supreme Court and the Attorney General's Office. One ATA official described relations between the three judicial institutions as "fraught with competition and friction". The Supreme Court's relationships with both the Ministry of Justice and the Attorney General's Office are extremely poor. In addition, communications between the Ministry of Justice and the Attorney General's Office have broken down as a result of a dispute regarding whether the Attorney General's Office should fall under the competence of the Ministry of Justice or whether, as the Attorney General wishes, it should be independent.

Rivalry and a lack of communication between the three judicial institutions has greatly complicated the work of the JRC which, as a creation of the Bonn Agreement, has no power to actually implement any of the reforms that it proposes. In the absence of proper communication between the main judicial institutions, the JRC is in fact powerless to facilitate the implementation of any holistic judicial reform strategy that it proposes.

Noting the problems stemming from the lack of communication within the justice sector, one representative of the Ministry of Finance stated that "there can be no rule of law in Afghanistan until such time as the Afghan judicial institutions and the donor community work together to devise concrete projects which can be presented to the international community for funding".

The JRC has recently sought to rectify the initial failure to complete a needs assessment of the Afghan courts. In the period between March and May 2003, the JRC with the support of UNDP, UNAMA, the Italian and US governments undertook a survey in 11 urban centres of judicial institutions, including detention facilities, in terms of their physical infrastructure, staff, and operations. The survey focused on the physical needs of the courts and did not attempt to assess the caseload of the courts or identify systemic problems in the judicial system. The implementation of judicial assistance projects has been put on hold pending the completion of the survey.

Amnesty International welcomes the completion of the survey. However, the organisation has observed that the presentation of the findings to the international community planned for June 2003 has been delayed. In order for the survey to be an effective tool, the JRC, with the assistance of the Italian government, must immediately use the information collected in the survey to produce a clear strategy for justice, which includes precisely defined and prioritised quick impact and long-term projects for the Afghan courts, including those outside of Kabul. Once the JRC has a clearly prioritised list of quick impact and long-term projects, they must be immediately presented to the international donor.

4.3. Recommendations:

· Strategy for justice: Afghanistan's judicial institutions and the JRC, with the assistance of the international community, must immediately utilise the results of the judicial survey to formulate clear and precisely defined proposals for both short and long-term judicial assistance projects. These projects must be clearly set out and form part of an overall strategy for justice, which includes clear priorities for the short and long-term. A strategy for justice must be immediately presented to the donor community for funding.
· Prioritise the establishment of Juvenile and Family Courts: The establishment of properly functioning Family and Juvenile courts is essential for ensuring that the rights of vulnerable groups are protected. The Supreme Court and the JRC, with the assistance of the international community must immediately establish the Family and Juvenile courts outside of Kabul.
· Donor co-ordination: Under the strategic leadership of the government of Italy, the donor community must increase its efforts to co-ordinate judicial assistance. The Italian government must ensure that regular information on the judicial reform process is disseminated to the donor community and that regular co-ordination meetings are held in Kabul.
· Long-term financial assistance for judicial reform and reconstruction: The international community pledged to support judicial reconstruction as a means of facilitating peace and security in Afghanistan. The international community must ensure that it provides long-term financial assistance to ensure the re-establishment of the rule of law in Afghanistan. Donor governments who have pledged to provide financial assistance must deliver these funds as a matter of urgency.
· Relations between Afghan judicial institutions: The breakdown in relationships between the Afghan judicial institutions is an extremely serious problem. Effective co-operation between the Supreme Court, Ministry of Justice and the Attorney General's office is a pre-requisite for judicial reform. The ATA must immediately take steps to facilitate better working relationships between these three key judicial institutions.
· Strengthen UNAMA's role: UNAMA is mandated under the Bonn Agreement to provide assistance and support to the judicial reform process. The rule of law component of UNAMA must be strengthened and staffing levels increased in order to ensure that it is able to effectively carry out its mandate. In addition, there must be no further delays in recruiting a senior advisor on the rule of law. UNAMA should also consider placing an expert in international human rights law under the senior advisor on the rule of law to ensure that human rights are fully integrated into rule of law activities. All UNAMA rule of law activities must be properly co-ordinated with the human rights components of the mission.

5. The Afghan judiciary

5.1. Judicial appointments

Afghan judges are appointed by the President based upon the recommendation of the Chief Justice. The 1964 Constitution and the 1967 Law on the Jurisdiction and Organisation of the Courts set out the qualifications required for judicial appointment. According to the law, to be appointed as a judge, an individual must hold a degree from either the Faculty of Law or the Faculty of Sharia. In addition, she or he is required to have completed the one-year legal professional training and should be aged between 28 and 60.(13) Despite the fact that the law clearly sets out the requirements for judicial appointment, there is evidence that many sitting judges do not hold the necessary qualifications and have exceeded the specified age limit.(14)

There are strong indications that the judicial appointment process has been marred with political manipulation and bias, including pressure from armed groups. In interviews with Amnesty International, a number of senior judges expressed concern over the lack of properly qualified judges working in their courts and stated that this is a key problem currently undermining the effective administration of justice. While the full extent of the problem is unknown, in one provincial region a source in the judiciary claimed to Amnesty International that only around 20% of judges are properly qualified. Many judges interviewed by Amnesty International attributed the appointment of unqualified judges to political manipulation within the Supreme Court. Commenting on this problem, one senior judge asserted to Amnesty International that "the recruitment of judges by the Supreme Court is linked to political considerations and as a result many judges do not have a legal education". Moreover, the Supreme Court informed Amnesty International that it has appointed 137 judges to the Supreme Court. This represents 128 more judges than the Supreme Court is competent to appoint under the applicable law.(15)

Amnesty International believes that the President also bears responsibility for this problem, as he is vested with the ultimate power to appoint judges. While the President's office is aware of the problem, it has proved unwilling to trigger proceedings for the removal of unqualified personnel, instead preferring to apportion blame upon the Supreme Court. One senior source in the President's office informed Amnesty International that; "we know that the judiciary is politicised and that the Chief Justice has appointed many judges who are not qualified". However, he did not indicate that the President's office would be taking steps to remedy this situation. The JRC is also aware of the problems regarding the appointment of unqualified judges and has stated that the problem can be tackled by providing training to sitting judges.

Unsurprisingly, the Supreme Court is also unwilling to initiate the removal of unqualified judges. In an interview with Amnesty International, the Chief Justice acknowledged that there had been "some problems with unqualified judges". However, he stated that he had managed to resolve these problems by "talking to the unqualified judges".

One of the essential foundations of a fair and effective judicial system is a properly qualified professional judiciary. Amnesty International is concerned by the failure of the Supreme Court and the Afghan President to ensure that only properly qualified persons are selected for judicial appointment. Furthermore, the organisation believes that the plan to provide short-term training to unqualified sitting judges is a poor substitute for ensuring that the judiciary is comprised of properly qualified professional personnel.

5.2. Training the judiciary

The JRC and the international community have recognised that judicial training is a key component of judicial reform. Two training programmes have been initiated. The first, which commenced in May 2003, is a one-year course for young legal professionals. This course is being organised by the newly established Legal Education Centre (LEC) in Kabul and it aims to provide a backstop for the legal professional training which is currently unavailable, but which is a legal pre-requisite for judicial appointment. There are currently 150 young lawyers, all employees of either the Ministry of Justice, Supreme Court or Attorney General's Office, engaged in the program. Only 20 of the participants are women.

Amnesty International welcomes the LEC program for young lawyers and commends the JRC for securing an agreement from the Supreme Court and the Ministry of Justice that all young lawyers who wish to be considered for judicial appointment must have successfully completed the LEC training. However, the organisation believes that this arrangement should be institutionalised and formalised in law in order to ensure that there is no ambiguity regarding the recognised qualifications for judicial appointment in Afghanistan.