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Cablegate: Nangarhar Rule of Law Conference Highlights

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

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