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Justice in Afghanistan: Rebuilding Judicial Competence After the Generation of War

Author: L Armytage
Date: 2007
Size: 27 pages (1.92 MB)

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Summary

What are the challenges of rebuilding judicial competence in Afghanistan after thirty years of war? This paper, published in the Heidelberg Journal of International Law, outlines the findings of a national study undertaken for the Supreme Court in 2006. It analyses deficiencies in judicial quality, competence and professionalism resulting from the degradation of institutional and human capacity. Initiatives are outlined to develop long-term education and training strategies to rebuild these capacities.

There are 1,415 judges in Afghanistan, with an average age of 47; three percent are female. Their appointments have varied markedly: 12 percent were appointed prior to the war; 42 percent were appointed during the communist, mujahideen and Taliban administrations; and 48 percent were appointed by the current administration. This history creates diversity in appointment practices, with significant implications regarding qualifications, competence and professional development needs.

Research revealed foundational deficiencies - the direct legacy of a generation of war - which have de-professionalised the judiciary and eroded public confidence:

A significant minority of judges have not completed any university education in sharia or law. A significant minority have also not completed any systematic practical induction training, known as ‘the stage’.
There are mounting concerns about judicial corruption and the lack of judicial standards and disciplinary procedures.
There is a system-wide lack of fundamental competencies in legal knowledge, professional skills and judicial outlook.
The needs and priorities for judicial training are substantial and may be classified as foundational, institutional, professional and related in nature.
It is necessary to strengthen, restructure and modernise standards of judicial qualification. There are also a range of institutional needs to strengthen the organisational integrity of the courts.
The judiciary’s professional needs require development of training on: the constitution; criminal, civil and commercial laws; the principles and practices of judicial independence; judicial ethics; and human rights, including the barrier of access and biases against women.

In Afghanistan the goals of judicial education and training are two-fold: rebuild the judicial capacity of judges to administer justice and modernise judicial know-how and outlook. This requires both familiarity with and respect for Afghan sharia and legal jurisprudence and a forward looking vision of the justice needs of the post-war Afghan people:

Existing short-term training programmes for the judiciary are indispensable to improve day-to-day performance. However, they are not designed to address the identified underlying professional deficiencies.
Longer term strategies are needed to focus on strengthening: pre-qualifying sharia and legal education; admission standards to the stage; quality of stage training; examination standards; and admission to the judiciary.
These strategies should also focus on in-service training, monitoring performance and administering discipline.
Donors should review support to short-term stand alone training assistance and extend support to long term strategies.
The cycle of model practice for judicial education builds on the principles of adult education and professional development. It includes needs assessment, curriculum, delivery and evaluation.
Monitoring and evaluation is required to ensure that training programmes deliver intended results and provide a mechanism to review and refine activities.

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Source: Armytage, L., 2007, 'Justice in Afghanistan: Rebuilding Judicial Competence After the Generation of War', Heidelberg Journal of International Law, vol. 67, no. 1, pp. 185-210
Author: Livingston Armytage , larmytage@yahoo.com