Jan 13, 2016 | Academic Spotlight

This article is contribution #14  in our new Academic Spotlight blog series that features recent research findings on security sector reform and security governance published in international relations academic journals.

This contribution summarizes research originally published here:

Singh, Danny (2015) “Explaining Varieties of Corruption in the Afghan Justice Sector”, Journal of Intervention and Statebuilding, 9 (2): 231-255. As part of the partnership between the Journal of Intervention and Statebuilding and the Centre for Security Governance, this journal article will be available free and open access through this link for a period of 3 months: http://www.tandfonline.com/doi/full/10.1080/17502977.2015.1033093

Explaining corruption in post-2001 Afghanistan

Following the US-led intervention in Afghanistan and the removal of the Taliban from power, the Bonn Agreement was signed on 5 December 2001 as a state-building measure to bring a new political and electoral process in the state hampered by 23 years of war. The Agreement favored anti-Taliban and ethnically Tajik Northern Alliance warlords, and the Taliban were excluded. The Northern Alliance was called upon by US Coalition forces to hunt the Taliban and Al-Qaeda in remote mountainous regions. This was in exchange of the warlords pursuing political ambitions despite previous well-known mass-scale human rights violations during the 1992-1996 Mujahidin civil war.

These warlords and powerful political figures that entered the then President Hamid Karzai’s cabinet reaped state and economic resources which were redistributed based on loyalty to those nepotistic and qawm ties. [1] In one interview with a civil society watchdog for this article, it was indicated that a minimum of 60% of Afghan parliamentarians have been engaged in previous human rights abuses and/or corruption but retain their posts due to the 2007 Amnesty Blanket Immunity Law that has pardoned such abuses and is yet to be revoked. Therefore, state capture is prevalent and many criminal networks linked to the opium trade are protected by parliamentarians that profit from illicit drug smuggling. State capture leads to political interference during judicial and anti-corruption investigations. Even when judges pursue cases concerning politically connected elites or drug mules they are intimidated, threatened or even killed. Furthermore, corruption is systemic and rife within the Afghan civil service and both police and judicial sectors that extort bribes for everyday basic duties. This particularly affects the poor because they pay a higher slice of their income for such services. [2]

Internationally-led security and justice reform

The April 2002 Geneva Process mandated lead international donors for the five-pillared Security Sector Reform (SSR) programme, with the judicial reform component headed by Italy.  This was also externally driven, as similarly evident with the Bonn Agreement, and dictated by international actors. From the outset, the justice sector has only received a tiny portion of the total SSR budget. In relation to the entire SSR financial plan, the military and police reform components received a staggering 90% from international assistance which included US$36 billion per annum from the US armed forces. However, the justice sector only received 2-4% of the SSR budget. This has resulted in poor infrastructure of courthouses, a lack of legal libraries, poor legal education, and weak accountability for political and criminal elites due to cronyism and state capture and the failure to stamp out judicial corruption partially due to low pay particularly with prosecutors. Additionally, the formal judicial sector has been the main focus of donor funding. However, over 80% of Afghans utilize informal dispute councils which is due to negative perceptions of the formal judiciary that is arguably inaccessible, hard to understand, time consuming, expensive and highly corrupt. Due to inaccessibility and high public corruption perceptions of the formal legal system, many Afghans seek redress in the countryside from elders or even the Taliban.

Explaining the varieties of corruption in the Afghan judicial sector

In order to provide a better overview of the different types and patterns of corruption, the article uses three different theoretical frameworks; as such the main causes and consequences of corruption and clientelism in the Afghan justice sector are analyzed in relation to the functionalism, legal pluralism and political economy approaches.

In relation to functionalism, the paper argues that bribes are part of social practices to get things done faster, particularly for citizens wanting the services of judges and prosecutors. It can be argued that functionalism allows corruption to grease the wheels in the bureaucratic machinery. However, the interviewees cited in the paper reveal that judicial corruption has actually weakened the social contract between citizens and judicial providers which is why third party Mullahs and even the Taliban are consulted for modes of redress.

The political economy approach explains the understanding of the structures and behaviors of institutions and the political and criminal procedures that affect them. Patronage, predation and rent-seeking behaviors are based on preserving loyalty with nepotism, tribalism in exchange for redistributed state resources, economic benefits and jobs free from meritocratic processes. In addition, judges and prosecutors extort bribes which can be explained as an economic coping strategy. These explanations fit the theory of ‘limited access orders’. Not only do political elites and clients benefit from the Afghan political economy but criminal networks are also part of the political and economic peripheries insofar that they lobby into politics to continue illicit drugs and arms trading whilst maintaining immunity from prosecution. The 2007 Blanket Immunity Law has also preserved the political economy of corruption and drug trafficking due to the fact that parliamentarians engaged in the drug trade; corruption and human rights abuses remain in office due to failure to repeal the amnesty.

Legal pluralism is a top-down approach which aims to intertwine a formal written constitution and international human rights standards with Shari’a Law and informal codes of community dispute resolution processes. This approach has prioritized copying and pasting international legal standards to the community Jirga level, but case tracking at community levels remains weak. Ba’ad – when a perpetrator’s family gives their daughter(s) away for marriage as compensation to the victim’s family – has significantly reduced since 2010 and efforts have been made to empower development councils to build accountability from the bottom-up. However, the Supreme Court does not want informal modes of dispute resolution to gain legal recognition and for legal pluralism to succeed it would take generations to train Mullahs and elders to comply with international legal standards.

What next? Rebuilding state legitimacy and trust

The Afghan state lacks legitimacy, and rife corruption in the judicial sector during the SSR phase from 2002-2006, resulted in Taliban remobilization in southern Afghanistan to fill the judicial vacuum at the provincial and rural levels. It is crucial that the current Afghan President, Dr Ashraf Ghani Ahmadzai, restores trust in the Afghan state and the judicial sector by truly fighting corruption in order to assist the statebuilding process and evade additional Taliban resurgence.

Authors

Danny Singh is a Lecturer in Human Rights at Leeds Beckett University. His research interests focus on corruption, clientelism, SSR and human rights in war-torn states, namely Afghanistan, where he has conducted field research. He has recently published on police and judicial reform in Conflict, Security & Development and Journal of Intervention and Statebuilding respectively and has had a paper accepted for Journal of Developing Societies due for publication early 2016.

Notes

[1] Qawm is a social and traditional solidarity group, or political bloc, that is based on political action, kinship, religious beliefs and rituals within everyday life. This exclusively considers work and social status and fellowship and refers to any form of solidarity that can span beyond ethnic and tribal borders. Within a qawm, an elected arbab collects taxes, recruits local soldiers and arranges local events.

[2] Singh, D. (2014) Corruption and Clientelism in the Lower Levels of the Afghan Police, Conflict, Security & Development, 14 (5): 621-650