In celebration of the International Human Rights Day and the Victims Week, Armanshahr’s 99th Goftegu public debate, a bridge between the elite and the citizens, was held in the hall of the French Institute in Afghanistan in cooperation with the Institute and the Open Society Afghanistan on 9 December 2012.
The speakers were: Dr Gholam Haydar Allameh (University professor and lawyer), Ghislain Poissonnier, in charge of the French Embassy’s Justice Mission of Pole de Stabilite inKapisa andSurobi, Zia Moballegh (human rights activist and researcher), Mashal Afrooz (Integrity Watch Afghanistan), Abdolhamid Sahak (from the International Development Law Organisation), Jamili (from Nijrab district, Kapisa province) and Mr Agha Muhammad Kaker (from Tagab district, Kapisa province).
Addressing the issue of victims and access to justice, Dr Allameh said: “the people have formed a government and sacrificed some of their freedoms to allow the government to provide them with security and justice. If access to justice is difficult and combined with degradation, it indicates the government’s inability to fulfil its obligation.
“The Constitution of Afghanistan has not addressed the principle of access to justice or judicial authorities and guarantee of fair treatment; there is a vacuum. There are some general provisions about the rights of the harmed persons. This principle has not been directly emphasised in the common laws of Afghanistan either, but they have referred to victims under the title of harmed person. Their rights have not been recognised. Therefore, these laws are far from international standards.
“A harmed person is sidelined in regard to access to justice and the prosecutor decides as their representative in all stages. They have even been deprived of the right to appeal. Under article 62, only the prosecutor may appeal against the first instance verdict. None of the 10 remedies provided by the International Criminal Court’s statue to the victims have been mentioned in the laws of Afghanistan.
“The laws only emphasise financial compensation. Psychological and emotional compensations are unknown. Victims do not have access to medical and psychological care. It is therefore essential to amend the penal laws in Afghanistan to protect the victims.”
Mr Poissonnier was the next speaker, who said: “access to justice is a human right on the international level. If it does not exist, people’s human rights would not be guaranteed. However, access to justice is not only a problem in Afghanistan; it is a problem in other countries as well. Even in France, the majority of the people do not have access to justice.”
To have access to justice, according to Mr Poissonnier, “prosecutors, judges and judicial employees must be educated. Government institutions must cooperate, the police be educated, the laws be simplified, the people must receive capacity building to demand their own rights; the law schools, lawyers and the legal aid system must be strengthened.”
Next, Mr Zia Moballegh addressed the meeting: “Access to justice has been a serious problem for all in the past four decades, in particular for the women and children who have suffered most. The various studies show that 80% of the people in Afghanistan wish their problems to be resolved through the formal system, but they are mostly settled through the informal courts.”
According to the speaker, the most significant problems of women and children are as follows: weakness of judicial organisations and absence of accountability, lack of transparency and low capacity of the employees in the judicial sector. “The prolongation of the judicial process leads to disappointment. Children are also facing numerous problems. Forced and early marriages constitute more than 60% of marriages nationwide. The children’s courts will not exist at any part of the country, their offences are usually investigated by courts for adult people, they are detained in prisons for adults. Three per cent of judges are women, but there are no women in the High Council of the Supreme Court. As a result, there is a one-sided approach to laws and criminalisation.”
Mr Moballegh argued that structural discrimination against women is another problem: “Even though 10 years have elapsed since the signing of the Convention on the Elimination of All Forms of Discrimination against Women, the convention has hardly been put into practice. The laws of Afghanistan systemically discriminate against women. Besides, the authorities consistently fail to reform the strategies concerning women and children, e.g. the amendment of the Family Law that is facing problems.
“When there is corruption, you can buy justice with money. When the question of money comes up, women and children suffer the most harm. Studies show that more than 70% of women who go to courts do not have any income and cannot pay bribes. That is a double oppression. Under these circumstances, there is no clear perspective except the implementation of the Constitution, not to confine the transition to a political transition, to provide for meaningful participation of women at all levels of the state including the judiciary, to liberate justice from corruption, to raise awareness, to take collective action to eradicate violence against women and children, and to eliminate cultural obstacles facing women.”
The next speaker, MrSahak said: “Laws have been established in Afghanistan since 100 years ago. We do not lack laws. We have more than 1,000 laws, but we keep complaining of the absence of the rule of law and access to justice. Why are laws never implemented? A country needs a government to administer its affairs and the government needs laws. Laws must be based on the nation’s willpower.”
The other two speakers, Messrs Jamili and Agha Muhammad Kaker discussed the local jirgas. They argued: it is not possible to deal with the problems through formal authorities owing to lack of access to courts, corruption, war and other issues. The people stand a better chance of resolving their problems through the jirgas.
Mr Afrooz said: The Integrity Watch Afghanistan has made recommendations about justice. One of the most important solutions is to provide for the people to monitor the process of trials. The IWA has taken a series of actions in this regard and had some achievements.
About 100 citizens and activists as well as foreign nationals were present at the meeting and some of the media covered it.
Invitation to 99th Goftegu Public Debate: Access to justice and challenges to it
