There and back again: the collapse of the rule of law in Afghanistan

Muzhgan Wahaj 
Stikeman Elliott, Toronto[1]

'In most of Afghanistan, the rule of law has never been strong, but after 23 years of warfare it has been displaced almost completely by the ‘rule of the gun’.  Moreover, the discontinuity of regimes over the last quarter century has resulted in a patchwork of differing and overlapping laws, elements of different types of legal systems, and an incoherent collection of law enforcement and military structures.'[2]

In March 2004, the United States Institute of Peace published a special report evaluating the rule of law in Afghanistan two years after a US-led military offensive ousted the former Taliban regime. The introductory note – excerpted above – succinctly captured the challenges in establishing the rule of law in a society which had been fragmented by decades of foreign intervention and civil war.  

Little appears to have changed in the last two decades. Following a swift military takeover precipitated by the collapse of the Western-backed former government and the withdrawal of international forces, the Taliban reassumed de facto control of Afghanistan on 15 August 2021, reinstating the Islamic Emirate of Afghanistan (IEA) which ruled the country between 1996 and 2001. After twenty years of brutal war and incremental change, the rule of the gun has again displaced the rule of law in Afghanistan under renewed Taliban control.

The re-emergence of the IEA prompted dramatic changes to Afghanistan’s political and legal climate. As an immediate step, the de facto authorities announced an interim caretaker government comprising an all-male cabinet of religious clerics and key members of the former Taliban insurgency, many of whom are presently subject to UN terrorism sanctions.[3] Additional appointments were announced through late 2021, including several key officials of the Supreme Court of Afghanistan, including the de facto Minister of Justice, the Chief Justice and head of the Supreme Court, and the Attorney General.[4] These appointments brought unprecedented (though limited) representation across ethnic and sectarian groups, including the appointment of at least two Shia ministers in provincial ministerial roles.[5]

During the same period, the Taliban suspended the constitution of the former Western-backed Islamic Republic of Afghanistan which was enacted in 2004.[6] Early reports indicated that the Taliban would implement certain articles of the Constitution established in 1964 under King Mohammed Zahir Shah to the extent that they were deemed compatible with sharia law.[7] However, sources within the IEA’s Ministry of Information and Culture later noted that a new Constitution was under development based on the Quran and prophetic tradition.[8] To date, the IEA has yet to adopt an official Constitution.

Similar dysfunction exists with respect to the applicable legal framework under the IEA, which has yet to formally repeal Republic-era laws or identify a workable structure for its court system.[9] Under the previous government, the court system comprised three main branches serving districts, provinces, and national appeals, as well as a number of specialist courts, including anti-corruption courts, serious crimes courts, and courts and related prosecution units covering gender-based violence. These courts have remained shuttered since the Taliban takeover.[10] As part of its sweeping overhaul of any Western-linked systems in the country, the Taliban have also:

• dismissed thousands of judges appointed under the former government, replacing them with limited numbers of religious clerics;[11]
• revoked thousands of lawyer licenses issued under the former government pending re-examination under the religious principles of the Taliban;[12]
• issued new lawyer licensing requirements for male lawyers contingent on familiarity with certain Islamic laws and jurisprudence in the Hanafi tradition; and
• forbidden women from acting as judges or otherwise participating in the workplace.[13]

In the circumstances, the IEA appears to be operating in a legal and political vacuum constrained only by broad prescriptions that ‘all matters of governance and life in the country’ shall be regulated by sharia law and the ‘principles of the Islamic Emirate’.[14]  These principles include, among other things:

• the primacy of the Hanafi tradition of Sunni jurisprudence;
• the elimination of secular governance; and 
• an emphasis on retributive justice and the regulation of public morality.[15]

These principles are consistent with the ethos of the Taliban shadow government, which had operated, from as early as 2003, with considerable influence among communities disaffected by the former Republic administration.[16] The shadow system – largely characterised by the appropriation of official state systems and the introduction of religious doctrines to established tribal structures[17] – has since crystallised in the national state structure under the IEA, including certain shadow courts which have assumed the role of the state judiciary.[18] In fact, the current Chief Justice and head of the Supreme Court, Abdul Hakim Haqqani, served as the head of the judiciary in the shadow system since at least 2002.

As a result, court operations appear to be functioning in areas in which the shadow courts formerly operated,[19] whereas areas previously dependent on the infrastructure of the Republic report a near-total breakdown in the administration of justice.[20] Where court operations are proceeding, they are chaotic, unpredictable, and subject to the whims of religious clerics who have little (if any) legal training. Reports indicate that individuals suspected of criminal or immoral activity are often detained, sentenced and punished on the same day.[21] The arbitrariness of these court proceedings has resulted in unclear judgments, oftentimes without any determinations of law or fact, and without any defined parameters for the court’s jurisdiction.

The combined effect of these developments is the re-emergence of an arbitrary administration of justice characteristic of the first IEA, which promulgated law through periodic sharia-based decrees applied with significant variation across provincial courts.[22]  Reports indicate that the IEA continues to struggle with national governance as official decrees are imposed inconsistently across the country by Taliban members charged with enforcing law and order.[23]

Former Republic-era judges, prosecutors and other agents of the justice system under the former regime are especially vulnerable to these developments. Given their involvement in cases concerning corruption, narcotics, violence against women, national security and broader anti-terrorism matters, including those against members of the Taliban and affiliated terrorist groups, Afghan legal professionals are at immediate risk of reprisal and other abuse. These risks are well-documented in the present lawless climate in Afghanistan and include the following: 

• reports of summary executions and forced disappearances of legal professionals in Afghanistan;
• reports of attacks, threats and intimidation against legal professionals linked directly to Taliban authorities and combatants, including house searches, physical harassment, monitoring and tracking, and interrogations of family members, friends and other acquaintances;[24]
• credible reports of ‘revenge’ attacks and other retaliation by previously convicted members of the Taliban and affiliated terrorist groups, and other aggrieved individuals; 
• credible reports of death threats against female lawyers and judges from prisoners freed by the Taliban as they claimed power in August 2021 and other former convicts.[25]

The result of the foregoing is a near-total collapse of the rule of law in Afghanistan, giving rise to what UN experts describe as a ‘society that is ruled by fear’.[26]

Despite the bleak circumstances, there is some indication that the rule of law can return to Afghanistan. Unlike the early 2000s, Afghanistan benefits from twenty years of concerted developments in the legal sector and a body of legal professionals committed to their work. As one example, after their local office was destroyed during a Taliban raid in December 2021, the Afghanistan Independent Bar Association (AIBA) has relaunched its activities in exile from Belgium to continue its work in promoting the rule of law, peace and security and human rights. Other former Afghan lawyers and judges have continued to pursue legal work, education and training in countries in which they have resettled, and remain vocal in support of the legal system they worked to build for more than twenty years. Afghan legal professionals undertook great personal risk to assist in building a functional system of law and governance in the country, particularly in relation to anti-terrorism and counter-narcotics efforts in service of the security interests of the broader international community. Their knowledge and expertise remain critical to the future of human rights, peace and security in Afghanistan and the broader security interests of the region, all of which hinge on the proper functioning of the rule of law. With the assistance of the international community, these interests can be protected by supporting Afghan legal professionals and maintaining diplomatic pressure on the current Taliban regime.