International Rule of Law Assistance: Learning from Failures in Afghanistan

08 May 2019   ·   Lutforahman Saeed

18 years of rule of law assistance in Afghanistan provide key lessons for donors: Ensure that assistance for security and assistance for justice go hand in hand and make fighting corruption a priority. In supporting local organizations, Germany should combine clear criteria for funding with the flexibility needed to work in a country like Afghanistan.

For almost 18 years, the international community has made efforts to strengthen the rule of law in Afghanistan. The results are mixed. While there are some positive developments, it is important to analyze the failures and take the lessons learned on board in creating strategies like the new German strategy on rule of law assistance. 

Educating legal scholars: incentivize scholarship recipients to return to Afghanistan

To begin with positive examples, because of international support for the rule of law, Afghanistan has a new generation of jurists who are better educated than their predecessors. Support to Law and Shari‘a Faculties – study in both of which qualifies students for office in the justice sector – and to the inception training programs for judges should therefore be continued. Unfortunately, many Afghan legal scholars and professionals leave the country, a phenomenon shared with other (post-conflict) countries. A lack of qualified staff in law enforcement institutions decreases the quality of their service.

Capacity building projects by Germany and other donors should be combined with incentives for professionals, such as good career prospects, that motivate them to stay and serve their country. Furthermore, academic scholarships come with the risk of recipients not returning home. While these international scholarships are important, focus should be directed towards improving legal education inside the country. Scholarships for individuals must be given to committed people on the basis of qualification plus objective criteria that indicate their will to return. Alternatively, scholarships could bring them to third countries, for example in South Asia, which provide good education, but might be less attractive as places in which to settle. Most importantly, donors should support long-term approaches to education with a clear, outcome-based approach, rather than short-term programs. 

Think long-term: support both the passing and implementation of legislation

There are also important new pieces of legislation, which have resulted from rule of law assistance, such as a law criminalizing violence against women and a new administrative code. Helping with the drafting of new legislation is good, but futile if it ends after the passing of a law in the National Assembly. Again, part of the problem is the short-term planning and funding of projects. This needs to be changed in the upcoming German strategy for international rule of law assistance. 

Afghans’ awareness of their rights has also significantly improved. Particularly, urban populations, women and young people have begun claiming their legal rights. However, many have still not been informed about their rights and the ways to make use of them. Besides the media, street law clinics could be helpful in increasing citizens’ legal knowledge, particularly for women. There are more than 20 universities in the country with separate law and Shari‘a faculties, where thousands of men and women study. By supporting street law clinics in these universities, thousands of families could be reached by Shari‘a and law students, helping to increase laypeople’s level of legal knowledge, particularly regarding their basic rights. 

Afghans long not only for security but also for justice

Now on to the failures: Two factors hamper the rule of law more than anything else – insecurity and corruption. 

It was a mistake to strengthen actors that were not committed to the rule of law after the end of the Taliban regime. Some of the new strongmen were just as bad as the toppled regime. It was also a mistake not to deal with the atrocities of the past. And it was wrong to sequence security and rule of law assistance. Both should have been focus areas from the first day, because Afghans were longing not only for security but also for justice. When the international community finally understood this – half a decade on – it was too late. Now, warlords and other powerful people make a lot of money through drug trafficking, kidnapping, and other criminal activities. They have a strong, negative impact on the law enforcement institutions. Unfortunately, some of them are still supported by the international community. This behavior by donors is schizophrenic: on the one hand donors help institutions to combat these mafia structures through rule of law projects, while on the other hand, they often ask for their cooperation and offer them contracts in the area of security. Donors must coordinate between military and civilian approaches, understand the needs of the country and its people, and stop supporting the culture of impunity. 

Support national dialogue on law enforcement mechanisms 

It was also a mistake not to include the Taliban in negotiating the future of Afghanistan after their defeat. However, it would still be possible to discuss the constitution and constitutional law matters with them. Due to the re-emerging conflict, which has engulfed the entire country, law enforcement institutions are absent in rural Afghanistan and thus citizens resolve their legal issues through customary law or turn to the Taliban courts. Dialogue at an early stage would have been important to resolve issues of the past; dialogue about what rules and values should govern the country would also be helpful now. The question of whether Afghanistan’s informal justice mechanisms, the shuras and jirgas, should be formally recognized is a good example.

It is helpful to learn about options of linking state and non-state justice from external experts; but ultimately, we need societal consent in this question. A reconciliation law drafted in 2014 by a group of elders, human rights activists, jurists and ulama – men as well as women – made steps in this direction. Unfortunately, others wrote a parallel draft in a less inclusive manner. We can only hope the Afghan National Assembly will seriously debate the issue and look at the different drafts. Foreign experts cannot replace our own discussion of questions that concern the fundaments of our society. 

Afghanistan desperately needs outside support to fight corruption 

Corruption is the other big factor contributing to rule of law failures in Afghanistan. Thousands of projects aimed to strengthen rule of law in Afghanistan, but corruption destroyed their results. A well-trained judge is useless, even harmful, if he or she makes decisions on the basis of bribes. State employees who obtain their offices through personal relationships or kinship will not do their jobs properly either. The international community fell short helping the Afghan government to build an effective system to fight corruption. Here, support from outside is still desperately needed: we need to learn from other countries about effective ways to end judicial and administrative corruption. 

Work more with local organizations, but enforce clear funding criteria  

There are so many other things that would be important for Germany’s new strategy on rule of law assistance, but I will only mention one more point: funding. The international community has spent enormous amounts in order to support the rule of law in Afghanistan and the mistakes mentioned above certainly did not occur because of bad intentions. However, we should look more carefully at how this money is spent.

Huge amounts stay with the implementing organizations, which are usually based in the donor countries. They need the money to pay their staff, and to cover the costs of administration, office space, flights, security, armored vehicles, and so forth. The portion of funds allocated in this way became bigger as the security situation worsened. 

A way out of this situation is to directly support local organizations. In Afghanistan there are many NGOs specializing in rule of law, human rights, anticorruption and related areas, though not all of them can be trusted. The German government should take two measures: First, develop and rigorously enforce a catalogue of standards for local organizations that help us understand what requirements we must meet to obtain funds for rule of law project work. Such standards would concern internal governance, financial reporting, safety of employees, and the like. 

Second, adjust the German rules to the situation within a country like Afghanistan, since there are local laws with specific requirements and other circumstances that we must take into consideration. Rule of law work here needs flexibility. We cannot predict where, when and with how many participants a workshop will take place in 2020. But we can be effective. Germany should earmark a specific percentage of funds for local organizations as well as for exchange between people from different (post-conflict) countries. Ultimately this will save a lot of money and ensure Germany reaches its strategic aims.

Afghanistan English Partner Rechtsstaatsförderung Korruption

Lutforahman Saeed

Lutforahman Saeed is assistant professor and director of the Afghanistan Legal Research and Development Organization and teaches at the Shari‘a Faculty of Kabul University. He is also editor-in-chief of the trilingual Journal of Afghan Legal Studies (JALS).