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Afghanistan

Law on Processing, Publishing and Enforcing Legislative Documents (AF0002)

Overview

At-a-Glance

Action Plan: Afghanistan Action Plan 2017-2019

Action Plan Cycle: 2017

Status: Inactive

Institutions

Lead Institution: Ministry of Justice (MoJ)

Support Institution(s): National Assembly, Relevant CSOs, private sector, Law Practitioners Union, Afghanistan Independent Bar Association

Policy Areas

Legislation & Regulation, Legislature, Lobbying, Public Participation

IRM Review

IRM Report: Afghanistan Design Report 2017-2019

Starred: Pending IRM Review

Early Results: Pending IRM Review

Design i

Verifiable: Yes

Relevant to OGP Values: Civic Participation

Potential Impact:

Implementation i

Completion:

Description

What is the public problem that the commitment will address?: LPPELD is a law which includes the step-by-step articulations of how a bill should be drafted, processed and turned in to law in Afghanistan. This means that all legislations should be developed and processed based on LPPELD. Unfortunately however, the LPPELD does not include a layer based on which the bills should be consulted with CSOs on behalf of the citizens. Given the notion that what affects public lives should be consulted with public is undermined in the legislation development processes in Afghanistan. This existence can lead to development and passage of laws which can negatively impact public lives and well-being, including social inclusion and rule of law.; What is the commitment?: To remedy this shortcoming, the ministry of justice has been mandated in the Open Government Partnership meetings to amend LPPELD with a purpose to allow CSOs in the scrutiny of all bills. It is expected by amendment of LPPELD CSOs will gain a platform to participate in the scrutiny of all bills in Afghanistan thereby ensuring that the voices of public are represented in the legislative process, ultimately strengthening the rule of law. To do so, the ministry of justice of Afghanistan will take the LPPELD to a consultative meeting with CSO’s in order to identify at what stage of the bill development the CSOs should be involved for scrutiny. Taking the CSOs consultations into account, amendments to the LPPELD will be prepared and put into discussion in the legislative committee meeting of the cabinet. Upon approval of LPPELD by the cabinet, it will be presented to and endorsed by the parliament of the country.; How will the commitment contribute to solve the public problem?: The amendment of LPPELD as mentioned above will ensure the CSOs long-lasting participation in the legislation making processes in the country, thereby bridging the gap between the public and government, strengthening the rule of law and values of participatory democracy.; Why the commitment is relevant to OGP values?: This commitment represents public participation, holds the legislative process accountable and ensures transparency in the legislation making processes.; Additional information: This commitment will be funded by Ministry of Justice. This commitment is in line with MoJ’s Justice Sector National Reform Program

IRM Midterm Status Summary

2. Amendment of the Law on Processing, Publishing and Enforcing Legislative Documents

Language of the commitment as it appears in the action plan:

“LPPELD is a law which includes the step-by-step articulations of how a bill should be drafted, processed and turned in to law in Afghanistan. This means that all legislations should be developed and processed based on LPPELD. Unfortunately however, the LPPELD does not include a layer based on which the bills should be consulted with CSOs on behalf of the citizens. Given the notion that what affects public lives should be consulted with public is undermined in the legislation development processes in Afghanistan. This existence can lead to development and passage of laws which can negatively impact public lives and well-being, including social inclusion and rule of law.

To remedy this shortcoming, the ministry of justice has been mandated in the Open Government Partnership meetings to amend LPPELD with a purpose to allow CSOs in the scrutiny of all bills. It is expected by amendment of LPPELD CSOs will gain a platform to participate in the scrutiny of all bills in Afghanistan thereby ensuring that the voices of public are represented in the legislative process, ultimately strengthening the rule of law.

Milestone activities and verifiable deliverables
  • MoJ drafts the amendments to LPPELD.
  • MoJ holds two consultative meetings with related governmental agencies and CSOs on the draft amendments
  • Executive Committee of MoJ’s Legislation Department finalizes the amendments and reflections that were gathered from the CSOs.
  • Present the finalized draft of the amendment, having incorporated all feedback from related governmental agencies and civil society, to the legislative committee for its feedback before sending to the Cabinet for approval. This meeting will be attended by CSOs as well.
  • Present the final amendments to the Cabinet for approval.
  • Approval of the amendments by the National Assembly.
  • Endorsing, publishing and enforcing the LPPELD.”

Start Date: January 2018

End Date: August 2019

Editorial Note: This is a partial version of the commitment text. For the full commitment text from the Afghanistan National Action Plan see: https://www.opengovpartnership.org/commitment/01-mechanism-of-public-partnership-inspection-process

Context and Objectives

This commitment intends to amend the law on Processing, Publishing and Enforcing Legislative Documents (LPPELD) in order to legally and institutionally incorporate the views of CSOs and citizens in the law-making process, which has not thus far been in place.

The LPPELD concerns the entire law-making process in Afghanistan. It entails six steps: a) preparation of the first draft by the concerned directorates and authorities; b) examination and scrutiny of the draft by the Scientific-Legal Research and Legislative Institute at the Ministry of Justice (MoJ) and other concerned experts and authorities as the Institute deems necessary; c) affirmation and endorsement by the Legislative Committee at the Administrative Office of the President (AOP) and the Cabinet; d) ratification in the Parliament; e) Acquiring the President' signature; and ) publication in MoJ’s official Gazette. [10] A 1943 regulation had for the first time established the procedure for drafting legislative documents, which was revised and turned into LPPED in February 2017. [11] It was not mandatory to have CSOs involved in the process, though they could be involved in advocacy and thus could influence the decision-making as demonstrated in the case of the Elimination of Violence Against Women Law and its eventual non-incorporation in the country’s recently revised and published Penal Code. [12]

The commitment’s milestones and activities are precise enough to be verifiable and many of them have already been achieved (see forthcoming Implementation Report for further discussion). The commitment is relevant to the OGP value of civic participation because of the envisaged role of CSOs and the public in consulting on amendment to the LPPELD that would allow CSOs to review all proposed legislation.

The IRM researcher considers this commitment to have a moderate potential impact as it aims to give CSOs and the public a chance to be involved in the law-making process which, prior to this law, CSOs could effectively only participate in the law-making process through their advocacy and consolidated efforts. This was demonstrated by many women’s organizations and activists in the case of the non-incorporation of the EVAW law into the revised Penal Code in 2017. Nevertheless, there was no legal framework in place for public consultation. As the World Bank’s Global Indicators of Regulatory Governance indicates, Afghan ministries and agencies do not solicit comments on proposed regulations from the general public. [13] The opportunity to provide input on a legal amendment that would effect permanent participation in the policy-making process is a big step forward to meaningful participation in designing legislation from the outset. Amendment(s) to the law through this commitment makes CSOs’ participation in the process of law making binding, and will, for the first time, create opportunities where, de jure, government officials and CSOs would have a chance to work in a shared platform in securitizing the bills. However, the quality and competence of CSOs’ participation remains critical in assessing the potential impact of this commitment. A representative from a human rights organization stated that in most meetings on legislative processes, CSOs role is that of an observer. [14] She acknowledged, however, that they could play a more significant role based on this commitment if they really intended to participate. In her view, as a woman, women in Afghanistan suffer from specific issues and their role in the law making process is particularly significant. [15] In other words, the interview participant considered this commitment particularly empowering towards women’s participation in the law drafting process, ensuring that their voices will be heard not only through their advocacy and activism, as before, but also through a legal framework.

Next steps

For the subsequent action plan, the IRM Researcher suggests that the government proactively take steps to improve public and CSO awareness of the revised LPPELD process (once passed into law) and more precisely define how the government will solicit and incorporate feedback from the public and CSOs. More specifically, the government, through MoJ as the implementing agency, could invest more resources in:

  • Establishing specific mechanisms whereby they can introduce the revised CSO and public participation process under LPPELD and convey the importance of the amendments specified under this commitment to the public.
  • To raise awareness about the new legislation, the government could plan a campaign through radio and TV programs.
  • The MoJ and the Parliament could establish a portal on their websites whereby the public could have the opportunity to leave comments and feedback on specific legislative drafts.
  • Ensuring inclusive participation and active engagement with the wider public through awareness raising and options to participate for those in provinces outside the capital or without internet connections.

The IRM Researcher further suggests that CSOs take proactive measures to enhance the impact of the commitment, specifically by:

  • Civil society groups could coordinate to form core groups on specific policy areas and make sure to actively participate in legislative drafting on these issue areas.
  • Civil society could also help disseminate information about the new legislation and contribute to the public awareness-raising campaigns with specific projects and events.
  • Civil society could utilize “legislative theater methodology” as a means to engage the public on issues that concern their day-to-day lives. This methodology has been effectively used in countries such as Brazil, Canada and France to engage citizen in the legislative process through art. In Afghanistan, precedent for this type of work exists, such as work by the Afghanistan Human Rights and Democracy Organization (AHRDO), and could be expanded to introduce and implement participatory theater and legislative theater. [16]
[10] Ministry of Justice. (2018). The draft law on processing legislative documents. Retrieved on November 10, 2018, from http://moj.gov.af/Content/files/Law%20on%20processing%20manner%20of%20publication.pdf
[11] Personal interview, Director of Law Making, Ministry of Justice, 24 October 2018, Kabul.
[12] Saeed, H. (July 2018). New Penal Code and EVAW Law: To Incorporate or Not to Incorporate? Afghanistan Public Policy Research Organization. Retrieved on November 10, 2018, from http://appro.org.af/publication/new-penal-code-and-evaw-law-to-incorporate-or-not-to-incorporate/   
[13] Rulemaking.worldbank.org/en/data/explorecountries/Afghanistan#
[14] Personal interview, Director of Training Human Rights Association for Women, 29 October 2018, Kabul.
[15] Ibid.
[16] For more insight on this methodology and its transformative impact, please see: http://ahrdo.org/our-history/; Saeed, H. (2015). Empowering Unheard Voices through ‘Theatre of the Oppressed’: Reflections on the Legislative Theatre Project for Women in Afghanistan—Notes from the Field. Journal of Human Rights Practice, Volume 7, Issue 2, Pages 299–326. Retrieved on November 10, 2018, from https://academic.oup.com/jhrp/article/7/2/299/2188804; AHRDO. (February 2012). Afghan Women after the Taliban: Will History Repeat Itself? Retrieved on November 10, 2018, from https://drive.google.com/file/d/0BzQO1gSxbFZbYm5sY19ER29IemM/view

Commitments

  1. Mechanism of Public Partnership in Inspection Process

    AF0001, 2017, Capacity Building

  2. Law on Processing, Publishing and Enforcing Legislative Documents

    AF0002, 2017, Legislation & Regulation

  3. Courts to Address Violence Against Women

    AF0003, 2017, Gender

  4. Public-Police Partnership Councils

    AF0004, 2017, Capacity Building

  5. Registering Assets of Government Officials

    AF0005, 2017, Asset Disclosure

  6. Scheme for Establishing Health Service Accreditation Entity

    AF0006, 2017, Capacity Building

  7. Urban Improvement National Policy

    AF0007, 2017, Infrastructure & Transport

  8. Protection Policy for Women Under Conflict and Emergency Situations

    AF0008, 2017, Gender

  9. Civil Society Monitoring Plan for Education and Higher Education

    AF0009, 2017, Education

  10. Plan for the Establishment of a Joint Committee Overseeing the Implementation of the Anti-Corruption Strategy

    AF0010, 2017, Anti-Corruption Institutions

  11. Strengthen the Information Mechanism in 60 Governmental Agencies

    AF0011, 2017, Capacity Building

  12. Implementing Open Contracting

    AF0012, 2017, E-Government

  13. Public Participation in Road Network Projects

    AF0013, 2017, Infrastructure & Transport