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Afghanistan

Revise Law on Recruitment and Authority of Attorneys General (AF0014)

Overview

At-a-Glance

Action Plan: Afghanistan Action Plan 2019-2021

Action Plan Cycle: 2019

Status: Active

Institutions

Lead Institution: Attorney General’s Office of the Islamic Republic of Afghanistan

Support Institution(s): Ministry of Justice, Judicial committee of the cabinet, Cabinet affairs office, Integrity Watch Afghanistan (IWA) and other representatives of civil society

Policy Areas

Access to Justice, Anti-Corruption, Anti-Corruption Institutions, E-Government, Gender, Justice, Legislation & Regulation, Marginalized Communities, Open Justice, Public Participation

IRM Review

IRM Report: Afghanistan Design Report 2019-2021

Starred: Pending IRM Review

Early Results: Pending IRM Review

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information , Civic Participation

Potential Impact:

Implementation i

Completion: Pending IRM Review

Description

What is the public problem that the commitment will address?
The existing law on structure and authority of attorney general office does not have sufficient mechanism to ensure transparency and meritocracy in the recruitment of attorneys. Further, this law does not adequately pave the ground for recruitment of female attorneys and also lacks a monitoring mechanism of CSOs on recruitment of attorneys.

What is the commitment?
This commitment is to address the aforesaid challenges via revision of law on structure and authority of attorney general office in partnership with relevant CSOs and experts with an ultimate purpose to ensure transparency in the recruitment of attorneys and pave the ground for CSOs scrutiny over the process.

How will the commitment contribute to solving the public problem?
The revision of aforementioned law will provide an opportunity for civil society to monitor attorneys’ recruitment process in the Attorney General Office. Implementation of this commitment contrives the recruitment of professional and competent applicants considering the women participation. Likewise, participation of CSOs in recruitment process ascertains rule of law, public access to justice and elimination of mistrust amid people in justice sectors. CSOs scrutiny will facilitate and streamline recruitment process of professional and competent individuals besides this can be considered a serious combat against administrative corruption in the recruitment process.

Why is this commitment relevant to OGP values?
CSOs monitoring from Attorney General Office’s recruitment process will promote transparency, accountability, civic participation and reduce gap between government and public.

Additional information
This commitment is in line with:
 Law on combat against administrative corruption
 National plan on judicial and justice reforms
 Attorney General Office five-year strategic plan
 European Union recommendations

IRM Midterm Status Summary

1. Ensuring Transparency in Recruitment of Attorneys through Revision and Implementation of the Law on Structure and Authority of Attorney General’s Office with CSO’s Monitoring

This commitment is to address the aforesaid challenges via revision of the Law on the Structure and Authority of Attorney General’s Office in partnership with relevant CSOs and experts with the ultimate purpose of ensuring transparency in the recruitment of attorneys and pave the ground for CSO’s scrutiny in the process.

Main Objective

The revision of aforementioned law will provide an opportunity for civil society to monitor attorney recruitment process in the Attorney General’s Office. Implementation of this commitment contrives the recruitment of professional and competent applicants considering women participation. Likewise, participation of CSOs in recruitment process ascertains rule of law, public access to justice, and elimination of mistrust amid people in the justice sector. CSO’s scrutiny will facilitate and streamline recruitment process of professional and competent individuals besides this can be considered a serious combat against administrative corruption in the recruitment process.

Milestones

  • Establish a prominent committee to draft the layout for the revision of the Law in partnership with CSOs.
  • Draft the Law revision layout as per international experiences to ensure transparency in personal affairs of attorneys from competent Commission in partnership with CSOs and experts.
  • Publicize first draft of layout of legislative document on Attorney General’s websites to collect expert opinions.
  • Convene two consultative meetings in participation with government organizations, CSOs, and relevant offices to collect and incorporate the expert opinions into the law revision layout draft.
  • Finalize the draft by the Executive Committee of Legislative Department of the Ministry of Justice in partnership with CSOs and experts.
  • Present the final draft to Judicial Committee of the Cabinet for revision and approval.
  • Present the final version to the cabinet for revision and approval.
  • Approval of Law revision layout in the Parliament.
  • Signatory of President, publication and enforcement of Law.
  • Develop and finalize a recruitment procedure of attorneys based on the revised Law on the Structure and Authority of Attorney General’s Office in partnership with CSOs.

Editorial Note: For the complete text of this commitment, please see Afghanistan’s action plan at https://www.opengovpartnership.org/wp-content/uploads/2020/01/Afghanistan_Action-Plan_2019-2021_EN.pdf.

IRM Design Report Assessment

Verifiable:

Yes

Relevant:

Access to Information, Civic Participation

Potential impact:

Minor

Commitment Analysis

This commitment aims to enhance transparency and accountability in the process of recruiting attorneys at the Attorney General’s Office of Afghanistan. The implementation of this commitment will consist of two stages: amendment of the Law on the Structure and Authority of Attorney General’s Office of 2013, [1] followed by the development of a new recruitment procedure based on the amended law, and in partnership and under the monitoring of civil society organizations. The Attorney General’s Office will lead the implementation of this commitment. Others involved in the implementation include the Ministry of Justice, the Judicial Committee of the Cabinet, and the Cabinet Affairs Office, as well as civil society organizations such as Integrity Watch Afghanistan.

The current Law on the Structure and Authority of Attorney General’s Office does not have provisions to safeguard the transparency of the overall attorney recruitment process. [2] According to a nationwide survey conducted by Integrity Watch Afghanistan in 2018, the Attorney General’s Office ranked third most corrupt (after provincial courts and the Ministry of Education) based on public perception. [3]

That perception is consistent with findings reported by the Independent Joint Anti-Corruption Monitoring and Evaluation Committee in its 2017 Special Report on Vulnerabilities to Corruption in the Attorney General’s Office. [4] The report discusses the need for reform in the recruitment of personnel in the Attorney General’s Office. Consequently, there is an urgent need for complete reform within the Attorney General’s Office, including a meritocratic and accountable recruitment process of state attorneys. The objective of this commitment is also in line with the National Justice and Judicial Reform Plan, [5] the implementation of which began in 2016.

The recruitment process within the justice sector has long been scrutinized for being reliant on personal connections rather than merits. [6] Therefore, the process tends to result in less capable or less independent personnel being hired.

There is also the wide gender gap in the demography of justice sector workers. According to the Attorney General’s Office, women make up only 21 percent of the overall personnel within the institution, similar to the reported figure of female attorneys nationally. [7] Thus, this commitment also aims to institutionalize affirmative action policy to help reduce the gap by using a five-point advantage for female candidates in the attorney recruitment process. [8]

This commitment is relevant to the OGP values of access to information and civic participation. Creating a better legal framework for enhancing the transparency of the Attorney General’s Office’s hiring policy advances access to information on the recruitment of attorneys. In addition, the commitment’s design creates opportunities for civil society to increase its level of influence in the process of attorney recruitment. The commitment involves both direct civil society participation in consultative meetings and an exclusive committee, and an increase in the information available to inform the participatory process.

If fully implemented, this commitment is expected to result in a minor potential impact on increasing transparency in the recruitment of attorneys. Creating a better legal framework for enhancing the transparency of the Attorney General’s Office’s hiring policy is an important public issue, and legislative reform is a plausible way to meaningfully address it. However, the commitment lacks clarity on what provisions would be included in the amendment and what key elements of the law would be up for discussion to achieve the desired outcome. This lack of clarity limits the scope of potential impact.

In addition, there is a lack of clarity regarding the scope of an affirmative action policy to increase the presence of female attorneys within the Attorney General’s Office. This lack of clarity is mainly because the legal amendment will address only the formal aspect of the recruitment of female attorneys in the process—in the form of a default five-point additional score for female and disabled candidates. [9] The amendment will not address aspects such as security issues, conservative and traditional perspectives, and family restrictions, which could be more difficult obstacles for female and disabled candidates to overcome. The plan to impose a five-point advantage for female candidates is not supported by any research or evidence. [10] There could be a variety of more nuanced factors that contribute to the wide gender gap among state attorneys than women’s lack of ability to compete with other candidates without receiving an advantage in the form of an affirmative action policy.

Despite these limitations and the lack of clarity on detail, this commitment is a positive step in the right direction. The director of policy and planning of the Attorney General’s Office emphasized the significance of this commitment in two key areas: leveraging the OGP process to gain political commitment to amend the Law on the Structure and Authority of Attorney General’s Office as well as formalizing civil society participation. [11] In the status quo, civil society participation is voluntary and limited to a consultative role. However, the amendment will institutionalize civil society’s ability to monitor the process. [12] Civil society representatives have outlined at least three key aspects where civil society oversight would be essential during implementation. The relevant stages of the attorney recruitment process include candidate short-listing, the written test, and in-person interviews. Going forward, the government could consider opening up the drafting process not only to select civil society representatives, but also to the general public. It could also expand the scope of public scrutiny over the work of the Attorney General’s Office beyond the recruitment policy.

[1] Law on the Structure and Authority of Attorney General’s Office, Government of the Islamic Republic of Afghanistan, accessed July 2020, https://bit.ly/3fEFGzH.
[2] Ibid.
[3] Integrity Watch Afghanistan, National Corruption Survey 2018: Afghans' Perceptions and Experiences of Corruption, 2018, https://iwaweb.org/wp-content/uploads/2014/12/NCS__2018__English__WEB.pdf, p. 31.
[4] “Special Report on Vulnerabilities to Corruption,” Independent Joint Anti-Corruption Monitoring Committee of the Islamic Republic of Afghanistan, accessed in July 2020, https://www.mec.af/files/2017_07_19_ago_special_report_full_report_english.pdf.
[5] “National Justice and Judicial Reform Plan,” Government of the Islamic Republic of Afghanistan, 2016, http://policymof.gov.af/home/wp-content/uploads/2019/01/Justice-Sector-National-Reform-Plan.pdf.
[6] "Military Rankings Auction: How Are Security Officers Promoted?" Etilaatroz, 2017, https://bit.ly/2Wuk9SZ.
[7] Rahimullah Safi (Attorney General’s Office of the Islamic Republic of Afghanistan), interview by IRM researcher, 31 May 2020.
[8] Ibid.
[9] Rahimullah Safi (Attorney General’s Office of the Islamic Republic of Afghanistan), interview by IRM researcher, 31 May 2020.
[10] Integrity Watch Afghanistan , interview by IRM researcher, 3 June 2020.
[11] Rahimullah Safi (Attorney General’s Office of the Islamic Republic of Afghanistan), interview by IRM researcher, 31 May 2020
[12] Information provided by Integrity Watch Afghanistan during the IRM prepublication review phase. 28 October 2020.

Commitments

  1. Revise Law on Recruitment and Authority of Attorneys General

    AF0014, 2019, Access to Justice

  2. Revise Law on Local Government

    AF0015, 2019, Legislation & Regulation

  3. Establish Anti-Corruption Commission

    AF0016, 2019, Anti-Corruption

  4. Draft Beneficial Ownership Legislation

    AF0017, 2019, Anti-Corruption

  5. Portal for Processing Legislative Documents

    AF0018, 2019, Capacity Building

  6. CSO Monitoring of Education

    AF0019, 2019, E-Government

  7. Develop Electronic Complaint System for Local Government

    AF0020, 2019, Capacity Building

  8. Reform and Strengthen Education Data

    AF0021, 2019, Access to Information

  9. Participation in Local Budgeting

    AF0022, 2019, Fiscal Openness

  10. Electronic Revenue Collection System

    AF0023, 2019, Capacity Building

  11. Co-Create University Curriculum

    AF0024, 2019, Education

  12. Reform Promotion System for Police Officers

    AF0025, 2019, E-Government

  13. Monitoring Framework for Medicine Wholesalers

    AF0026, 2019, E-Government

  14. Monitoring of Private and Public Health Centers

    AF0027, 2019, E-Government

  15. Participation in National Budget

    AF0028, 2019, Fiscal Openness

  16. Open Justice for Anti-Corruption

    AF0029, 2019, Access to Justice

  17. Women's Empowerment Plan

    AF0030, 2019, Gender

  18. Establishment of Women Grand Council

    AF0031, 2019, Gender

  19. Law on Processing, Publishing and Enforcing Legislative Documents

    AF0002, 2017, Legislation & Regulation

  20. Courts to Address Violence Against Women

    AF0003, 2017, Access to Justice

  21. Public-Police Partnership Councils

    AF0004, 2017, Capacity Building

  22. Registering Assets of Government Officials

    AF0005, 2017, Anti-Corruption

  23. Scheme for Establishing Health Service Accreditation Entity

    AF0006, 2017, Capacity Building

  24. Urban Improvement National Policy

    AF0007, 2017, Infrastructure & Transport

  25. Protection Policy for Women Under Conflict and Emergency Situations

    AF0008, 2017, Fiscal Openness

  26. Civil Society Monitoring Plan for Education and Higher Education

    AF0009, 2017, Education

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

    AF0010, 2017, Anti-Corruption

  28. Strengthen the Information Mechanism in 60 Governmental Agencies

    AF0011, 2017, Access to Information

  29. Starred commitment Implementing Open Contracting

    AF0012, 2017, Access to Information

  30. Starred commitment Public Participation in Road Network Projects

    AF0013, 2017, Infrastructure & Transport

  31. Starred commitment Mechanism of Public Partnership in Inspection Process

    AF0001, 2017, Anti-Corruption

Open Government Partnership