Open Justice for Anti-Corruption (AF0029)

What is the public problem that the commitment will address?
Diminutive access to information in some justice and judicial sector caused lesser civic participation, transparency; accountability and public trust and sometimes pave the ground for administrative corruption. Public are not aware of how administrative corruption cases of government higher officials are addressed or dealt they have concerns. Lack of on time attention to major administrative corruption cases challenged justice and judicial services and enabled wide spread of administrative corruption.

What is the commitment?
Supreme Court and Attorney General in participation with CSOs and relevant department are preparing public access to information procedures considering anticipated circumstances in Criminal Procedure Code. Legal demands of public will be addressed in accordance with access to information law and procedures prepared to address major administrative corruption cases and be shared with public through mass media.

How will the commitment contribute to solving the public problem?
Preparing this procedure defines public accessibility to judicial and justice information in the meanwhile it eliminates hurdles in access to information. It obliges judicial and justice authorities to share information with public through mass media. Consequently, public access to information enables authorities to be accountable to public, reduces administrative corruptions and promotes public trust in justice and judicial system. Implementation of this commitment will facilitate participation of public in open trials and promote transparency, accountability and civic participation in judicial and justice system.

Why is this commitment relevant to OGP values?
Sharing information promotes transparency and civic participation among judicial and justice sector.

Additional information
Commitment is related to the followings:
 National Plan on Judicial and Justice Reform
 Law on Access to Information
 Criminal Procedure Code
 National Strategy on Combat against Administrative Corruption

16. Develop Open Justice Mechanism to Ensure Access to Information and Accelerate/Expedite Attention to Administrative Corruption Cases of Government Officials and Higher Officials

Supreme Court and Attorney General in participation with CSOs and relevant department are preparing public access to information procedures considering anticipated circumstances in Criminal Procedure Code. Legal demands of public will be addressed in accordance with access to information law and procedures prepared to address major administrative corruption cases and be shared with public through mass media.

Main Objective

Preparing this procedure defines public accessibility to judicial and justice information in the meanwhile it eliminates hurdles in access to information. It obliges judicial and justice authorities to share information with public through mass media. Consequently, public access to information enables authorities to be accountable to public, reduces administrative corruptions, and promotes public trust in justice and judicial system. Implementation of this commitment will facilitate participation of public in open trials and promote transparency, accountability, and civic participation in judicial and justice system.

Milestones

• Establish joint committee of governmental agencies (Attorney General’s Office, Supreme Court, and Access to Information Commission) and CSOs to prepare access to information procedures in justice and judicial sector.
• Draft access to information procedure in judicial and justice sector by joint committee.
• Publicize the preliminary draft of procedure in justice and judicial sector to collect public opinions and incorporate them into draft by Attorney General’s Office and Supreme Court.
• Convene two consultative meetings with government officials, CSOs, and relevant authorities to gather opinions and incorporate them into the draft procedure by Attorney General’s Office and Supreme Court.
• Approval of procedure.
• Launching and equipping information sharing units within Supreme Court and Attorney General’s Office.
• Implement the procedure and publicize the report according to Access to Information Law.
• Monitor the predefined subject matters in Criminal Procedure Code for boosting attention to administrative corruption cases of government officials and higher officials and publish the report according to access to information law.

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.

Commitment Analysis

This commitment aims to improve public access to information on corruption cases involving public officials, particularly those with high-ranking positions. Lack of transparency, public participation, and accountability in the handling of corruption cases involving public officials have negatively impacted public trust in the justice system and in government in general. Through this commitment, the government aims to solve this problem by widening public access to relevant information. The Attorney General’s Office and the Supreme Court will lead the implementation of this commitment, in collaboration with civil society organizations.

Currently, availability of information regarding corruption cases is limited. Most of the time, the government provides statistics only, without disclosing the names of individuals involved in specific cases or other details. The Supreme Court’s annual report detailing all decisions throughout 2019 consists of 455 pages covering criminal, commercial, and civil cases, but no corruption cases. ^[222] Other Supreme Court publications also fail to disclose information regarding corruption cases involving public officials. ^[223] As a result, citizens do not have access to information on corruption cases and on those who have been brought to justice.

In pursuing corruption cases involving high-ranking public officials, the government has established an Anti-Corruption Justice Center within the Attorney General’s Office. It is specifically responsible for pursing cases that involve high-ranking officials, senior officials, and generals. It also handles any other cases involving significant loss to public funds, in line with its jurisdiction involving regular officials and private citizens. At the time of this report’s development, the website of the Attorney General’s Office’s showed that the Anti-Corruption Justice Center had convicted 93 cases, of which only 22 involved high-ranking and senior officials. ^[224]

Legally, all court hearings in Afghanistan are open to the public, ^[225] although in practice arbitrary mechanisms limit access to certain cases. ^[226] According to a Supreme Court official, to publish information regarding a grand corruption case, the government must first obtain consent from the accused. ^[227]

Aside from corruption cases, the Supreme Court publishes court decision data on a quarterly basis through the Journal of Mizan. ^[228] The reports are mainly circulated among staff of justice institutions but are online for public use. The Supreme Court has also developed a system that allows anyone to obtain otherwise privileged information by presenting their credentials. ^[229] It is unclear the extent of the details in the data that the Supreme Court shares through this system. To improve public trust in the justice system, the Supreme Court intends to be more proactive and open regarding public access to information.

This commitment aims to develop, in consultation with civil society stakeholders, a mechanism for better disclosure of information on corruption cases. However, political support would be required from the Supreme Court High Council as well as the president to obtain approval for the Supreme Court to establish an information unit. ^[230] This unit would then be responsible for managing case information and publishing it for public access. If successful, the information unit would be responsible not only for public access to information of high-level corruption cases, but for all cases of all categories and classifications. ^[231]

The government generally improved its attitude toward access to information upon the enactment of the Access to Information Law in 2014. ^[232] By being more open, the government aims to showcase its seriousness in combating corruption within its own structure, although access to certain high-level court proceedings is still arbitrarily barred. ^[233]

This commitment is relevant to the OGP value of access to information, as it aims to disclose information about administrative corruption cases.

If fully implemented as written, the commitment is expected to have a minor potential impact on increasing access to information of the justice system. While the commitment offers a potentially viable mechanism for better access to information on grand corruption, it does not offer a sustainable solution to the government’s restrictions against such disclosure in certain cases. This leaves space for political influence to dictate decisions on which cases would be hidden from the public and which would be disclosed. Establishing a new unit within the Supreme Court is a positive first step in response to this. However, it is largely a stop-gap solution, given that the Access to Information Law has already mandated that this type of information be made available for public consumption.

Going forward, the stakeholders of this commitment are encouraged to agree on what they believe are the benefits and harms of disclosing grand corruption cases to the public. The discussion should bear in mind the provisions of the Access to Information Law. This legislative requirement could be used as the basis for stakeholders to propose a more permanent, sustainable solution.

A more impactful measure could also focus on addressing and removing the bureaucratic and political barriers that prevent or discourage the justice system from implementing full transparency in pursuing grand corruption cases.