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Afghanistan

Open Justice for Anti-Corruption (AF0029)

Overview

At-a-Glance

Action Plan: Afghanistan Action Plan 2019-2021

Action Plan Cycle: 2019

Status: Active

Institutions

Lead Institution: Supreme Court / Attorney General

Support Institution(s): Relevant civil society organizations

Policy Areas

Access to Justice, Anti-Corruption, Anti-Corruption Institutions, E-Government, Judiciary, Justice, 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

Potential Impact:

Implementation i

Completion: Pending IRM Review

Description

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

IRM Midterm Status Summary

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.

IRM Design Report Assessment

Verifiable:

Yes

Relevant:

Access to Information

Potential impact:

Minor

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.

[222] Supreme Court of the Islamic Republic of Afghanistan, Report on the Final Decisions of the Supreme Court 2019, 2019, https://bit.ly/3hKl3mu.
[223] Supreme Court of the Islamic Republic of Afghanistan, Qaza: A Publication of the Supreme Court, 2019, https://bit.ly/2BKnkyQ.
[224] “Statistics of ACJC Convictions,” Attorney General’s Office of the Islamic Republic of Afghanistan, accessed July 2020, http://old.ago.gov.af/en/page/acjc/statistics-of-the-acjc-cases. The website also has a “Case Tracker” page, but no information has been made available. See “ACJC Case Tracker,” Attorney General’s Office of the Islamic Republic of Afghanistan, accessed July 2020, http://old.ago.gov.af/en/page/acjc/smart-book. Overall, the Attorney General’s Office had published four reports on its website regarding corruption cases between 2018 and 2019, but it published none that disclosed specific information beyond statistics of cases. See “Reports,” Attorney General’s Office of the Islamic Republic of Afghanistan, accessed July 2020, https://bit.ly/3jK86ea.
[225] Abdullah Ahmadi (Afghanistan Democracy and Development Organization), interview by IRM researcher, 11 June 2020.
[226] In the status quo, even members of the press need to follow special procedures to be able to cover certain court proceedings. However, the Supreme Court and the Attorney General’s Office have taken gradual steps to be more open by allowing access for certain cases in recent years. For example, in 2019, media coverage was allowed at the court proceeding of former Telecommunication and Information Technology Minister Abdul Raziq Wahidi. Wahidi was sentenced to three years in prison for corruption and abuse of authority while serving as deputy minister of finance in 2015. See “Ex-Communication Minister Jailed for Three Years,” Ariana News, 8 April 2019, https://ariananews.af/ex-communication-minister-jailed-for-three-years/.
[227] Fazlullah Abdali (Supreme Court of the Islamic Republic of Afghanistan), interview by IRM researcher, 2 June 2020.
[228] Supreme Court of the Islamic Republic of Afghanistan, Journal of Mizan, accessed July 2020, https://supremecourt.gov.af/dr/mezan-gazette.
[229] Abdali interview.
[230] Ibid.
[231] Ibid.
[232] Law on Access to Information, Government of the Islamic Republic of Afghanistan, accessed July 2020, https://www.refworld.org/pdfid/5b165b2b4.pdf.
[233] Ahmadi interview.

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