Like all other parts of public life, the administration of justice and access to legal remedies and dispute resolution have been severely disrupted by the COVID-19 pandemic. The notes series ‘Rule of Law in the time of COVID-19’ provides a perspective from the field of how the justice system has been affected by the pandemic and how national justice actors are responding and adapting to the situation. By documenting responses and practices by those working in some of the world’s most complex environments, the notes seek to provide a better understanding of opportunities and challenges for promoting the rule of law during this extraordinary time.
The notes series aims to provide an in-country snapshot from the perspective of IDLO’s country offices.
As in other contexts, Afghanistan’s COVID-19 outbreak risks exacerbating the country’s existing vulnerabilities. These include a weak health care system, widespread poverty, porous borders, massive internal displacement, and ongoing violence and conflict.
Large parts of Afghanistan’s population of approximately 37 million people – most of whom reside in rural areas – struggle to access healthcare. Public health services capable of responding to COVID-19 are limited. In addition, high rates of communicable diseases such as tuberculosis make the Afghan population particularly vulnerable to the effects of the pandemic.
These concerns raise the possibility of significant social and economic disruption in the coming months if they are not addressed through concerted national and international action.
The Government of Afghanistan is actively implementing strategies to mitigate the spread of COVID-19, protect public health and guarantee human rights and maintain the rule of law by, among other things, maintaining access to vital public services including the justice system.
Public health measures have been reinforced as COVID-19 has spread more widely, including screening at ports of entry, quarantine for infected people, and closure of public places for gathering. The government has introduced strict social distancing measures and imposed a lockdown, closed all government institutions other than the Ministry of Public Health, scaled back provincial and municipal services, restricted international and inter-provincial commerce, and halted international flights.
In March 2020, President Ashraf Ghani developed a response plan for the health sector and established a High-Level Emergency Coordination Committee (HLECC) to address the COVID-19 pandemic. The HLECC has several technical working groups addressing different aspects of the public health response including surveillance and early detection; coordination and resource mobilization; health care provision; health promotion and risk communication; and infection prevention and protection. It is also working to establish sub-national coordination structures, particularly in Herat province which has the highest number of confirmed cases to date.
The government also allocated Afs 1.9 billion (approximately USD $25 million) to the budget for emergency health needs, such as testing labs (including at border crossings), setting up special wards to boost hospitalization and care capacity, and procuring critical medical supplies, including personal protection equipment.
Impact of COVID-19 on the justice system
The COVID-19 pandemic has had a strong impact on the operations of Afghan law-enforcement and judicial institutions, but also on the work of legal aid providers and women’s organizations providing services to justice seekers.
Police detention facilities remain open to process individuals accused of criminal conduct and to await release on bail or guarantee. To stem the spread of the coronavirus, the Presidency decreed that detainees in custody during the investigative stage or prior to trial – which includes those who have been convicted and sentenced but who have not yet exhausted all appeals – should be released on bail or guarantee unless accused of serious crimes. Procedural safeguards are in place for detainees to challenge a decision precluding release, however, may need to be reviewed and strengthened.
Since 1 April, the Police in Kabul have stepped up the enforcement of the lockdown based on public health laws, overseeing the implementation of movement restrictions and fining violators. Police checkpoints significantly increased throughout Kabul and other major cities. Increased arrests have raised concerns among civil society because of the lack of procedural and substantive due process for those taken into custody due to court shutdowns as well as the limited numbers of judges, prosecutors and defenders to handle cases.
The Police’s Family Response Units of the Ministry of the Interior remain active in responding to complaints of gender-based violence and domestic abuse but are experiencing difficulty to place women needing protective custody in safety.
Attorney General’s Office
The Attorney General’s Office (AGO) is responsible, among other things, for prosecuting violations of law. Although the prosecution office in Kabul has been closed to the public, essential staff in Kabul, including the Attorney General, continue to work on cases from the office for reduced hours.
A high priority in Kabul has been the screening and release of Taliban prisoners as part of the ‘Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and the United States of America’ signed on 1 March 2020. President Ghani recently approved the release of 2,000 Taliban prisoners - of the 5,000 required by the deal - and is likely to approve the release of more.
The Attorney General has set up an internal committee to address COVID-19 issues effecting the AGO. Many of the senior staff at the Attorney General’s Office also are playing a crucial role as legal advisors to the HLECC, helping it to navigate the legal issues presented by the country’s emergency preparedness and response
Through two Presidential Decrees issued on 26 March and 27 April 2020, President Ghani ordered a large-scale release of prisoners as part of measures to prevent the spread of the coronavirus. A special committee in the Attorney-General’s Office was formed to oversee the process and prepare initial lists of those to be released. Around 12,000 prisoners in Kabul and across the country’s 34 provinces are eligible for release, including women, children, the elderly and sick, and convicts expected to serve less than five years of imprisonment or those imprisoned for minor crimes. Prisoners convicted of murder, terrorism, and crimes involving violence against women would not be considered for release. Prison officials reported that as of the end of April, more than 6,000 prisoners had been released.
For the most part, court operations have been severely curtailed. In Kabul, the High Court continues to hold meetings. Lower courts in Kabul and in other major cities still operate but many have vastly reduced working hours, restricted public access to proceedings and limited the number of judges and staff in courthouses, as well as the number and scope of judicial matters they are willing to address.
Ministry of Justice
The Ministry of Justice (MOJ) has largely closed its offices in Kabul, with some civil servants continuing to work from home, including legal aid lawyers. The ability for ministerial staff to work remotely, however, is limited by the lack of IT equipment, internet connection and access to paper files. Only staff required to facilitate salary payments are allowed to access the Ministry building. Offices of the Ministry are open in the provinces and districts.
Women Protection Centers
Women Protection Centers (WPCs), regulated by the Ministry of Women’s Affairs but the majority of which are privately operated, remain open and operational to support women in need of protective services including survivors of violence. Overcrowding at the WPCs is becoming a concern during the pandemic, as is their ability to maintain appropriate hygiene and secure personal protection equipment. To accommodate residents while maintaining social distancing, WPCs have had to house residents in classrooms otherwise used for counselling and vocational training.
WPCs are under pressure to find space for women who were released from prisons in response to the Presidential Decrees issued on 26 March and 27 April and who have nowhere else to go. They have also been asked by law enforcement agencies to house women who would otherwise be held in custody at Detention Centers. This has aggravated overcrowding in the WPCs and resulted in the mixing of victims of gender-based violence and domestic abuse with women who should be housed in detention facilities, halfway houses or prison.
Most civil society legal aid providers have closed their offices in Kabul and instructed their staff to work from home. Nevertheless, many governmental and non-governmental legal aid lawyers and advocates remain actively engaged in providing legal services to their clients. This includes helping to ensure the release of prisoners and pretrial detainees pursuant to the Presidential Decrees. Lawyers, however, are finding it hard to advocate for clients given limited access to courts.
Defense lawyers assigned to national security cases at the Justice Center in Parwan still have access to clients to continue working on Taliban prisoner releases as this is a priority for peace negotiations. Some defense lawyers are able to meet with detainees arrested on criminal matters and held in Police detention facilities to pursue investigations and obtain release of their clients on bail or guarantee.
To help mitigate the impact of COVID-19 on the Afghan justice system, IDLO is responding to a series of requests by Afghan justice sector actors and institutions.
IDLO is helping the AGO mitigate the impact of measures that have restricted movements, confined people to their homes and released thousands of prisoners and to limit the associated risk of rising incidences and levels of gender-based violence and domestic abuse among the most vulnerable. The database IDLO developed for the Elimination of Violence against Women Unit has allowed the AGO to identify the women in custody are subject to release pursuant to the Presidential Decrees.
IDLO is also supporting legal aid providers to ensure continued legal services to the country’s most vulnerable. IDLO has assisted members of the Afghanistan Legal Aid and Advocates Network (ALAAN) to petition the Supreme Court, the AGO and the MOJ to ensure that the substantive and procedural rights of those involved in civil and criminal proceedings during the pandemic are upheld in accordance with the Constitution.
IDLO is providing assistance to civil society organizations to raise awareness of the difficulties faced by women who are eligible for release from incarceration. In collaboration with Family Response Units and the Ministry of Women’s Affairs, IDLO is supporting WPCs facing overcrowding and other challenges posed by the pandemic.
In addition, IDLO is considering requests by the AGO, the MOJ and the Supreme Court for technical support to meet their continuing legal education needs, such as by developing e-learning platforms. IDLO is also looking into how it can best support the MOJ in better utilizing its Information Centers in the provinces and the hotline to address the public’s concerns about the impact of COVID-19 on justice system operations.
Lastly, at the request of justice sector institutions and professionals, IDLO is in the process of more widely and proactively disseminating the compendia of the Penal and Criminal Procedure Codes that it has created to assist judges, prosecutors and legal aid defenders make rapid but competent decisions on matters they confront in addressing substantive and procedural law in the midst of a pandemic.
IDLO has been working with the government and civil society in Afghanistan since 2003 and is currently implementing three major rule of law programs: Continuing Professional Development Support (CPDS), Phase II of Supporting Access to Justice in Afghanistan (SAJA) and Reducing the Impact of Insecurity on Afghanistan’s Legal System (RIIALS).
Image credit: Facebook / Afghan Ministry of Public Health