Entering the courthouse as a defense lawyer in Afghanistan is a process. While the prosecutors walk in alongside fellow officers of the court, defense lawyers are made to stand in line with members of the public. For female lawyers, without a permit to drive up to the check points closer to the building, reaching the courthouse can involve a 45-minute unprotected walk.
The risk of mistreatment and danger only continues during the proceedings; physical assault of defense lawyers is not uncommon for being associated with a criminal. If time is granted to the defense during the hearings, it is only enough to ask for leniency and hope for the best outcome.
While the right to counsel has existed in Afghanistan since the 1960s and a Legal Aid Department was set up in 1989 as a unit of the Supreme Court, the concepts of a legal defense and legal aid were formalized and bolstered in 2004 as the country drafted its new Constitution. In it, Article 31 stipulates that the State has an obligation to provide a lawyer to those who cannot afford one in criminal cases.
Investment in legal aid was in part driven by the surge of assistance to Afghanistan from the international community in the early 2000s. Despite these efforts, there are still obstacles for defense lawyers to gain respect from judges, prosecutors, police and others within the trial process. Part of the continuing challenge lies in the close link between the defense and legal aid professions. In many countries, there is a longstanding establishment of a legal defense from which legal aid stems. In Afghanistan, the two developed in tandem.
In 2017, the Supreme Court issued a formal directive to judges declaring that defense lawyers are officers of the court, just like a prosecutor or judge, and need to be treated as such. This represented a significant milestone for lawyers who had lobbied the Chief Justice and High Counsel of the Supreme Court with IDLO support for this level of recognition. The directive allows for the possibility for legal aid lawyers to be effective in the trial process and realize justice for their clients.
While the past 10 years have seen improvements the Afghan justice system – the Afghanistan Independent Bar Association membership currently stands at 3700 lawyers, up from 300 in 2008 – serving the poor and disempowered is an ongoing mission.
Afghanistan Legal Aid and Advocates Network
The fall of the Taliban in 2001 left Afghanistan’s institutional landscape desolate and in need of reconstruction to fulfill the vast justice needs within the population. Many citizens lack trust in the courts and a 2016 World Justice Project report found that only 23 per cent of Afghan citizens used the formal justice system to settle disputes, leaving many without true access to justice.
“In the past in Afghanistan, there was a huge number of people who were detained waiting for trial and didn’t have access to lawyers. They did not know how to get a lawyer. All they knew was that if they got enough money together, they could pay it to the police or the prosecutor and they would get released. That was the formula for getting some sort of justice,” commented IDLO’s outgoing Senior Legal Aid Adviser in Afghanistan, Mr. Allan Dahl, as he transitioned to another IDLO program after spending 10 years in Afghanistan working to improve access to justice in the country.
Since 2002, IDLO has been a leading partner of the Government of Afghanistan in justice and legal reform and has devoted part of its work to improve the quality of legal aid services for the indigent and disempowered. Working closely with the Ministry of Justice’s Legal Aid Department and under the umbrella of the Bar Association, IDLO helped to establish the Afghanistan Legal Aid and Advocates Network (ALAAN) in 2015.
A 2017 assessment of the legal aid landscape in Afghanistan conducted by the Asia Foundation illustrated that there was a significant need for better coordination between providers, particularly in the regions, so that the services could be effectively delivered to clients in need. The ALAAN was born out of this concept and became the country’s principal group of legal aid providers, aiming to improve the reach, quality and role of legal aid in Afghanistan.
Originally conceived as a coordination mechanism, the ALAAN holds regular meetings for members, usually once per month, to share information and identify priority areas for legal aid lawyers. Around 10 legal aid organizations are active members, representing all the major legal aid players in the country, including: the Afghanistan Independent Bar Association, the Legal Aid Department of the Afghanistan Ministry of Justice, the International Legal Foundation - Afghanistan and Medica Afghanistan.
Many issues, one voice
In addition to regular meetings, different subgroups convene to discuss special issues that arise and work towards a plan of action together. In Nangarhar province, the Network worked on a case wherein a young girl survived a brutal rape and was then forced to marry her rapist. Together, members took steps to put pressure on the police and prosecutors to push the case forward, which can be challenging in more traditional environments.
Beyond discussing casework, the Network’s Advocacy Subgroup works on initiatives on behalf of ALAAN members. Based on misconceptions about the role of defense lawyers, they were previously not afforded basic conditions that would support a successful case, such as access to detained clients.
“That’s been a serious problem in the past, just getting access to speak with your client who is detained in a prison, and even to speak confidentially instead of sitting in a room with fifty other prisoners on the floor while you’re talking to your client,” explains Dahl.
The Network was able to advocate on this issue and achieved a promising result: a memorandum of agreement was signed by the court, the director of prisons, the police and the prosecutors, which mandated that defense lawyers needed access to their clients and be granted the proper accreditation to do so. A pilot project within one organization has embedded a lawyer at police stations, so that any suspect can get in contact with a lawyer immediately after being apprehended. The group also lobbied for female lawyers to obtain the necessary driving permit to reach the courthouse directly.
ALAAN’s advocacy efforts are credited for the evolving perspective of legal aid in the minds of justice sector actors and the improvements in how defense lawyers are treated, as seen in the Supreme Court directive.
“To go from getting a bloody nose in court to being told you’re an officer of the court, to now being asked to participate and respected when you’re in there – that’s a big change,” remarks Dahl.
“To go from getting a bloody nose in court to being told you’re an officer of the court, to now being asked to participate and respected when you’re in there – that’s a big change.”
Improving data and services
Alongside efforts to instill cultural changes, the ALAAN is working to improve the quality of services that a legal aid defense lawyer provides to beneficiaries.
Previously, many legal aid lawyers would appear in trial to ask the judge for leniency on behalf of their client for family reasons instead of trying to make a case on the basis of evidence and an organized legal strategy. Through training, legal aid lawyers have become more equipped to present an argument and raise doubts about the prosecution’s case.
IDLO has also trained managers on how to run their organizations more efficiently to ensure continued international donor assistance, currently the sole source of financial support for legal aid organizations. A large part of this was ALAAN’s work to harmonize the many individual case management systems used by organizations around the country.
Verifiable data about legal aid cases in Afghanistan – how many are handled per year, who the beneficiaries are, who is not being served – is difficult to obtain. Individuals seeking legal aid assistance may move provinces or work with several lawyers, and the process is captured at various stages by different case management systems.
In response, ALAAN worked to create a centralized case management system for retrieving and tracking data, to optimize efforts by all legal aid organizations and better serve those in need. In May 2018, the ALAAN entered the first live cases into the central database. This demonstration prompted different organizations to request training and access to the system, marking an important step towards improving information about legal aid and continued international support for the work of the organizations.
Inspiring transformational change
Despite the progress made, there is still more work for the Network to do. Significant funding challenges remain, as the Ministry of Justice lacks the budget to contract legal aid providers to deliver services. This lack of funds means that financial support for legal aid organizations is coming from international donors as opposed to the Government of Afghanistan, limiting ownership and sustainability.
Another challenge pertains to the sheer volume of potential cases in the country. Women and children almost automatically qualify for legal aid in criminal matters, and there is an economic qualifier for the indigent which includes large portions of the population. The latest data for the years 2016 - 2017 shows that the poverty levels rose to 55 per cent, up from 38 per cent five years earlier. Dahl explains: “The need never stops. The number of people that will qualify for legal aid in Afghanistan is significant.”
Still, it is hard to ignore the remarkable achievements.
Dahl comments: “The Network is now accepted as the voice of legal aid providers. Everybody accepts that – the police, the courts, the prosecutors – they accept ALAAN as the voice of the legal aid people. That is a big achievement, and it is part of the institutional landscape.”
“The Network is now accepted as the voice of legal aid providers. Everybody accepts that – the police, the courts, the prosecutors – they accept ALAAN as the voice of the legal aid people. That is a big achievement, and it is part of the institutional landscape.”
ALAAN has launched and supported several public legal awareness initiatives, with a radio program and Facebook page, to inform citizens about their rights, disseminate important resources to lawyers working in remote areas, and encourage people to seek assistance through legal aid if they need it.
With its reach extending to minds of the public, ALAAN’s advocacy efforts continue to drive the evolution of legal aid and aim for transformational change in Afghanistan.
Dahl remarks: “One person speaking is just one voice. But if you have many people saying the same thing, you get strength in numbers.”
IDLO is working with the Afghan government, civil society organizations and the international community to strengthen access to justice, uphold human rights, expand legal capacity and promote local ownership. It has acquired substantial expertise and knowledge of the legal landscape of the country, and has forged strong relationships with key justice sector institutions. Afghanistan has been an IDLO Member Party since November 2012, further strengthening the cooperative relationship among Afghan justice institutions, IDLO and the international community.
IDLO’s legal aid work is part of the Supporting Access to Justice in Afghanistan project, funded by the United States Department of State. Though its programs in Afghanistan, IDLO is fulfilling its Goal to ensure that “institutions are effective, accessible and accountable” as envisaged in its Strategy 2020.