In the 2004 Constitution of Afghanistan, Article 128, states that all trials should be open to the public, with the exception of those cases which by law are allowed to be secret:
“In the courts in Afghanistan, trials shall be held openly and every individual shall have the right to attend in accordance with the law. In situations clarified by law, the court shall hold secret trials when it considers necessary [sic], but pronouncement of its decision shall be open in all cases.”
Although the courts in Afghanistan are presumptively open to the public, in practice few people systematically and directly observe proceedings. Community monitoring of courts therefore assists in increasing accountability and ensuring adherence to procedural laws, fairer adjudication of disputes, and ultimately greater trust in courts as a government institution.
By increasing the transparency of the judicial process, trial monitoring itself is exercising the support on the right to a public trial. The presence of local monitors led the tribunals to implement improved and fair trial practices and build confidence in the judicial process. When organized as a long-term program, trial monitoring is a unique diagnostic tool to assess the functioning of key elements on the justice system. It acts as a spotlight to identify areas in need to reform.
Trial monitoring has proven to be a powerful tool in supporting the judicial reform and promoting domestic guarantees on the rights of fair trial. Independent monitoring on court proceedings is able to identify both weaknesses and strengths of justice/judicial systems and can generate recommendations on improved practices. The district and provincial courts have accepted and implemented such recommendations, leading to improvements in the administration of justice and to greater respect for human rights and the rule of law.
Integrity Watch has started dialogue with the high level judicial staff in Kabul to improve the judicial system at district and provincial level by provisioning community based trial monitoring. We hope in a very near future we will be able to implement CBM-T programme in all provinces and districts.
The Community Based Monitoring- Trial Program (CBM-T)
The Community Based Monitoring- Trial Program (CBM-T) is the first program of its kind in Afghanistan, commenced by Integrity Watch Afghanistan. The program aims to increase citizens’ participation in Afghan courts and monitor compliance to Afghan procedural laws. The program promotes transparency in judicial decision-making, increases awareness of the official rule of law system, empowers citizens to monitor trials and generate valuable data that can help promote higher integrity in the judiciary.
The program started in 2011 with 15 communities in Mahmood Raqi and Kohistan districts of Kapisa province and in Bamyan city and Yakawlang district of Bamyan province. The Court Trial Monitoring program now targets districts of Bamyan, Kapisa, Nangarhar, Balkh and Kunduz provinces in order to monitor criminal and civil trials through local communities. So far, around 2122 trials have been monitored by local volunteers/ Monitors.
The following methodology is used to empower citizen and increase the integrity of the judiciary through Court Trial Monitoring. The steps of the CBM-T program are as follows:
- Choosing Communities
Similar to other Integrity Watch initiatives, the CBM-T program draws on community participation to establish the legitimacy of its objects. “Community” for this program is defined by Community Development Councils, civil society actors, traditional Shuras and legal service providers.
- Choosing Monitors
Each participating community is asked to provide two local monitors who will work together. Local monitors must be literate, have good reputation within the community and able to volunteer several days each month to monitor court activities. In the case where a community does not have two literate adults, an illiterate adult paired with a literate adult is acceptable. Integrity Watch seeks to ensure that 50% of its local monitors are female.
- Training of Local Monitors (LM)
The local monitors receive specific trainings on legal issues in order to upgrade their legal knowledge and improve their monitoring skills. Apart from Integrity Watch, other national and international organizations such as UNAMA, IDLO, NRC, and Independent Human Rights Commission have organized and conducted legal training for the local monitors. IWA’s LMs used to take part in these training sessions as well.
- Monitoring the Courts
Integrity Watch aims to have its Trial Monitors monitor every criminal and civil case that is openly held and takes place in the courts in the targeted districts. Across all courts, Integrity Watch expects to monitor around thousand in a year.
- Building Relation with Court Authorities
Local Monitors and monitoring program representatives meet with each judge whose proceedings will be followed, to introduce their activities and individual monitors. The monitored court officials sometimes are defensive, critical or even aggressive towards trial monitoring if they perceive it to be an intrusive activity that questions their competence and authority. Against this background, meetings with judicial officials represent a unique opportunity to show the program’s good intentions and professionalism. Meeting with individual judges enable the judges to recognize the presence of local monitors in their courtroom or office and be aware of their functions in advance of monitored proceedings. Experience shows that conducting a meeting with judges in advance has improved access to the hearings and facilitates the resolution of any problems that may arise.
- Local Advocacy
The program’s eventual recommendation is more likely to be implemented if there is mutual trust between the program staff and the justice sector. Therefore the local monitors regularly meet with the judges. One of the main reasons of having regular meetings with judges is to share the valuable observations of the local monitors collected during the trial monitoring as the aim of the trial monitoring is to foster justice-system reform. Since local monitors observe a problem, they are in a unique position to give a first impression on its possible causes.
On a more broader level, once data from each of the courts in a province is collected, Integrity Watch engages in advocacy efforts with the provincial governor, judges and prosecutors in order to address areas of concern that have been identified.
During its pilot phase, Integrity Watch documented the lessons learned from the methodology but also impact levels as well. Integrity Watch has found several key impacts to this project including increased transparency in judicial decision-making, increased awareness of the official rule of law system, citizen empowerment and valuable data that can help and promote higher integrity in the judiciary system. To date there has been a strong interest across the communities in the four provinces covered under this program to participate in the Court Trial Monitoring program.