From cosmetic changes to ensuring judicial openness and integrity

       By Sayed Ikram Afzali, Executive Director

The Supreme Court High Council summoned me this week because they were upset about the results of our National Corruption Survey 2016 that indicated the courts as one of the most corrupt institutions. The Supreme Court in their letter to us dismissed our report as baseless and substandard calling our organization “so-called Integrity Watch Afghanistan”. In a follow-up letter, they asked us to provide the details of survey participants who thought that there was corruption in courts. They also asked us to provide evidence based on which the participants of the survey claimed that they had to pay a bribe. They warned us that we could face prosecution if we fail to meet the demands of the Supreme Court.

The anti-openness mentality dominates

This is not the first time the Supreme Court has summoned someone in an intimidating way to explain survey results. Ali Wardak and Daud Saba, the two authors of National Human Development Report 2007, were summoned to defend the report showing that people choose informal justice over formal justice partly because of widespread corruption in the judiciary. Yama Torabi, the former Director of Integrity Watch and other media representatives have been summoned and intimidated in a similar way. Integrity Watch being summoned by the Supreme Court after two years of the National Unity Government proves that the old mentality still prevails and the changes so far have been cosmetic.

The unfulfilled promise of the President

More than two years ago, President Ghani in his inaugural speech said this about the judiciary: “Unfortunately, there are allegations of corruption in this branch.” He added that corruption in the judiciary “paves the way for insecurity.” He asked the Supreme Court “to carry out a review of all its courts’ staff within a month, based on the principle of reward and punishment.” It was clear from the beginning that this was not only an ambitious task but also a fruitless demand from a leadership that failed for years to clean up the judiciary.

However, President Ghani’s appointment of honorable Halim as the Chief Justice created some hopes for reform. But, it has not been able to create a momentum for reform in the judiciary due to two basic reasons: (1) the reform has not been institutionalized and has largely been ad-hoc with President Ghani himself interviewing judges, and (2) the old leadership of the Supreme Court continue to dominate the “reform” process. Therefore, to ensure fundamental reform in the judiciary, the Supreme Court leadership of the High Council and also administration needs to change in an institutionalized manner embracing openness and integrity as the guiding principles for reform.

What can be done?

A whole justice system reform needs to be undertaken including institutions involved in detection, prosecution, and sentencing. The Anti-Corruption Justice Center needs to become independent of political interference from the Presidential Palace and elsewhere.  The government should fulfil its commitment of establishing an Independent Anti-Corruption Commission to oversee and coordinate anti-corruption reform.

There are three positions still open in the Supreme Court’s High Council. These appointments should be made in a transparent manner. The positions should be filled through an independent mechanism involving civil society to oversee a competitive process through which a final list of judges to be recommended to the President to choose from, taking into consideration gender, ethnic, and technical backgrounds of nominees.

Leadership of administrative teams of the Supreme Court needs to be changed and new leadership should be appointed through a transparent and competitive process and an independent mechanism of vetting the candidates. However, as a long-term measure, an Independent Judicial Service Commission to oversee appointments, promotions, transfer, and removal of judges needs to be established. Involvement of civil society in such a commission would be the key to its success.

Community-based monitoring of trials to promote transparency at the local level, an auditable complaints mechanism including feedback to the complainants on judges and judicial staff that are involved in corruption, and integrity trainings and steps to cultivate a culture of integrity within the judiciary are other steps that the judiciary and President Ghani should take if they are really serious about fighting corruption in the judiciary. Silencing anti-corruption voices will not help any reform efforts.