How independence of institutions can challenge the capture of the state and ensure sustainable peace in Afghanistan?

Sayed Ikram Afzali | @SIAfzali 
Executive Director, Integrity Watch Afghanistan

It took the two political camps led by President Ghani and Dr. Abdullah a few long months to strike a political deal to end the stalemate created after the disputed election results. While the deal has raised hopes, it also poses real threats to the state as this settlement between the two elite groups may allow the capture of the state’s institutions by corrupt networks to continue unless strong preventative measures are put in place. The question is who will put these measures in place and how they would do it, since the deal was welcomed by most major stakeholders without any reservations.

It is indisputable that ending violence and starting peace negotiations is an urgent priority for the people of Afghanistan and would be unreservedly welcome. It is also evident that the nondemocratic elites could easily be the biggest beneficiaries of the deal if, as is likely, they manage to get a share of the government, reinforce their networks, and formalize their positions of power, without doing much to improve the performance of the state. Therefore, it is critical to understand, recognize, and mitigate the risks the settlement poses to a permanent and sustainable peace, to the anti-corruption measures already in place and to the larger state-building agenda in Afghanistan.

It is not only the recent political deal to end the stalemate that poses threats to the state.  Any future peace deal that would allow state capture to continue, sustainable peace will be elusive as the country could fall back into an endless cycle of violence due to the threats that the state capture would pose to the rule of law and to the strengthening of good governance that fosters accountability, anti-corruption measures and economic development.

The Supreme Court, the Attorney General’s Office, the Anti-Corruption Justice Center, and the professional units of the Ministry of Justice comprise the backbone of the judicial and justice institutions in Afghanistan and are the most important institutions for ensuring citizens access to justice and the proper application of the law. Therefore, they have to remain apolitical and their independence has to be ensured by the political leadership.

The role of oversight and regulatory agencies is critical to ensuring checks and balances among state institutions especially in the absence of a properly functional parliament. Institutions such as the Supreme Audit Office, the Anti-Corruption Commission, the Access to Information Commission, the Ombudsman’s Office, De Afghanistan Bank (the Central Bank), and other oversight and regulatory institutions can only function effectively if they are free from political interference and have full independence. Independence of regulatory institutions is of paramount importance, especially in sectors such as service delivery, banking, telecoms, mining, and oil & gas to protect citizens rights, mitigate risks, and provide a level-playing field to private companies. Regulatory capture is as dangerous as capture of the judiciary as this would allow the elite to control access to resources and income opportunities for their own benefit rather than for the well-being of the population.

These institutions can only function properly if they are independent and based on international best practice and standards. They must be independent of political interference and their leadership should be selected through a competitive and apolitical process, their budgetary independence respected, they are adequately resourced, and their internal and external accountability mechanisms are strong enough to ensure that the rule of law and the accountability of state institutions work in the best interests of the public to win the public trust. Corruption can be controlled only when there is proper rule of law and the rule of law can only be ensured if these institutions act in a politically impartial and independent manner. Freeing the rule of law, oversight, and regulatory institutions from the predatory elite could be a first good step to challenge the state capture that Afghanistan has been suffering from for years.

Therefore, all major stakeholders in Afghanistan including international donors and Afghan civil society should demand protection of the independence of the judiciary, the oversight agencies, and regulatory institutions during the peace talks and in forming a new government when this takes place and by respecting international principles and standards stated in United Nations conventions and elsewhere including the Jakarta Statement, the Lima Declaration,  the Venice Principles, and the OECD Best Practice Principles for Regulatory Policy. The time is now to show some foresight and take corrective action after many years of failure. Not to do so will mean the rule of law will continue to be undermined, corruption will prevail, inequalities will increase and therefore the risk of a continuation or renewal of the conflict will be very real.