The competence and credibility of the Afghan judiciary is being called into serious question by two controversial convictions which have caused an international outcry.
“Those who are sitting on the bench in Afghanistan are enemies of free speech,” Fazal Rahman Orio said. “The courts are drowning in corruption and issue verdicts for reasons having little to do with law. They are more interested in money, power, and politics. Criminals are able to buy their way out, while people like Ghaus Zalmai receive heavy sentences.”
The two cases, the most recent concluded last month, concern alleged transgressions of Islamic law, with critics claiming the convictions are deeply flawed and should be overturned on appeal.
Some have suggested that the cases expose what they see as the creeping Islamicisation of the judiciary, insisting that the bench is composed of religious hardliners with Taliban sympathies.
On September 10, a Kabul court issued a guilty verdict in the case of Ghaus Zalmai, a prominent journalist who took part in a project to produce a vernacular translation of the Koran.
The exact charge was unclear, but the penalty was unequivocal: Zalmai was sentenced to 20 years in prison. He will appeal, but in the meantime remains in custody.
Also still in prison is Sayed Parwez Kambakhsh, a journalism student who was condemned to death in January for insulting Islam. Kambakhsh is accused of having downloaded and circulated material from the Internet that criticises Islam’s position on women’s rights. Kambakhsh has denied the charges.
His appeal has been stalled in Kabul’s appellate court since mid-June, with no end in sight. His lawyers say that the case should be dismissed since it has exceeded the time limit specified in the penal code for the conduct of criminal cases, but the appellate court seems in no hurry to move the process along.
Zalmai was arrested in November, 2007, after he put up money for a new Farsi translation of the Koran. The actual translation was produced by Qudratullah Bakhtarinejad, who lives in the United States.
Also arrested was Mullah Qari Mushtaq Ahmad, of Kabul’s Tamim-e-Ansar Mosque, who approved the translation. Like Zalmai, he was sentenced to 20 years in prison for having given his authority as a religious scholar for the new translation.
Mohammad Atif Noori, who heads the publishing house that printed the book, was sentenced to five years.
Zalmai’s lawyer, Abdulqawi Afzali, called the verdict unfair, and said that he would appeal.
The case created a furor among international media advocacy groups. Reporters Without Borders, the International Federation of Journalists and Article 19 all issued statements calling for President Hamed Karzai to intervene in the case and set Zalmai free.
The United Nations also issued an appeal for the protection of Zalmai’s human rights.
In the Kambakhsh case, the spotlight was even more intense, with the international media beginning “Free Kambakhsh” campaigns, and top-ranking diplomats raising the issue with the Afghan president at high-level meetings.
The issue, though, is a delicate one, given the international community’s support for an independent judiciary as a cornerstone of a democratic regime. Millions of foreign dollars have gone into training and reforming the legal sector, and asking Karzai to overrule a lower court is not an attractive option, no matter how flawed the decision.
The president, for his part, is caught between a desire to please his foreign backers and his need to placate the increasingly powerful mullahs.
With the Taliban making a powerful comeback, not least because of distaste for the foreign “occupation” of the country, Karzai cannot afford to be seen as a puppet of the West, especially in matters pertaining to faith and culture.
But the Afghan judiciary is increasingly seen as a nest of fundamentalists, which is, moreover, deeply corrupt. The bench is dominated by holdovers from the Taliban regime, hardliners who believe that their interpretation of Sharia law should trump any guarantees provided in the constitution. On all levels, bribery is rampant and faith in the justice system is eroding.
Kambakhsh and Zalmai are caught in a web of politics and religion.
Political analyst Fazal Rahman Oria told IWPR that the decision in the Zalmai case had little to do with legal norms.
“Those who are sitting on the bench in Afghanistan are enemies of free speech,” he said. “The courts are drowning in corruption and issue verdicts for reasons having little to do with law. They are more interested in money, power, and politics. Criminals are able to buy their way out, while people like Ghaus Zalmai receive heavy sentences.”
Ghaus Zalmai was spokesperson to the then-attorney general, Abdul Jabar Sabet, when he was arrested.
The case is a confusing one for outside observers.
Most Muslims learn the Koran in its original Arabic, and existing translations are little more than word for word renditions running below the Arabic text.
The new translation offended conservative mullahs, for whom the original wording of the holy book is considered sacred. In addition, the court ruled that there were mistakes and mistranslations in the new book which distorted the meaning of the Koran.
One Afghan lawyer in Kabul, who spoke on condition of anonymity, told IWPR that the court’s ruling was unclear from a legal point of view.
“On the one hand, the judge accused [Zalmai] of printing the Koran; on the other hand, he stands accused of mistranslating the Koran. But the translation was done in America, and the translator’s name is clearly written in the text. So how is Ghaus Zalmai connected to that? Either the court is incompetent or it is making its ruling under pressure.”
The Afghan judiciary insists that Zalmai’s case was legally sound.
“The verdict issued by the [lower] court is not final,” said Abdul Rashid Rashid, a member of Afganistan’s Supreme Court. “It reflects the perception of the judge in the case. The accused can appeal, and if the [lower] court made a mistake, it will be corrected.”
But his arguments are unlikely to convince many people in Afghanistan who watch the rise of fundamentalism with fear.
“There are powerful parties in Afghanistan who want to manipulate such cases for their benefit,” said Mohammad Mansoor, a student at Balkh University. “After the arrival of the international community we received some basic freedoms, but there are those who want to put obstacles in the way, and govern the country as in the past.”
The government, he added, should not cede ground to the ultra-conservatives, “Its role should be to protect [us] against these fundamentalists.”
Sayed Yaqub Ibrahimi is IWPR’s staff reporter in northern Afghanistan. Jean MacKenzie is IWPR’s programme director in Kabul.