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With Haiti President stepping down without a successor in February 2016, and with security governance and security governance being key issues at both the national and local levels, the SSR Resource Centre created this SSR Country Snapshot to highlight key recent publications published by the Centre for Security Governance.     Last Updated: February 2016 On

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Source : © European Union, 2016 - EP

The introduction of electronic ID cards – or e-tazkera – in Afghanistan remains haunted by delays, obstacles and poor planning. Although CEO Dr Abdullah approved the e-tazkera pilot phase on 3 August 2015, the process has yet to begin. Since then, President Ghani has questioned the very feasibility of this oft-delayed project, while main donors have suspended funding. In this second issue of a two-part dispatch, AAN’s Jelena Bjelica and Martine van Bijlert take a closer look at the technical stumbling blocks.

A short history of the e-tazkera project

Two ministries

The Ministry of Communications and Information Technology (MoCIT) started work on the project in February 2009. Six months later, it formally announced the introduction of an ‘electronic tazkera’ containing biometric information. The aim of the project is to create a modern, uniform and unique identity card for Afghan citizens that would replace the six versions of tazkera (ID documents) currently in circulation. (1) Because the paper-based tazkera system lacks proper security features, it is prone to manipulation and falsification. Moreover, there is currently no centralised system to gather and store population data.

The project is divided between two ministries, which, over time, have competed for a leading role: the Ministry of Communications and Information Technology (MoCIT), which handles the e-tazkera’s software development, design and production; and the Ministry of Interior (MoI), responsible for registration and distribution. In 2011, the E-Tazkera Authority (ETA) was established as the lead agency (based on the Council of Ministers’ resolution no 37) and placed within the MoI. It is also referred to as the E-Tazkera Department.

The contract for the original project, the National Electronic ID Card (e-NID), was won in December 2010 by the private company Grand Technology Resources (GTR). GTR is a multinational, Afghan-Malaysian company, specialising in Information and Communication Technology (ICT) and registered in Malaysia. (2) It was contracted to implement the project within three years, which was an optimistic timeframe. As soon as the contract was signed, the lead ministry at the time (MoCIT) informed the public that distribution would start within eight months – by September 2011.

The introduction of a standardised ID document that could also be used as a voter card or to help establish reliable voter lists, has long been seen as a prerequisite to effectively reducing election fraud. As a result, in 2013, discussions surrounding the process were superseded by a wish to accelerate both the project and distribution of the cards in the run-up to the presidential elections. On 17 September 2012, the Afghan cabinet rejected a proposal by the Independent Election Commission (IED) to launch a new voter registration process, preferring instead the countrywide distribution of the e-tazkera. The registration phase for the ID cards was scheduled to begin in Dalw 1391 (January/ February 2013), although it was clear that, even under the best of circumstances, only part of the population might be issued with an electronic ID-card before the 2014 election. (3) Other delays and controversies stalled the process (see part 1 of this dispatch, published on 25 January 2016).

Following the inauguration of the National Unity Government (NUG) and in light of the upcoming parliamentary elections (now scheduled for 15 October 2016), discussions regarding the e-tazkera and the elections were revisited. However, they were laid to rest when, on 19 June 2015, President Ghani extended the parliament’s term, until then scheduled to end on 22 June 2015. With discussions regarding electoral reform underway and the realisation that the two processes had very different timelines, talks regarding the e-tazkera and elections were pushed into the long grass.

Partners involved

The e-tazkera project is worth over 200 million US dollars, jointly funded by the Afghan government, the European Union and the United States. From this amount, a contract worth 101 million US dollars was awarded to GTR to set up the system and to procure all necessary equipment and software. GTR had previously been awarded two other data-centric contracts by the Afghan government. (4) The remaining funds were allocated to the distribution of the cards and administrative costs.

According to a report by the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC), the Ministry of Finance (MoF) allocated five million US dollars of its own funds for 2015 through the annual national budget. As of September 2015, the Afghan government had spent approximately 64.5 million US dollars on the project. (7.5 million US dollars were spent by the MoI on salaries and 57 million US dollars by the MoCIT to establish the system.)

The exact details of GTR’s contract are not known. In a recent report on the e-tazkera project’s susceptibility to corruption (more below), the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC), which independently monitors and evaluates national and international efforts to fight corruption in Afghanistan and it reports to the public, Parliament, President, and international community, remarked that the committee could not report on the GTR contract “due to the technical aspects of it.” However, it was clear that the MEC had been unable to obtain all the information required to produce a balanced report. This included, for instance, a full list of IT equipment that the MoCIT had contracted, along with necessary specifications. The MEC recommended that the GTR contract “be examined by a professional team of IT experts from an independent third party organisation.”

In its bid for the contract, GTR included a number of technical partners. These included the company IRSI , which specialises in poly-carbonated cards with security features and their integration into the overall system (so far 15 million cards have been ordered, of which seven million have already been delivered); the Korean company HYUNDAI-IT, which specialises in system development methodologies (HSDM) for applications development, system integration and system
security; the company DongDO for the system integration and application development with HYUNDAI-IT; and a company called ENTRUST for the “public key-infrastructure.” According to GTR, the company’s tasks are “to lead the overall project, to provide system integration, client mentoring, coaching and capacity building and to ensure responsible transfer of the project to the government.”

The pilot phase: approved, announced but yet to get underway

The e-tazkera project is divided into four key activities: (a) public awareness and data collection (for an illustration on the challenges of data collection, see this article (5)); (b) citizens’ identity/data verification; (c) biometric registration in enrolment centres; and (d) printing of IDs. Work on the first two activities – data collection and verification – has started at a low level (data for 400,000 citizens in Kabul were collected and some 100,000 verified). In consultation with the International Organisation for Migration (IOM), which provides technical support to the project, the ETA has now proposed a start-to-end pilot project, in which all four key activities in the process will be tested on a small scale.

When planning the pilot project, IOM suggested three options: either to focus on a limited number of areas in Kabul; or, for the project to be implemented in Kabul and four other urban centres; finally, to implement it in Kabul and three districts in different provinces, in order to ensure that the system be tested in different geographic and social settings. In the end, the ETA opted for the first (and least complicated) option. The pilot project would, in theory, take place over 150 days: 60 days for its preparation (although the MoI initially believed 30 would suffice) and 90 days for its practical implementation. The estimated cost is three million US dollars, to be shared equally between the Afghan government and international donors.

The proposal for the pilot project was presented to the president in June 2015 and approved by CEO Abdullah and the Council of Ministers on 3 August 2015. It was initially scheduled to start on 19 August 2015, which coincided with Afghanistan’s Independence Day. However on 18 August 2015, during a meeting at the palace, the president insisted that the day’s focus should be “on commending and decorating the national defence and security forces.” According to a palace statement, it was decided that the e-tazkera pilot be launched at a later date in the presence of officials and notables (English version of the palace statement here;  the clearer Dari version can be found here ). This has not yet happened.

On 18 August 2015, the E-Tazkera Authority organised a ceremony in which dozens of sample IDs were handed out to civil society representatives in an attempt to launch the project.

Although the pilot has been announced, it remains unclear whether the project is technically ready and, more importantly, whether it has the political buy-in it needs. The President himself appears to have reservations, given several orders he has issued to assess the feasibility of the project. Moreover, he has still not formally given the go-ahead for the pilot phase of the project. Setbacks and politicking have hindered the project from the beginning (see part one of AAN’s e-tazkera series available here).

Logistics, weaknesses and concerns

Three assessments

Since last summer, at which point there was still enough pressure to propel the project forward, the President has tasked at least three commissions to advise him on the e-tazkera’s feasibility and its potential pitfalls: in June 2015 he ordered a rapid technical review of the project; in September 2015 he requested an assessment of the project’s susceptibility to corruption; and in October/November 2015 he ordered a more political review of the implications and sensitivities of the e-tazkera, as well as a look at the main technical concerns raised in earlier reports.

The technical review in June 2015 was conducted by a three-member committee and resulted in a long report that flagged various concerns relating to issues including data processing and data security. According to an abridged copy (seen by AAN), concerns included the securing of data transmission and data storage, the possibility of data loss, issues of connectivity (and the possibility that this might exceed the budget) and the lack of a robust testing of the system. However, the scope of the conclusions was limited to technical aspects of the project, as the review focused on what needed to be done before embarking on the pilot.

Secondly, the president instructed the country’s two anti-corruption bodies – the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC)  and the High Office of Oversight and Corruption (HOO)  – to jointly conduct a Vulnerability to Corruption Assessment (VCA). A public summary of the findings, released on 21 October 2015, flagged two key concerns: the nepotism, discrimination, political interference and ethnic conflicts within the ETA; and financial corruption in staff recruitment and procurement. The MEC report concluded with two recommendations: reform of the administrative structure and human resources procedures of the ETA through the introduction of a transparent, competitive and merit-based hiring process; and an independent audit of the GTR contract. (6)

On 10 January 2015, ToloNews released details of the confidential version of the VCA report that they had had access to, stating that:

The report reveals that scores of high school graduates and unprofessional individuals have been appointed in the department without considering their abilities and skills for the posts. “Nearly 27 employees of the e-NIC [department] have been appointed by direct order of former interior minister [Muhammad Umar Daudzai] and his deputies – without going through the employment process. In addition, the leadership of the e-NIC department has been appointed based on the order of the Interior Ministry and the Chief Executive Office,” the report reveals. Only 320 out of 1,046 employees in the e-NIC department have been appointed through free competition, but the remaining officials have been appointed based on direct orders by a number of MPs and former leaders of the Interior Ministry, the report says. The leaked documents also reveal that 519 employees of the e-NIC department were first appointed directly by the MoI and then they were provided the grounds for a competition process and finally they were hired as permanent staffers in the organization. However, e-NIC officials have said they have done this because of the pressure on them.

The third review, which began in October/November 2015, looked into concerns that had been raised in both the technical review and the VCA, to see whether they had been addressed and to advise on the political sensitivities surrounding the e-tazkera (see part one of AAN’s e-tazkera series available here). The commission was headed by Abdul Salam Rahimi, former head of the Office of Administrative Affairs, currently head of Public Policy Formulation in President Ghani’s office. The findings of the commission are not known to AAN. The commission has apparently advised the president that its main concerns had been addressed, however the president appears to remain sceptical.

The slow dissolution of the ETA

E-tazkera staff lose jobs

The EU provided funding for 300 of the MoI employees in the E-Tazkera Authority (ETA), which came to an end in June 2015 (although some 100 e-tazkera employees remained on the payroll until 15 August.) The EU’s commitment of funding until the end of 2015 was based on the condition that it would not cover operational costs. When EU funds ran out, the Ministry of Finance took over the payment of the 300 e-tazkera staff salaries, in addition to the other salaries it was already covering. This came to an end on 20 December 2015 (30 Qows) when contracts ended and were not extended. The e-tazkera project had employed over 1000 staff in the MoI over three years. (7)

Many e-tazkera staff continued to show up for work, hoping to retain their jobs. Some argued they had continued to work despite the fact that the project had long since come to a halt. Zmaray Baher, head of the registration (also termed enrolment) department at the ETA, published an article on the Hasht-e Sobh website on 28 October 2015, in which he described how staff continued to gather bio-data and confirm existing identity documents for the e-tazkera and to digitalise the records of the population registry department (a project separate from the e-tazkera). (8) “Since a few months we have not received a salary,” he lamented. “We face shortages of stationary and other supplies; we face a shortages of forms, which are at the heart of our job; and most important of all, each day the interest of the citizens for this process is waning.”

Once a start date for the pilot project is announced and work resumes, the IOM will be tasked to screen all ETA employees and ensure that future recruitment be transparent (recruitment had initially been one of IOM’s responsibilities, however by the time the organisation got involved, they found all staff had already been hired). The screening will take place during the pilot’s two month-long preparatory phase. This is particularly important, given the findings of the MEC’s susceptibility to corruption report:

Among the problems MEC identified were a lack of written procedures for recruitment; a tendency to ignore the Civil Service Law in the recruitment process; a lack of oversight; and the interference in the process by powerful individuals from the government, parliament, and elsewhere—all of which have created corruption vulnerabilities and facilitated the improper hiring of approximately 70% of the authority’s staff.

E-tazkera staff push for resumption of project

In the meantime, the ETA and in particular its head, Homayun Mohtat, had attempted to continue the project. In September 2015, the Minister of Interior, Nur-ul-Haq Ulumi, sent a letter to President Ghani, saying that if the e-tazkera process, which had ground to a halt in August 2015, was not restarted, over 1000 people would be left without a job.

On 15 December 2015, a local media outlet leaked another letter from the Minister of Interior that was sent to the President on 28 November 2015. It stated that the ETA had lost funding and the MoI faced difficulties paying ETA staff salaries: “Luckily with the exceptional help from the Ministry of Finance and reduction in salaries the ETA managed to find the resources to keep the staff and provide them with salaries until the end of 1394 [21 March 2016]. Unfortunately practical work on e-tazkera has not started and the MoI would not be able to extend the contracts of their staff after the end of December 2015.” This appeared to be another attempt to force the issue on to the agenda.

Additionally, in November 2015, ETA’s head, Mohtat, sent a nine-page document to the President (to which AAN had access), addressing e-tazkera challenges and offering recommendations. He suggested a new management structure, addressed issues concerning staff recruitment raised by the MEC report and in general appealed to the President not to scrap the project. On 20 December 2015, Mohtat also told the press that a new draft plan to improve the identification of individuals through biometric data had been sent for government approval.

On 26 December 2015, ETA employees in a public protest called on the government to start the distribution process. They blamed political disagreements within the NUG leadership for the delays, including the inclusion (or lack thereof) of ethnicity and nationality on the ID cards, and said that getting rid of the employees was a waste of money already spent. Another demonstration was held on 6 January 2016 (see here).

On 28 December 2015, Mohtat wrote on his Facebook page that CEO Abdullah, in coordination with President Ghani, had approved the MoI’s proposal to begin with the biometric data collection, the third key activity of the e-tazkera project (this Facebook page is no longer available.) There, Mohtat explained that in phase three, the families covered under phase one and two would be invited to enrolment centres to record their biometric data (iris scans, fingerprints, digital photographs and signatures) and enter their information into the system. “When the legal and political issues are solved, the data printed on the front of e-tazkera will be finalised and we will print the e-tazkeras.” He also wrote that, “due to the ambiguous circumstances around the start of the project and the lack of sufficient funds, we closed four of our nine field offices and plan to close our remaining offices.” He pointed out that each of the field offices had up to 150 staff, that the equipment had been moved to warehouses, and that the citizen information forms had been shifted to archives. “When the political and legal issues are solved and the contents of the e-tazkera is finalised, we will be able to start issuance without waiting on the other phases. Then attracting international funds will not be a big issue,” he wrote in his closing line.

By this time the ETA leadership’s frustration was palpable. On 28 December 2015, Mohtat told AAN:

This is a dead-end… The e-tazkera is the second of the six commitments of the National Unity Government. It is the mother of all other reforms in the country. Now it seems to be the victim of the government’s mismanagement at the top.

Technical problems, possible glitches

Political issues, delays and public clamouring aside, the project has been plagued by a variety of technical problems and pitfalls.

A current concern is the system’s lack of rigorous testing. Although GTR claims that the system has been tested and is fully operational (GTR tested the system in August 2015 after the Council of Ministers had decided to launch the issuance of the e-tazkera), AAN has been told that this test was done in optimal conditions but only for small volumes. Moreover, the bandwidth was provided by GTR and not by state-owned Afghan Telecom (which does not yet have a contract with the MoI for internet connectivity). It is therefore unclear how the system would perform in actual conditions, or indeed how it would hold up when all enrolment centres begin feeding data simultaneously. The IOM has been pushing for an end-to-end test since the beginning of 2015, but until now GTR has not consented to this. (9) There were some initial glitches in the design of the registration system – for instance, it was not possible to register women as household heads – an issue that may or may not have been sufficiently addressed.

There are also concerns that some of the devices procured by GTR are now out of date. According to the June 2015 technical review of the project, “since the project took considerably longer than anticipated, some of the products that were initially considered were discontinued by the manufacturers, and replaced with newer models. However, there are still some devices, which are announced end-of-life by the manufacturer and will stop providing support, for some devices, as early as May 2016.” The report concludes that “there is no immediate need to replace any devices in the data centre for the pilot,” but it does not mention what might be needed after the pilot is concluded.

ETA’s head Mohtat also informed AAN that some of the equipment had been gathering dust in a basement at the MoI for three years and that the warranty for these machines may soon expire. He said the four printing machines that have been placed in the MoI are supposed to have an overall printing capacity of 32,000 ID cards per 24 hours. This has, however, never been tested.

Finally, GTR was supposed to train e-tazkera employees in software and hardware handling. However, AAN was told that 75 per cent of contracted hours of training have already been used. Suggestions that GTR train a number of master trainers in order to ensure a smooth and continuous transfer of skills have never been acted upon. It seems the impetus for this was lost somewhere between the MoI, the MoICT and GTR. This means that the continuation of the e-tazkera program is currently unlikely to survive the end of GTR’s contract.

Aside from the political challenges analysed in part 1 of this dispatch, the e-tazkera project thus also straddles a large number of technical ones. Although donor interest in a modern and secure national identity card in Afghanistan remains (and is likely to grow) in the face of increasing refugee movements to Europe, it has waned in the face of the many problems surrounding the project. It would be a major feat to revive the technical process, calm the political controversies and rekindle donor interest. While not impossible, the challenges are considerable.

 

 

(1) The different tazkeras in circulation were issued under different regimes. Before the Karzai regime, both 
the Daud Khan (1973-78) and PDPA governments (1978-92) issued versions of the tazkera that are still widely circulated today. Although less common, tazkeras issued during the Taliban regime (1996-2001; two versions), the mujahedin era (1992-96) and under the monarchy (pre-1973) are also still in circulation and are generally considered valid forms of identification, as long they contain photographs and are still readable. A majority of the people (77%), however, appear to hold tazkeras of a post-2001 vintage. These tazkeras have the form of a one-page document in an A4 format, while most pre-Karzai tazkeras took the form of a 16-page booklet. (Source: An Exploratory Study of Afghan Tazkera Ownership, The Liaison Office (TLO), June 2013.)

(2) According to its website, the Grand Technology Resources (GTR) has been registered in Kuala Lumpur since 2006. Mirwais Alizai, the young Afghan businessman who heads GTR, was born in 1979, either in Kabul, Kandahar or Helmand (there are several versions of his biography on the GTR website; the Kabul-born version here , the Kandahar-born version screen shot, and for Helmand-born version see this website). Apart from GTR, Alizai has also established the crude and refined oil company Globix that works in various countries, mainly across Asia and the Middle East, and he has “been investing in the fields of aviation” since 2005. Mirwais Alizai also “supports and contributes to the culture and arts programs and events around the world.”

(3) The Ministry of Interior (MoI), at this point the ministry with the lead on the project, clearly stated that the distribution of electronic ID-cards was “too tough a task to be fully completed ahead of the elections.” The MoI estimated that, realistically, 70 per cent of the distribution could be completed within the next three years, and that for the remaining 30 per cent of the population, mainly living in insecure or remote areas, it could take another three to six years. This was a little over a year before the elections. For more details see this AAN dispatch from January 2013.

(4) GTR’s earlier contracts with the Afghan government were for the establishment of the Afghanistan National Data Centre (ANDC) with the same ministry and for the establishment of the AFMIS (Afghanistan Financial Management Information System) Data Centre for the treasury department of the Ministry of Finance.

(5) This New York Times report from December 2014 erroneously uses the word “census,” while in fact the data collection described in the story is part of the e-tazkera process (national identity cards distribution and census are often used interchangeably, even though they are two separate processes).

The phenomenon of choosing one’s family name, and the confusion it can bring, as described by the New York Times, is not new in Afghanistan. As described by Louis Dupree in the late 1960s (Afghanistan, Princeton University Press: 1980, 2nd edition):

Aside from some literates (mainly Western trained), few Afghans have family names, but call themselves “son of so and so.” Family names, however, relate to the necessity to identify oneself beyond the extended family group for some – but not all – bureaucratic purposes… Family names become necessary, however, to those Afghans who leave the country for overseas educations. Others, particularly writers and scholars, choose to elect personal identifications. Some adapt geographic names: Panjsheri, Ghaznavi or Kohzad (“of the mountains”); some open a book with eyes shut point to a word; still others adopt an adjective which relates to their occupations or interests, e.g., Tarzi (“stylist.”)

(6) The MEC also hinted to AAN that it had suspicions with regard to GTR’s procurement methods, as the MoI never provided MEC with technical specifications for the equipment (serial numbers, part numbers), claiming that “everything had been installed and could not be disassembled again.”

In addition, the MEC report raised concerns that the procedure for obtaining an e-tazkera – after certification by two Afghans and approval of the NDS – made the process vulnerable to corruption and abuse.

(7) According to this article, the organisational structure of the ETA is composed of a general directorate and five sub-departments (human resources, technical, financial, operational, and registration). Out of the 1046 personnel, 194 worked for the general directorate and 852 for the various sub-departments.

(8) According to Baher, e-tazkera mobile teams had visited homes and offices and had already finalised and collected the identity forms of 400,000 citizens in Kabul. He said his teams had started approaching students and staff at Kabul universities and encouraged them to cooperate with the process, despite the uncertainty over its timing and fate. He also wrote that, to date, more than 100,000 Afghans’ identities had been confirmed and that the personal information of half a million (500,000) citizens had been digitalised.

(9) The ETA mobile teams collect personal data from citizens in provinces, after which ID cards will be printed in the capital and sent back to the provinces. Enrolment centres collect the data in urban areas.

American Mk.19 Automatic Grenade Launcher

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Greetings! In this week’s CCLKOW I intend to shake things up again, turning a common practice on its head. No one who has ever spent time around company and field grade officers does not know that general officers are among their fondest targets for criticism. And yet these same people are those who eventually become the general officers. There is, obviously, a disconnect. So, read the piece, ponder the questions, and join the discussion on Twitter at #CCLKOW.

 

A common, if incorrect, refrain regarding the British First World War military experience is that the army was ‘lions led by donkeys.’ A criticism of the senior ranks who prosecuted the war, this seeming truism has largely been dispelled. But while this description no longer stands up to deeper more nuanced scrutiny, the practice of criticising general officers is like a blood-sport right of passage across armed forces.

What I find very interesting about this phenomenon is that it is enduring. Each generation of officers thinks those at the very top are often the picture of incompetence. And every single one of those generations ultimately steps into those shoes to lead the next generation of malcontents.

I understand that inter-generational disdain is common. Whether disparaging the youth in our trail or those who lead us, it is very easy to believe there is something entirely lacking about those outside our own peer groups. However, even controlling for this more general influence, there remains a marked difference in the phenomenon in the armed forces.

So, what is happening?

Are the personnel systems, which drive the selection of officers to command billets and, correspondingly, higher rank, to blame? Do these systems drive out the best and the brightest and leave behind a middling, muddling sort?

Is there a fundamental disconnect between what a field or company grade officer understands about general officership in the armed forces and reality? Do these officers simply not understand the demands upon executive leadership, that the relative stability of tactical practice has given way to the far less firm domains of strategy and politics?

What could a general officer tell you about the role to clarify that what looks like a donkey is not?

 

 

 

 

 

There is a fairly broad consensus among Afghans and donors alike that the introduction of an electronic ID card – or e-tazkera – would be a good thing; it would provide accurate population data, standardised ID documents and the possibility of, in the case of elections, drawing up reliable voter lists. The project, however, has been stymied by political controversies and fundamental technical questions. In this first part of a two-part dispatch, AAN’s Martine van Bijlert and Jelena Bjelica take a look at the most pressing controversies that threaten to indefinitely paralyse the project.

Discussions over the introduction of a standardised and computerised ID card in Afghanistan have been around for years, but the project was only started in earnest in February 2009. In December 2010, a contract was signed with a private company, Grand Technology Resources. The Ministry of Communications and Information Technology (MoCIT), the lead ministry at the time, told reporters that distribution of the cards would start by September 2011, even though the Afghan cabinet had not yet decided on their design. The project was, however, plagued by delays due to capacity constraints and concerns over data security. (1) Only in late 2012, as planning for the 2014 elections commenced, did the project regain a sense of urgency.

The introduction of a standardised ID document that can also function as a voter card or at least help establish reliable voter lists, has long been seen as a prerequisite to reducing the fraud that had plagued Afghanistan’s elections. As a result, in the course of 2013, discussions on the e-tazkera were ‘hijacked’ by the wish to suddenly accelerate the project and rush the distribution of the cards in the run-up to the presidential elections – even though the system had barely been tested and clearly a complete rollout in such a short time would be impossible. (2)

Trying to rush the e-tazkera in the face of an election

The government thus announced that the registration of population data was scheduled to begin in early 2013. A decree by President Hamed Karzai, dated 23 January 2013 (PD 6677), instructed relevant ministries to expedite the process and start distribution of the cards by 21 March 2013. By then, the Ministry of Interior (MoI) had already embarked on a staff-recruitment drive while the MoCIT was ordered to start shipping the necessary equipment to the provinces, particularly to locations that had no or only limited access to the internet. The pretence was kept up for quite a while. On 24 February 2013, then Deputy Minister of Interior Muhammad Mirza Yarmand told a press conference that up to 14 million Afghans would receive an e-tazkera within a year. The Cooperation Council of Political Parties and Coalitions, an informal political pressure group for electoral reform  similarly argued that with 600 registration centres, it should be possible to register at least 1.5 million people per month, if each centre registered at least 100 people per day. This wish to rush the e-tazkera distribution signalled a shared recognition of the need to tackle electoral fraud. But it was also unrealistic, as it did not allow time for preparation, testing and the correction of glitches or take into account that several fundamental issues had not yet been settled (including the design of the card and what data was to be included).

The practicalities of the distribution, however, were soon eclipsed by the politics of which data to register and what to display on the card, as the parliament started discussions on the Population Registration Act.

Tripped up by politics: The fight over which personal data to include

In March 2013, when the distribution of the cards should have already started, the draft Population Registration Act, on which the whole project would be based, was sent to the parliament. The Wolesi Jirga debated the draft in early summer and on 19 June 2013 reached an agreement on all points except one: article 6 that stipulates what should be written on the card. The government had suggested that personal data should be limited to: name, father’s name, grandfather’s name, place and date of birth, and residence (current and permanent). A heated debate ensued, splitting the session into those arguing for the inclusion of ethnicity and those demanding the use of the general term “Afghan” for nationality. Several MPs argued that without these additions – ethnicity and/or nationality – article 6 would be unconstitutional and suggested that the text be sent to the Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC) for an opinion, before embarking on further discussion.

On 15 July 2013, the issue was revisited in parliament (without ICSIC opinion). The debate over whether or not to include ethnicity in article 6 (and thus on the card) quickly descended into a scuffle. When the chair suggested a vote on a version of the draft law that included nationality, but not ethnicity, a large group of MPs staged a walkout in protest. In the midst of the upheaval, the chair quickly put the law to the vote, after which it was passed. Several MPs protested, calling the decision “unconstitutional,” arguing that it would erase the identity of (minority) ethnic groups in the country if they were not allowed to register by ethnicity as well. Balkh Governor Nur Mohammad Atta, one of the vocal proponents in favour of including ethnicity, warned that if this were not mentioned on the new ID cards, he would not want to collect his. Since then, many have followed his example, warning that if the ID card does not include what they deem essential – whether ethnicity, nationality or religion – they will not want to have one.

The vote was not only controversial for political reasons, but also appeared to have been procedurally shaky, as the MPs who walked out claimed they had broken the quorum. The chair initially argued that as they had not yet left the hall when the vote happened, they could still be counted as present. In the next session, however, he backtracked and said that a commission would need to check whether there had indeed been a quorum.

A week later, the parliament went into its summer recess. The issues were apparently laid to rest, and the draft law was forwarded to the Meshrano Jirga. On 10 November 2013, the Meshrano Jirga managed to ratify the first five articles, but as soon as article 6 was discussed, the meeting descended into a “furious debate.”  On top of the usual sensitivities over what should be included, the text of article 6 was discovered to have been changed before the draft law was sent to the Meshrano Jirga for a vote, with nationality omitted from the new version. (3)

The Meshrano Jirga committees that had studied the law suggested the reinsertion of the word “Afghan,” while others again insisted on the inclusion of ethnicity as well. The discussion ended in another walkout. On 26 November 2013, the issue was revisited once more. The session was heated, but the speaker managed to prevent a brawl. When the matter was finally put to the vote, a majority opted to keep the ‘original’ (government) version of article 6 – with no mention of either nationality or ethnicity. (4) The decision led to angry outbursts, and subsequent sessions of both the Wolesi Jirga and Meshrano Jirga erupted into fierce shouting matches.

The issue was further polarised when on 27 November 2013, the day after the Meshrano Jirga vote, General Abdul Wahid Taqat, a PDPA-era intelligence official and now political commentator, during a TV talk show (5) insisted that “Pashtun” and “Afghan” were synonymous and Afghanistan was the land of the Pashtuns. (6)

Taqat’s statements caused an uproar in both regular and social media. First, there were demonstrations against both the former general and the TV station,  but when the former general was arrested on 12 December 2013, his supporters took to the street and clashed with the police (see here).

The episode was finally defused after Taqat issued a televised apology. At the same time, the Meshrano Jirga was already backtracking and denying that it had removed the word “Afghan” from the card.

It should come as no surprise that, in the midst of all this upheaval in late 2013, President Karzai chose not to sign the law. (It may also have been difficult to determine which version to pick.) Strictly speaking, according to the Constitution, Karzai actually did not need to sign the law for it to be enacted (as argued by MP Shukria Barakzai here), but clearly nobody wanted to touch this. With the elections only four months away, the thorny issue of the e-tazkera and what to include on the card was no longer a priority. That changed, however, once the National Unity Government (NUG) took office.

The National Unity Government revisits the issue

The agreement that established the NUG  lists five commitments linked to the convening of a Loya Jirga (that is to decide on the CEO position within two years of the establishment of the NUG). One of these is “the distribution of electronic/computerised identity cards to all the citizens of the country as quickly as possible.”

On 9 November 2014, President Ghani signed the Population Registration Act that was passed by the parliament in 2013, thus ratifying the version that mentioned neither ethnicity nor the word Afghan. (An unofficial translation of the law can be found here, although it appears to be either incomplete or an older version, as under article 6 the reference to religion is missing.) On 3 December 2014, MoI officials announced the start of the e-tazkera distribution.

Unsurprisingly, the signing of the law and the announcement of the restart of the process sparked renewed protests. The president sought to defuse the issue by meeting protesters and civil society activists. According to the presidential spokesperson, he referred the controversial article to the Supreme Court for an opinion. (7) Civil society activists claimed this meant that the process had been halted while the e-tazkera department under the MoI (E-Tazkera Authority or ETA) insisted that the distribution was going ahead and would start within days.

In late December 2014, the Wolesi Jirga readied itself to discuss and amend the law again,  but the MPs were so divided that the initiative fizzled out, with delegates accusing each other of illegally sabotaging the issue.  In particular, the committee responsible for preparing the new draft was accused of stalling.

Technical preparations and political controversies clash again

In the meantime, technical preparations to start the process continued. In June 2015, the ETA presented the president with its plan for a pilot project that aimed to test all systems and hand out e-cards to the approximately 400,000 citizens that had already been registered in Kabul city. The president ordered the ETA to expedite the distribution of the cards,  but at the same time he also embarked on a series of technical and corruption-related reviews (see part 2 of this dispatch), suggesting misgivings on his side over the technical solidity of the project. At this point, the donors, tired of the delays, suspended their funding.  

The government continued to give conflicting signals on whether the issuance of the ID cards would start, and the controversy over what should be included in the cards resurfaced again in August 2015. The CEO’s office set 19 August 2015 as the date to launch the pilot project; the president then delayed it.  The political class remained divided, with some pushing for a speedy start of the distribution, while others continued to demand amendments to the law.  Some groups said they called off their protests after the president, according to them, assured them that the law would be amended, while others continued to demonstrate.

After about a month of protests, (8) the political urgency of the issue seemed to cool and the demonstrations fizzled. In the meantime, the ETA continued efforts to revive the project – also attempting to secure renewed funding and rehire the staff it had been forced to let go – but has so far received little backing from the country’s political leadership. (9) Even if the president and the CEO decide that the main technical concerns of the project have been addressed and that it is now time to at least embark on the pilot project, political sensitivities have been far from resolved and would probably upend any such effort.

Where do we go from here?

The government now finds itself in a difficult bind. Whatever it chooses to do will likely re-spark sentiments that, to a large extent, seem to have been intentionally polarised. If the government includes “Afghan” but not ethnicity, it will run afoul of those who insist on including ethnicity as well. If it goes ahead, based on the existing law (and the seven million cards they have already ordered and received) – with cards that include religion, but not nationality or ethnicity – it threatens to alienate all groups that have cared enough about the issue to protest.

Although nationality and ethnicity are emotive issues, the protests also seem to have served as a warning to the government as a sample of the kind of trouble that political opponents are capable of stirring up. So far, this government has lacked the savvy to negotiate the buy-in of opposing views in the matter and has mainly sought to defer and stall. It would be a major feat if the government could calm the political controversies and focus on reviving the technical process and rekindling donor interests. It is not impossible, but the challenges are enormous.

 

(1) According to this article, the first phase of the e-tazkera project –setting up the National Data Centre – was delayed due to capacity constraints and was rescheduled to start in mid-2011. Concerns over who would have access to the biometric registration data caused another delay of at least nine months in 2011, as the government put in place protocols to maintain sole ownership of the data. There was also apprehension over the use of the e-tazkera during elections, given the limited availability of electricity in many polling centres.

(2) The Ministry of Interior, by then the lead ministry in the process, clearly stated that the distribution of electronic ID-cards was “too tough a task to be fully completed ahead of the elections.” The MoI estimated that, realistically, 70 per cent of the distribution could be completed within the next three years, and that for the remaining 30 per cent of the population living mainly in insecure and far-flung areas, it could take another three to six years. This was a little over a year before the elections. For more details, see this AAN dispatch from January 2013.

(3) When the issue was later discussed in the Wolesi Jirga, on 30 November 2013, Deputy Speaker Saleh Muhammad Seljuqi blamed the Internal Security Committee, which he said had sent him a “corrected” version of the law claiming spelling errors. Some MPs accused Mirdad Khan Nejrabi,  the chair of the commission, of having omitted the word “Afghan” on the instruction of Balkh Governor Nur Muhammad Atta (see this video), while other MPs came to Atta and Nejrabi’s defense.

(4) During earlier discussions in the Wolesi Jirga, talk had been of a compromise in which ethnicity would be registered in a database but not displayed on the card, but when the law was passed, ethnicity had been dropped – both on the card and in the database. According to this article, the Wolesi Jirga had also decided to include religion and takhalus (in the Afghan media sometimes translated as “pen name,” but in essence it involves the introduction of fixed last names). After the Meshrano Jirga reverted to the ‘original’ version of article 6, as drawn up by the government, a joint commission was established to solve the differences between the two houses. This could explain the addition of religion to the version of the law that was finally signed and gazetted.

A suggestion, as argued here, to also include mothers’ names on the e-tazkera, so far does not seem to have gained any traction.

(5) The talk show in which Taqat made his comments was aired by Zhwandun TV, a station owned by Muhammad Ismail Yun, a Pashtun ethno-nationalist and a vocal proponent of the inclusion of “Afghan” on the card. Yun has been a vocal supporter of both Karzai and Ghani during their election campaigns.

(6) The synonymous use of “Afghan” and “Pashtun” was indeed common in the past, both in Afghanistan and in the literature about the country, until around World War II. Governments, for instance, used it between the 1930s and the 1950s to promote (the much less officially used) Pashto. In the decades after, “Afghan” increasingly became recognised as a label of citizenship and nationality. Some Pashtun ethno-nationalists, however, continue to use “Afghan” to mean “Pashtun.” It is also used in colloquial language among some ethnic minorities (for example, rural Hazaras often refer to Pashtuns as “Awghan” or “Awghu.”)

For this reason, some non-Pashtuns have insisted that ethnicity be specified on the card as well. (Another reason to include ethnicity is that such a registration would quantify the relative strength of various groups and could show that so-called ‘minority’ groups are larger than assumed.) Others argue that the display of the logo of the Islamic Afghan Republic at the top of the card should be enough to show the nationality of the cardholder.

(7) It is unclear whether the government is actually still waiting for this opinion, or whether this was simply a way to stall or defer responsibility. A Supreme Court opinion, however, is unlikely to lay the issue to rest, as Afghanistan has two separate organs that are mandated to interpret the Constitution – the Supreme Court and the Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC) – and their authority vis-à-vis each other has not been spelled out. In June 2013, several MPs, arguing in favour of the inclusion of ethnicity, sought to consult the ICSIC – not the Supreme Court (which is traditionally considered closer to the executive) – on article 6.

(8) Demonstrations occurred in, among other places, Kabul, Paktia, Herat, Nangarhar, Balkh and Kunar.  See also video footage for Kabul, Balkh, and Nangarhar.

(9) In a nine-page document offering recommendations to the president, the head of the ETA, Humayun Mohtat, reiterated the MoI’s suggestion that “Afghan” be included on the card and ethnicity be registered in a database only – based on international standards and experience, as he said. He called on the president to take leadership and to put the ball back into the parliament’s court by sending them a cabinet-approved suggestion to amend the law.

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A recent decree by President Ghani on how to deal with terrorist crimes has introduced the prospect of detaining, without trial, Afghans (and foreigners in Afghanistan) suspected of planning acts of terrorism. The relevant article allows the Afghan authorities to detain suspects indefinitely on very little evidence and with little or no opportunity to defend themselves. The president has, also, through this decree, mandated a tripling of the period that the state can hold terrorist suspects whom it wants to put on trial before they have to be sent to court. Introduced quietly together alongside other presidential decrees, these sweeping new powers have hardly been subject to public discussion so far. The measures seem to be an attempt by the Afghan government to circumvent the legal system and its protections of basic rights. AAN’s Lenny Linke reports (with input from Kate Clark).

The new decree

Presidential Decree 76 “Annex Number One (1) to the Criminal Procedure Code on Terrorist Crimes and Crimes against Internal and External Security,” creates an annex to the existing Criminal Procedure Code (which can be found here in English and Dari) and delivers additional provisions for “terrorist crimes and crimes against internal and external security.” This decree was endorsed on 25 September 2015 and published in the Official Gazette (number 1190) on 19 October 2015 and, thereby, already has the force of law. The aim of decree, according to its first article, is the “effective prosecution” of perpetrators of terrorist crimes and sixteen other offences that are mentioned in the Law on Crimes against Internal and External Security. This earlier law was passed in 1987, under the leftist, Soviet-backed Najibullah regime and was aimed at offences ranging from treason and sabotage, to assisting an enemy force, to anti-state propaganda (including “intentionally spreading false news or self-serving allegations”) and, also, not informing authorities or trying to cover up ‘anti-state crimes.’ The wordings of many of these crimes are rather broad and potentially open to abuse or the casting of a very wide net. (1)

The decree can essentially be divided into two part: 1) articles 2-9 and 11-13 of the annex contain provisions for individuals suspected of terrorist crimes and crimes against internal and external security which, among other items, extends the period of pre-trial detention and allows covert intelligence gathering without prior authorisation, and 2) article 10, which authorises “Exercising of Precautionary Measures.”

As the new decree has been introduced quietly and together with more than a dozen other decrees, there has been little public discussion to date. Human rights organisations and some people in the parliament, have caught on to the fact that, in its current form, it threatens to undermine important rights and protections. Article 10, titled “Exercising of Precautionary Measures,” has attracted the most attention.

Article 10 – measures that allow for indefinite detention without trial

With article 10 of the Annex to the Criminal Procedure Code, the state has established an internment regime – also known as administrative or preventative detention – in just four short paragraphs. Based on this single article, the Afghan state can now detain, without trial, people who are strongly suspected of having committed a crime – and keep suspects it thinks may commit (again) acts of terrorism, or ‘crimes against internal and external security’ in the future after their release from detention, even when there is not enough evidence to launch an investigation.

Article 10 reads as follows:

(1) Precautionary measures shall be taken in the following circumstances:

The person is suspected of committing terrorist crimes or crimes committed against internal 
and external security but gathering of incriminating evidences is not possible and as a result of detective activities, based on strong indications or reliable information, there is a strong probability that he/she will commit a crime if released. 


The person has been sentenced to imprisonment for commission of terrorist crimes or crimes against internal and external security and has served his/her sentence term and based on strong indications and reliable information, there is a strong probability that he/she will again commit crimes if released. 


(2) National Directorate of Security shall propose to the Supreme Court detention of the suspect or the convict stated in paragraph (1) of this article after obtaining the agreement of the relevant prosecution office and confirmation of the Attorney General’s Office. 


(3) The period for exercising of security measures shall be one year and in case the situation set forth in paragraph (1) of this article continues, it may be extended consecutively. 


(4) Persons mentioned in paragraph (1) of this article shall be kept in a special place under the supervision of the prosecutor, separate from the detention center and prison.” 


Based on the above article, the Afghan state can now hold someone without trial under one of the following two scenarios:

Scenario 1: If a person is suspected of having committed or may commit terrorist crimes or crimes against internal 
and external security in the future, but it is not possible to gather “court-worthy” evidence. This means, if no evidence has been found, or an investigation has been inconclusive, but “detective activities” (2) based on strong indications or reliable information indicate a strong probability that he/she will commit a crime, if released (art 10, para 1, pt 1).

Scenario 2: If a person has been convicted and is in prison for a terrorist crime, or a crime against internal and external security, and has completed his/her sentence term, the state may choose not to release him or her if, “based on strong indications and reliable information,” the authorities think “there is a strong probability that he/she will again commit crimes, if released.” (art 10, para 1, pt 2)

The decree does not detail what could amount to ‘strong indications’ or ‘reliable information.’

These above-mention scenarios are not unique to Afghanistan – other countries have adopted similar measures post-9/11. Unlike in anti-terrorism legislation formulated by other countries permitting detention without trial, for example, by Australia, article 10 of the annex to the Criminal Procedure Code does not even specify an immediate future – only any time in the future ­­– for a possible suspect believed to possibly commit a crime. Many other countries severely limit the maximum period during which a person can be held without trial. In Australia, it is just 14 days. The Australian legislation also extensively details the procedures governing preventative detention – in 75 pages, as opposed to the Afghan decree’s one article with four paragraphs. See here for analysis of the Australian legislation and here for the law itself.

Who investigates and detains?

In terms of procedure, according to the new decree, it is the Afghan intelligence agency, the National Directorate of Security (NDS) that can ask for normal due process to be suspended so that an individual can be detained without trial. The NDS proposes to the Supreme Court “the detention of the suspect or convict stated in paragraph 1 of this article after obtaining the agreement of the relevant prosecution office and confirmation of the Attorney General’s office” (art 10, para 2). There is no provision in the law to allow suspects to defend themselves. There is also no mention of counsel and representation from a defence lawyer. The law, moreover, does not actually specify what the NDS has to show to the Supreme Court so that it can be given the necessary authorisation. In fact, article 10 paragraph 2 only states that the NDS has to propose the detention to the Supreme Court – from the text itself it is not clear in what form the proposal is required, or within what time frame and how the Supreme Court needs to respond to the request.

The new decree says that “the period for exercising the security measures shall be one year and if the situation set forth in paragraph 1 of this article continues, it may be extended [by the Supreme Court] consecutively” (art 10, para 3). This implies that any detention under article 10 would be fixed to one year (not more or less) and that, after that first year, all that seems to be required for the detention to be extended is that the original circumstances are deemed to be unchanged. Again, no opportunity is set out in the legislation for a suspect to argue against the continuing detention. Only another request from the NDS to the Supreme Court proposing an extension is required. The article does not specify any maximum number of renewals, nor does it mention any way that an individual could challenge or appeal against this preventative detention. However, circumstances might change or evidence might emerge that clears the detainee of suspicion. But there does not seem to be a process that would allow this new information to be brought in. In effect, this article provides the opportunity to detain a person indefinitely and without recourse.

According to Article 10 paragraph 2, the NDS needs to propose the detention without trial to the Supreme Court. It is not clear from the decree (art 10 para 3) whether individual members of the Supreme Court (official name: High Council of the Supreme Court (in Dari: شورای عالی ستره محکمه) can decide about such a NDS request or whether a full session of all of its nine members needs to take a decision.(3)

The Annex to the Criminal Procedure Code does not require any defence files to be presented or indeed to allow for anyone to argue for the detainee. In effect, this makes the procedure just an exchange of letters. Nor are there any other safeguards in the law against rubber-stamping requests. There are concerns that the session of the High Council (which do not take place every day and where other issues also need to be discussed) might not provide enough time to carefully study each case file. In particular, when the entire High Council of the Supreme Court needs to evaluate the credibility of the evidence, assess the potential threat a person might present and then come to a collective and reasoned decision.

How the Government justifies detention without trial

It is now almost three years since Afghans were last officially detained without trial on Afghan soil. The US had put a great deal of pressure on then President Karzai and his government to continue the US practice, but this was ultimately banned by Karzai who said it breached Afghan law. In the subsequent power struggle with the Americans, Karzai managed eventually to wrest control of Bagram’s Afghan detainees and, since 25 March 2013, they have had to be either put on trial or freed. (4)

Now, however, President Ghani appears to have decided to revert to the old practices. Hence, the decree came as a surprise to those who work on rule of law and detention issues, especially as Ghani has been among those criticising the US’s use of indefinite detention without trial at Guantánamo and, formerly, at Bagram. Human Rights Watch said it was “incomprehensible” that he would now introduce this draconian procedure to Afghanistan. (5) Detention without trial is an extreme measure for any state to take, but it is particularly risky where weak rule of law makes the power open to abuse. For President Ghani, however, it is the very weakness of the judicial system which, he said, led him to introduce the new powers: “We are dealing with a weak judicial system… sentences are reduced because of corruption in the courts… our security forces thought this was a mockery and people were getting out [of prison] with impunity….” (6) He added there had been “a need for a signal in the time of national emergency.” Despite the obvious need to have effective means of dealing with terrorism, this looks like a very risky way to try to do that, and here is why…

Problems with Article 10 of the decree

The issues with article 10 seem to be two-fold. First, in general, detention without trial is inherently problematic and a serious step for a state to take. Secondly, and more specifically, there is concern about the lack of defence lawyers, the ease of the process, the insufficient oversight and the absence of safeguards to ensure detainees cannot be ‘forgotten’ in Ghani’s decree.

Added to this, the Afghan context makes detention without trial particularly problematic. Currently, the war looks open-ended. This prompts the question of when and how an individual may no longer be deemed a threat. The Taleban and other militants are not identified by uniform or membership card, but mingle amongst the civilian population. This makes false arrests and false accusations easy. The decree’s language outlining what is needed to make an individual a terrorist suspect is scanty and vague: the NDS must just provide “reliable information” to the Supreme Court. Article 10 could thus very easily be used to frame another person – a business rival, a bothersome neighbour or a petitioner in a land dispute, for example, with false claims that could amount to ‘strong indications’ that this person is connected to the Taleban or Daesh (Islamic State).

There are already multiple problems with the Afghan law enforcement and judicial system when it comes to both ordinary and security crimes. Despite improvement over the past few years, Afghanistan continues to struggle to implement procedures to a satisfactory standard. This has been mentioned by the Afghanistan Independent Human Rights Commission (AIHRC), for example, for ordinary crimes and for security-related crimes by UNAMA. (See the February 2015 UNAMA report on the Update on the Treatment of Conflict- Related Detainees in Afghan Custody: Accountability and Implementation of Presidential Decree 129 – which focused on a population detained for security crimes.)

Is Article 10 even legal – or necessary?

The Laws of Armed Conflict (also known as International Humanitarian Law) acknowledge that a state may use preventative detention during wartime. For example, Additional Protocol II (APII) to the Geneva Conventions which Afghanistan ratified in 2009 says that, when a state is at war, it may deprive its citizens of “their liberty for reasons related to the armed conflict.” The first Memorandum of Understanding on handing over the Bagram detention facility from US to Afghan hands, in March 2012, (read the text here) nods to APII. However, APII does not necessarily make preventative detention legal in Afghanistan. It just makes it not a war crime per se. International Human Rights Law, such as the International Covenant on Civil and Political Rights, also recognises that some rights, including the right to a prompt trial if arrested, can be derogated from “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” (art 4, para 1). But…

The Afghan constitution already provides for such a suspension of rights during a state of emergency. Thus, President Ghani could have legalised internment by invoking article 143 (7) of the constitution and declaring a state of emergency. This is possible if there is “war, threat of war, serious rebellion, natural disasters, or situations similar.” The state of emergency can be declared in the whole country or in part of it and is permitted for two months (extendable) and with Parliament’s agreement. The president can then, with the agreement of the speakers of the Wolesi and Meshrano Jirga, and the Chief Justice of the Supreme Court make use of article 145 (8) which provides measures to suspend or restrict a number of constitutional provisions, including clause 2 of article 27 that says the due process of law must be followed in detention.

Both those drafting the constitution and the International Covenant on Civil and Political Rights clearly recognised that partially suspending the rule of law is such a serious step for the state to take that it should be in the context of a declared state of emergency. However, Ghani chose not to take this route. He may have rejected this option for political or practical reasons – too much publicity, too many possible naysayers and too much potential political fallout (a state of emergency is a measure of last resort – and not utilized to ‘only’ suspend some legal provisions). But, by doing so, he has opened himself up to the accusation that he has violated the constitutional right to a trial.

More rights lost or curtailed with this decree

The other articles of Decree 76 deal with those whom the state does want to put on trial for terrorist crimes, for crimes against internal and external security and where sufficient evidence is available to do so. What the other articles of the annex do, however, is to expand many of the current time frames and provisions that are within the international norms to an extent that now they could be considered illegal. The most important ones are those that extend the powers of the state with regards to:

Covert Intelligence (article 3)

Article 3 deals with covert intelligence. Up until now, written permission (or oral permission for counter-narcotics-related activities) had to be obtained from the prosecutor’s office for any “covert detective operations,” such as wire-tapping. There is now no need for prior permission. Instead, the police or NDS can conduct wire-tapping of anyone they suspect of terrorist crimes or crimes against internal and external security for up to five days before they have to request permission from anyone to do so. Only on the sixth day do they need to have obtained a “verification of the lawfulness of their activities from the relevant division of the Supreme Court through the Prosecutors Office.”

This verification can be based on evidence collected during the first five days of surveillance. Article 3 remains silent on what happens to any intelligence if the continued collection of it is not deemed lawful – will it have to be destroyed, or is it still permissible to use in court as ‘reliable information’ for indefinite detention, even though the collection of further covert intelligence has been denied? Article 3 also fails to outline what will happen if covert intelligence operations are continued without permission after the five days. This lack of precision leaves gaps that could be easily utilized to circumvent any effective controls on the covert intelligence gathering process.

Pre-trial detention lengthened (articles 4 – 6)

Security personnel now have ten days “after learning about the occurrence” of a terrorist crime, or after the arrest of a suspect, before they need to hand over “the suspect and their activity report, documents, evidence and other collected substantiating materials” to the relevant prosecution (art 4, para 1). This more than triples the maximum period of pre-trial detention, from the current 72 hours (as per article 87 of the Criminal Procedure Code). International criminal procedure norms, according to the International Convent on the Civil and Political Rights, advocate a maximum of 72 hours before a suspect should be charged, released or further permission sought for detention. Although security personnel now have ten days to hold a suspect, according to article 5, they must still inform the prosecutor of the arrest within 24 hours.

After 72 hours of police or NDS detention, the prosecutor previously was allowed to request additional time for their investigation under existing law. The 2014 Criminal Procedure Code (article 100) allowed a judge to accede to a request for an additional seven days in the case of misdemeanours and 15 days for felonies. For terrorist crimes, these seven additional days for investigating misdemeanours have now, based on article 6 of the Annex, turned into 30 days, and the 15 days for felonies has turned into 60 (ie from two weeks to two months). A person suspected of involvement in a terrorist crime can now spend up to 70 days in custody before seeing a judge. While, under the existing Criminal Procedure Code, a total of 78 days of pre-trial detention was possible, the last 60 days at least had to have been approved by a judge and required the suspect and his or her defence lawyer to be present in court.

Other articles

Article 8 of the annex titled “Detention of the Accused during Trial” outlines the maximum number of days for each phase of the trial for the Primary, Appeal and Supreme Court – stating in paragraph 2 that the total period of detention during trial for all three stages cannot exceed 210 days. While the commitment to process a trial, so that detainees are not held for longer than necessary, is laudable, the timeline in the annex appears to be unrealistic. The setting of such a timeline is also not necessary, as due process often requires time and should not be dictated by a schedule. Such a timeline is not even set for trials in countries without the challenges of the Afghan judicial system, which tends to be plagued by delays and backlogs. A strict following of this provision threatens to harm, rather than help, due process.

Article 9 of the annex designates the Justice Centre in Parwan (at Bagram Airbase) as the venue for any primary and secondary stages of the counter-terrorism court – this means that all trials to do with terrorism or crimes against external and internal security must be held there, without exception. (9) Generally, prosecution takes place in the same geographic location as where the crime was allegedly committed. Given the good reputation of the Justice Centre in Parwan by Afghan standards and the extensive experience among judges, prosecutors and notably defence lawyers, of dealing with these types of cases, the move to Parwan might be positive. The Justice Centre in Parwan was already dealing with the majority of terrorist crimes before Decree 76 came into force. There is the concern, however, that it might become overwhelmed with the number of cases, particularly as ‘crimes against internal and external security’ is a rather broad term. Already, there are delays with the release of prisoners who have served their time, but have not been released yet. (10)

Article 11 – 13 contain additional provisions, such as bans on non-prison terms or pardons for those convicted or terrorism or crimes against external and internal security and an authorisation to seize convicts’ assets according to the Law on Prevention of Money Laundering and Proceeds of Crimes. Again, for these provisions, there is no clear indication of how a suspect under the new decree can contest or reverse these measures. (11)

Why is this a ‘dangerous’ decree?

The new powers given to the state in this decree would be disquieting even in a stable system with a good record on the rule of law. In the Afghan context, the annex is likely to present a true challenge to upholding human rights. The AIHRC has already raised concerns pointing out that the article 10 of the annex to the criminal procedure code contradicts the human rights standards and norms. As evidenced by various reports on the Afghan system, such as UNAMA’s “Update on the Treatment of Conflict-Related Detainees in Afghan Custody: Accountability and Implementation of Presidential Decree 129“ in February 2015, or even recently released information by the AIHRC (see here), it is clear that, currently, the Afghan state cannot even efficiently and accurately implement the rules and regulations already in place.

Adding the more complicated and often ambivalent and vaguely formulated provisions of Decree 76 to the current legislation will not improve the overall situation.  For example, it is not unheard of for files, and even detainees, to go missing ahead of, or even during, a trial, or for detainees to not be released after the sentence is over, or when they have been acquitted. It is a system where the powerful can easily use the law to oppress the powerless, where bribes or pressure on police, NDS, prosecutors and judges are used by strongmen to get the ‘right’ judicial outcomes. To then introduce new procedures that provide far less oversight and virtually no opportunities for defence appears to be a reckless loosening of what laws and protections Afghans (and foreigners living here) do enjoy. For example, according to the 9 December 2015 statement by the AIHRC, “at the moment more than 300 detainees in Bagram prison [aka Justice Centre in Parwan] have completed their sentences but are still incarcerated.” Afghanistan may be in a dire position vis-à-vis a brutal insurgency, but interning citizens runs the risk of being completely counter-productive.

President Ghani, in the meantime, has suggested that it was impossible for violations of the state’s new powers to take place, since human rights groups would be closely monitoring the implementation of the new law. “[Their] voice is not absent in Afghanistan,” he said in a television interview, “[their] voice is present and paid attention to. Countries get away with this when there is no voice. When there is voice, accountability follows.” However, normally, checks, balances and safeguards would be included as statutory obligations in the legislation, rather than relying on non-governmental organisations – with no statutory authority – to prevent miscarriages of justice.

Moreover, the presence and “voice” of human rights organisation has not been able to prevent other abuses from recurring. There has been, for instance, consistent evidence of the police and NDS using torture against terrorism suspects, as documented by UNAMA and AIHRC and of elements in the state manipulating the justice system to protect themselves or to deal with rivals. Human Rights Watch’s Patricia Grossman, thus cautions, “This presidential decree attempts to end-run the legal system and could put detainees at of risk of grievous, unlawful abuses.”

The fact that there were already contradictions between the process as outlined in the new law and how President Ghani described it, is also potentially worrying. For example, the decree says those to be detained without trial “shall be kept in a special place under the supervision of the prosecutor, separate from the detention centre and prison” (art 10, para 4). Ghani, however, in the same interview said the Supreme Court would have oversight and, rather than detainees being held in a place separate from detention centres or prisons, they will be held at “the Bagram, Parwan detention facility that is specifically geared to provide maximum access to rule-based approaches.” (12) There would be “no black sites,” he stressed. However, the point of article 10 paragraph 4 appeared to be that suspects would be housed separately from convicts or those going to trial, but still under the prosecutor. (13)

Considering the (deteriorating) security situation in Afghanistan in 2015, it is understandable that the state feels the need for more robust legislation and associated procedures to deal more effectively with those who have, or are planning to commit terrorist crimes against the state. But the questions arise as to whether these are really necessary, given the current robust laws in place and the legal options provided by the constitution to suspend some freedoms in the case of an emergency. Therefore, the introduction of a regime of detention without trial and the extension of pre-trial detention beyond international standards risks making a system with already serious challenges much worse.

Next steps for this decree

Every decree signed by the Afghan president automatically has the force of law. This is also the case with the annex to the Criminal Procedure Code that has already been published in the Official Gazette. However, parliament still has the option of rejecting it with a veto (under article 79 of the Afghan Constitution). If, however, it does not take such action, the decree will remain in effect.

Since October 2015, when the decree was published in the Official Gazette, it could have been considered by the judiciary commission, which is tasked with reviewing decrees and recommending members of parliament to either veto or uphold them. If the decree is upheld, it has the force of legislation, since both president and parliament have agreed to it.

At the time of writing, the parliament has already rejected several of the decrees put forward by President Ghani during the last parliamentary recess session, mostly using article 79 of the Constitution, which precludes presidential decrees “in matters related to budget and financial affairs.” The rejected decrees dealt with a variety of issues, including ministerial caretakers, taxation on mobile phone cards, amendments to the customs laws, the establishment of an economic advisory unit and amendments to the electoral laws.

For the annex to the Criminal Procedure Code, there are legal grounds to justify a rejection of the decree, apart from article 79 (which might not work for this decree as there are no explicit but possibly implicit, budgetary matters). For example, based on article 7 of the constitution, (14) Afghanistan is obliged to observe its international commitments (eg International Convent on Social and Political Rights). Some of the articles in the new annex violate Afghanistan’s obligations. When Afghanistan ratifies a particular treaty or convention, it implicitly agrees to adjust its national legislation to conform to these commitments and this needs to be done through an official amendment. Article 7 of the constitution, by extension, also requires that new laws do not contradict Afghanistan’s obligations – as the Annex to the Criminal Procedure Code does.

So, while the parliament has several grounds on which to justify a rejection of the Presidential Decree 76, there are concerns whether the judiciary commission is able to effectively present these reasons and, thereby, underline the dangers of this decree. In light of statements by the palace, such as by Sayed Zafar Hashemi, the deputy spokesperson, who presented this decree as necessary to protect the Afghan population from terrorism, there is the concern that political pressure might be exerted on members of parliament to avoid a rejection of the decree.

On 16 January 2016, the head of the judiciary committee, Haji Abduh, told AAN that the judiciary commission had only recently started to discuss Decree 76, but that this discussion had not been finalised yet as “it is a very sensitive matter that requires thorough consideration.” As the parliament goes into its winter recess, which lasts for 40 days, on 21 January 2016, the decree will remain in force – meaning detention without trial can take place and all other new powers apply – until at least the beginning of March 2016. Haji Abduh also indicated that, even after the recess, the judiciary commission would still need to get extensive input on the decree from experts before it will be ready to have the decree voted on in parliament. So, while there is hope that the efforts by civil society and other stakeholders can still bring about a rejection, or at least an amendment of the decree to prevent detention without trial to Afghanistan, the already on-going implementation of the decree in the meantime cannot be underestimated in terms of its potential for human rights violations.

 

(1) Article 1 of the Annex of the Criminal Procedure Code says suspects of the following offences from The Law for Crimes Committed against Internal and External Security can be detained without trial: national treason (article 1); espionage (article 2); terror – ie assassination of state personality or political, social, or religious leader, in order to sabotage and weaken the people’s sovereignty (article 3); sabotage – ie intentionally or unintentionally committing acts to weaken state authority, or key economic activities or disrupting the activities of state or social organisations (article 6); anti-state propaganda – ie for personal purposes and for the purpose of weakening the people’s authority, intentionally spreading false news or self-serving allegations, embarking on provocative propaganda, or oral and written propaganda or the possession of such publications (article 7); propagating war in any form (article 8); organised activities against internal and external security – ie forming, organising or administering an underground/secret organisation in order to commit crimes, or becoming a member of such organisation or establishing contact with such an organisation in order to achieve illegitimate goals, or encouraging and persuading others by physical or mental pressure (article 9); crimes against the diplomatic relations of Afghanistan with foreign countries – ie any act that harms or damages the bi-lateral relations of Afghanistan with foreign states or leads to the breakage of the diplomatic relations between Afghanistan and foreign nations (article 10); wilfully moving and administering Armed Forces divisions without an authoritative order or legitimate reason, in order to commit a crime, or despite an order to stop or disarm continuing to act (article 12); exposing state secrets without any intention of committing treason to homeland (article 13); looting, banditry or gangsterism (article 15); illegal occupation of public facilities (article 18); assisting the force of the enemy to gain material or spiritual benefits (article 23); not passing on valid information about crimes of upcoming crimes of national treason, terror, espionage, sabotage, disruption, war propaganda, anti-state activities, banditry and forgery (article 28).

Offences not listed in the Annex to the Criminal Procedure Code include destruction (art 5), hostage taking (art 16), collecting money and material assistance for anti-state organisations (art 20). The full text of “Crimes against Internal or External Security” in English is here.

(2) Article 10, paragraph 1, point 1 refers to “detective” activities, meaning detection (in Dari “کشف“) of crimes, rather than investigation (in Dari “تحقیق”). In the Afghan context, police and NDS detect the crime and prosecutors then investigate it after a suspect has been arrested and his/her file has been handed over to the prosecution.

(3) Unless the Supreme Court later interprets the provisions in article 10, paragraph 3 as meaning that only one or more judges of the High Council can make these decisions. Ghani has also referred to the entire Supreme Court making the decision.

(4) In 2012, when the Afghan state started to gain control of Bagram prison, it initially signed up to detention without trial and for several months, as AAN reported, the Afghan state did indeed hold Afghans without trial. However, when President Karzai found out that he had unwittingly agreed to this practice, he banned it, saying it breached Afghan law.

The exception to this are the seven Afghans still held by United States forces in Guantánamo and at least four foreign detainees still held by the Afghan state at Bagram (officially known as the Detention Centre in Parwan) also without trial.

(5) “Given President Ashraf Ghani’s sharp criticisms of United States practices at Guantanamo, it is incomprehensible why he would want to bring indefinite detention without trial to Afghanistan,” said Patricia Grossman from Human Rights Watch. “Afghanistan needs to take steps to address terrorism and protect public safety, but not by denying Afghans the right to a fair trial.”

(6) Taken from the interview with Ashraf Ghani in Deutsche Welle’s “Conflict Zone” programme, recorded on 16 December 2015. The relevant part is from 15:58 to 18:21. The transcript (by AAN) is as follows:

Tim Sebastian: But you did find the time to propose a pretty draconian amendment to the Criminal Procedure Code, didn’t you? That would allow for indefinite detention without trial. Why when you were so critical of American methods in Guantanamo, do you adopt the same kind of method –

Ashraf Ghani: – we have not –

TS: – indefinite detention without trial

AG: ­– we are dealing with suicide bombers on a daily basis, we are dealing with a weak judicial system, where people are given one year sentences in the primary court, their sentences are reduced because of corruption in the courts to six months or a year and they did not serve, our security forces thought this was a mockery and people were getting out with impunity – and repeatedly committing crimes. Because of this there was need for a signal in the time of national emergency and to be able to do this ­– But the procedure, again you need to understand and I respectfully bring it to your attention, it is the Supreme Court that makes the decisions and not the administrative part.

 TS: But human rights groups think it is a mockery because there is no specifying if the detainee will have access to family members or a lawyer or the right to examine the evidence against him, or the right to challenge this evidence

AG: The court system can ensure [this] once the Supreme Court is charged with this and we have an excellent chief justice whose integrity and commitment to law is second to none, {he] can ensure this.

TS: And they are kept supposedly in a special place under the supervision of the prosecutor, separate from detention centres and prisons. What kind of place are these, are these black sites? Á la CIA?

AG: No black sites, it’s the Bagram, Parwan detention facility that is specifically geared to provide maximum access to rule-based approaches

TS: Without oversight?

AG: Oversight is that by the Supreme Court, I just brought this to your attention.

TS: But how do we know that they are going to do that properly?

AG: Ask the Supreme Court!

TS: And avoid the unlawful abuse that we have seen at other detention centres.

AG: You think that the human rights community is silent? With the megaphones that they have? There is going to be silence…any abused? Voice is not absent in Afghanistan, voice is present and paid attention to. Countries can get away with this when there is no voice. When there is voice, accountability follows.

(8) Article 145 of the Afghan Constitution states: During the state of emergency, the President can, after approval by the presidents of the National Assembly as well as the Chief Justice of the Supreme Court, suspend the enforcement of the following provisions or place restrictions on them:

1. Clause Two of Article Twenty-Seven (No one shall be pursued, arrested, or detained without due process of law.)
2. Article Thirty-Six (The people of Afghanistan shall have the right to gather and hold unarmed demonstrations, in accordance with the law, for attaining legitimate and peaceful purposes.);
3. Clause Two of Article Thirty-Eight (In case of an evident crime, the responsible official shall enter or search a personal residence without prior court order. The aforementioned official, shall, after entrance or completion of search, obtain a court order within the time limit set by law.)

(9) The Justice Centre in Parwan on the Bagram airbase has pre-trial detention and prison facilities, along with prosecutors offices and a courthouse: it is where the United States held its detainees without charge for more than a decade and where the Afghan state now tries and houses most terrorist suspects and convicts.

(10) While article 9 paragraph 2 acknowledges that the juvenile code applies to the confinement of juveniles falling under this decree, it does not detail explicitly which procedures will be applied during the investigation and interrogation of juveniles.

(11) Article 11, which states “Convicts of terrorist crimes and crimes against internal and external security may not benefit from the decrees on pardoning and commutation of penalties,” ensures that, unlike in the past, those rightfully convicted cannot find a loophole to secure their release. However, given the increase of the other powers in this annex there is the concern that, in cases of miscarriages of justice, it will be more difficult for those individuals to be released.

Article 12, which covers “Proceeds of Crimes,” make reference to “suspects and accused of crimes stated in this annex” and tasks “Security Personnel, prosecution offices and courts” “to identify the properties [of those individuals] which are under their possession or have, somehow been transferred to other persons and determine the proceeds of the crime and take action to seize, freeze and confiscate such proceeds, in accordance with the Law on Prevention of Money Laundering and Proceeds of Crimes.” There is no mention of how those affected by this provision are able to regain possession of their property.

Articles 13 on “Restrictions” outlines that “provisions on Alternatives to imprisonment, suspension of enforcement of sentence, temporary release, release on parole, and granting of time-offs shall not be applicable to convicts of terrorist crimes against internal and external security.”

(Article 14 only specifies the immediate enforcement of all the provisions in the annex and its publication in the official gazette).

(12) Although the official designation for the location is Justice Centre Parwan or Justice Affairs Centre Parwan, it is still commonly referred to as Bagram Jail, Bagram Prison or Bagram Detention Centre. This might also explain Ghani’s “Bagram, Parwan” reference.

(13) Housing those in detention without trial in a separate facility from the suspects under investigation by the prosecutor for terrorism crimes (pre-trial detention) or convicted terrorists (prison) seems prudent, in order to prevent these populations from mixing and to thereby risk potential radicalization. At the same time, as HRW points out, “segregation of these suspects from the regular criminal justice system, without any provision for their access to counsel, raises the risk of torture or other ill-treatment.“

(14) Article 7 of the Afghan Constitution states: “The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.”

Text of the Presidential Decree 76 – in Dari (Annex1 of CPC-Official Gazette 1190) and English (2015 09 Pres. Legis. Decree 76, Annex 1 to CPC English- 2016 Jan. 11 v.4 from UNAMA)

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