The annual UNAMA anti-corruption report released today shows that the institutional fight against graft in Afghanistan between January 2019 and April 2020 has stalled in many areas. While the report acknowledges that the reform agenda has been overshadowed by the presidential elections and the pandemic, it does not hold back from pointing to failures in several areas of government, including executive overreach, minimal parliamentary oversight, the undermining of the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC) and disappointing results from the Anti-Corruption Justice Centre (ACJC). It exposes donor frustration with the “slow pace” of reform, disputes over benchmarks and threats to cut further funding. Although the peace agenda will continue to absorb most international political attention, says AAN’s Jelena Bjelica, donor impatience with the government could have serious consequences given the looming global recession. Afghan artists and volunteers paint the insciption 'corruption is not hidden from God and people's eyes' on a barrier wall at the presidential palace in Kabul. Photo Wakil Kohsar/AFP (2015).
When the Ghani administration said it put anti-corruption efforts at the heart of its reform agenda, it had the strong backing of its international donors. In its fourth yearly report on anti-corruption in Afghanistan, (1) UNAMA underscores a growing tension between donors and the government over stalling anti-corruption reforms, with disagreement over interpretations of benchmarks that seem semantic but reflect the defensiveness of the government. The report tracks progress in meeting its anti-corruption commitments in the Geneva Mutual Accountability Framework (2018), which among other things includes indicators from the 2017 ‘Anti-Corruption Strategy’ (now expired) and the Asset Declaration Law. (2)
Donors are asking for “concrete steps” from the government in the anti-corruption fight. The report warns of the threat from donors that continued failure to make progress against corruption, “could affect future funding.” Despite its self-declared ambition to become self-reliant, international assistance still currently provides about 8.5 billion USD in on and off-budget support to Afghanistan per year, or about 45 per cent of national income (Gross Domestic Product or GDP) and 75 per cent of government spending. There were significant cuts less than a year ago, with the US announcing in September 2019 a reduction of 100 million USD in aid, out of a total of around 500 million USD in non-military assistance. The US is also holding back 60 million USD in planned aid to the Afghan government’s National Procurement Authority over “concerns about its transparency in accounting and managing its finances” and “government corruption and financial mismanagement.” The corona virus pandemic has already triggered shifts in major donor’ funding priorities which should be of concern to any aid-dependent country, with further changes likely given the threat the pandemic poses of a global recession.
This poor report card, however, comes as no surprise. The government’s anti-corruption efforts for most of 2019 and so far in 2020 have been sidelined by the presidential elections, the protracted vote counting process and the spread of the Covid-19 pandemic (see these AAN reports here; here and here). However, it seems that any anti-corruption efforts were already losing impetus, as AAN reported in May 2019: the frequent changes in corruption-related legislation and a mushrooming of anti-graft institutions have done little to hamper corruption, while any reductions in petty corruption were also already shown to have been minimal according to the 2018 survey from the leading Afghan anti-corruption watchdog, Integrity Watch Afghanistan’s (IWA).
A slow anti-corruption pace
The dizzying revision of institutional arrangements for anti-corruption efforts continues, with confusion and discord over institutional and regulatory arrangements sucking the energy out of reform efforts. UNAMA found that in the reporting period most of the ‘progress’ had been “amending laws and developing by-laws, rather than producing genuinely new legislation.” It notes with concern that the government’s Anti-Corruption Strategy expired in December 2019 before its evaluation had been completed, which means there is as yet, no successor document. UNAMA’s evaluation suggests that new institutions are yet to demonstrate impact, and previously functioning entities are in decline.
The new Anti-Corruption Commission, which was the centrepiece of the 2018 Anti-Corruption law, has yet to come into existence. UNAMA has already expressed concern over its potential independence, given the power that the executive will have over it. The government’s plan is for the commission to report directly to the president, who also controls appointments to it: UNAMA says this presidential control over a supposedly independent watchdog institution is troubling and was observed previously in this AAN’s report from May 2019. The real motor for reform in previous years was another body, the High Council for Rule of Law and Anti-Corruption, but its energy seems to be waning; UNAMA said it met only seven times in 2019 (rather than 12) and the pace of reforms emerging from it have decelerated. Meanwhile, the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC), which has provided some sharp monitoring in recent years, has gradually lost staff and funding. This is due to a combination of factors, from the president’s sweeping powers over the MEC’s composition, including his prerogative to appoint committee members, to the body’s exclusive reliance on donor-funding, and the donors’ role, also, in selecting the international commissioners. All of this harmed MEC’s operation in 2019, UNAMA reported, and since March 2020, the MEC has been without a committee (see pp 65-7 of the report). The Afghan news agency Pajhwok published a story on 17 June 2020 suggesting that MEC has also been undermined because of its report on the National Procurement Authority (NPA) that has not yet been published. According to Pajhwok, the report was blocked by the High Council for Rule of Law and Anti-Corruption, because it exposes the rampant corruption in president’s circles and the NPA.
A fourth body, the Ombudsperson’s office, which handles complaints regarding administrative units in the executive and other high ranking government offices and independent budgetary units, has still not got a legal basis or started operating, although a constitutional law expert, Ghizaal Haress was appointed as ombudsperson by presidential decree on 4 August 2019 for a non-renewable mandate of four years.
Another institution which should have produced exactly the kinds of concrete steps that donors are hoping to see is the Anti-Corruption and Justice Court (ACJC), established in 2016 to investigate, prosecute and adjudicate major corruption cases. However, UNAMA says it has made only slight headway. It points a finger at the Ministry of Interior for its “lack of attention” to assist with detection and investigation of cases. (See also this AAN report about corruption in MoI from June 2017 which could explain MoI’s poor performance.) In 2019 the ACJC held only 23 trials, of which a fifth were held in absentia. In addition, the UNAMA report says that the average rank of those accused by the ACJC has declined over the years and that there was a high rejection rate of indictments before trial, meaning the case is dismissed before it gets to court. This inability of the ACJC to successfully prosecute most major criminal corruption cases suggests, says UNAMA, a weak capacity to gather evidence and “uncertainties about legal interpretations of criminal procedural laws.” The police have failed to fully support the court, resulting in a continued backlog of arrest warrants. In March 2020, the government reported that 171 warrants had been executed, with 83 outstanding, although all but four of those 171 defendants were immediately released, and only one defendant has actually been tried. (3) The report also noted that “efforts of enhanced cooperation between police and prosecution did also not result in producing an updated joint prosecution and police warrant list.” These efforts of cooperation, although not specified in the report, probably refer to the presidential order (No 133) from March 2019 on strengthening coordination between police and the Attorney General’s Office, with a focus on preventing criminals and their networks influencing detective and investigation bodies, and other misuse of authority. However, the order contains some ambiguities, (4) with weak performance suggestive of low political will from the police to cooperate fully with the prosecution team of the ACJC.
There was no progress in asset recovery set up under the 2018 law, because of continued disagreements, UNAMA said, over regulations, leading to the asset recovery unit of the ACJC putting its work on hold (p 20). “Convictions for corruption offences,” it said, “must be accompanied by revigorated efforts to recover assets stolen through corruption.” Additionally, it said that at all levels of decision making related to anti-corruption, transparency “remained problematic” and there should be a greater effort to post verdicts online. While recognising the growing prominence of the Access to Information Commission, this body is also in jeopardy after the Wolesi Jirga amended the Access to Information law on 27 July 2019 in order to change the composition of the commission’s selection committee. This change, according to UNAMA, “could weaken the independence of the Commission.” However, one area of modest improvement on transparency is the Ministry of Finance’s budget planning and execution (see pp 33-5 of the report).
The report notes with concern that parliamentary oversight remains negligible. The Wolesi Jirga “did not noticeably improve its performance on legislative, representative and oversight functions.” This was mainly because of the delayed inauguration of the new parliament (see this AAN report) and a protracted process for internal elections of the Wolesi Jirga administrative board and parliamentary commissions (see also this AAN report from July 2019 about the disputed election of the Wolesi Jirga’s speaker, a story of a balance of power, political allegiance and money).
Finally, the report highlighted serious concerns about oversight of the government’s National Covid-Response Programme, which is yet to demonstrate “credibility and transparency.” On 2 May 2020, the Cabinet allocated 1,181 million USD in response to the pandemic, which UNAMA says could exacerbate the existing weakness in budget execution. A range of provincial oversight committees have been established, with mixed results so far. UNAMA said that the NGO watchdog, Integrity Watch Afghanistan (IWA), and civil society partners had all “pointed to the lack of consultation and transparency in developing the COVID-response budget allocation.” A member of the Anti-Corruption and Governance Committee of the Civil Society Joint Working Group that brings together over 1,300 Afghan NGOs told Tolonews on 24 May 2020 that the committee was “gravely concerned” about corruption in the Covid-19 response, particularly with what it said was the sidelining of civil society in carrying out oversight.
This is yet another grim picture of anti-corruption efforts in Afghanistan. Without diminishing the political attention captured by the presidential elections and more recently the Covid-19 pandemic, there are too many failings by too many institutions for short-term events to explain away this poor performance. The initial spotlight on corruption from the National Unity Government, and particularly President Ghani, resulted in the removals of corrupt officials, new legislation, and yet more institutions. But as this report demonstrates, there is little to show for all the legislative and institutional reforms, and where there was momentum, that has waned. Emblematic of that is the decline of a moderately effective institution like the MEC and the failure to deliver by the once highly praised Anti-Corruption Justice Centre (ACJC). The limited support from the police in executing ACJC’s arrest warrants should be no surprise considering its appalling record on corruption within its own ranks. However, the pitiful number of trials suggests a wider problem within the ACJC, in terms of capacity and political courage.
As to the international donors, the intense focus on ‘peace talks’ has shifted attention away from the need to deal with corruption within the largely foreign-funded Afghan state (see the AAN special report on cost of international support to Afghanistan from May 2020). However, their concern will not go away. The US has already taken a significant bite into foreign assistance for Afghanistan, and the pandemic means donors are looking for reasons for further cuts. The poor performance on efforts to stem corruption may be all the excuse they need.
Edited by Rachel Reid and Kate Clark
(1) UNAMA previous three anti-corruption reports were published on 25 April 2017, 15 May 2018 and 20 May 2019.
(2) The Geneva Mutual Accountability Framework (GMAF) has four anti-corruption indicators:
GMAF 2.1. The Government formally approves new indicators for the 2017 ‘Anti-Corruption Strategy’ and a concrete and time- bound action plan by June 2019 to improve prosecution detailing case-flow, timelines, and clear functions and responsibilities of the Attorney General’s Office (AGO), Ministry of Justice (MoJ), Ministry of the Interior (MoI), Supreme Court, Anti-Corruption Justice Centre (ACJC) and Anti-Corruption Commission.
GMAF 2.2: The AGO’s Anti-Corruption Units will effectively and efficiently track, report and increase year on year the percentage of cases that move from: 1) referral to investigation; and 2) investigation to trial. The Government will provide accurate data for the Senior Officials’ Meeting (SOM) in 2019 to measure progress and set targets.
GMAF 2.3: The Asset Declaration Law is implemented by 2020, demonstrated by: Transferring to the Administration for Asset Declaration from the IEC; verifying asset declarations of successful 2018 parliamentary candidates; verifying high ranking government officials, prosecutors, and judges’ asset declarations and enforcing sanctions against those who refuse to declare their assets or those who provide false declarations.
GMAF 2.4: The Access to Information Law is implemented in 2019, demonstrated by: Oversight Commission implements policies and procedures for tracking requests, quality and timeliness of responses, maintaining statistics, and providing public quarterly updates; and delivers awareness programs in 15 provinces in 2020.
(3) On warrant list, UNAMA report said:
In order to have an unambiguous benchmark to measure the steps taken to confront corruption by law enforcement authorities, development partners and the government agreed that 127 outstanding ACJC warrants (48) and summonses (79) be executed prior to the Geneva conference. By March 2019 the list grew to 255, when 46 outstanding arrest warrants and 82 summonses were added. By March 2020, the MoI converted summonses on both lists into warrants and reported that 171 were executed and 83 remained outstanding, including those against 34 fugitives outside of Afghanistan. The list was never exhaustive; some prominent ACJC fugitives (for example a former nominated senator) have not been added to the list, without explanation. Moreover, out of 171 warrants executed all but four defendants were immediately released. Only one defendant on the warrants list has been tried. In late April 2020, after a change in leadership, the Major Crimes Task Force (MCTF) aimed at developing an updated and more comprehensive list, but at the time of the publication of this report no mutually agreed list by prosecution and police is available.
(4) The order’s article 2 is open for interpretation. It says: “After completion of detection phase and receiving the case file on crimes of Police, the prosecution will take legal action and avoid detention and summoning of police official unless necessary.” It is not clear what is meant by ‘unless necessary’ and whether it implies a higher bar for the arrest of members of the police force than the general public, or that ‘unless necessary’ suggests the avoidance of arrests or summons if there is not deemed to be a flight risk, which is, indeed, the practice is also imposed for civilian suspects.
This article was last updated on 18 Jun 2020