Afghan President Hamed Karzai’s recent executive decree focussing on (but not only) the fight against corruption, which partly came as a reaction to debates at the recent international Afghanistan conference in Tokyo, sparked mixed reactions from Afghan parliamentarians, activists, experts and people at large. AAN’s researcher S. Reza Kazemi takes a closer look at the decree, find issues that have not been figured in – like too short timelines, the war situation and how to finance it – and argues that still it can be a good, albeit ambiguous, first step forward in Afghanistan’s necessary war against corruption.
Karzai’s decree, officially called ‘The Office of the President of Islamic Republic of Afghanistan Decree no. 45 of 5 Asad 1391 [26 July 2012] on the Execution of Content of the Historical Speech of 1 Saratan 1391 [21 June 2012] in the Special Session of National Assembly’(1) (for the official Dari text see here and an official English translation here) is a colossal 33-section, 164-article document (23 pages in the Dari version). It includes a section commonly directed at all governmental institutions and 32 separate sections directed toward specific institutions. Karzai’s spokesperson Aimal Faizi described it as a ‘decree on administrative reforms’(2), i.e. going beyond anti-corruption. Karzai’s chief legal adviser Nasrullah Stanekzai added that the decree was different from previous ones as it was time-limited (different provisions have different deadlines) and that any governmental institution that failed to fulfil its obligations as per the edict would become liable for prosecution(3).
At a first glance, the decree opens and concludes on a relatively positive note. After mentioning Afghanistan’s ‘considerable victories in political, social and economic spheres’ in the past ten years in its opening chapter, the Afghan government once again admits four major challenges facing today’s Afghan polity and society: bad governance, corruption, lack of rule of law and economic dependence (p 1). ‘The President’s confession about the failure of the government… can be a prominent and confidence-building point of this decree… it indicates that the government can change its approach and performance with a view to overcoming the existing failures’, wrote an Afghan commentator in 8 Sobh newspaper, adding that it may also be an attempt to portray corruption as something commonplace in the country with which the Afghan public should basically learn how to live and cope.
In its conclusion, the decree tasks the quasi-prime-ministerial Office of Administrative Affairs and the Secretariat of the Council of Ministers to monitor the implementation of the decree and report the implementation status to the President and the Cabinet. First steps to make this practical have already been taken. Sadeq Modabber, head of both the Office and the Secretariat, recently reported to the Cabinet that a ‘monitoring team’, comprising representatives from the Supreme Court and the lower and upper houses of the Parliament, all relevant deputy ministers and senior staff of the Office and the Secretariat, has been established to regularly collect implementation data. This data, then, will be consolidated by a special team for weekly submissions to the President and the Cabinet and for dissemination for people through the media (source: AAN’s media monitoring and official daily Anis, 31 July 2012, pp 1 and 8).
This new structure is, however, as large and inflexible as other similar structures, such as the Joint Coordination and Monitoring Board, and appears to be more pro forma than focused on results-based performance like its counterparts, such as the Monitoring and Evaluation Committee and the High Office of Oversight and Anti-Corruption. Additionally, it is not clear how these several structures will coordinate among themselves. The decree is silent about this.
Unsurprisingly, Karzai’s decree received mixed reactions from Afghan parliamentarians, activists, experts and people at large. The Afghanistan Independent Human Rights Commission (AIHRC) mainly focused on and welcomed the justice-related provisions of the decree. Nai, an NGO that advocates for the freedom of media, criticized the decree as an attempt to place further control on the media by ordering the Ministry of Information and Culture to ‘regulate minimum standards for the publications of governmental and private media’ (15.2) and to ‘eliminate unfamiliar foreign expressions and terms from the country’s normal literature’ (15.3). The decree should have instead requested the media to contribute to anti-corruption efforts, Nai suggested. Other journalist organisations have joined the choir.
Some parliamentarians related to the opposition, including Fauzia Kufi, Sadeqizada Nili and Zaher Sadat, stated that the decree was ‘tantamount to bringing about a system of absolutism and vesting more powers in one individual’. They accused Karzai of disregarding the role of the Afghan Parliament to monitor the performance of the ministries and other governmental institutions by requiring them to report to the President instead. A number of Afghan experts lashed out at the decree, too. Muhammad Musa Farewar, for example, a political science teacher in Kabul University, asked in harsh words: ‘How can the ruling clique, tainted by graft, file a case against itself? Since those at the helm will never publicly acknowledge their guilt, a new team has to step in to investigate corruption cases against them’.
At the same time, the parliamentarians and the people AAN talked to conceded that the anti-corruption initiative can have a chance to at least partially succeed this time if the Afghan government seriously means business and takes adequate action. ‘The decree is, anyway, a good first step’, Kabul parliamentarian Sayed Hossain Alemi Balkhi told AAN. Kufi echoed, ‘Despite all this, we support the decree if it’s really aimed at introducing reforms’. ‘The government can definitely fight corruption if it is serious. It can wipe out corruption in Karzai’s government or anyone else’s government. That will only happen if the Cabinet, the Parliament and other governmental institutions practically mean what they say,’ a money changer told AAN on a busy public street in Kabul, reflecting a broadly held public view.
Three issues stand out in an analysis of President Karzai’s decree. First, the decree can be at least partly achievable, although it also is in part overly ambitious, hurried in its timelines and, at places, even ostentatious. There are provisions in the decree that can be implemented if the Afghan government acts with the necessary seriousness. For instance, ministers visit the local departments of their respective ministries with a view to improving their institutional performance (section 1, article 8); the government implements a competitive and merit-based recruitment process for the public sector, which, in theory, already exists (1.9); illegal detention practices come to an end in the state penitentiary system (1.11); the Afghan National Security Forces are further empowered to disarm and disband illegal armed groups and individuals (1.12) and ANSF casualties are be addressed, including support for the affected families (1.13). Most of these provisions, in fact, just reiterate what already is Afghan law or should go without saying.
On the other hand, for example, the Supreme Court should, within six months, ‘decide and settle all cases, especially cases related to administrative corruption, land expropriation and serial killings’ (1.2). ‘This is simply not possible. Some accused persons are outside the country. Some accused persons have strong domestic political clout. Some have the support of foreign countries. Can the Supreme Court bring them to justice? I don’t think so’, Alemi Balkhi, who formerly chaired the judicial commission of the Afghan Parliament, told AAN. Moreover, there is the legal question if the President can impose deadlines on the court system, given the independence of the judiciary that is stipulated in the Afghan Constitution. Certainly empowering the Office of Administrative Affairs and the Secretariat of the Council of Ministers to monitor the implementation of the decree by the Supreme Court is in conflict with the Afghan constitution. Both institutions are part of the executive, and the judiciary, including the Supreme Court, are independent of it.
The decree is hasty, too, given the timeframe it sets. 18 articles of the decree are due to be implemented within one month (less than two weeks from now) and additionally 29 articles within two months (only about six weeks from now). For instance, in less than two weeks’ time, the Attorney-General’s Office is supposed to investigate cases of all detainees, end detentions without supporting evidence and send a full list of detainees along with explanation of their charges to justice institutions (6.1). The Ministry of Interior should also, in about six weeks’ time, implement all court verdicts on the expropriation of private and public land and property and report its implementation to the Office of Administrative Affairs and the Secretariat of the Council of Ministers (3.1). This seems to be unrealistic.
Furthermore, the decree shows a lack of prioritisation. The Afghan government could have focused its attention on a specific number of important and interconnected objectives and mobilised its resources for the realisation of those objectives rather than coming up with a long list of across-the-board activities. Far more effective governments in the world would not be able to fulfil all the commitments made in the decree, particularly not while at the same time fighting a war. There is then an obvious risk that some of the demands of the decree will be implemented (and hailed as success), but without the decree actually having a long-term or system-wide effect on corruption.
Interestingly also, the decree has not even mentioned the two vice-presidents, let alone assigning them any responsibilities to contribute to its implementation. In contrast, the decree empowers Karzai’s 110 advisers and adviser-ministers – who recently were called advisers in name only by a local private TV channel – to expand the President’s public relations (1.19). Although this remark about the advisers might be a little generalizing (there are clearly some very influential figures among them), this part of the decree might reflect that public relations are a large part of the government’s approach. Naturally, this only makes sense if it is grounded in real action.
Second, the anti-corruption decree is vague in two very important respects. The first has to do with the financing of it. It is not clear who exactly will pay for some of the activities mentioned in the decree. For example, the decree fails to specify who will pay for ‘activating’ courts particularly in insecure districts and provinces and recruiting professional court staff (1.3), for establishing attorney’s offices in districts and provincial centres and recruiting professional staff for these offices (6.6), and employing 11,000 teachers and staff for the Ministry of Education (13.5). The second has to do with what the government will do with those who do not comply with this decree. The decree stops short of determining penalties for offenses arising out of non-compliance. It was only Stanekzai who said in his press conference that non-compliance will result in ‘liability for prosecution’.
Finally, the decree can, in some cases, be infeasible, mainly on security grounds, especially in restive and insecure areas. The Afghanistan NGO Safety Office (see ANSO 2012 Second Quarterly Report) reported that, in the past quarter of 2012, twenty out of Afghanistan’s 34 provinces have experienced at least one security incident per day. This volatility makes the implementation of the decree difficult in those areas, but at least it has a chance to be implemented in the more secure parts of the country.
Not withstanding all of these remarks, the Afghan government has at least come up with a decree focussing and set a timeline for its implementation publicly that can be monitored by those – at home and abroad – who rightfully have been demanding for a long time that the government finally starts meeting its crucial anti-corruption commitments to which it signed up already at all pre-Tokyo international meetings on Afghanistan(4). Both this promise and the US$16bn of aid committed at Tokyo by donor governments for the next four years on the condition that this promise is finally kept are fundamentally important to secure Afghanistan’s future, now and beyond 2014.
Perhaps the Afghan government’s effectiveness in implementing the decree and fight rampant corruption should not be measured by the unreasonable one-month, two-month, or some of the longer-term deadlines it set for itself. A better test will be whether it adapts them to more sensible terms, rather than just not fulfilling and forgetting them. A key test will be the manner in which it is going to address the most recent accusations of corruption, including against finance minister Hazrat Omar Zakhilwal (see a report on the charges against him here and Zakhilwal’s response on Facebook here), in addition to all previous cases, involving both petty and grand corruption. Most importantly, the real test now for the Afghan government is how seriously its ministers and other top officials take the implementation of the President’s decree or whether some of them will put themselves again above the law. For the time being, the Afghan government should be given the benefit of a doubt, again, though. But Afghans’ and donors’ patience might run out this time.
(1) In a special session of the Afghan government’s legislative, executive and judicial branches convened in the Afghan Parliament on 21 June 2012, President Karzai vowed to seriously combat corruption. ‘You all said that I was maslahatgar (a deal-making pragmatist). I was so, for various reasons. But, from now on, things will change. I will reform the internal affairs’, Karzai told the extraordinary gathering.
(2) See Faizi’s Twitter message here.
(3) See a short report by the official Bakhtar News Agency (BNA) on Stanekzai’s press conference here.
(4) See, for example, the Kabul Conference Communiqué, Kabul, Afghanistan, July 2010; the Istanbul Process Declaration, Istanbul, Turkey, November 2011; the Bonn II Conference Conclusions, Bonn, Germany, December 2011; the Chicago Summit Declaration, Chicago, the US, May 2012; the Tokyo Declaration; and the Tokyo Mutual Accountability Framework, Tokyo, Japan, July 2012.
This article was last updated on 9 Mar 2020