The Afghanistan Independent Human Rights Commission (AIHRC), set up in 2002 as part of the Bonn Agreement, is to get a new set of commissioners. How to choose them has proved difficult. Before, the president just appointed whom he wanted. Now, a new procedure aimed at greater transparency has ended up being slow and clumsy. The AIHRC is an important institution, says AAN’s Ehsan Qaane, with a mandate to hold the executive and others to account for human rights, but it is unclear that the new selection procedures will deliver commissioners with the necessary qualifications. AIHRC’s Bamyan provincial office building inaugurated in 2014. Its nine from 14 offices, one HQ
and 13 provincial offices, have their own buildings. The buildings of its provincial offices in Balkh
and Daikundi are under construction. Photo: AIHRC’s website.
The Afghanistan Independent Human Rights Commission (AIHRC) has remained Afghanistan’s foremost human rights institution for almost two decades. Its role is to promote and protect human rights. It does this through human rights training, advocacy, monitoring and reporting. Since its establishment, the commission has pushed forward on several important human rights issues. Six days after its establishment, the AIHRC monitored the Emergency Loya Jirga’s sessions from 10 to 19 June 2002 – the first time a national human rights institution had monitored an important national event in Afghanistan. The AIHRC has also prepared one of the only official reports on war crimes and violations of human rights (1978-2001). The report remains unpublished, but was shared with then President Hamed Karzai to inform future policies on transitional justice (read AAN analysis about the report here). Besides UNAMA, the AIHRC is the only organisation that systematically has documented and reported on torture in the Afghan detention centres and jails and on civilian casualties in the Afghan conflict. The AIHRC’s reports on torture and civilian casualties have influenced the Commission’s draft law on compensation for victims of terrorist acts (still a draft), as well as the drafting of the anti-torture law, endorsed by a presidential decree on 5 March 2017 (AAN’s report on the decree). This presidential decree established an anti-torture committee with the AIHRC Chairwoman as Chair.
The AIHRC agenda is set by nine commissioners who provide strategic guidance and management to the commission that today consists of a head office in Kabul and 13 sub-offices. The appointment of the commissioners for their five-year terms is of crucially important for the independence of the commission so that it can promote and defend human rights in Afghanistan. President Karzai appointed the commissioners in 2002, 2006 (after a by-law of the AIHRC was adopted in May 2005) and 2013. President Ghani revised this procedure in a decree adopted on 9 July 2018 so that, while the president will still appoint the commissioners, he will do so based on a shortlist prepared by a specially appointed Civil Society Working Group (CSWG) and the Selection Committee.
The current commissioners’ five-year work terms ended in June 2018. Just five are still in office and are now working as acting commissioners. Meanwhile, the Civil Society Working Group (CSWG) and Selection Committee have been sifting through 390 applications to compile a longlist
Conflict between current commissioners
New commissioners were last appointed in 2013 by President Hamed Karzai. The nine commissioners appointed were: Dr. Sima Samar, Muhammad Farid Hamidi, Ahmad Zia Langari, Surya Subhrang (these were all AIHRC commissioners in the previous term, too), Wahiduddin Arghun, Hawa Alam Nuristani, General Ayub Asil Mangal, Qadria Yazdanparast and Mawlawi Abdul Rahman Hotak (read more about these appointments and the commissioners’ bios in AAN’s previous report). From the above nine commissioners, four have since resigned due to other engagements: Farid Hamidi became the Attorney General, and Wahiddudin Arghun his deputy, joined the Attorney General’s Office in February 2018 (AAN’s report about Hamidi’s appointment as the Attorney General). Surya Subhrang and Hawa Alam Nuristani are both standing for the upcoming parliamentary election (AAN’s report about the upcoming parliamentary election).
Although it was President Karzai’s right to appoint the commissioners, he had reportedly promised the AIHRC Chairwoman, Sima Samar, that he would consult her first on the appointments. Although Samar was consulted about some of the 2013 batch, two candidates: Yazdanparast and Hotak were introduced without her consent and were appointed against her wishes. Yazdanparast had previously worked with the political party/mujahedin faction, Jamiat-e Islami and Mawlawi Abdul Rahman Hotak had worked with the Taleban government in 1996-97.
According to Fahim Hakim, who served AIHRC as a commissioner from 2002 to 2011, civil society had also taken an active role in the appointments in 2013. Civil society had provided President Karzai with a list of possible candidates, but this list was not taken into account.
Considerable tensions exist between some of the five remaining commissioners, in particular between Samar and Yazdanparast. The author of this dispatch was present in several meetings where Samar criticised Yazdanparast for not doing her work and creating problems for other commissioners. Yazdanparast has in turn accused Samar and the colleagues who served with her prior to 2013 of marginalising her and some of the other 2013-appointed commissioners. She also voiced these allegations in public, for example in an interview with Tolonews in May 2018 when she claimed the AIHRC has been monopolised and was not doing its duties. A source in AIHRC, who asked to remain anonymous, told AAN on 3 September 2018 that Hotak and Yazdanparast had challenged the leadership of AIHRC, including the other commissioners and the executive director of AIHRC. While he would not admit that this had any negative impact on AIHRC’s activities, he did say that “working under these circumstances has not been an easy job.” Whatever the reason behind the conflict between the commissioners, it demonstrates the importance of appointing commissioners trusted by the head of the commission and committed to human rights.
The new appointment procedure
The current appointment procedure was revised by two presidential decrees passed on 5 May and 9 July 2018.
In the first decree, the Civil Society Working Group (CSWG), comprised of seven elected civil society activist and human rights defenders, were tasked with collecting applications and give them to a Selection Committee consisting of three state officials: the chief of justice, the attorney general and the head of the Independent Commission for Overseeing the Implementation of the Constitution, or the chairperson of AIHRC, if s/he is not a candidate again for AIHRC. The Selection Committee is in charge of drawing up a shortlist of 27 applicants to give to the president for him to select nine commissioners from. The AIHRC and United Nations Office of the High Commissioner for Human Rights are mentioned as observers in the appointment process.
The Civil Society Joint Working Group (representing a countrywide network of more than five hundred organisations) criticised some parts of the first decree. It wanted more authority for their representatives or representation on the Selection Committee (the secretary of the group Abdullah Ahamdi, told AAN on 29 August 2018 that at their 10 June meeting, they decided to pass their concerns to the president through Sima Samar (AAN also obtained a hard copy of their minutes). Sima Samar also had concerns. All the members of the Selection Committee, she said, were men and all were from the ‘president’s team’. She wanted to have representation from the chief executive’s side and at least one woman on the committee. As she told AAN on 13 August, she discussed this issue with the president and got his agreement to revise the decree.
In the second decree, the CSWG was given the authority not only to collect the applications, but also to make the first shortlist of the 81 most qualified applicants through a lengthy process (as discussed later). The composition of the Selection Committee was also changed. Two more members from the chief executive’s team, the minister of justice and the minister of women’s affairs (one being a woman) have been added to the committee. So far, there is no sign of disagreement among the leadership of the National Unity Government, or between the president and his deputies about this mechanism. However, the situation may well change before the end of process. In the second decree, the AIHRC and the United Nations Office of the High Commissioner for Human Rights are no longer included as observers in the appointment process.
Both Fahim Hakim and Sima Samar confirmed to AAN that the idea for the new mechanism had originated with the AIHRC, “We didn’t want the commissioners to be only appointed by one person [the president],” Samar told AAN. “That’s against the Paris Principles.” (Paris Principles are internationally recognised principles for national human rights institutions, adopted in 1993 by the UN General Assembly.) She added that they had consulted Nader Nadery on this, who is the current head of the Independent Administrative Reform and Civil Service Commission and former AIHRC commissioner because they wanted the selection to be transparent and inclusive. (Both of the presidential decrees also clarify that their purpose is to appoint new commissioners based on AIHRC’s law and the contents of the Paris Principles.)
Although the new mechanism has positive elements, it makes the appointment process muddled and long-winded. Article 5 of the decree tasked the AIHRC with drafting the procedures for the CSWG and the Selection Committee and gave authority to the Selection Committee to finalise and approve the procedures. This they did, but many changes to the draft made the process messy. For instance, the Selection Committee tasked the CSWG with interviewing all applicants twice before shortlisting the 81 most qualified applicants. This was not in the draft, prepared by the AIHRC. Interviewing 390 applicants twice took a great deal of time. Then, the Selection Committee also has to interview the 81 applicants who had made it onto the CSWG’s longlist. Even though they had suggested the new mechanism, Dr Samar said, “unfortunately, it turned out to be long and complicated.”
The Selection Committee had reproduced the procedures drawn up for the Selection Committee for the Electoral Commissions (AAN report about selection of commissioners of the electoral bodies), while also adding an additional round of interviews. The Selection Committee for the Electoral Commissions took 32 days to interview 117 applicants in a first round and 72 others in a second round, to eventually shortlist 36 applicants
The first step: the Civil Society Working Group
According to the presidential degree, the CSWG should consist of seven well-known civil society and human rights activists, three of whom should be women. They are elected by the Secretariat of the Civil Society Joint Working Group. On 11 August, these seven members were elected. A few days later they were introduced to the AIHRC as the procedure provides for them to have an office in the AIHRC compound. The members are: Leya Jawad, chairwoman of Feminine Solidarity for Justice Organisation; Sakina Sakhi, chairwoman of the Support Vulnerable Persons Organisation; Nawida Kakar, chairwoman of the Women’s Association; Abdul Wadud Pedram, chairman of the Human Rights and Education about Violence Organisation; Abdul Jabar Paikan, chairman of the Afghanistan Countrywide Teachers Union; Dr Abdul Basir Turyalai, Chairman of the Afghan Amputee Cyclists for Rehabilitation and Recreation and; Hassan Hakimi, chairman of the Afghanistan Youth National Development and Social Organisation. (1)
Shortly after its establishment, on 15 August 2018, the CSWG made a call for applications for the nine commissioner positions. Applicants were asked to complete an application form and also submit a CV and copies of their tazkera and degree. An member of the CSWG, who asked to remain anonymous, told AAN they had 390 applications by the 9 September 2018 deadline.
While there is no official overview of the 390 applicants, the CSWG source informed AAN they included current commissioners Sima Samar, Qadria Yazdanparast and Mawlawi Abdul Rahman Hotak. The others are from different backgrounds, mostly from academia and civil society.
The main job of the CSWG was then to shortlist 81 applicants in a five-step process. This starts with a review of the merits of the applicants according to their decrees and fields of study (2) and is followed by the two interviews. The CSWG source told AAN on 25 September 2018 that the CSWG would start interviews with 162 applicants in the first week of October 2018 and in the second round interview 100. It is unclear when the process will end.
The inclusion of civil society in the selection process should place a responsibility on them to respect the final selection of the president – if he follows the mechanism. This should also make civil society cooperate more with the AIHRC in the future. However, this is only possible if CSWG members work well and professionally. There is some doubt, however, about the CSWG’s interviewing ability or how good they are at assessing applicants’ analytical and linguistic skills, especially given that some of the candidates are more experienced than the interviewers. Two applicants told AAN the CSWG had neither the expertise nor the capacity to assess applicants holding PhDs or those who have many years of professional experience in well-known national or international institutions. Sima Samar and Fahim Hakim shared this same concern with AAN. This uncertainty about the CSWG’s ability could jeopardise the legitimacy of its decisions.
The second step: The Selection Committee
When the CSWG has finalised its longlist, the Selection Committee will draw up a shortlist of 27 candidates to be presented to the president. The Selection Committee consists of Sayed Yusuf Halim, the chief of justice (chair), Muhammad Farid Hamidi, the attorney general, Abdul Basir Anwar, the minister of justice, Dilbar Nazari, the minister of women affairs, and Muhammad Qasim Hashemzai, the chairperson of the Independent Commission for Overseeing the Implementation of the Constitution (ICOIC). Three members of the committee are from the president’s team (the chief of justice, head of the ICOIC and attorney general) and two from the chief executive’s team (the ministers of justice and women’s affairs). Dr Samar told AAN on 13 August 2018 that, although there was no sign of disagreement between the president and the chief executive about the AIHRC, bringing members of Dr Abdullah’s team in providing against any possible disputes about the composition of the AIHRC in the future.
The tasks of the Selection Committee, according to the presidential decree, are: to approve its own and CSWG procedures; review the longlist prepared by the CSWG; interview the 81 applicants; make a shortlist of the 27 most qualified applicants, who must include 12 women and; send the list to the president for the final decision.
Unlike the CSWG procedure, the Selection Committee procedure does not define the method of assessing the applicants. It is also unclear which questions they would ask in the interviews. As with the CSWG, there is no deadline set for when the Selection Committee has to finalise the shortlist.
The final step is for President Ghani to select nine commissioners comprising at least four women and at least five lawyers.
AIHRC is the main state institution mandated with promoting and protecting human rights values in Afghanistan. Setting it up as an independent body was one of the major achievements of the Afghanistan state after the Bonn Conference in 2001. Afghan officials occasionally remind their international partners about AIHRC as their accomplishment, for example, Dr Abdullah in his speech in the 37th Session of the UN Human Rights Council, in February 2018. Protecting this achievement is crucial for the country, which makes the selection of hardworking and committed commissioners essential. It is important that the president no longer alone appoints the commissioners, but that others, including civil society, have an input. However, there are questions about the capacity of the CSWG to properly assess the candidates. Moreover, the new selection process is cumbersome and exceptionally slow-paced. For instance, since its establishment on 15 August 2018, CSWG was only able to start the first round of interviews on 30 September 2018, and it still needs to interview more than 100 applicants, twice. This has to happen before the Selection Committee can carry out their round of interviews and prepare the shortlist for the president to select the final nine candidates.
The working term for the current five remaining – now acting – AIHRC commissioners ended in June 2018 and they have a history of difficult working relations. Yet, it is unlikely that the new commissioners will be appointed before the end of the year. Afghans urgently need a strong human rights commission, but this selection process will not deliver this any time soon.
Edited by: Sari Kouvo and Kate Clark
(1) On 5 August 2018, the Secretariat of the CSWG introduced another team to AIHRC, but due to the presence of only one woman, Leya Jawad, in its composition, the AIHRC rejected it. This team was elected on 3 July 2018 before the approval of the procedure for CSWG, in which the presence of at least three women was mentioned.
(2) During the first review stage, CSWG should review the submitted documents and mark applicants on their level and field of university studies, as well as their professional experience. In the second review stage, CSWG should mark applicants on their professional experience related to human rights, their foreign language (English) skills, their research experience and their age. For instance, applicants are categorised in four groups based on their age: group one is applicants between 25 to 35 years old (40 marks), group two is applicants between 36 to 50 years old (30 marks), group three is applicants between 51 to 60 years old (20 marks) and group four is above 61 years (10 marks). Then CSWG should interview applicants with the highest marks once or twice – the number of applicants to be interviewed is not mentioned in the procedure. The first interview has 20 marks in total and involves general questions about the constitution, AIHRC’s law and applicant’s language skills. The second interview has 100 marks and involves specific questions about human rights, international human rights law and the legal analytical skills of the applicants. In the final stage, CSWG calculate the total marks an applicant received in all four steps according to the following formula: (marks of first step) + (marks of second step*2) + (marks of third step*3) + (marks of fourth step*4). The list of the 81 most qualified applicants – including 36 women – should be released via public media and, at the same time, it should be sent to the Selection Committee.
This article was last updated on 9 Mar 2020