The Consultative Loya Jirga, called by President Ashraf Ghani to decide the fate of 400 Taleban prisoners, and whether they should be released to enable intra-Afghan peace talks, has begun. Ghani has argued that, according to the constitution and the penal code, it was not in his power to release these prisoners and therefore he had to consult the people of Afghanistan. The question is whether a consultative loya jirga can – legally – provide him with that authority. Further confusing matters, speaker of the lower house Mir Rahman Rahmani has said the Consultative Loya Jirga is illegal per se. AAN’s Ehsan Qaane has been unpicking the legalities and the politics behind today’s gathering.President Ghani inaugurating the Consultative Loya Jirga which he called to help him make a decision on the release of 400 Taleban prisoners; he said he did not have the constitutional power to do this. Photo: Presidential Palace Facebook page
In his 29 July 2020 speech on the occasion of Eid al-Adha, President Ghani spoke about the peace process and the 29 February agreement reached between the United States and the Taleban that the Afghan government release up to 5,000 prisoners in return for up to 1000 government prisoners held by the Taleban (an English text version of his speech was uploaded on the presidential website here, while AAN’s analysis of the agreement can be read here. Ghani used the opportunity of this speech to “clarify” his position on the matter and to explain why, according to him, a consultative loya jirga was necessary:
In the list that Taliban provided to the Government of the Islamic Republic of Afghanistan [of the 5000 prisoners they wanted to be released] some 400 prisoners are included in the list that according to the Afghanistan Constitution and the Afghan Penal code, the president of Afghanistan has no authority to issue order on their release. (…) I repeat it. I do not have the authority to release them. I have to consult with the nation and call for a consultative Loya Jirga to be able to make a decision on those 400 prisoners.
According to the agreement, the release was to have taken place by 10 March 2020, which was also to have been the first day of intra-Afghan negotiations. It did not specify that the 5,000 Taleban prisoners would be chosen by the Taleban, or that they would give a ‘list’ of who they wanted which the government would have to comply with.
The Afghan government, which was not a party to the agreement, has since the beginning, held the position that it was under no obligation to honour whatever was promised in the US-Taleban agreement, including the release of Taleban prisoners. In his 29 July speech, Ghani once again highlighted this point:
Even though the government of Afghanistan was not bound by any commitments in the US-Taliban agreement, we released 4600 Taliban prisoners from the list, provided by the group, to set the stage for beginning of peace negotiations.
In his speech, he announced that 500 other Taleban prisoners “outside the list” would be released, bringing the total number to 5,100.
The prisoner swap was the only Taleban precondition for intra-Afghan peace negotiations. Initially, President Ghani had disagreed with this and insisted that a prisoner release could “not be a prerequisite for talks,” but should rather be discussed during the negotiations (see for example here). He has, however, changed his position – under sustained US pressure – even though this meant the loss of an important bargaining chip.
The Taleban are demanding the release of the 400 prisoners left on their list before talks can begin. The author wanted to look at the possible obstacles facing their release. Delving into the law raised a more fundamental question, however, of whether the president has, legally, released the other 5,100 prisoners.
Who can pardon prisoners?
The potential release of these particular 400 prisoners and the holding of a consultative loya jirga aimed apparently at trying to bridge a gap in the authorities of the president, has raised several questions of law.
In his 29 July speech, Ghani did not explain why exactly he was not able to decide on the release of these 400 prisoners himself. Rather, he flagged that it was the constitution and the penal code that did not give him the authority to order their release. His comments suggest that these prisoners were in a different category from the more than 5,000 who have already been released, after receiving the necessary presidential pardon, since March. However, no detailed information on this issue has been released. It is in this respect notable that more than 5,000 prisoners have already been pardoned, without apparent legal difficulty. Three senior members of the Haqqani network (Anas Haqqani, Mali Khan and Hafiz Rashid) were also pardoned and released in exchange for two kidnapped professors from the American University of Kabul in November 2019.
Azadi Radio quoted Masum Stanekzai, who has been appointed head of the commission for holding the Consultative Loya Jirga, as saying that the 400 prisoners “are in four categories; those supposed to be executed, those involved in murdering, kidnaping, drug trafficking as well as financial and moral corruption” and that, contrary to some reports, no foreign prisoners were among them. The four separate categories Stanekzai referred to were not apparent from his words, either in the original Pashto or in the translated English. Moreover, his comments also raised questions about why these particular prisoners were so very different: Surely there had at least been murderers among those already released? Moreover, looking at the law, Stanekzai’s words only seem to be pertinent in one respect: those convicted and sentenced to death, according to the Penal Code, can only have their sentence reduced to a lengthy prison term. Stanekzai’s statement, therefore, gets us little further forward.
Does the president have the power to pardon these prisoners?
According to the constitution (para 18, art 64), the president of Afghanistan alone has the authority to pardon criminals or reduce their sentences. However, pardons have to be applied in accordance with the law. The wording of paragraph 18 makes it clear that only those who have been convicted and sentenced can be pardoned. Those who are still under investigation or are currently being prosecuted cannot be. Moreover, paragraph 1 of article 122 of the constitution, which says, “No Law shall, under any circumstances, exclude any case or area from the jurisdiction of the judicial organ as defined in this chapter and submit it to another authority,” also means the president does not have the authority to intervene in cases that are under investigation, prosecution or trial. There may be individuals on the list provided by the Taleban who fall into this category; there are a significant number of people in extended pre-trial detention, including those in the custody of the National Directorate for Security (NDS), which the president cannot legally pardon.
The condition that the president’s power to pardon is only ever “in accordance with the law” is mentioned in para 18 of article 64 of the constitution. Related to the Taleban prisoners, this makes two laws relevant.
First is the law governing war crimes and crimes against humanity. According to Annex 1 of the amended Criminal Procedure Code, which came into force on 1 October 2018, war crimes and crimes against humanity can never be pardoned; nor can those convicted of them see their sentences reduced. Some of the crimes committed by the Taleban do rise to the level of war crimes and crimes against humanity. (1) However the ban on pardoning these crimes would only apply if the individuals had been convicted under this law. Moreover, according to a source in NDS who spoke to AAN on condition of anonymity, most Taleban prisoners are convicted under a different law, the Law on Crimes against Internal and External Security.
Second is the law covering amnesties. The 2008 General Amnesty and National Reconciliation Law(‘amnesty law’) which provides an amnesty to all former fighters for acts committed during the war between 1978 and 2001, as well as to any fighters since 2001, so long as they agree to reconcile and accept the Afghan constitution and other laws. However, there has been no evidence that the 5000 Taleban prisoners have had to do this as a condition of their release. Those who have been convicted of crimes against internal and external security can also be pardoned, based on the recommendation of the Commission for Strengthening Peace – usually known by its Dari name, Kamisyun-e Tahkim-e Solh. However, it was closed down in 2010.
Also to be stressed here is the spirit of the Afghan legal system, which has sharia as a major source; it does not allow anyone except the actual victim with a claim against an individual criminal to forgive him or her. Even the amnesty law with its very blanket powers admits the ‘right of the individual’ (haq ul-abd) to allow or block pardons. (Read AAN’s earlier analysis about a president power to pardon Taleban prisoners here.)
Also relevant here is that Afghan law forbids taking political prisoners.
Summing up, therefore, it can be assumed that the Taleban prisoners are criminals convicted of crimes under the Criminal Code. Or they were convicted of fighting against the government, which is a crime according to the Law on Crimes against Internal and External Security, which was merged into the Penal Code in 2017. There are legal obstacles to granting pardons for all these crimes. Also, if they are still in the judicial process or have individual victims’ claims against them, there would also be legal obstacles to pardoning them.
Based on the arguments laid out in this section, the president may be right to say there are legal obstacles to releasing the remaining 400 prisoners. However, these obstacles would appear to apply not just to the 400, but to pardoning many of the 5000 Taleban prisoners already released. It is still not clear, therefore, why these 400 are different from the others, or indeed, why many of the releases already made could be considered to have been legally carried out.
Can a consultative loya jirga fill this legal gap?
There is also already another legal problem with the particular form of loya jirga which President Ghani has called. A ‘consultative loya jirga’ does not exist in the Afghan legal system. It is not mentioned in the constitution and has not been enshrined in law. This has been a problem with most of the loya jirgas called in recent years, by both presidents, Hamed Karzai and Ashraf Ghani (see also earlier AAN analysis here: https://www.afghanistan-analysts.org/en/reports/political-landscape/innovative-loya-jirga-ism/ and here: https://www.afghanistan-analysts.org/en/reports/political-landscape/innovative-jirga-ism-2-or-the-rule-of-bending-the-law/). It is impossible to legally define its powers and role – although it is possible to say what a consultative loya jirga is not.
Firstly, it is not the Loya Jirga mentioned in the Constitution as “the highest manifestation of the will of the people of Afghanistan,” which has the power of deciding on issues related to independence, national sovereignty, territorial integrity, supreme national interests; amending the Constitution; and impeaching the president (art 111). The reason for this is that it does not fulfil the constitutional definition of a Loya Jirga. According article 110 of the constitution:
The Loya Jirga consists of: members of the National Assembly [and] Presidents of the provincial as well as district assemblies.
Afghanistan still has no elected district assemblies (also called councils or shuras). During earlier loya jirgas, this shortcoming had been circumvented by a legal shortcut, namely by filling those places from the elected provincial councils.
Secondly, it is not the referendum which is described in article 65 of the constitution:
On important national, political, social as well as economic issues the President can call for a referendum of the people of Afghanistan. The referendum shall not be contrary to the provisions of this Constitution or require its amendment.
In the original Dari, the term, the referendum is described as a “general” (ara-ye umumi mardum) referendum. The official English translation left this word out. It would appear to mean that a referendum based on the constitution must give all eligible citizens the right to participate, not just a number of them, or their representatives. However, this loya jirga as other recent ones has included selected participants only. According to a letter from the Independent Directorate of Local Governance (IDLG) to the provincial governors and councils, only the participants of the 3 May 2019 Consultative Loya Jirga have been invited to attend (AAN obtained a soft copy of the letter). The total number of participants then is 3,200.
Even if the gathering today could be considered a referendum – based on a generous reading of article 65 of the constitution – the constitution makes no mention of calling a referendum on judicial affairs. Releasing Taleban prisoners is a judicial affair.
Thirdly, today’s gathering is also not the parliament and nor does it have the parliament’s legislative authority, as described in articles 81-83 of the constitution, as the highest legislative organ in the country. The parliament could define a legal mechanism which could give the president the power, based on article 64 of the constitution, to pardon prisoners (more on this below).
All this makes clear that the ongoing loya jirga cannot make a legal decision about the release of the Taleban prisoners, nor can it give the president the legal authority to release prisoners. This authority is simply not provided by any law. It appears, rather, that the president, aware of the country’s legal framework, is now seeking advice from the gathering on how to deal with the issue of the prisoner release, rather than it giving a legal ruling or bestowing authority. This raises the question of what can be gained from a loya jirga since the president’s room to manoeuvre seems so very limited, given both US and Taleban pressure for the prisoners to be released as a prerequisite for direct peace talks. Before looking at this, one other issue has come to the fore, the opposition of the parliamentary speaker to the loya jirga.
Parliament rejects the legality of the Consultative Loya Jirga
Meanwhile, condemnation of the jirga has come from the Afghan parliament. Wolesi Jirga speaker Mir Rahman Rahmani, in a meeting with President Ghani on 4 August, said the Consultative Loya Jirga was against Afghan law and stressed the role of parliament as the main constitution-based, legislative institution.
According to the Wolesi Jirga’s media office, Rahmani argued that organising a consultative loya jirga in the presence of the people’s “true representatives” in the two houses of parliament was illegal. As an alternative, Rahmani proposed the president “organise a joint and consultative meeting with members of the Parliament” on the swapping of the 400 Taleban prisoners, the intra-Afghan peace talks and other important national topics. According to the media office’s report, which was posted on Rahmani’s Facebook page, the meeting ended with no agreement. Although the report did not mention whether the members of parliament would attend the loya jirga, it did mention that Ghani had requested a meeting with all members of both houses. No date for the requested meeting was mentioned in the report. (A separate report on the meeting published by the Palace omitted Rahmani’s rejection of the loya jirga.)
What can be done legally over the prisoners?
This report has already outlined the legal problems President Ghani faces in pardoning Taleban prisoners in general. However, there may be solutions to the two specific constitutional obstacles that may be blocking the release of the 400, although neither would be through a consultative loya jirga.
A) First, the president cannot intervene in cases which are not finalised by a final verdict of a court (art 122). This means he cannot release those Taleban who are still in detention centres and whose cases are still under investigation, prosecution or trial.
B) Secondly, the right of the victim (haq ul-abd) who has submitted a claim against an individual accused or convicted of a crime must consent to the release of that individual. The president cannot forgive accused or convicted individuals on behalf of individual plaintiffs without their consent. This right is enshrined in Islamic sharia law, which, based on article 3 of the constitution, the president cannot go against.
As to the potential legal solutions for these two obstacles, the president could request the Supreme Court to accelerate the judicial processes of those particular cases and, after the final verdict, he could pardon those convicted of crimes. The president could also request individual plaintiffs to give their consent for prisoners whom they have claims against to be released.
To use his constitutional power to pardon, President Ghani would need to deploy a law which discusses the mechanism for carrying out pardons. As discussed above, Annex 1 of the Criminal Procedure Law and the amnesty law both talk, to some extent, about such a mechanism. The mechanism defined in the amnesty law is that those who have been convicted due to the commission of crimes against internal and external security can be pardoned on the recommendation of the Commission for Strengthening Peace to the president. As this commission has since been dissolved, there is no other criteria or measure suggested by the law which the president can resort to in order to pardon these kind of criminals. It would, however, be in the power of the president while parliament is in summer recess (based on article 64 of the constitution) to issue a presidential decree to define such a mechanism. He could also request parliament to do this. Parliament itself could also initiate a move to define such a mechanism.
If the Constitutional Loya Jirga does not have any legal powers, why even conduct it?
In his 29 July speech, President Ghani said:
The reason I am doing this is to enable the government of the Islamic Republic of Afghanistan to remove all obstacles to peace.
Based on the US-Taleban peace agreement, the intra-Afghan negotiations were supposed to begin on 10 March 2020 after swapping “up to” 5,000 Taleban prisoners from government jails with “up to” 1,000 members of the national security forces from Taleban captivity. As 5000 Taleban prisoners have not been released, the Taleban have not agreed to start talks with the Afghan government.
President Ghani has said he does not have the legal power to release the remaining Taleban prisoners, and the head of his negotiating team, Masum Stanekzai has repeated this and therefore he called the jirga. Public perception, however, is that Ghani called the jirga for political reasons, with the aim of slowing down the peace process. The impression that this may be the case has been strengthened by the fact that in some of Ghani’s public speeches, he has promised to deal with the peace process prudently and carefully, and not allow himself to be rushed (see for example here).
Some people believe he may be trying to hold out until after the US presidential election, on 3 November 2020, for starting the talks. In this view, President Donald Trump, in his quest for something that he can portray as a successful intra-Afghan peace agreement during his election campaign, may be willing to sacrifice the current Afghan government. By holding up talks, Ghani might be trying, as he sees it, to lengthen the life of his government.
Those who believe that the president is trying to win time may see their view strengthened by the fact that this is the second time Ghani has called a consultative loya jirga, with the same participants, to discuss peace with the Taleban. Moreover, in the last gathering, on 3 May 2019, participants had already advised him to swap prisoners as a confidence building measure (more details about Jirga and its resolution here). Article 13 of the May 2019 jirga resolution (AAN’s translation) said:
All parties involved should treat the captives and prisoners of the other in an Islamic spirit and with good behaviour and take actions, using constructive and flexible methods, [aiming at] the exchange of captives and release of prisoners for the purpose of further building confidence and goodwill between the two parties.
The question raised, therefore, is why the president is going back to the same jirga with the same topic – and with all the legal obstacles still unresolved.
At the same time however, President Ghani is not the only Afghan concerned about the current peace process, particularly as it may impinge on the rights of women, minorities and the victims of war. He may, therefore, have some public backing for what appears to be a delaying tactic.
Edited by Martine van Bijlert, Thomas Ruttig and Kate Clark
(1) The preliminary findings of the Office of the Prosecutor of the International Criminal Court from the Afghanistan conflict since 2003 (read about the ICC-Afghanistan situation here) detail some crimes allegedly committed by individuals within the Taleban which would be considered war crimes or crimes against humanity, according to international and Afghan law. These include the intentional killing of civilians, intentional attacks on protected objects such as hospitals and places of worship.
This article was last updated on 7 Aug 2020
Consultative Loya Jirga