Legal Aid in Afghanistan: Contexts, Challenges and the Future
In this new briefing paper, lawyer and legal aid expert Sarah Han looks at the historical, legal and political context to the provision of legal aid and describes the efforts of the international community over the past five years to developing funding streams for the accused. The author commends the modest but significant improvements in how Afghanistan’s criminal justice system treats the accused, but critiques the top-down approaches that have led to controversy within the legal aid community and raised important and timely questions for donors, NGOs and ministry officials alike.
The growth of legal aid services in criminal cases across the country has been a bright spot in justice reform efforts in Afghanistan over the past ten years. There are now thirty times more defence lawyers than when the Taliban were in government, while 300 lawyers across 34 provinces now provide legal aid, which was almost unheard of ten years ago. This growth, coupled with the 2004 introduction of a constitutional right to legal counsel for the criminally accused and impoverished, made the field of legal aid a prime candidate for foreign-led reform efforts.
Unfortunately, the implemented reforms failed to mesh with systems of legal aid already in place because of a commonly seen top-down approach to aid intervention: On the recommendation of a thinly researched paper, a central body was created to coordinate legal aid activities in Afghanistan. Supported and funded by various international organisations and donors, the Legal Aid Board has managed however to monopolise the decision-making processes about legal aid, cutting out the NGOs that supply the vast majority of legal aid services across the country and causing clashes with officials within the Ministry of Justice.
“Legal aid reforms described in this report provide a prime example of the top-down approach foreign donors have used in Afghanistan. In their zeal to ‘improve’ the delivery of legal aid in Afghanistan, foreign donors and advisors repeatedly used flawed processes that cut out key stakeholders and exacerbated underlying tensions within the legal aid community,” says author Sarah Han.
With the coming downturn in aid resources to Afghanistan, if the modest but genuine gains made by legal aid providers since 2001 are to continue, stakeholders – including donors – must answer fundamental questions about how to make legal aid sustainable both financially and politically.
AAN Briefing Paper
18 April 2012
photo: claire truscott