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|An Investigation of Corruption and Clientelism in Afghanistan Hindering Law Enforcement: With a Specific Case Study in the Afghan |
|National Police |
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|Danny Singh |
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|Dissertation for the Degree of Master of Philosophy |
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University of York
Department of Politics
Post-war Reconstruction and Development Unit (PRDU)
Post-war Recovery Studies
September 2012
Abstract
Afghanistan is debatably the joint most corrupt country in the world. There have been extensive efforts of the international community, aid agencies, foreign governments and international financial institutions to enhance Afghan state institutions and state effectiveness with anti-corruption strategy as corruption is deemed a contributor to increased poverty and a waste of donor aid. Such anti-corruption strategy includes enhancing the role of law enforcement actors such as the police and judges with security sector reform (SSR), the promotion of the rule of law and justice, vetting, pay reform and anti-corruption units.
Despite such efforts, corruption and clientelism still impedes Afghan security, justice and the public sector. This results in cronyism within President Hamid Karzai’s presidential family and close aides, street level corruption and petty bribery due to low wages and bidding for senior positions as governor or a district police chief who then appoint individuals to preserve loyalty and lucrative engagement in the opium industry. The causes of corruption in Afghanistan are analysed. This includes systemic corruption, patronage, nepotism, low wages and state capture infiltrating parts of the state to serve and protect drug trafficking and illegal armed group interests that hinders SSR, the rule of law and justice. There are multiple causes of corruption which lead to anti-corruption strategy and SSR addressing some causes that may address some cause but may unintentionally exacerbate other forms of corruption.
This thesis provides an investigation of pay reform and a critical examination of police anti-corruption strategy in the lower levels of the Afghan police as there is a gap in the literature of primary research conducted with patrolmen. The researcher finds that internal Afghan police anti-corruption strategy includes pay reform which has not hit the lower levels significantly despite an increase in force size. In addition, the lottery assignments and rotation of Afghan police in random away provinces to reduce patronage-based appointments and loyalty with police commanders and warlords has actually increased survival-based corruption, including bribery and extortion, as a means of economic necessity due to many policemen having to live on low wages as the sole breadwinner for large families. Pay reform has the potential to combat petty corruption in the lower ranks but systemic corruption, clientelism and state capture will remain and the lottery assignments need further revision to avoid enhancing survival corruption which is counterproductive to successful anti-corruption strategy.
CONTENTS
Page
Title
Abstract 1
Contents 2
List of Figures/ Tables 5
Acronyms 6 Acknowledgements 12
Declaration 13
Introduction
1. Defining the Research 14
2. Scope of the Study and the Research Question 19
3. Aims and Objectives of the Research 22
4. Thesis Structure: Chapterisation 23
Chapter I: Peacebuilding and Security Sector Reform
1. Introduction 27
2. Peace, Peacebuilding, Statebuilding and Post-Conflict 27
Reconstruction
3. The Liberal Peace Agenda 31
1. Failures Associated with the Liberal Peace 33
4. Security Sector Reform 37
1. Origins of Security Sector Reform 38
2. Narrow and Comprehensive Approaches of SSR 40
3. Professionalizing the Armed Forces 41
4. Promoting Good Governance 44
5. The Role of Civil Society 45
1.5 Pitfalls of Security Sector Reform: What goes wrong? 46
1.5.1 Primary Characterisation of Security Sector Reform 48
1.6 Conclusion 54
Chapter II: Rule of Law and Justice in Post-Conflict Environments
2.1 Introduction 56
2.2 The Rule of Law 57
2.3 United Nations Conceptions of the ‘Rule of Law’ 59
2.4 Post-conflict Justice: Transitional Justice 63
2.4.1 Truth Commissions and Memorialisation Efforts 64
2.4.2 Security Sector Reform 66
2.4.3 Criminal Prosecutions and Reparations 67
2.4.4 Vetting 70
2.4.5 Institutional Reform 72
2.4.6 Gender Justice 74
2.4.7 Local/Informal Justice 75
2.5 Informal Justice Case Studies: 78
South Sudan, Rwanda and Afghanistan
2.5.1 South Sudan 78
2.5.2 Rwanda 81
2.5.3 Afghanistan 84
2.6 Conclusion 85
Chapter III: Afghanistan Conflict Analysis and Security Sector Reform
3.1 Introduction 91
3.2 The 1979-1988 Soviet Invasion: Rise of the Mujahidin 91
3.3 The Battle of the Taliban Regime against the 92
Northern Alliance
3.4 Post 9/11 International Intervention 92
3.5 Conclusion 93
Chapter IV: Problems of Corruption and Clientelism in Post-Conflict and Developing States
4.1 Introduction 95
4.2 Corruption as a Problem for Post-Conflict Development 95
4.2.1 Impacts of Corruption on State Effectiveness 96
4.2.2 Impacts of Corruption on the Rule of Law 98
4.2.3 Impacts of Corruption on Security 100
4.3 Anti-Corruption Strategies to Address the Causes of Corruption 101
4.3.1 International Anti-Corruption Strategies 101
4.4 Security and the Rule of Law as an Anti-Corruption Strategy 105
4.5 Public Administration Reform 107
4.5.1 Civil Service Reform and Meritocracy 109
4.6 Pay Reform 111
4.7 Conclusion 113
Chapter V: Methodology
5.1 Introduction 114
5.2 Qualitative Methodology: A Phenomenological 114
Justification and Challenges
5.3 Field Visit in Kabul and Bamiyan, May-June 2010 116
5.3.1 Elitist Semi-Structured Interviews 117
5.3.2 Focus Groups 124
5.4 Conclusion 126
Chapter VI: Corruption in the Afghan Police and Justice Sector
6.1 Introduction 128
6.2 Analysis of Literature 128
Chapter VII: Holistic Anti-Corruption Strategy for Afghanistan
7.1 Introduction 131
7.2 Planning a Holistic Anti-Corruption Strategy for Afghanistan 131
7.2.1 Counter Narcotics: Alternative Livelihood Programmes 132
7.2.2 The Role of Community Police and Community 134
Development Councils
7.2.3 Role of Civil Society Groups and Whistle-blowing 136
7.2.4 Decentralisation of Public Service to Challenge Corruption 138
7.2.5 Increasing Capacity: A Generational Task 140
7.2.6 The Need for a Comprehensive Case Tracking System 141
7.2.7 Building Accountability from the Bottom-up Process 142
7.3 Holistic Anti-Corruption Strategy for Afghanistan 146
7.4 Conclusion 150
Chapter VIII: Conclusion – Drafting an Anti-Corruption Strategy for Afghanistan
8.1 Introduction 152
8.2 Critique of the Liberal Peace in Afghanistan 152
8.3 Sequencing Anti-Corruption: Identifying the Main Problems 153
8.3.1 Drug Problems Challenging Anti-Corruption Efforts 156
8.4 Recommendations 158
8.5 Answering the Research Question 162
Appendix
Interview Questions for the Field Visit in 165
Kabul and Bamiyan, May-June 2010
Bibliography 169
United Nations Resolutions 316
International Treaties 318
List of Tables and Figures
Table 1 List of Organisations Interviewed in Kabul 122
Figure 1 Recommended Afghanistan Holistic National Anti- 148
Corruption Strategy
Acronyms
ABACO Anti-Bribery and Anti-Corruption Office
ABP Afghan Border Police
ACA Anti-Corruption Agency
ACBAR Agency Coordinating Body for Afghan Relief
ACC Anti-Corruption Commission
ACSFo Afghan Civil Society Forum organisation
ACU Anti-Corruption Unit
ADA Afghan Development Association
AFN Afghanistan Afghani
AGO Attorney General’s Office
AHRO Afghanistan Human Rights Organisation
AIAS American Institute of Afghanistan Studies
AIBA Afghanistan Independent Bar Association
AIHRC Afghanistan Independent Human Rights Commission
AKDN Aga Khan Development Network
ALP Afghan Local Police
AMF Afghan Military Force
ANA Afghan National Army
ANBP Afghan New Beginnings Programme
ANCOP Afghan National Civil Order Police
ANDS Afghanistan National Development Strategy
ANP Afghan National Police
AOAD Accessibility Organisation for Afghan Disabled
AOG Armed Opposition Groups
AREDP Afghanistan Rural Enterprise Development Program
AREU Afghanistan Research and Evaluation Unit
ARoLP Afghanistan Rule of Law Project
ARTF Afghanistan Reconstruction Trust Fund
ASAP Accelerating Sustainable Program
AUP Afghan Uniform Police
AVIPA Afghanistan Vouchers for Increased Production
in Agriculture
AWATT Afghanistan Water, Agriculture and
Technology Transfer
BBC British Broadcasting Corporation
BC British Council
BDS Business Development Services
BICC Bonn International Centre for Conversion
CAO Control and Audit Office
CCNS Collaborative Counter-Narcotics System
CDC Community Development Council
CIA Central Intelligence Agency
CID Criminal Investigation Department
CIVPOL International Civilian Police
CNN Cable News Network
CNPA Counter Narcotics Police of Afghanistan
CoP Chief of Police
CPA Comprehensive Peace Agreement
CPAU Cooperation for Peace and Unity
CPHD Centre for Policy and Human Development
CPIB Corrupt Practices Investigation Bureau
CSIS Center for Strategic and International Studies
CSO Civil Society Organisations
CSTC-A Combined Security Transition
Command - Afghanistan
DCAF Democratic Control of Armed Forces
DDR Disarmament, Demobilisation and Reintegration
DED German Development Service
DFID Department for International Development
DIAG Disbandment of Illegal Armed Groups
DoJ Department of Justice
EFT Electronic Funds Transfer
EU European Union
EUPOL European Union Police Mission in Afghanistan
FBI Federal Bureau of Investigation
FDD Focused District Development
FDI Foreign Direct Investment
F-FDTL Timor-Leste Defence Force
FUNCINPEC National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia
GA General Assembly
GAO Government Accountability Office
GBV Gender-Based Violence
GDP Gross Domestic Product
GIAAC General Independent Administration for
Anti-Corruption
GIRoA Government of the Islamic Republic of Afghanistan
GoNU Government of National Unity
GoSS Government of Southern Sudan
HIG Hizb-i-Ismali
HOOAC High Office of Oversight and Anti-Corruption
HRRAC Human Rights Research and Advocacy Consortium
HRW Human Rights Watch
IAM International Assistance Mission
IARCSC Independent Administrative Reform and Civil Service Commission
ICAC Independent Commission against Corruption
ICG International Crisis Group
ICTJ International Centre for Transitional Justice
ICTR International Criminal Tribunal for Rwanda
IDLO International Development Law Organisation
IDP Internally Displaced Persons
IED Improvised Explosive Device
IHL International Humanitarian Law
IMF International Monetary Fund
INGO International Non-Governmental Organisation
INTERFET International Force in East Timor
IO International Organisation
IRD International Relief and Development
ISAF International Security Assistance Force
ISI Inter-Services Intelligence
IWA Integrity Watch Afghanistan
IWPR Institute for War and Peace Reporting
JICA Japan International Cooperation Agency
JSR Justice Sector Reform
JSSP Justice Sector Support Program
KG Kilogram
LOTFA Law and Order Trust Fund for Afghanistan
MAIL Ministry of Agriculture, Irrigation and Livestock
MCTF Major Crimes Task Force
MoD Ministry of Defence
MoF Ministry of Finance
MoI Ministry of Interior
MoJ Ministry of Justice
MoWA Ministry of Women’s Affairs
MRRD Ministry of Rural Rehabilitation and Development
MT Metric Tonnes
NAPWA National Action Plan for the Women in Afghanistan
NATO North Atlantic Treaty Organisation
NDCS National Drug Control Strategy
NDI National Democratic Institute for International Affairs
NDLEA National Drug Law Enforcement Agency
NDS National Directorate of Security
NGO Non-Governmental Organisation
NIF National Islamic Front
NIR Network for Integrity in Reconstruction
NSP National Solidarity Programme
OECD Organisation for Economic Co-operation
and Development
OEF Operation Enduring Freedom
OHCHR Office of the United Nations High Commissioner for Human Rights
OSD Office of the Secretary of Defence
P&G Pay and Grading
PAR Public Administration Reform
PDPA People’s Democratic Party of Afghanistan
PFM Public Financial Management
PID Police Intelligence Department
PKO Peacekeeping Operation
PNTL National Police of East Timor
PRDU Post-war Reconstruction and Development Unit
PRR Priority Reform and Restructuring
PRSP Poverty Reduction Strategy Papers
PRT Provincial Reconstruction Team
RAWA Revolutionary Association of the Women
of Afghanistan
RoP Roots of Peace
RUF Revolutionary United Front
RUSI Royal United Services Institute for Defence
and Security Studies
SAPS South African Police Service
SC Security Council
SG Secretary-General
SIGAR Special Inspector General for
Afghanistan Reconstruction
SOCA Serious Organised Crime Agency
SSR Security Sector Reform
TRC Truth and Reconciliation Commission
UK United Kingdom
UN United Nations
UN CRC United Nations Convention on the Rights of the Child
UN DESA United Nations Department of Economic and Social Affairs
UNAMA United Nations Assistance Mission in Afghanistan
UNCAC United Nations Convention against Corruption
UNDP United Nations Development Programme
UNEF I First United Nations Emergency Fund
UNMIH United Nations Mission in Haiti
UNMIK United Nations Mission in Kosovo
UNODC United Nations Office on Drugs and Crime
UNTAC United Nations Transitional Authority for Cambodia
UNTAET United Nations Transitional Administration in East Timor
UNTAG United Nations Transition Assistance Group
UNTS United Nations Treaty Series
US United States
USA United States of America
USAID United States Agency for International Development
USD United States Dollar
USIP United States Institute of Peace
YAAR Youth Assembly for Afghan Rehabilitation
Acknowledgments
I would like to thank Dr Nina Caspersen and Professor Alice Hills for the comments and report to improve the thesis. I acknowledge the dedication of my supervisor Dr Rob Aitken for guidance and reviews of the thesis. In particular, I thank Dr Aitken for his final reviews of the thesis concerning the report provided by Dr Caspersen and Professor Hills prior to resubmission. In addition, I thank my back-up supervisor, Professor Paul Gready, for assistance and valuable feedback concerning this thesis.
Moreover, I would like to thank Professor Alpaslan Özerdem, my former supervisor, for conjuring such an interesting research topic. I thank Professor Sultan Barakat for pastoral support during challenging times and for establishing the highly reputable Post-war Reconstruction and Development Unit (PRDU). Special thanks go to Dr David Connolly for establishing my first contacts for my field research visit to Kabul, Afghanistan.
Furthermore, I have been appointed Teaching Fellow for the exciting Master of Science in International Humanitarian Affairs and would like to thank Professor Matthew Festenstein, Dr Connolly and the PRDU’s invaluable support.
Declaration
I declare that this thesis is entirely my own work. It is submitted for the degree of Master of Philosophy at the University of York and has not been submitted for a degree or examination at any other university. Literature has been given within this research which has been referenced in the bibliography.
Danny Singh
September 2012
Introduction
0.1 Defining the Research
Peacekeeping during the Cold-War focussed on negative peace which aims to bring about an immediate cessation of hostilities with a peace agreement signed by warring states’ governments and factions without building long-term peace (Blagescu, 2004: 222; Tsagourias, 2006: 465). This has changed to statebuilding – the rebuilding of a state that starts with electoral and democratic processes. Peacekeeping has become commonly known as peacebuilding when adopting principles of positive peace, methods to build sustainable peace, that focus more on statebuilding via speedy democratisation processes which are externally driven as evident in Bosnia-Herzegovina, Kosovo and Afghanistan (Bastian and Luckham, 2003: 314; Bryden, 2005: 255). This has led to the prescription of the liberal peace in post-cold war peacebuilding operations (Paris, 2004).
The liberal peace doctrine in international politics promotes the threefold process of democratisation, economic liberalisation (marketisation) and pacification as mechanisms of peacebuilding (Kurtenbach, 2007: 7). The assumption is that these three objectives will positively reconcile and thus will promote sustainable development. Hence, the targeted state in war will achieve a democracy to prevent future strife and promote a liberal market system to provide economic opportunities for the nation to flourish (Wilson, 1968; Mac Ginty, 2007). The liberal peace is promoted by international peacebuilding and reconstruction interventions that reflect the norms and aspirations of Western liberal philosophy which have seen worldwide dynamism (Boutros-Ghali, 1992: 5). Therefore, the resources and capital that the liberal peace provides is great which is why many states willingly allow international sponsored programmes to initiate the liberal peace and organisations become involved (Mac Ginty, 2007: 458). This leads to externally-led interventions, even during the reform of security and judicial institutions.
In contemporary peacebuilding programmes, security sector reform (SSR) and justice sector reform (JSR) are two, usually dirigiste externally driven interventions, to rebuild a war-torn state’s security and judicial institutions. SSR has been initiated by development donors, international organisations (IOs) and other consultants in the late 1990s as a policy framework to reform the security sector in states that have undergone armed conflict to bring about competent security (Debiel, 2002: 9; Hänggi, 2004: 1). SSR endeavours to professionalize the state police and armed forces with efficient forces that undergo human rights, anti-corruption and ethics training in order to reduce corruption and oppression and install a security sector that does not actually endanger citizens (Hutton, 2009: 5; European Scrutiny Committee, 2010: 145). Strategies within SSR, in basic terms, include disbanding armed militia, disarmament, demobilisation, and reintegration (DDR) of ex-combatants, and promoting good governance with civilian oversight as part of minimising resource use (Brzoska, 2000: 9; Hänggi, 2003: 17-18).
Throughout the reform, democratic transparency and accountability are endorsed to protect the state and the communities within it (Bryden and Hänggi, 2005: 38; Organisation for Economic Co-operation and Development (OECD), 2005: 83). A holistic approach of SSR integrates all partial reforms to the defence, police, intelligence and justice reforms collectively (Bryden and Caparini, 2007: 3). Moreover, SSR is committed to longer-term positive peace objectives such as working towards a stable democracy, protection of human security, promotion of human rights and accountability and transparency under democratic control (Brzoska, 2003: 16).
In terms of JSR, it is a broad conception and includes the rule of law, justice and transitional justice. The rule of law in basic terms consists of rules that are according to law(s) where no one can be sentenced or sanctioned certain punishments without codified laws and criminal procedures (Massaro, 1989). Laws forbid certain acts and if these acts are committed, then the perpetrator can be prosecuted due to the fact that the law justifies such punishment (Radin, 1989; van Schaack, 2008: 119, 172). In compliance with the democratisation process, the rule of law is protected in a national constitution with an acting independent judiciary which aims to guarantee egalitarian rights and protection to ensure that the government and all its branches do not abuse their powers to rig judicial decisions and maintain immunity (Fallon, 1997; Prillaman, 2000: 1; Broomhall, 2003: 1). The rule of law is therefore a means to protect individuals’ equal rights and ensure that any punishment or wrongdoing is clearly supported by well-established laws. In addition, any proceedings should involve an independent judiciary and impartial tribunals that are free from any higher or third party political manipulation.
According to universal norms and standards, the rule of law refers to the full accountability of government and state institutions within international human rights standards, international humanitarian law (IHL) and maintaining the supremacy of law (Report of the Secretary-General, 2004: para. 6). IHL and international human rights must be reaffirmed by all including IO mandates. External security forces must not be immune from prosecution and formal mechanisms of human rights commissions and ombudsmen must be established at early SSR stages (Vite, 2005: 203-204).
Linked to the rule of law is transitional justice. This includes the promotion of criminal prosecutions, truth commissions, reconciliation, reparations programmes, gender justice, indigenous justice, institutional reform and vetting (Report of the Secretary-General, 2006; International Centre for Transitional Justice, 2008). In relation to transitional justice, JSR advocates good governance and very importantly, monitoring, checks and balances in vetting processes over security and judicial personnel (International Human Rights Network, 2010). Truth-seeking and the reform and capacity-building of local justice institutions are also included so that they can learn and exercise basic human rights.
JSR incorporates the reform of the entire justice sector and both the rule of law and transitional justice and is therefore a broad area. The reform of the entire judicial sector covers the actors (law, enforcement, judicial and correctional), rebuilding physical infrastructure (courts, legal libraries and improving prison conditions), supporting legal and judicial training and civil society organisations (CSOs) that advocate justice, monitor human rights and provide legal assistance (Piron, 2005). Hence, JSR promotes human rights, legal, judicial and penal reforms. However, for the purpose of the research on Afghanistan, JSR concerns the reform of the entire justice sector. This includes rehabilitation of judicial infrastructure, training legal professionals, the promotion of the rule of law, compliance with basic international human rights standards, criminal prosecutions and accountability, institutional reform, vetting, indigenous justice and gender justice.
Both SSR and JSR have been injected into Afghanistan’s five-pillared strategy endorsed by the April 2002 Geneva Process with each pillar headed by a different international donor (Sedra, 2008b: 194). This is the main reason why Afghanistan has been selected as the case study due to its contemporary simultaneous security and justice reform strategy. If positive peace is advocated then SSR with the rule of law, more broadly JSR, must commence concurrently for a sustainable peace (Hänggi, 2005: 4). Yet, in the context of Afghanistan, corruption – bribery and extortion, is a main hindrance to the reform of both the security and judicial sectors (Deonandan, 2006: 3; United Nations Office on Drugs and Crime (UNODC), 2007: 8; World Bank, 2009: 1-2).
With both SSR and JSR, there are three notable pitfalls that are frequently addressed in the thesis insofar that both are: i) focussed on protecting ‘physical security’, ii) externally driven and iii) compartmentalised. In terms of the first pitfall, many SSR programmes focus on professionalizing the armed forces and training the security forces in order to protect ‘physical security’. This in turn leads to excessive military expenditure and lowers resources to develop other programmes or reform (Sedra, 2006a). After 9/11, SSR has been dominated by counter-terrorism tactics that aim to boost national security strategies and thus spend more effort and financial and human capital to equip and train the security forces as opposed to holding them accountable and bringing them under a democratically controlled government (Matheson, 2001: 78; Law, 2006: 121; Karp and Ponzio, 2007: 223). This in turn has failed to bring about effective judicial reform and promote a rule of law that is respected by the local population. For instance, the United Nations Interim Administration Mission in Kosovo Pillars I-IV has been driven by international actors and was initially resisted by Kosovo-Albanians for many years.
In relation to the second pitfall, internationally-sponsored programmes in East Timor and Afghanistan are undertaken externally and national actors vaguely participate which makes the statebuilding efforts of SSR counterproductive (Bryden, 2005: 255). The involvement of local actors is required as justice and the rule of law are significant in statebuilding which was non-existent in the contexts of Kosovo and East Timor (Chesterman, 2005b: 169; Stromseth et al, 2006: 95). Under the mandate of Security Council (SC) Resolutions 1244 and 1272 (1999), the UN Special Representative of the Secretary-General was provided extraordinary authority to enact laws concerning the legal constitutions in Kosovo and East Timor retrospectively (Wilde, 2004; O’Connor and Rausch, 2006). The role of external actors is to help post-war interim states, not take over the entire structure of institutions (Schnabel, 2002: 23). Local ownership must be provided at the outset of institutional reform to allow citizens some decree over their institutions once international forces leave (Hanlon and Yanacopulos, 2006), leading to full ownership of the state before democratisation and marketisation (Ebo, 2007: 158).
In terms of the third pitfall, within the reform of the security and justice sectors in Afghanistan, an internationally-led compartmentalised five pillared system, with each pillar headed by a separate nation having different interests was installed in April 2002 (Bhatia and Sedra, 2008; Sherman, 2008: 319). SSR in Afghanistan initially consisted of the United States (US) over military reform, Germany heading police reform, the United Kingdom (UK) leading counter-narcotics, Italy overseeing judicial reform and Japan heading DDR (Goodson, 2006: 149). However, the reform of the security sector in the context of the national army and police are prioritised over the poorly funded justice sector (OECD, 2008: 64). By way of illustration, between the 2002-03 and 2004-05 fiscal years, a staggering 88 per cent of all security funding was for military and police reform programmes. Yet, only three per cent of all funding was spent on judicial reform due to ‘soft security’ elements during the same period (World Bank, 2005a: 43). Consequently, the justice sector lags behind and the rule of law is inadequate due to the fact that the lawyers, judges and other legal staff have little legal qualifications; the courts and legal libraries have poor facilities and weak infrastructure (Hodes and Sedra, 2007: 83). This in turn has left Afghanistan with unaccountable security and justice sectors that have failed to combat corruption (Ghufran, 2007). SSR cannot individually contribute effectively to the peacebuilding process without resources, training and funding allocation in the justice sector.
There is a gap in the knowledge in the establishment of the rule of law and justice in relation to SSR which needs to be addressed (Hänggi, 2005: 4). The assumption is that SSR would contribute to the peacebuilding process effectively only when it is accompanied by the rule of law and a functioning justice system. Hence, to achieve successful peacebuilding, it is imperative to link the rule of law and justice with SSR.
0.2 Scope of the Study and the Research Question
This research project initially had the intention to conjure and test an analytical framework in the context of reforming both security and justice sector reforms concurrently, with Afghanistan being the case study. However, after further insight and the field visit, this framework actually discovered that the main priority, as a starting point, to bring about successful security and justice sector reforms is to reduce two significant variables: i) corruption and ii) clientelism. The Corruption Perception Index based on perceived levels of public sector corruption in 183 countries/territories ranked Afghanistan 180/182, the joint second most corrupt country in the world alongside Myanmar scoring 1.5 with only North Korea and Somalia scoring lower at 1.0 (Transparency International, 2011: 2). One solution is to increase the salaries of predominantly the police and judges to significantly lessen corruption due to the fact that these iniquities persist due to the lack of economic security (Peacekeeping and Stability Operations Institute, 2011: 27).
Another separate issue emphasised that is linked to corruption is clientelism. This involves bidding for lucrative police and government posts resulting in kickbacks such as extorting bribes to earn enough money to pay for their position (Checchia, 2012a: 40). Thus, the highest bidder is recruited which hinders meritocratic selection processes (United States Agency for International Development, 2009: 8). It is also hard for senior officials or police chiefs to deny familial, tribal (qawm) or communal priority for appointments as this is an obligation under a moral economy (Evans et al, 2004: 99; Tribal Analysis Centre, 2008). The researcher thinks it is fair that both of these variables be investigated in terms of reforming Afghan security and justice sectors to represent the perspectives of those interviewed in the field.
Pay reform is an anti-corruption strategy proposed in the theoretical literature. The research question of the thesis is:
Would corruption and clientelism be significantly reduced if the Afghan security forces and judges are paid more?
Hence, the theoretical propositions set in the thesis is based on whether an increase in pay would actually reduce corruption and reflect on evidence, with the aid of other cases, where an increase in state salaries reduced both corruption and clientelism. The thesis will test two conceptions related to the research question;
1. Corruption is related to the lack of economic provision/necessity
2. Improving pay has the effect of reducing corruption.
The majority of the 70 interviewees in the field visit, mainly elites and some students, and the existing literature state that the Afghan police and judges are low paid which notably results in corrupt practices such as bribery and extortion. However, due to limitations of time, the thesis mainly investigates the Afghan National Police (ANP). The ANP as an institution was studied to investigate whether lowly paid policemen, particularly patrolmen, felt that their salaries were not enough to cater for living expenses and whether they felt that an increase in pay would reduce corruption. The Ministry of Justice (MoJ) as an institution was not studied to investigate the same above with judges due to the lack of contacts and access within the MoJ. It must be noted however that the researcher faced dangerous security conditions which made it extremely difficult for contacts and sustained fieldwork. During data collected the researcher faced challenges; namely, security threats in the Interior Ministry, Kabul.
There have been many attempts at anti-corruption strategies endorsed in Afghanistan ranging from the anti-corruption roadmap: the Afghanistan Compact and the Afghanistan National Development Strategy (ANDS) (Byrd, 2008: 127) and the 2010 Kabul Conference. These indicate the main problems of corruption and the need for more punitive actions to be undertaken when dealing with corruption. The main strategies for curbing corruption are based on raising awareness and mainstreaming anti-corruption strategy in the government. In addition, enhancing leadership and legal enforcement to implement the United Nations Convention against Corruption (UNCAC) with oversight provided by the High Office of Oversight and Anti-Corruption (HOOAC) is acknowledged (ANDS, 2008: 14, 73).
Moreover, Public Administration Reform (PAR) has been undertaken in the civil service which has trickled down to all the ministries, including the Ministry of Interior (MoI) which led to a new pay and rank reform to downsize senior positions and raise pay scales for lower police (Wilder, 2007). PAR is defined as a strategy to downsize and restructure the civil service and government staff to promote a more productive, competent and efficient government sector (United Nations Department of Economic and Social Affairs, 2006: 10). PAR is an anti-corruption strategy insofar that oversight is provided by an independent body ensuring that meritocratic appointments are initiated, have a clear focus on roles to avoid overlapping of duties, reduce corruption and enhance the private sector (Wescott, 2004). Priority Reform and Restructuring involves the planning and implementation of pay and grading (P&G) raising salary scales based with retraining and reskilling programmes to downsize excess staff and manage additional civil servants (Lister, 2006: 7).
Yet, all of these anti-corruption efforts have been futile in practice when analysing grand corruption and drug infiltration in the government and petty corruption and bribery in both the ANP and judges (Integrity Watch Afghanistan (IWA), 2010). When analysing Afghan security and justice sectors, what recommendations can be made for policy-makers to take into account to successfully curb corruption and clientelism over time?
0.3 Aims and Objectives of the Research
The research aims to define SSR and then address its pitfalls; notably that SSR is: security centred, which focuses on physical security and over-funding on professionalisation of the security forces. SSR is also externally driven, with limited roles for national actors throughout the process and compartmentalised which splits separate agendas and changes to suit international nations’ requirements. This has led to more focus on reforming and training the security forces and less spending in the judicial sector which has lagged behind – leading to systemic corruption and clientelism in Afghanistan’s security and justice institutions. The thesis will answer the research question to assess whether an increase in pay will significantly reduce corruption and clientelism in Afghan security forces and judges. Five objectives will take progressive steps in line with the chapterisation to fulfil the initial aim, addressing the three pitfalls of SSR and more important, whether increasing pay will significantly reduce corruption.
1. To address the assumption that SSR is security centred, externally driven and compartmentalised that are counterproductive for the establishment of both security and justice sectors. This has led to low funding in the Afghan justice sector which has failed, alongside anti-corruption agencies and criminal investigation units, to combat corruption and clientelism.
2. To analyse anti-corruption strategies attempted in Afghanistan ranging from civil service reform, PAR and pay and rank reform which are contained in the Afghanistan Compact and the ANDS. In particular, pay and rank reform in the MoI/ANP from 2006 will be analysed to evaluate whether the aim to reduce senior positions and increase the pay at the lower levels has the potential to reduce corruption, namely survival based corruption, in the police institution.
3. To assess whether raising pay in the Afghan security forces and judges, with the concrete case of the ANP, may effectively reduce corruption and clientelism. Raising pay is a good starting point to reduce both of these significant variables but a more holistic approach is needed to deal with all of the three causes of corruption. This is to include raising awareness, prevention, detection and prosecution and sanctions, which other domestic and international anti-corruption strategies incorporated, and a collaborative counter-narcotics strategy.
4. To analyse other anti-corruption strategies and recommendations based on the interviewees and existing literature to improve both Afghan security and justice sectors, including improving vetting and transparency and enhancing the capacity of the HOOAC and other criminal investigative bodies to conduct investigations that are free from political interference.
5. To conclude with new holistic anti-corruption recommendations to the ways of combating corruption and clientelism in Afghanistan’s security and justice sectors in order to improve the integration of SSR with the rule of law and justice as a starting point to benefit sustainable peacebuilding.
0.4 Thesis Structure: Chapterisation
The thesis analyses anti-corruption strategy in Afghanistan with existing literature of the ANP in relation to corruption and clientelism. The first four chapters provide the problem setting on reforming security and justice sectors in post-war environments, problems of corruption in Afghanistan and a comparative analysis of anti-corruption strategies including PAR and pay reform.
The first chapter will initially focus on the taxonomy of peace: from negative to positive which led to statebuilding and peacebuilding objectives driven by the international community which prescribed the liberal peace doctrine. A discussion of the goals of the liberal peace and how the doctrine has reshaped peacebuilding missions in terms of speedy democratisation and marketisation programmes will be provided followed by a critique. The penultimate part of the first chapter will examine the dynamics of SSR and its main methods of utilisation followed by the pitfalls – i) focus on ‘physical’ security, ii) externally driven and iii) compartmentalised. This leads to the problem setting in contemporary SSR practices and thus concludes that the rule of law and justice need to be linked with SSR prior to liberal peace objectives being installed too soon which has many repercussions such as weak and corrupt institutions.
Subsequently, the rule of law and justice will be discussed alongside transitional justice as the main elements of JSR. First, there will be a theoretical discussion on the rule of law and United Nations interpretation and application of the rule of law. Second, the elements of transitional justice will be examined which includes the role of criminal prosecutions, truth commissions, reparations programmes, gender justice, institutional reform, vetting and community dispute resolutions. Third, southern Sudan, Rwanda and Afghanistan cases relating to local justice will be examined. These will be observed due to the fact that in these cases, the majority of citizens reside in rural areas and have better access to informal community dispute resolutions which is chaired by a trusted elder, is easy to understand, promotes reconciliation, is fast and inexpensive (Clark, 2004; Wardak, 2005: 62; Mennen, 2010: 14-15). The chapter will end with the argument that understanding systems of informal and traditional justice is very important in the study of transitional justice and more broadly, JSR.
Chapter III examines several phases of conflict for 23 years from the April 1978 Saur Revolution, the December 1979 Soviet invasion that was resisted from internationally aided Mujahidin factions fighting through their civil war to control the capital (1992-1996) and the brutal Taliban extremism (September 1996-December 2001) (Ray and Schaap, 2003: 101; Byrd, 2005). An examination of 9/11 is provided concerning the US and supporting coalition governments installing the Bonn Agreement that formed an alliance with former Mujahidin Tajik anti-Taliban leaders, the Northern Alliance, to overthrow the Taliban and leading the democratic regime with President Hamid Karzai from December 2001. The last sections provide a critical evaluation of SSR which has not truly enhanced security and the rule of law.
Chapter IV specifies the predominant problems of corruption and clientelism in the government, public, security and judicial institutions of developing and post-conflict countries. This identifies administrative corruption as a form of ‘individual deviancy’ – the abuse of public office for private gain which involves bribery and the embezzlement of funds which hinders state effectiveness and impacts on the poor (World Bank, 1999; Green and Ward, 2004: 11; Martinez-Vasquez, 2007: 50). Subsequently, the chapter provides the analysis of international anti-corruption strategies and six comparative case studies under similar scenarios – strong political will, narco-states infiltrated from powerful drug cartels perverting the judiciary, the rule of law and security followed by PAR, civil service reform and meritocracy and also pay reform as strategies to curb corruption. A roadmap of the main facets of anti-corruption strategy is based on these four areas:
➢ Raising awareness – to promote training, education and publish strategies at the ministerial, international and non-governmental and public levels;
➢ Prevention – PAR raising salaries of the civil service, police and judiciary;
➢ Prosecution and Sanctions – Deterrent custodial sentencing using laws, including anti-drug and anti-corruption laws;
➢ Detection – Independent oversight bodies: anti-corruption agency, and judiciary with investigative powers that are free from political manipulation or criminal infiltration which incorporate UNCAC.
The methodology provides information of the field visit conducted and security challenges faced by the researcher. Initially, the rationale for adopting qualitative methods is addressed. This is followed by details of the field visit in Kabul and momentarily Bamiyan, May-June 2010, advocating both semi-structured interviews and focus groups and security, logistics and access causing challenges which led to the adoption of a snowball sampling network to establish proceeding contacts at the end of interviews. Subsequently, the data of the field visit is analysed that generates both of the propositions to answer the study question. The 70 interviews were mainly conducted during the visit which consisted of mainly elites to find the core of the problem in relation to reforming both security and justice sectors – namely, corruption and clientelism, to conjure a narrower focus to the study, pay reform as an anti-corruption strategy in the MoI.
Chapter VI evaluates the literature in relation to the practices of corruption and clientelism in accordance to the Afghan police and judges.
Chapter VII addresses additional strategies other than pay reform that can be considered to fight corruption and benefit the reforms of both Afghan security and justice sectors. Then, an anti-corruption strategy to combat corruption and clientelism within both Afghan security and justice sectors in a narco-state is provided which is based on five principles: raising awareness, prevention, detection and prosecution and sanctions alongside a collaborative counter-narcotics system.
The conclusion chapter, Chapter VIII, provides a holistic anti-corruption strategy for Afghanistan to reduce corruption over time and answers the research question. The conclusion begins with the critique of statebuilding, the liberal peace and manipulation of the just war theory in Afghanistan which has reshaped Cold-War security due to the aftermath of 9/11 focussing on protecting international actors’ national interests, namely physical security. This reiterates the main three pitfalls, as addressed in this introduction. In relation to the three pitfalls, Afghans prefer community-based dispute resolutions due to high perceived corruption in the formal sector (IWA, 2010)[1] and low international funding of the judicial sector in comparison to SSR’s cousins, military and police reform (Sedra, 2011: 235), thus hampering JSR. The next part covers the predominant problems of PAR, widespread patron-client relations and clientelism, low pay and state capture.
The last section answers the research question and responds to both propositions. In response to the research question and both propositions, pay reform and PAR have the potential to combat survival-based corruption and should be included in a holistic anti-corruption strategy. However, it is debatable whether salaries after pay reform are sufficient for low-ranked public sector employees, the police and judges to pay their rent and feed their families. Raising pay depends on the understanding of corruption. Raising pay for senior staff does not eliminate the problem so this is not the most effective component of anti-corruption strategy because at the top level, individuals purchase their appointments for US$200,000 due to lucrative potential of earning $400,000 per annum from corruption (Checchia, 2012a: 40). If individuals who have bought their positions have their salaries raised to US$2,000 per month, then they will still need to supplement the money they owe by corrupt means.
Chapter I: Peacebuilding and Security Sector Reform
1.1 Introduction
This chapter examines the concept of security sector reform (SSR) as a peacebuilding component by investigating what peace is and evaluates the utilisation of SSR in practice. The chapter argues that the liberal peace doctrine dictates many SSR programmes which in turn lead to many failures. In rhetoric, SSR seems a viable peacebuilding concept, but in reality there are many problems; namely, the focus on physical security, externally driven mandates and compartmentalised reforms leaving little focus on judicial reform. The purpose of this chapter is to address these problems and is divided into four sections. The first two sections provide theoretical discussions of peace, from ‘negative’ to ‘positive’, peacebuilding and post-conflict reconstruction and the significance of the liberal peace doctrine on peacebuilding programmes. Subsequently, the content of the mechanisms of SSR, with particular attention paid to the holistic vision is discussed. The chapter will end drawing on the failures of recent SSR strategies and conclude that the rule of law and justice needs to be integrated with SSR programmes in order to contribute to sustainable peacebuilding effectively. A strong rule of law with an efficient justice system will help to reduce corruption – which is a major barrier to both SSR and justice sector reform (JSR).
1.2 Peace, Peacebuilding, Statebuilding and Post-Conflict Reconstruction
After the failure of the League of Nations, the United Nations (UN) took over as the world organisation to preserve international peace and security (Lesaffer, 2004: 411). In the preamble of the UN Charter, peace refers to the promotion of global equality and human rights, tackling social injustices and dealing with intra and inter-state strife (Charter of the United Nations, 1945). Since then, UN conceptions of peace have altered from Cold War peacekeeping operations (PKOs) that advocated ‘negative’ peace to the post Cold War era of promoting ‘positive’ peace (Grewal, 2003: 1-7).
In much political discourse, the word peace has had no set definition and is difficult to conceptualise (Morrisey, 1996). At face value, the ideas of peace are to achieve a world that is peaceful, in social and psychological harmony, or at least be violent free (Kant, 1795: 107). Galtung (1964) clarified the philosophy of peace when studied with violence which included indirect or structural violence. His work on structural violence aimed to work towards positive peace, as well as negative peace, and defined violence as acts that are present when human beings are influenced insofar that their own mental and somatic ‘realisations are below their potential realisation’ (Galtung, 1969: 168). This expanded definition of violence also extends the definition of peace, as peace is not merely the absence of direct violence, but also the absence of structural violence (Brahimi Report, 2000: 10-13). It is argued that as both personal and direct violence are part of the social structure, it is better to focus on structural violence which reveals the root of the cause-effects of violence and thus enhances better conditions for peace (Preti, 2002: 100-101). Structural violence includes violence that is structured from a society such as racism or sexism, and other indirect violence such as poverty, apartheid, hunger and other social injustices, rather than personal direct violence carried out by actors engaged in assault, rioting and/or terrorism (Gorsevski, 2004: 58).
This covers two doctrines of peace that are proposed as separate aspects, where one may exist without the other. Negative peace is evident in a world dominated by a superpower or international organisation (IO) that are equipped with the ability to implement the use of force merely to bring about a cessation of hostilities; yet can be used to bring about positive peace, such as integrating post-war societies under codified laws (Galtung, 1964). Negative peace, which is the means to bring an immediate end to conflict for the short-term, was the dominant conceptual framework of peace used throughout the Cold War period by the UN (Doyle and Sambanis, 2006: 335-337). For instance, in the First UN Emergency Fund (UNEF I) (1956-1967), the UN operated as a buffer zone between the warring Israelis and Egyptians on the Gaza Strip, disarming their forces, de-mining and upholding peace agreements in order to bring about a cessation of hostilities (Verrier, 1981: 14). Peace policies that have been incorporated into the international community in this tradition consist of multilateralism, international conventions such as the Four Geneva Conventions (1949) and arms control (proliferation treaties) (Abi-Saab, 1997: 120-121).
Moreover, a state in conflict with other nations has supportive and collaborative relationships that form a political peace agreement ‘for the resolution of conflict’ (Boutros-Ghali, 1992: 20). This can include the complete disarmament of militiamen in order to achieve both dimensions of peace simultaneously; bringing about a cessation of hostilities by disarming warring factions (negative peace) and incorporating a programme that will sustain peace in the future (positive peace) (Galtung, 1964).
Peacebuilding aims to build peace beyond a quick cessation of hostilities. This includes the reintegration of former combatants into society, training the local police, human rights monitoring and penal and judicial reform to strengthen the rule of law (Cutillo, 2007: 24). In addition, it involves democratic development that is supported by electoral and technical assistance; free media and the promotion of conflict reconciliation – statebuilding (Brahimi Report, 2000: 13). Boutros-Ghali (1992, 1995) intensified the optimistic UN approaches of statebuilding. In brief terms, statebuilding concerns the attempt of external actors to build or rebuild the institutions of a post-conflict or failing state to enhance security, legitimacy and economic, social and political development (Organisation for Economic Co-operation and Development (OECD), 2011a: 43). The external intervention that becomes involved normally involves a UN PKO to prevent the collapse of the states’ institutions and reform all administrations so the state can stand alone once the intervention ceases (Chesterman, 2005a: 4; Crane, 2010: 110).
The UN incorporated statebuilding in their operations. Precedents can be found in the 1989 UN Transition Assistance Group (UNTAG) in Namibia and the 1993 UN Transitional Authority for Cambodia (UNTAC), where supervised free and fair elections provided citizens with the opportunity to elect their new governments democratically (Franck, 1998: 276; Scheffer, 1998: 155; Chesterman, 2007: 5). UNTAC incorporated the success of UNTAG which was prescribed throughout UN missions during the 1990s to focus on rebuilding a state into a stable democracy (Stahn, 2008: 271). Late 1995, the UN Mission in Bosnia-Herzegovina was established for policing as indicated under the Dayton Agreement Act (Bailey and Daws, 1998: 507-508; Katayanagi 2002: 259-260). In January 1996, the UN Transitional Authority in Eastern Slavonia was created to temporarily provide transitional civil governance over this province of Croatia (Caplan, 2005: 18-19). In 1999, the Security Council (SC) authorised internationally-led interim administrative governance in both Kosovo and East Timor respectively (Strohmeyer, 2001: 46-47). In short, the longer-term prevention of conflict, statebuilding, focuses on building a solid state to achieve sustainable peace (Brahimi Report, 2000: 10).
Peacebuilding, which includes statebuilding, is inextricably linked with post-war reconstruction. Post-conflict reconstruction is defined by the World Bank as the focus on rebuilding socioeconomic frameworks of war-torn societies such as governance and the rule of law and reconstructing conditions to cater for a functional ‘peacetime society’ (World Bank, 1998). After the outbreak of war, there is usually an ‘incompetent or non-existent’ legitimate monopoly of force in many weak and failed states (Wulf, 2006a: 87). In post-war societies, the creation of a democratically controlled legitimate public security sector is a fundamental proviso for pacification and to promote legal-based regulations of conflict (Kurtenbach, 2007: 9). This includes disarmament, disbandment of the armed forces and reintegration programmes for former combatants and an analysis of the different forms of violence (Brzoska, 2000: 10). Hence, post-conflict reconstruction involves providing and enhancing economic and social well-being and the rule of law governance alongside other aspects of justice and reconciliation and most centrally, security (Hamre and Sullivan, 2002: 89).
It can be contended that peacebuilding and post-conflict reconstruction includes long-term development components of reforming both the security and justice sectors (Smith-Höhn, 2010: 17). SSR focuses on the professionalisation of the security forces: national army and state police and judicial reform include the training of legal professionals and accountability of all security forces (Tondini, 2008: 242). In addition, peacebuilding includes the rule of law and justice and the installation of peace accords[2] (Lambourne, 2006: 271). The democracy process relies on civil conflict regulation which includes the rule of law that sanctions deviant behaviours (Kurtenbach, 2007: 19). The functions of the rule of law and the judiciary are at the central point to establish trust of the post-war society (Abdullo, 2001). An independent judicial system is to deal with previous atrocities and guarantee basic human rights (Plunkett, 2005).
Despite efforts of reforming both the security and justice sectors, problems such as focusing on the security forces protecting ‘physical security’ and low funding on JSR are prevalent (Sedra, 2006a). Furthermore, legacies of conflict challenge developmental processes in states that are emerging from violence (Collier, 2003: x). Deficits in material, financial and human resources and weak physical and institutional infrastructure are all common features of post-war societies (Barakat, 2005: 10). The result of this and most ubiquitous factor that impinges on peacebuilding is when post-conflict reconstruction programmes are dictated by the ‘liberal peace’ doctrine (Durch and Berkman, 2006: 8; Begby and Burgess, 2009: 92).
1.3 The Liberal Peace Agenda
After the Second World War, US foreign policy adopted ideas previously initiated by Woodrow Wilson to promote a doctrine to avoid another world war and endorse democracy and marketisation in order to strengthen trading-ties with the US (Sutter, 1992: 17). The liberal peace doctrine in international politics promotes the threefold process of democratisation, economic liberalisation (marketisation) and pacification as mechanisms of peacebuilding which will promote sustainable development (Kurtenbach, 2007: 7). The Liberal peace ‘is marked by its increasingly formulaic, top–down and ethnocentric nature’ (Mac Ginty, 2007: 457). The liberal peace is promoted by international peacebuilding and reconstruction interventions that reflect the norms and aspirations of Western liberal philosophy which have seen worldwide dynamism (Boutros-Ghali, 1992: 5). Therefore, the liberal peace promotes a type of liberalism; that consists of democracy, peace, reconstruction and development. The theory of liberalism prioritises individuals over groups within a social organisation (e.g. ethnic groups) and places emphasis on the market to bring about social change and guarantee that the society will not relapse into conflict (McCormick, 1999: 6; Bredel, 2003: 60). The term democracy prioritises Western electoral style processes that incorporate political parties and the civil society (Mac Ginty, 2007: 459).
Kant (1983) suggested that political cosmopolitanism shares the idea of democracy creating peace with liberalism constructing a global public order that is based upon liberal values. This includes aspects of the liberal peace: individual rights, democracy, international economic liberalisation and developing the rule of law via international law and liberalist institutions (Gowan, 2000). Democratic states do not war with one another and use their militaries less; instead, their shared liberal democratic values bound liberal democracies together which will usher into good international relations and cosmopolitan perpetual peace (Doyle, 1986; Russett, 1993; Oneal, 1999). States that trade with one another do not wage war with one another because it would deteriorate trading ties and prove costly (Owen, 2000: 90). Liberal democracy has put an end to previous regimes, such as communism, and thus liberal democratic values represent the highest peak for the civilisation of humanity (Fukuyama, 1991).
In summary, the liberal peace focuses on democratisation and marketisation to benefit the state insofar that a democracy prevents future strife and promotes a liberal market system to provide economic opportunities for the nation to flourish (Wilson, 1968). Moreover, the promotion of good governance is an ideal of the liberal peace associated with international sponsored peace and reconstruction programmes (Fanthorpe, 2006). For instance, when a state has collapsed, international actors have the power and authority under an IO mandate to organise, monitor and supervise transparent, free and fair elections and provide security for development (Paris, 2004). The liberal peace is therefore dictated by external actors’ proposed mandates which specify the duration of operations and funding in certain sectors, such as elections, economic policies and other reconstruction efforts (Tadjbakhsh, 2011a: 31).
1.3.1 Failures Associated with the Liberal Peace
When the liberal peace is prescribed, the international community organises national democratic elections too soon, before the complete demobilisation and disarmament have commenced resulting to non-sustainable peace, as evident in Cambodia, East Timor and Afghanistan (Paris, 2004). Paris (2004) analyses 14 peacebuilding case studies between 1989 and 1999 and found that immediate democratisation and marketisation adopting the liberal peace doctrine pushes the ideal of market democracy too soon prior to full institutionalisation. This often has destabilising and damaging effects. Taking one of these cases into account, in Bosnia, economic liberalisation was advocated which prescribed elections, marketisation, good governance and SSR without considering the context of the (intra-ethnic) conflict or local needs (Mac Ginty, 2007: 458). Consequently, high unemployment rates spread across Bosnia due to the fact that the institutions and governance were too weak to bring about economic liberalisation and marketisation at the local level (Paris, 2004: 106-107). Hence, when external actors take full ownership of institutions, tension between the liberal peace thesis and local civilian control is formed (Nathan, 2000; Paris, 2004). ‘A sense of local ownership should enhance sustainability, minimise dependency and ensure ultimate success’ (Mac Ginty, 2007: 476).
Only when a state has established stable institutions and undergone the completed SSR processes under civilian oversight and local ownership, can the ideals of liberal peace – democratisation (national elections) and marketisation (economic development) be promoted during the peacebuilding process (Chandler, 2007: 74). Moreover, the installation of the liberal peace attempts to bring about institutional reform by ‘reconciling non-liberal states’ but these societies are unable to foster both the democratic and market forms of this doctrine (Chandler, 2010: 39).
There is additional evidence supporting the notion that the liberal peace thesis is counterproductive (Richmond and Franks, 2009: 175; Tadjbakhsh, 2011b: 4). For instance, the liberal peace, increase of financial capital and ‘new forms of imperialism’, generates conflict and violence (Tadjbakhsh and Chenoy, 2007: 153). In addition, the ‘spoilers’ that do not want democracy and international humanitarian assistance or prefer authoritarian rule may form violent conflict between international actors and warring political factions (Malone and Wermester, 2000: 42). This was evident in Somalia during the 1990s (Anderson, 2008: 67). The UN Operation in Somalia was established to bring about a cessation of hostilities and promote statebuilding; namely, democratisation from a state divided by warring factions to supervised elections (Stremlau, 1996: 33-34). However, violence intensified and after the US-led United Task Force withdrew and Pakistani peacekeepers were humiliatingly killed, a major humanitarian crisis was brought to the world’s eyes (Baehr and Gordenker, 2005: 84).
UN statebuilding advocating democratisation had clearly failed which led to Boutros-Ghali’s Supplement (1995) apology on the failed ‘peace enforcement’ of the Agenda for Peace (1992). Further repercussions of the liberal peace include changes in a country’s public security sector, political system and the use of resources without acknowledging the legacies of violence, historical socio-cultural foundations or previous peacebuilding initiatives that the state had undertaken (Duffield, 2006: 301; Shlash and Tom, 2011: 202). These failures of the liberal peace can be demonstrated within the context of Central America during the 1980s and 1990s (Herz, 2011: 49; Isbester, 2011: 374).
On 7 August 1987, the Esquipulas – II – Peace Treaty was signed by Central American presidents to end internal wars, notably in Nicaragua, El Salvador and Guatemala (Short, 2007: 69). As a result, peace accords in Nicaragua (1990), El Salvador (1992) and Guatemala (1996) were signed respectively (Arnson, 1999). External actors have aimed to bring about transnationalism and democratisation in these countries (De Brito et al, 2001: 23; Whitehead, 2001: 57). Both of these processes began during intra-state conflict and reinforced tendencies inherent to war (Donnelly, 1999: 89-90). During the 1980s and 1990s, Central American economic elites shifted economic basis from agro-export in bananas, coffee and sugar, which were incorporated in the traditional model, to new agrarianism which included fruit and flowers as well as investing in the financial sector (Kurtenbach, 2007: 11). This process to change economic strategies was in three states undergoing dynamic social change and high levels of poverty (Enríquez, 1991: 188). Intra-state strife had resulted to the loss of 300,000 lives and two million Central American refugees (Kurtenbach, 2007: 5). In addition, the social and economic infrastructure did not significantly increase despite the promotion of the liberal peace, stability and development (Frundt, 1998: 84). Although, these states did not relapse into conflict after signing the 1987 Treaty, many deficits such as ‘lagging economic development’ and poverty in rural areas remain (OECD, 2006: 66; Löfving, 2009: 158).
Democratisation began during war within Nicaragua, El Salvador and Guatemala as a result of mainly US and other international pressure (Dominguez, 1998: 204). This in turn led to an open ex-authoritarian political system with a number of options for non-armed opposition, but there were restrictions (Wiarda and Skelley, 2005: 195; Torrijos, 2008: 76). Consequently, ‘enclave authoritarianism’ was institutionalised; internal security remained to be run by the military and the local participation was restricted whilst the wars were on-going (Burki and Perry, 1998: 105; Ardón, 1999: 62). Although the peace treaties of these three Central American states has regulations on deepening democracy and civilian ownership over the armed forces, the traditional authoritarian systems were then replaced for democratic change (Kurtenbach, 2007: 11-12). Democratisation proceeded despite the weak Central American states that were not able to establish a legitimate monopoly of force or delivery of social services to their citizens (Booth et al, 2005: 33). In these states, historical socio-cultural foundations and the dynamics of peace and violence were not fully acknowledged by international actors adverting pressure (Whitehead, 1996: 142). Whilst upholding public security, the military held a traditional role and continued to commit violence which was contained in their culture and history of these repressive states (Armony, 2000: 266; Green, 2004: 187).
The changes in the political systems of Central America have been superficial and derived under international pressure, for both democratisation, including elections, and market liberalisation (Kurtenbach, 2007: 22). Globalisation led to the modernisation of traditional values where most of the population is excluded and marginalised, leaving few to accumulate wealth (Schaeffer, 2003: 128). The UN Observer Mission for El Salvador was mandated to observe human rights standards, reform both the police and the army and elect a civilian government (Bailey and Daws, 1998: 499-500). The Sandinista revolutionary government was replaced with an elected moderate presidency but high levels of corruption and lack of professionalism within the security forces remained (Baehr and Gordenker, 2005: 90). Moreover, the liberal peace has failed in Central America insofar that the lack of social inclusion creates high criminality rates resulting in illegitimate political systems (Hignett, 2008: 296). Hence, ‘spoilers’ or those in high political or military positions are able to engage in corruption and violence to deter reform changes (Nathan, 2008: 24; Milton-Edwards, 2009: 142).
Quick democratisation programmes and changes within marketisation strategies shifting from traditional agricultural exporting to modernised goods trading have been influenced by external actors (Mommen, 1998: 36; Bermeo, 2000: 250), as in Central America. Consequently, these objectives of the liberal peace have increased political rivalries and competition for aid and failed to develop public security sectors and institutionalise judicial reform under the knowledge and expertise of the local population in complex environments (Iheduru, 2003: 65; Richmond, 2011: 49). As a result, the police have immense power to provide security that consists of corruption and is not codified under the rule of law nor guarantees upholding basic international human rights (Trebilcock and Daniels, 2008: 111). Local ownership provides an alternative mechanism for post-conflict reconstruction to not only include the civil society and establish democratic control over the security forces but for the nation to stand alone once international actors leave or donor aid ceases (Hanlon and Yanacopulos, 2006).
Despite the aims of the liberal peace, there have been many changes in the world system of international relations which has often privileged the realist doctrine, favouring the dominating role of national state interests that cannot be overcome by idealism, contemporary liberal peacebuilding efforts (Williams, 1996: 47; Brown, 2001: 133). The problems associated with the liberal peace leads to a narrow focus on SSR and the justice sector lags behind resulting to an unaccountable and ineffective security sector – both embedded with corruption (Dahrendorf, 2008: 86; Cordesman et al, 2010: 143).
1.4 Security Sector Reform
Humanitarian and development organisations have realised that development and democratisation is inherently flawed when there is a lack of security (Bellamy, 2003: 105). Engaging in security-related programmes seems a viable option to apply pressure at the domestic level to legitimise engagement on SSR (OECD, 2007: 230). When IOs, superpowers, coalitions and military interventions engage in post-conflict reconstruction in war stricken societies, part of the reconstruction or reform is of the security sector (Karkoszka, 2003: 11). In post-conflict scenarios, the security sector is deteriorated by ethnicisation, politicisation and corruption within the security forces (Brzoska, 2006: 1). In addition, other features of disarray include lack of professionalism, excessive military spending, inefficient resource allocation and poor oversight mechanisms (Ball, 2000: 17; Brzoska, 2000: 6-7; Department for International Development (DFID), 2000).
There is academic debate concerning the dialogue of SSR. For instance, Hänggi (2006: 8) prefers the term ‘security sector reconstruction’ and Sedra (2006a) uses ‘security sector reform’. Security sector reconstruction includes rebuilding national public security institutions and re-establishing a legitimate monopolised force (Foucault, 1979). The term ‘security sector reform’ underlines the need to change governmental principles and procedures of national security institutions (United Nations Development Programme (UNDP), 2002). SSR is to provide effective and efficient public security within democratic and civilian control (Brzoska, 2006: 1). The difference between security sector reconstruction with SSR is that the former has to deal with previous legacies of strife (Hänggi, 2004: 8-11). This may include oversized statutory and non-statutory armed forces requiring to be downsized (demobilisation), the control and removal of small and light weapons (disarmament), the clearance of anti-personnel landmines and bringing an end to impunity by holding perpetrators of war crimes accountable (Ebo and Powell, 2010: 63; Krause, 2010: 162). In relation to ‘soft’ security issues, monitoring human rights and democratic civilian oversight are crucial elements within SSR rhetoric (Hänggi, 2003). This focuses on post-conflict reconstruction to prevent a relapse into conflict, establish a rule of law, sustainable development, democratisation and finally full domestic ownership (Brzoska, 2006: 1).
Within post-conflict reconstruction, SSR may also encourage the military to play a role in the de-mining process, similar to security sector reconstruction, which was advocated in East Timor and Cambodia (Bellamy, 2003: 106; Bellamy and Hughes, 2007: 49). The maximisation of using the armed forces effectively, legitimately and democratically is at the central point of SSR (OECD, 2005a: 83). SSR programmes aim to promote good governance, professionalism and democratically control the security forces and minimise the threat to society that they might impose (Chalmers, 2000; Rathmell et al, 2005: 6). As both captions of ‘security sector reconstruction’ and ‘security sector reform’ share many similarities within the context of post-conflict reconstruction, hereinafter, when referring to the reform of the security sector within post-conflict reconstruction, the author will use the popular term ‘security sector reform’ (SSR).
1.4.1 Origins of Security Sector Reform
SSR was introduced during the late 1990s by development donors, IOs and other international affairs consultants (Debiel, 2002: 9; Hänggi, 2005: 1). In early 1999, SSR and poverty alleviation became a policy goal forwarded by DFID (Ball, 2007a: 94). The rationale behind this was due to the argument that a security force that is not professionalized or is poorly regulated worsens security problems (Hendrickson, 1999: 9). Clare Short (1998), the former United Kingdom (UK) Secretary of State for International Development, proposed five areas of SSR that DFID would support and aim to promote. Cooper and Pugh (2002: 16) cite these initiatives;
1. Supporting civilian control over the armed forces in order to develop principles of good governance, transparency and trust-building.
2. Training military personnel in human rights and international humanitarian law (IHL) for the armed forces to act within universal basic rights standards that are ratified by international treaties and conventions across the globe.
3. Strengthening domestic parliamentary oversight over the security apparatus to promote democratic accountability and eliminate both corruption and clientelism.
4. Supporting civil society organisations (CSOs) that operate as ‘watchdogs’ on behalf of civil society’s socio-cultural values over the entire security sector.
5. Supporting disarmament, downsizing the armed forces and reintegrating ex-combatants to help lower armed conflict, reduce military expenditure and provide rehabilitative programmes to reintegrate ex-militiamen into civilian life.
The practices and policies of SSR requires foreign donors to help these five factors: strengthen civil institutions; professionalise security personnel and civilian defence; professionalise the security forces; institutionalise mechanisms in order to identify security needs and develop security policy; and provide assistance to overcome the previous legacies of war (Ball, 2000: 18). SSR is a long-term process to reform the police, military, judicial and penal system in order to promote quintessential good governance, democratic transparency throughout the reform and accountability to protect the state and the communities within it whilst the professionalizing the security forces (Bryden and Hänggi, 2005: 38; Brzoska, 2006: 3). In addition, SSR aims to promote effective and efficient disarmament, demobilisation and reintegration of former combatants (DDR)[3], human security and support civilian oversight and national ownership (Hänggi, 2003: 17-18; OECD, 2005b: 65).
Hence, SSR consists of building a new national army, reforming the police, training, disciplining and professionalizing these security forces and enforcing effective DDR whilst avoiding excessive military expenditure (Brzoska, 2000: 9; Hodes and Sedra, 2007). Moreover, JSR is complemented within SSR (Global Facilitation Network for Security Sector Reform, 2007). The rule of law, the promotion of a functional justice and prison system and training of judges, prosecutors and lawyers and understanding of the legal constitution are fundamental values during SSR (Tondini, 2008).
Initially, SSR focused on the security sector; however, SSR may be integrated within peacebuilding programmes that also focus on economic development, a stable democracy and national reconciliation focusing on long-term goals of peacebuilding (Brahimi Report, 2000: 119; UN, 2005: 238). For instance, SSR programmes may incorporate employment opportunities, international trade relations, truth and reconciliation commissions (TRCs) and internationally supervised transparent, free and fair elections (Brahimi Report, 2000: 13; Dokos, 2007: 175). Such principles were adopted in the 1996 South African White Paper of Defence and the TRC was established after the apartheid regime came to an end (South African Government Information, 1996). There are two basic conceptions of SSR; the narrow and holistic approaches.
1.4.2 Narrow and Comprehensive Approaches of Security Sector Reform
In a narrow context, SSR focuses on public security, involving all organisations and agencies which are permitted to either threat or use force to protect a state, the citizens and external environment (Koskenniemi, 1996: 456). The narrow concept of SSR focuses on all the actors, institutions and policies directly involved on the impact of public security (Chappuis and Hänggi, 2009: 43). The focus is on protecting ‘physical security’ and other aspects such as demobilisation follow (Sherriff, 2007: 90). Donors such as the World Bank adopting the narrow option aim to downsize the armed forces and avoid intervening in national political affairs to avoid accountability for failures with SSR (OECD, 2005a: 88; Ball, 2007b: 142). The narrow option largely focuses on ‘civilian control’ which minimises ‘resource use’ (Brzoska, 2000: 12).
The wider approach of SSR encompasses promoting good governance, transparency and accountability which support both democratic input and output processes (Hänggi, 2004: 9; Chappuis and Hänggi, 2009: 45). All institutions and actors involved in the SSR process directly or indirectly control the provision of public security or are able to destabilise it (Brzoska and Heinemann-Grüder, 2004: 128). The holistic approach includes the strengthening of all uniformed security forces to develop the state economically and promote professionalisation of the armed forces by improving managerial skills (Ferguson, 2004). Moreover, the police can undergo human rights training by CSOs (UN Centre for Western Europe, 2009). During SSR, CSOs work with ministries of defence and finance, budgeting offices and other security based affairs (Akiba, 2004: 122; Stanicic, 2005: 128). Civilians of public and non-governmental sectors need security training in defence budgeting, social studies, conflict management and procurement (Ball, 2000: 18-19). In addition, training is a requirement for all legal personnel such as judges, lawyers, civil society actors, penal officers and other professional associations that are involved in administrative justice and the protection of human rights (Hänggi, 2005: 3). This wider notion of SSR is underlining that if an accountable, effective and responsible security sector is implemented, then democracy, development and poverty reduction will be the outcome (OECD, 2005b: 12). This in turn covers aspects of human security[4] which is advocated in much UN and European discourse (Boutros-Ghali, 1992: 8; Brahimi Report, 2000). Hence, the predominant aspects of the holistic SSR approach include professionalizing the security forces, good governance and civilian participation which will be discussed in turn.
1.4.3 Professionalizing the Armed Forces
Professionalising the security sector concerns skill development to widen functional and managerial skills to enhance the understanding of security forces’ duties and behaviours (Ball, 2000: 19). This in turn provides rule orientation for the security forces to develop and implement ideas with general regulations and laws such as internal promotion and human rights (Brzoska, 2003: 16). In addition, the professionalisation procedure includes internal democratisation to balance hierarchical considerations with the participation of civilian police, officers and soldiers as part of the democratic process (Brzoska, 2000: 10-11). Furthermore, additional attributes of SSR involves technical modernisation training for the security forces demanding new technology, which includes weaponry and cost reduction methods (Bryden and Hänggi, 2005: 27).
In post-conflict situations, security is to be enhanced by professionalising the armed forces to carry out their roles effectively and efficiently (Smith-Höhn, 2010: 29). Professionalisation has many different conceptions. For instance, individual soldiers are considered to have professional attributes of those volunteer soldiers from an epistemic community with shared consensual rules and values (Edmonds, 1988). This in turn minimises corruption, prevents and punishes crimes committed by the armed forces, prevents human rights abuses and politicises the military under a set governing regime (Bellamy, 2003: 108-109). This is to eradicate the dangers of a state’s armed forces on its own citizens by reducing corruption, oppression, human rights abuses and distributing resources to oneself with fair pay incentives and extensive training (Hutton, 2009: 5; European Scrutiny Committee, 2010: 145).
The above dangers of the domestic military were evident during Indonesia’s annexation of the East Timorese people during the late 1990s (Singh, 2000). The government did not install a national security strategy and thus the roles of the Timorese National Police (PNTL) and the Timor-Leste Defence Force (F-FDTL) crossed-over one another (Austin, 2007: 3). Both security forces had overlapping mandates to protect internal security during the April-May 2006 security crisis when the government called for international police whereby the F-FDTL clashed with the PNTL due to the dismissal of 600 soldiers in Dili (Myrttinen, 2008). This provided an opportunity for further violence by unemployed youths which left at least 37 dead, looting and arson and two-thirds of the capital, over 100,000, were displaced (Stanley, 2009: 137). Professionalisation and training of the security forces, the armed forces and the national police, must have their roles stated correctly to avoid clashes that may inflate a security crisis giving rise for local gangs and militias and human rights abuses.
Democratisation has emerged as a tool of SSR that contributes to the overall peacebuilding process, development and good governance (Edmunds, 2007: 22). ‘The provision of legitimate and legal internal security by professional armed forces is clearly an important precondition for democratisation’ (Bellamy, 2003: 109). Yet, the withdrawal of UNTAC in 1993 led to the consequences of the oppressive Hun Sen’s Cambodian People’s Party violent coup of the National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia (FUNCINPEC) in July 1997 (Findlay, 1995; Peou, 2000: 272, 298). This in turn demonstrates the result when democracy is installed without adequate military professionalism and security (Beeson and Bellamy, 2007: 21).
Therefore, professionalism provides barriers on the behaviours of the military and permits the establishment of civilian institutions such as bureaucracies, judiciaries and parliaments that reinforces civilian supremacy under democratic control over the armed forces (Perlmutter, 1975). In addition, demobilisation, the reduction of the armed forces, is a part of the professionalisation process to protect civilian institutions from possible military coups and promote liberal democracy within professional militaries (Walter and Snyder, 1999: 62; Dominguez, 2007: 102).
Huntington (1981) suggests that it is civilian governments that influence the behaviours of professional soldiers. Military professionalism concerns the development of technical and social expertise suited to cotemporary times (Moskos et al, 2000). In order to reduce the dangers of the national armed forces as indicated in both East Timor and Cambodia, Forster et al (2003: 5-6) claims that SSR programmes should include a better method of military professionalism that consists of four characteristics;
1. Role – clear and accepted roles in relationship within the national society and external functions in order to avoid confusion and unclear mandates.
2. Expertise – to fulfil their domestic and external functions effectively and efficiently based on their previous experiences, training and education.
3. Responsibility – for the military, individual soldiers, to understand their duties as a military institution to avoid overlapping duties with the state police.
4. Promotion – for the military to have the opportunity to progress within the armed forces solely based on merit of achievement.
1.4.4 Promoting Good Governance
Taking the principles of professionalizing the armed forces on board, the more holistic programmes of SSR fosters good governance – the effective, efficient and legitimate use of resources by the governing elites (Bellamy, 2003: 109). The lack of good governance in many developing states fails to tackle social injustices, poverty and scarcity of resources (Adedeji, 1999). SSR can promote good governance by civilian control under parliaments and transparency of management, resource use and foreign aid. Cooper and Pugh (2002: 5) underline that development programmes and the donor community has recognised that corrupt or repressive security structures undermine peace operations and aid programmes. As a result, the donor community has the duty to promote good governance across the security sector to assist larger developmental programmes sponsored by NGOs, international financial institutions and individual states (Ball, 1998).
Good governance consists of transparency, accessibility, accountability, efficiency, equitability and processes of democratic policy decision-making and operation under democratic governance (Brzoska, 2003: 16). Security needs are to be institutionalised and convey methods on how the security forces are to be financed such as training to observe human rights law and conventions (Smith-Höhn, 2010: 26). Civilian institutions are to manage the process and civilians assist by providing input to decision-makers by monitoring the behaviours and actions of security forces (Brzoska, 2000: 11).
Under the principle of good governance, no members of the security forces are immune from prosecution and are accountable for negligent actions and behaviours (Vite, 2005: 203-204). Internal instruments of democratic accountability and control are required to maintain oversight over the security forces once they have been reformed and rebuilt (Ero, 2003: 246). If these wider measures of SSR principles are installed, then the state can promote economic and political development independently (Ginifer and Peimani, 2005: 268; Hänggi, 2010: 93). Duffield (2001) provides further awareness that interdependent post-conflict security reconstruction programmes may provide a positive contribution to wider democratisation and development reforms. Therefore, SSR may positively advocate principles of the liberal peace by initially providing legitimate security, enforcing democratisation with local participation and creating a hostile-free environment to proceed with longer-term democratisation programmes once public security institutions are developed (Bellamy, 2003: 110).
1.4.5 The Role of Civil Society
Central to SSR, the role of civil society is a crucial element to the peacebuilding process, particularly when aiming to reform both the security and justice sectors (Caparini, 2004: 14-16). The civil society requires autonomy within these processes at the outset of programmes (Rynn, 2007; Millar et al, 2009). The work of Brzoska (2000) is useful in establishing what achievements SSR needs to strive for, including the creation of an effective and professional sector that is under control of the civil society. Ball (2000) contends that civilian control avoids harm to the SSR process insofar that civilian-led institutions are able to monitor the behaviour of the security forces and sustain codified penal codes that are relevant to their societies. This in turn holds the security forces accountable for any negligent behaviour and enables a (re)established and transparent rule of law to gain public support and legitimacy by connecting with the civil society (UNDP, 2003; Hudson, 2010: 104). The role of the civil society is crucial to provide democratic control and oversight of the security forces and enhance trust, civil-military relations and transparency for further developmental programmes to succeed (Fitz-Gerald, 2005: 285; Pantev, 2005: 4-6). Bellamy (2003: 99) similarly argues that ‘long-term development or democratisation programmes’ will fail ‘without the provision of stable security by legitimate and democratically accountable security forces’.
1.5 Pitfalls of Security Sector Reform: What goes wrong?
Although SSR strives for a public security sector that is able to perform their objectives effectively, efficiently and legitimately, many reforms are externally driven by outsiders and are therefore unsustainable (OECD, 2005b: 62; Muna, 2008: 248). Many reforms are unable to foster stability and many post-war states redirect funds into military expenditure in order to professionalise the armed forces (Odom, 2004: 137). The focus on physical security is often led by externally sponsored peacebuilding programmes that include defence strategies, training assistance, control of small arms and eventually democratisation and development programmes (Ball et al, 2002). SSR has consequently aimed to promote the liberal peace which has securitised and placed economic development as a central part of conflict management, prevention and ‘privatisation of peacemaking’ (Aggestam and Björkdahl, 2009: 20). The new initiatives of the donor community adopting democratisation and development programmes imposes the idea that these two processes may help the security sector succeed once the failing state has prescribed to Western values (Beeson and Bellamy, 2007: 26). Security is an important eliminator of poverty due to its ingredient for development and democratisation which is why SSR is needed to complement peacebuilding and development programmes (DFID, 1999; Ebo and Powell, 2010: 68).
There are problems associated with the methods of implementing SSR, namely that it is dictated by the liberal peace thesis which leads to instability, premature elections and ‘immature democratisation’ (Richmond and Franks, 2009: 96; Stålvant, 2011: 19). Despite these notable criticisms, international donors’ broader development strategies usually adopt Western liberal philosophy that disregards the capacities and traditions of the state (Nathan, 2007: 62; Ryan, 2011: 154). As a consequence, more weight is placed on material resources and Western thought rather than traditional civil-military relations that are important contributions to security (Bellamy, 2003: 101, 112). There are recognisable criticisms with SSR, particularly tied to the liberal peace thesis. If SSR is perceived as spreading Western behavioural norms to the security forces under the principle of democratic control, then this post-conflict process may share similar problems with the liberal peace doctrine (Paris, 2004).
SSR is therefore a concept imposed by Western liberal and democratic ideals that ties conditions with continual international support (Wulf, 2006b: 36; Edmunds, 2007: 255). External intervention prescribing Western hegemony, democratic and liberal norms is regularly imposed to legitimise intervention but this method has been criticised for failing SSR and the peacebuilding process (Youngs, 2010: 87). The liberal peace, particularly the democratisation process, is intimately linked with colonisation (Bellamy et al, 2004: 30). Liberal democracies merely support democratic peace to preserve capitalist power that boosts political, economical and social relations (Barkawi and Laffey, 1999: 411, 419). SSR, in reality, expands and strengthens global capitalism and Westphalian bounded states representing Western European ideals rather than functioning as a peacebuilding and development strategy (Bellamy, 2003: 113).
Therefore, foreign donors’ conditionality within externally driven SSR programmes are dictated by international actors that pursue classical Cold War military assistance and focus on donors overcoming weaknesses of the recipient post-war state (Cooper and Pugh, 2002: 19-24). Mill (1874: 262-264) opposes the liberal peace insofar that ‘foreign’ democracy proposed by international agents will fail if imposed within internal societies. In order to achieve effective SSR programmes, they require to be possessed and internalised by those groups that are most affected by them (Bellamy, 2003: 114). The lack of local ownership may be drawn to attention in relation to the externally driven pitfall of SSR which hinders the entire process (Ebo, 2004: 81; OECD, 2005a: 84).
Often, local actors merely play ‘lip service’ during SSR processes due to the fact that externally driven initiatives in post-war states pay more attention to external impositions (Knaus and Martin, 2003). Civilian authorities must be involved when democratically controlling professionalism within the armed forces to provide a legitimate, effective and capable armed force (Valasek, 2008: 1). Across Asia and elsewhere, much local control rhetoric is present in states that have new constitutional arrangements enabling civilian control over the military (Desch, 2001). However, these promises are not implemented into democratic or civilian control over the armed forces (Ismail, 2008: 134). SSR prioritises military professionalism and reform in order to protect ‘physical security’ over holistic characteristics of civilian control and governance (Mietzner, 2006: 68).
All of these criticisms suggest that broader development and democratisation processes via SSR may be appealing at face value to international donors but there are many noticeable shortcomings (Muggah, 2009: 2). For instance, the governance component of SSR, especially the support for civil society and parliament, has been regularly side-lined in favour of reforming the capacity of the state police and national armed forces (Hänggi, 2010: 94). This does little to avoid excessive military expenditure which hampers funding on other compartmentalised SSR criteria such as DDR and JSR (Sedra, 2006a: 100). After all, the objective of SSR is to cut military defence expenditure as this is a barrier to wider development and other sectored reforms (Ball, 2000).
1.5.1 Primary Characterisation of Security Sector Reform
After the above criticisms, policy-makers can learn that most common features with SSR is that it is; i) security centred; ii) externally driven and iii) compartmentalised.
I) Security Centred: Focus on ‘Physical Security’
Much SSR programmes focus on professionalizing the armed forces and training the security forces in order to protect ‘physical security’ (Brzoska, 2003: 23; Steenkamp, 2009). This in turn, as stated earlier, leads to excessive military expenditure and lowers resources to develop other programmes or reform (Sedra, 2006a). Security centred SSR programmes are at the heart of international donors’ interests which has ultimately led to a narrow focus on SSR (Ball, 2000). Moreover, after 9/11, national security strategies have focused on superpowers’ state interests to fight terror and thus international sponsored programmes heavily focus on professionalizing the security forces to protect ‘physical security’ (Chomsky, 2001; Law, 2007: 8; Hänggi, 2010: 79).
Hence, security has returned to Cold War national security through a counter-terrorism perspective (Sedra, 2006b: 330). The ‘global war on terror’ has replaced ‘human security’ post- 9/11; particularly by the US internal intelligence and security capability (Rukavishnikov, 2007: 27-28; Foreign Affairs Committee, 2009: 19). Bush’s US-led defensive unilateral force has imposed short-term security based on US foreign policy which has created long-term instability in the oil-rich Gulf (Yetiv, 2011: 241). The levels of resources are starved as a consequence of anti-terrorism, as evident in ‘hard security programmes’ in Iraq (Perl, 2007: 151). In April 2003, the US war with Iraq cost US$20 billion and US$2 billion per month for military operations (Leon-Guerrero, 2005: 407). In Iraq, ‘the US and its allies appear to have appropriated the concept of post-war reconstruction as the ‘humanitarian’ justification for war’ (Barakat, 2005: 8). As a consequence, new ‘soft security’ initiatives are proposed. In sum, after 9/11, the SSR ‘process has been stripped of its holistic character, leaving only its Cold War security shell’ that focuses on national security and ‘physical security’ (Sedra, 2006b: 330).
Europe and other regions have failed to take the initiative to direct SSR into adopting the late 1990s broad notion, which includes protecting human security and institutionalising the justice and penal sectors (Hänggi, 2005: 2). Wider SSR initiatives usually include ‘partial programmes’ such as police and military reform, but do not cover components of other holistic parameters such as local ownership and human security (Brzoska, 2003: 37). In recent times, the international community has been robustly engaged in SSR within post-conflict states (Hänggi and Scherrer, 2008: vii). International forces have been playing roles within separated SSR agenda to notably benefit the reform of the security apparatuses (Bryden and Hänggi, 2005: 27). This in turn neglects other holistic reforms such as good governance, local leadership and civilian management. Foreign actors have taken narrow and partial approaches to SSR by concentrating on building the competence of security actors and abandoning ‘the development of managerial and governance capacity’ (Law, 2006: 111).
Strategies to reform the security sector are planned but all wider aspects have not been addressed and implemented (OECD, 2011: 80). For instance, in Haiti, the UN-mandated operation intervened to reinstate a democratically-elected president and disbanded the Haitian armed forces (Baehr and Gordenker, 2005: 89). However, the narrow focus on physical security did not adopt effective DDR into the SSR programme and thus the police forces that were not reintegrated into society caused a threat to the peace in Western Haiti (Law, 2006: 113-114). DDR is an important component of SSR.
In contrast, international donors constructed a better integrated SSR programme in Bosnia-Herzegovina despite the criticism that donors rather than internal actors implemented the rules for engagement which led to a fragmented experience in the Western Balkans (OECD, 2007: 101; O’Rawe, 2011: 110). This was more broadly objectified under the UN and the Dayton Agreement focusing on separating warring factions and conducting disarmament under the North Atlantic Treaty Organisation (NATO)-led Implementation Force to benefit internal peace (Stremlau, 1996: 28). SSR was three-fold within this context: focusing on – a cessation of hostilities, institution-building and rebuilding major security sector institutions (Law, 2006: 114). Yet, a lack of attention was paid to softer dimensions of SSR such as management capacity, parliamentary oversight and judicial control (Turkovic, 2005: 87).
Similarly in Kosovo, although local police have been reformed, judicial reform has been weak in practice (Eide and Holm, 2000: 217; Stromseth et al, 2006: 229). Rather, police reform, military professionalism and equipping the security apparatuses have been the focus to protect physical security (Matheson, 2001: 78). ‘Donor efforts have tended to concentrate on the efficiency of security actors as opposed to their accountability’ (Law, 2006: 121). Strengthening the security forces rather than bringing them under a democratically controlled government are common practices in SSR programmes which deprive judicial reform of funds (Karp and Ponzio, 2007: 223; de Weger, 2008: 185).
II) Externally Driven Security Sector Reform Programmes
Usually, SSR requires legitimate and credible support, often from a SC mandate authorising the intervention of external forces under international law (White, 2005: 217). Therefore, mainly, SSR programmes are externally driven as authorised under a UN Resolution, donors or US Coalition Force, which in turn not only focuses on the liberal peace objectives of development and democratisation, but also on military professionalism (Brzoska and Heinemann-Grüder, 2004; Sedra, 2006a: 95).
SSR in Sierra Leone was implemented via strong international support within the context of post-conflict reconstruction (Gberie, 2005). The government had placed SSR on the agenda to ensure that Sierra Leone would not relapse into conflict after they rid of the Revolutionary United Front (RUF), led by Foday Sankoh (Wright, 2002: 657). Article XVII of the 7 July 1999 Lomé Peace Accord was signed between both parties: the Government of Sierra Leone and the RUF who expressed the training of the domestic armed forces and possible former rebels to join the army as a priority (Hirsch, 2001: 146). However, SSR agenda has been externally driven by DFID from 2001 focusing on military professionalism which has led to public mistrust of the security forces and judicial reform has lagged behind due to the lack of resources (de Zeeuw and Kumar, 2006: 161-163; Reno, 2006: 460). The public perceive the security forces as ‘soldiers by day and rebels at night’ (Kallon, 2004: 169). Security institutions need to operate under stronger democratic control and the rule of law in order to professionalize the security forces (Osman, 2006: 89-91; Fortna, 2008: 151).
Similar to Sierra Leone, Haiti has been dominated by insecurity despite the efforts of the Bush Administration that narrowly focused on strengthening security sector actors which provided little weight on democratic control and good governance (Buss and Gardner, 2008: 80). The SC established the UN Mission in Haiti (UNMIH), a peacekeeping force which took over withdrawn US forces in early 1995 (Ballard, 2008: 130). UNMIH built up a new police force and a small military which was followed by a supervised election in 1996 (Baehr and Gordenker, 2005: 89). International Civilian Police (CIVPOL) have been deployed to monitor the Haitian National Police but failed to prevent police abuse (James, 2010: 126). This is due to the fact that some CIVPOL officers came from states that promoted policing contrary to basic human rights (Hammarberg and Gavigan, 2000: 174). As a consequence, external policing contingents collided. For example, the methods and standards of the French gendarmes contingent clashed with the community policing culture of the Royal Canadian Mounted Police, which in turn led to raw hostility between the two groups at certain times (Malone and Wermester, 2000: 46).
In East Timor, the UN failed to create any mechanisms for the creation of democratic control over the security sector, despite establishing territorial interim governance institutions during 1999-2002 (Caplan, 2004). Programmes controlled by external actors have provided little insight to civil management development and building judicial, parliamentary and civil society institutions to oversee and monitor the security sector (Strohmeyer, 2001). Third party military and police were deployed from Australia, Malaysia, Portugal and New Zealand in order to protect the fragile peace after gang violence and the internal security forces clashed in spring 2006 (Bickerton, 2007: 97; Stahn, 2008: 347). However, UN CIVPOL was slowly deployed and community policing was prescribed without clear comprehension which resulted in poor police reform (Bhatia, 2003: 106; Stromseth et al, 2006: 206). The PNTL lacked a strategic vision and institutional loyalty due to the fact that the leaders of the United Nations Transitional Administration in East Timor (UNTAET) failed to engage with PNTL’s political leaders (Breen, 2003: 218; Rae, 2009). Once the army size was agreed, UNTAET stood back from its development by leaving it in the hands of numerous ad hoc bilateral donors to fund and supervise their training (Cribb, 2002: 432; Smith and Dee, 2006: 450). This set a harmful precedent for civilian oversight, a vital principle of SSR. Two and a half years after East Timor reached independence in May 2002, the UN administration took over all proceedings and there was ‘virtually no civilian oversight of either the police service or the defence force’ (Hood, 2006: 61).
This provides ample evidence that external intervention, from international pressure, has placed little consideration on local democratic control and avoided principles of good governance, which has particularly led to failures of police and military reform. In addition, it can be contended that SSR has failed to move beyond restructuring the narrow doctrine, the focus on formal security forces and institutions and retraining the police and military, which many externally driven programmes foster (Cole et al, 2004). SSR programmes have also overlooked strengthening civilian oversight of the parliament, civil society groups, DDR and the judiciary which has led to statebuilding and more broadly, peacebuilding failures (OECD, 2007: 113).
III) Compartmentalisation
As stated earlier, the holistic approaches of SSR adopt democratic norms and attributes of good governance (Brzoska, 2003: 16). The provision of security under this approach adopts partial reforms that include defence, police, intelligence and justice reforms, which have been conducted in post-war states as separate agendas (Hänggi, 2005: 5). Often, SSR programmes are compartmentalised to suit international nations’ interests (Degnbol-Martinussen and Engberg-Pedersen, 2003: 208-209). As a result, SSR loses its clarity and leads to a number of states heading separate compartments that fail to communicate with one another which makes SSR counterproductive insofar that more focus is prioritised on security actors (Goodson, 2003; Bhatia and Sedra, 2008: 159).
In the context of Iraq, the SSR programme has been led by the US and its Coalition forces which have failed their objectives to provide a reliable police, justice and political system and create a reasonable level of security for the democratisation process (Aoi, 2011: 130). These compartmentalised agendas have been at the heart of rebuilding a new transitional state based on the rule of law and a constitutional government in order to re-establish security institutions and organisations (Slocombe, 2004: 2-3). Despite the main goal of reconstructing a Stalinist-style state ran under dictatorships for over half a century, the compartmentalised SSR agendas have led to difficulties in stabilising security across a nation that is culturally divided (Dawisha, 2009: 29).
Accordingly, Transitional Administrative Law in Iraq, an interim constitution written by the government, aims to guarantee basic human rights and provide elections for a transitional government and a constitutional assembly (Diamond, 2006: 187). The initial task was to hold elections before February 2005 to establish national sovereignty. However, the UN discovered that the separately compartmentalised SSR programme that was headed under the US and its Coalition forces would make it difficult for Iraqi leaders if the external forces took over the entire administration or if Iraq was left entirely to Iraqi leaders (Slocombe, 2004: 11).
Primarily, the Coalition focus has been on the reform of the new Iraqi armed forces to associate with external security allies to protect physical security (Bobbitt, 2009). The Iraqi Civil Defence Corps is transitional and they are locally recruited with a few weeks training (Cordesman and Baetjer, 2006: 84). Professionalising the security forces has received a lot of attention and taken much of the funding resources which has resulted in the priority of developing a professional, well-equipped and highly trained police and armed force but the rule of law is undermined by a weak judiciary (Slocombe, 2004: 12; Rathmell et al, 2005: 56). Consequently, many militia groups impinge on the criminal justice system and policing and investigations remain difficult (US Senate, 2007: 38). SSR is required for other compartmentalised agendas to benefit such as judicial and prison reform which are continually fragile (Rathmell et al, 2005: 60; Leonard, 2007: 38). ‘Unless security’ and justice ‘improves, neither economic nor political transformation can fully succeed’ (Slocombe, 2004: 24), which will fail the liberal peace and statebuilding.
1.6 Conclusion
The holistic SSR approach – the professionalisation of security apparatuses, civilian control and local ownership from the outset under good governance, is to proceed in a transparent, democratic and legitimate manner (Call, 2007a: 390). However, in many cases, SSR is primarily security centred, externally driven by international donors’ interests and compartmentalised into separately funded and headed segments which confuses the focus, aims, objectives and dogma of SSR altogether (Friedrich and Luethold, 2007: 147). If SSR is planned incorrectly then citizens may be in danger under incompetent security forces, political factions, a weak and unjust justice system and irregular militiamen (Ball et al, 2002).
Externally-led SSR has narrowly focused on strengthening the security actors and liberalisation and democratisation (Paris, 2004). Hence, SSR programmes in post-war states often subscribe to Western norms that propose the liberal peace thesis (Duffield, 2001: 11; Kabia, 2009: 4). This leads to rushed liberalisation and democratisation in post-war states that have weak security and judicial institutions to hold a stable democracy (Barnett, 2010: 149). As a consequence, corruption, unaccountability and lack of civilian oversight continue which makes it impossible for the national state to take ownership of the security sector (Brzoska, 2006: 1). This leads to a narrower focus on SSR limiting principles of good governance and local democratic control over the security forces (Keithly, 2007). Moreover, the rule of law and justice plays a subordinate role in comparison to military professionalism and thus judicial reform lags behind (Sedra, 2006b: 332). Consequently, the Ministry of the Interior in post-war states have little oversight over the police and the armed forces are corruption prone and often remain loyal to their former militia commanders (Nojumi et al, 2004: 26).
The rule of law and justice are needed to be reconciled with SSR to not only combat these challenges – namely, entrenched corruption, but to bring an end to impunity and re-equip SSR with its holistic characteristics: good governance, civilian control over the security forces, DDR and judicial reform. This should also include local ownership at the outset of peacebuilding programmes to enable internal expertise and knowledge of domestic socio-cultural values within the reforms of both security and justice sectors. Ultimately, SSR and strong penal systems protecting the rule of law and justice are required before the latter strategies of the contemporary peacebuilding trend, democratisation and liberalisation, commence. The next chapter will discuss the main facets of the rule of law and justice and transitional justice, which are to be complemented with SSR to reduce some of the failures addressed in this chapter.
Chapter II: Rule of Law and Justice in Post-Conflict Environments
2.1 Introduction
The first chapter has emphasised the predominant characteristics of security sector reform (SSR) and the main three pitfalls identified: i) focus on physical security, ii) externally driven reforms and iii) compartmentalisation. The end of the chapter underlined that justice sector reform (JSR) – namely, the rule of law and justice via transitional justice elements can reduce these three pitfalls if complemented with SSR.
Hence, the main objective of this chapter is to focus on what makes a good justice sector and how the establishment of the rule of law and justice may contribute to SSR, and more broadly peacebuilding. This chapter is split into four parts. The first two sections will provide theoretical discussions on the rule of law and the United Nations (UN) conception of the rule of law and its practice in Cambodia, Kosovo and East Timor. In short, the international community aims to enforce international humanitarian law (IHL) and international human rights in post-war states’ judicial reform. The creation of centralised international criminal tribunals and courts have enforced Western based universalistic standards and national courts with a constitution.
The next section will cover an analysis of the elements of transitional justice and provide links in how certain elements can contribute positively to SSR by reducing the three pitfalls identified in the first chapter. The penultimate sections will provide a greater discussion on local justice within the contexts of south Sudan, Rwanda and Afghanistan with links to the elements of transitional justice. More specific, informal justice that offers traditional community resolution is used at the local level. Much of the population in rural areas of post-conflict states have better access to informal justice using traditional legal structures rather than using national donor-supported state-centred courts or international ad hoc justice. However, there are dangers of exclusionary decision-making in community-based dispute resolutions, particularly against women that face forced marriages, being surrendered for marriage to the victim’s family for reparation and basic human rights such as the right to a fair trial, appeal and defence lawyer are often denied. The final section will conclude all of these principles surrounding the rule of law, justice and transitional justice and focus on local informal justice that need to complement SSR in order to promote more sustainable peacebuilding.
2.2 The Rule of Law
Theories on the rule of law and human rights will now be discussed to develop an understanding of how the international community promotes these standards. This theoretical section will start on the mainstream definitions of the rule of law, namely within a democratic setting, and move to UN conceptions of promoting the rule of law.
The rule of law literally means rule according to law where no individual can be sanctioned to legal punishment or pay any reparations except in strict adherence with clear and well-established laws and criminal procedures (Massaro, 1989). The rule of law contains ideas that no crime or penalty is without law (Radin, 1989). Under this rule and international human right of Nullum crimen sine lege: unless there is a law that forbids something, then that something cannot be regarded as wrong and the act cannot be prosecuted (van Schaack, 2008: 119, 172).
The rule of law is to acknowledge that no crime or punishment is without law. The rule of law is to protect all individuals as equals from the possibility that law can be exercised arbitrarily by government powers or courts to discriminate against minority groups. Individual basic rights are to be protected in the judicial sector. Full accountability of State institutions, the security forces[5] and the government must fall under international human rights and international humanitarian law (IHL).
In other words, the rule of law is to apply a set of rules and laws that are knowledgeable and obeyable by all persons and institutions irrespective of status and must be equally enforced (irrespective of ethnicity, gender or any other particular vernacular) that works alongside an independent body of law that applies international laws. Moreover, there must be local participation in decision-making processes and transparency of the law must be laid out at the start of justice reform. Taking from this, three main points can be outlined: i) an independent law-making body must be installed and have legal powers; ii) the local population must participate in decision-making processes prior to planning and implementation of any reforms and iii) all laws must be transparent so that all services that act for the ministries of the interior and justice; namely, the national police use their powers within the rule of law.
Another context is rule under law where no governmental branch is above the law and no state official may avoid accountability for wrongdoing(s) or act outside the law (O’Donnell, 1998). In democratic or newly emerging democratic states, the rule of law is enshrined in the national constitution to guarantee equal protection so the government and all of its branches remain impartial and do not abuse their powers to determine judicial decisions or retain immunity from prosecution (Fallon, 1997; Broomhall, 2003: 1). In order to facilitate this democratic process, an independent judiciary serves as the definitive guarantor of constitutionalism in which the courts ensure that no agency or branch of government that acts on behalf of the citizens infringes values of the rule of law (Prillaman, 2000: 1). In short, the rule of law exists to protect individuals as equals ‘– from the possibility that law could be exercised arbitrarily by monopolies or power instead of fairly and according to agreed-upon procedures’ (Stauffer, 2007: 227).
Fuller (1969: 39) extends the notion of the rule of law beyond the competence of the government and legal institutions. He claimed that universities, research institutes, churches, non-governmental organisations (NGOs) and voluntary associations should also play a role on the way life should be governed. NGOs and civil society organisations (CSOs) are highly active in rule of law projects to voice particular rights such as equal access to justice in conflict stricken states. Vite (2005: 188) contends that local ownership and democratic oversight are attributes for a successful rule of law too. ‘Rule of law and democracy are generally mutually reinforcing and they tend to feed on each other’ (Rigobon and Rodrik, 2004: 6).
2.3 United Nations Conception of the ‘Rule of Law’
The UN’s conception of the rule of law contains four components. These components range from governance; procedural fairness; substantive law and the application of law (Annan, 2004). The governance segment focuses on the role of separating powers to ensure that all citizens and government officials are subject to democratic legal accountability. The procedural component addresses how law is to be enacted, publicly disseminated and allow public participation as part of the transparent democratic process. The substantive element stresses that law must be interrelated with international law norms and standards to avoid breaches of fundamental human rights. The application of the law must proceed fairly in an equal and non-arbitral fashion.
The preamble of the 1948 UN Universal Declaration of Human Rights states that human rights are to be protected by the rule of law. This statement has recently been reiterated into UN peacekeeping operations (PKOs). In particular, upholding the rule of law is a fundamental process of peacebuilding, post-conflict reconstruction and political and economic development to repair war-torn societies (Guehenno, 2003: 3). Within the world organisation, a definition on the rule of law has been agreed and reiterated in Kofi Annan’s Rule of Law Report which have been prescribed in UN mandated international transitional administrations (Report of the Secretary-General (SG), 2004: para. 6);
The rule of law…refers to a principle of governance, in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.
The UN rule of law activities in peace operations has included upholding the law and monitoring law enforcement actors. PKOs have aimed to rehabilitate and rebuild criminal justice institutions and reform laws within these donor-supported multidimensional institutions. When enforcing national criminal law, international civilian police (CIVPOL) and international prosecutors are consulted. For instance, in both Kosovo and East Timor, CIVPOL was deployed by the UN to provide administration over both war-torn territories (Security Council (SC) Resolution 1244, 1272, 1999). Within the context of Kosovo, CIVPOL had undertaken an executive policing role and in East Timor, the Australian-led military, International Force in East Timor (INTERFET), arrested and detained people that were suspects of committing serious crimes like murder, weapon offences, kidnap and grievous bodily harm (O’Connor, 2006: 521).
Post-Cold War internationally-led peace operations have included law reform precedent from Namibia, which involved UN mandates repealing discriminatory laws (UN Department of Peacekeeping Operations, 1996: 224-225). Most elements of law reform have focused on improving domestic laws with the norms and standards of international human rights. National substantive law development includes police, criminal, civilian and property reform. Domestic actors have been involved in promulgating and reforming new laws in Bosnia, Liberia, Sudan and East Timor. The UN Mission in Bosnia-Herzegovina was mandated to assist local and judicial reforms and the UN Mission of Support in East Timor had the duty to support justice (SC Resolution 1035, 1995; SC Resolution 1410, 2002: 4 (a)). Recently, in Liberia and Sudan, the UN has attempted to assist the general rule of law reform and legal framework development (SC Resolution 1509, 2003: 3 (g); SC Resolution 1706, 2006: 3).
The UN has law-making powers if accepted by the domestic legislature of the post-war state. For instance, the Special Representatives of the Secretary-General for the UN Mission in Kosovo (UNMIK) and UN Transitional Authority in East Timor (UNTAET) were mandated with extraordinary law-making powers respectively (Strohmeyer, 2001). In Cambodia, the mandate of the UN Transitional Authority in Cambodia (UNTAC) held law-making powers subject to the Cambodian Supreme National Council’s approval of the Paris Accords (Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 1991: Annex 1, A1, B1).
Although the UN components of the rule of law must substantively link with international human rights norms and standards, the use of previous laws in Kosovo and East Timor did not. The Indonesian and Serbian applicable criminal law conflicted with international human rights standards and thus UNTAET and UNMIK adopted an unusual quasi-judicial led reform in which criminal law was interrelated. This was a confusing ad hoc process and national criminal laws were put aside if they were in contention with the norms and standards of international human rights. This process failed to provide concrete and clear law to enable a legal point of reference for law enforcement actors, lawyers, judges, prosecutors and the police (Strohmeyer, 2001: 110). Judges with international human rights expertise were lacking in both Kosovo and East Timor. The premeditated aim to intertwine international human rights norms and standards with a national criminal law framework via judicially-led reform failed (O’Connor, 2006: 523).
Despite these criticisms, both UNMIK and UNTAET had attempted legal reforms by utilising regulations to ensure that national criminal law reconciled with international human rights norms and standards. For instance, in Kosovo, domestic criminal procedural law did not fully adopt fair trial principles and therefore UNMIK Regulation 2001/28 was established which protected the rights of those persons arrested by law enforcement authorities. Other regulations that guaranteed basic human rights were additionally enacted. In East Timor, the Indonesian Code of Criminal Procedure was promulgated in order to fully apply the rules of criminal procedure with international human rights norms and standards (O’Connor, 2006: 523).
Within the context of Cambodia, the criminal justice actors had problems tackling crimes within an adequate legal framework. During UNTAC, Cambodia had concise criminal law which consisted of one decree and 12 short articles (Donovan, 1993: 445-448). Therefore, in 1992, the Cambodian Supreme National Council established provisions for the judiciary and criminal procedural law during the interim period. This law created new rules based on criminal procedure, substantive law and detention governing laws. These UNTAC laws were implemented to ensure that the human rights of citizens were protected within domestic criminal law.
The Kosovo, East Timor and Cambodia cases of criminal law reform illustrate that the idea of an UN-imposed criminal code to replace domestic criminal law within a post-war state has failed. Even Kofi Annan, the acting Secretary-General’s Report on the Rule of Law (2004: 15) opposed foreign models. The interrelationship of the rule of law with basic human rights is a good starting point for post-conflict peacebuilding. Criminal law reform can take the initial step for post-war states to substantiate the rule of law with international human rights norms and standards to protect individuals’ basic rights.
It must be noted that literature on the rule of law and justice is based on democratic norms and international human rights standards but most post-conflict states are actually non-democracies or newly emerging democracies and it would be wrong to characterise them with democratisation. Instead, relativism[6] is required to consider the war-torn societies’ cultural norms, values, rituals and local justice systems. Despite the criticism that the rule of law is based on Western liberal philosophy which is promoted in democracies, it is contended by Kritz (2004: 43) that the rule of law generally has the agreed definition as equal protection to everyone irrespective of regime.
In terms of linking the rule of law and justice with SSR, transitional justice is utilised in war torn environments which can distinguish links between the two. After a discussion of transitional justice and the main elements that it contains, linkages between the rule of law and justice with SSR will be provided at the end of each sub-section.
2.4 Post-Conflict Justice: Transitional Justice
Transitional justice incorporates good governance, legitimacy in the institutions and the rule of law to benefit stability and democracy. Developments on retributive justice to punish the offenders are to promote moral deliberation – the education that crime is wrong and punishable. From the mid-1990s, international criminal tribunals and special courts have been established to bring about retributive justice for retrospective crimes. On the other hand, restorative justice is to bring about social re-integration, reconciliation and restore truth to attempt to heal old wounds, encourage forgiveness and move on with the future on a clean slate.
Transitional justice is implemented in newly emerging democracies or post-war communities to deal with legacies of previous permitted human rights abuses under ex-authoritarian command (Crocker, 2001: 270). Transitional justice incorporates good governance, the rule of law and legitimacy within major institutions for development (Toye, 1997). This is a tool to bring about a cessation of hostilities which in turn will improve all aspects of social, cultural, political and economical welfare (Collier, 1999). Transitional justice works toward democracy, recognition for victims and the promotion of peace and reconciliation in countries that have suffered serious or widespread human rights abuses (International Centre for Transitional Justice (ICTJ), 2008a). This approach may commence instantly or may take decades to install.
Transitional justice arose at the end of the 1980s and early 1990s as responses to political changes from either military dictatorships or communism in Eastern Europe and Latin America (Leebaw, 2008). Politically, transitional justice was initially labelled as the ‘transition to democracy’ (Napela, 2010) and in these politically changing countries; the governments prescribed initiatives of transitional justice[7]. These elements of transitional justice consist of truth commissions, memorialisation efforts, SSR, criminal prosecutions, reparations, vetting, institutional reform, gender justice and local justice which have all been promoted in post-war states (Report of the SG, 2006; ICTJ, 2008a).
2.4.1 Truth Commissions and Memorialisation Efforts
Truth commissions are non-judicial and have no power to legally sanction sentences for perpetrators. Instead, the focus is placed on the methods of human rights abuses and attempts to heal the old wounds of victims and their loved ones. The belief is that bringing out the truth will achieve reconciliation, strip away impunity and may lead to future political action (Brecke and Long, 2004: 67). This is integral for restorative justice to reconcile offenders and victims, heal wounds, encourage forgiveness, restore broken relationships and reconcile and encourage the participation of all those involved in crime to bring an end to conflicts and animosity (Markel, 1999; Willemsens, 2003: 24).
The main objective of truth commissions is to seek the truth. Truth-seeking occurs during post-conflict reconstruction that includes numerous steps of investigation to help societies understand the mass-scale atrocities suffered and to prevent such future injustice (Druckman, 2000: 338; Mendeloff, 2004). Moreover, truth-seeking provides a society the means to reduce the lies concerning the cruelty that has been justified by various political elites and find different explanations for wrongdoing that occurred, forming a more inclusionary democratic dialogue (Ignatieff, 1996: 113). During this process, victims can find closure by learning about the systematic violations they suffered that includes disappeared loved ones and why certain groups were targeted by the state (Waldorf, 2009: 110). ‘Truth-seeking is essential because sustainable peace can be achieved only when a society addresses its past’ (ICTJ, 2008a).
Truth commissions include public testimony that concern hearings to acknowledge victim’s experiences. This includes detailed final reports and narrations given to policymakers and researchers and policy recommendations to stress the urgency of reforming institutions that were responsible for abuses and to prevent future violence (ICTJ, 2008a). Truth commissions have the potential to establish truth-seeking for a society to understand the importance of criminal justice and prescribe reparations, vetting and institutional reform. Truth commissions are institutions to deal with previous atrocities where trials have been limited in practice which can contribute to accountability and redress (Waldorf, 2009: 109).
The first truth commission was set up by Idi Amin in Uganda in 1974 due to international human rights organisations’ persistent pressure even though Amin rejected the report of the commission and continued his ruthless rule (Hayner, 1995: 229). The practice of truth commissions gained prominence in Argentina’s 1983 National Commission on the Disappeared and by 2000, 20 additional truth commissions had been established in Latin America and Africa (Gloppen, 2005: 28). From the 1980s until the fall of the twenty-first century, there have been around 30 truth commissions with South Africa and Chile being the most well-known (Committee for Conflict Transformation Support, 2002). By 2010, there have been an estimated 40 truth commissions (Carranza, 2010). The Truth and Reconciliation Commission (TRC) in South Africa was a national project which included amnesty in exchange for truth whereas Sierra Leone’s TRC was installed by the Office of the United Nations High Commissioner for Human Rights (OHCHR) (Kelsall, 2005). In short, the goal of transitional justice is to inseparably promote social harmony and stability to avoid a possible future conflict and start a fresh beginning that integrates entire societies.
Another method to promote social harmony is memorialisation efforts. This includes memorials and museums that maintain a point of remembrance for individuals and promote knowledge concerning previous human rights and IHL violations as a prevention strategy to avoid it occurring in the future (Barsalou and Baxter, 2007: 3, 8). Providing historical memory is rooted within transitional justice that paves the way for a peaceful, democratic and just future (De Brito et al, 2001; Lundy and McGovern, 2008). This consists of places for mourning and healing for victims’ families and survivors (Servaes and Birtsch, 2008: 6, 18). Furthermore, final reports of truth commissions can be promoted into educational programmes, with civic engagement retelling history and conflict, to ensure that the future generations do not forget the past and avoid repeating similar mistakes (Barsalou and Baxter, 2007: 2, 4).
However, truth commissions and memorialisation efforts have not been implemented in the context of Afghanistan, the main case study of the thesis. Lambourne (2006: 267) recognises that there has been ‘little call’ for accountability of previous human rights abuses involving many groups over thirty years; there is no peace settlement and Afghanistan is still undergoing an armed conflict which is why there has been no truth commission installed yet. President Hamid Karzai has called for the Loya Jirga government to create a truth commission to end impunity and provide justice to those that have suffered as victims or their family members from mass graves where bodies in hundreds have been found, burning of houses and shops and other cruel acts (Karzai, 2002; Chesterman, 2005b: 177). Although a truth commission has been encouraged by the Afghan President, it has not been implemented due to the protracted conflict and the complexity of groups involved (Hartmann, 2011: 185). Hence, truth commissions and memorialisation efforts are not discussed in-depth here or later in the thesis. It is SSR that can be interconnected with the other elements of transitional justice which will be examined in turn to recognise these attributes of JSR that can positively link with the security sector to reduce the three main pitfalls identified in the previous chapter.
2.4.2 Security Sector Reform
This transitional justice initiative largely overlaps with the reform of the security sector. SSR and transitional justice ‘share many of the same goals: accountability for past crimes, capacity building to strengthen the rule of law, and deterrence’ (Crossley-Frolick and Dursun-Ozkanca, 2011: 1). SSR has a holistic vision to strengthen and professionalise the armed forces, state police and the judiciary (Organisation for Economic Co-operation and Development (OECD), 2005). Related to this are ideals to formulate instruments to reduce corruption, that include preventative strategies such as increasing wages, human rights training and robust law enforcement, in all state institutions and from the actors involved, namely, the state police and judges (Anderlini and Conaway, 2004: 37; Neild, 2007: 8). This is to reduce bribery and corruption, enforce the rule of law and accountability and to restore credibility, legitimacy and public trust of the security sector (Anderlini and Conaway, 2004: 31).
As addressed in the first chapter, overfunding from externally driven donors to suit interests to protect physical security by training and professionalising the security forces via compartmentalised reforms has resulted in low funding in JSR (Sedra, 2006a). This has hindered the justice sector in fragile and war-affected states to implement a competent judiciary that has the capacity to perform legal duties (House of Commons: International Development Committee, 2012: 94) in line with criminal prosecutions.
2.4.3 Criminal Prosecutions and Reparations
Criminal prosecutions consist of judicial investigations against those that are responsible for human rights abuses. Senior public or state officials, the ‘big fish’, are investigated to demonstrate that those that are considered to be in charge over widespread and systematic violations are brought to justice[8] (Taylor, 2006). This upholds the institutional apparatus by means of prosecution and sentencing in national courts and special tribunals, and also in international, joint and domestic tribunals, or in foreign courts (Lie et al, 2007: 6). This links to retributive justice that is a subject for moral deliberation: obviously the duty of the state is to punish those guilty of committing offences and the purpose of promoting moral education is for the offender to fear punishment (Kant, 1964: 88; Kant, 1965). Retributive justice ‘embraces the rule of law’ by prosecuting or trying those that have physically or emotionally hurt victims which leads to publicly visible defeat of the wrongdoer (Minow, 1998: 25). This names and shames the perpetrators and puts them out of their positions as part of reconciliation (Gloppen, 2005: 18). Victims want to see wrongdoers punished for ruining their life or lives of loved ones and thus amnesty or exile is unaccepted (Bass, 2005: 3). This psychology enables victims to restore better relations, break previous immoral order and rebuild trust in the post-conflict society (Jost and Kay, 2010: 1144).
Linked to assisting criminal prosecutions are reparations to pay for damages incurred. Reparations are sponsored by states to help heal moral and material damages of recent past abuses that include cash compensation or pension payments, official apologies and memorials or free or partial social services from housing to health (Bernstein, 2009). Reparations are usually paid for loss of a family member (supplemented with punishment such as imprisonment), loss of income, and any additional damages affiliated with emotional strain and psychological trauma which includes payment for injuries, loss and damage of property and medical expenses (Lutz, 1995: 559). The state is responsible for such reparations even if an old regime had committed or tolerated previous abuses without providing any compensation (Kritz, 1996: 599). Individuals can seek ordinary civil action against people responsible for their losses and injury but the state is in the highest position to guarantee that victims are reimbursed equally and subject to need (Lutz, 1995: 560).
The rights of victims have been part of post-authoritarian countries such as in Latin America after the fall of brutal military dictatorships. In Argentina, economic reparations in the form of cash payments as state policy were provided to the victims of widespread human rights abuses committed from 1975 to 1983 during the military dictatorship that has become a legacy (Guembe, 2006). In addition, reparations can include payments as compensation from a convicted perpetrator of a crime to the victim as agreed by both parties, so there is no winner or loser, under the auspices of a tribal elder or village chief during traditional community-dispute resolutions in decentralised post-conflict settings, such as Afghanistan (Coburn and Dempsey, 2010: 3).
Unlike formal justice, customary systems, Jirga or Shura, promote reconciliation and social harmony to end blood feuds and vengeance attacks with the mutual agreement of both parties including settlements of compensation payments and sometimes ‘marriage exchanges of women from the families involved’ (Barfield et al, 2006: 8). Reparations can be provided at the informal level in failed and conflict-affected states for damages suffered even if the reparation is deemed unjust, such as surrendering more than one girl for marriage into the victim’s family in Afghanistan for crimes perpetrated by men in their family to compensate for the crime (Kamali, 1985: 91; Parrot, 2011: 18-19). This will be discussed in-depth in the gender justice and local justice sections.
In sum, reparations can be provided at all levels of a society and it assists criminal prosecutions, part of retributive justice, which is a fundamental component of JSR. The importance of criminal prosecutions rests on a competent formal judiciary that has the competence and independence (OHCHR, 2002: 115-118) to try and prosecute human rights abusers and wrongdoers in both previous and current regimes of governance[9] (Marshall, 2007: 141-142). Failure to do so results in individuals previously engaged in war crimes and other violations being rewarded into positions of the government which disregards the rule of law and failure of justice. This hinders security insofar that those involved in previous legacies of armed conflict are not brought to justice and current regimes reward these war criminals with government positions which may encourage others to engage in criminal activity due to hope of similar incentive and thus protracts lawlessness, human rights abuses and further cements impunity into the new regime (Darehshori, 2009: 35). The current government of a transitional or failed state continues to be controlled by warlords or powerful figures which seriously hinder security, more broadly SSR efforts.
To provide one example, the political system in Afghanistan has welcomed anti-Taliban commanders and warlords into President Karzai’s cabinet and loyal warlords have been re-elected (Porter, 2009; Katzman, 2012). Several Northern Alliance anti-Taliban warlords that are renowned for previous mass human rights abuses were awarded positions into President Karzai’s cabinet (Clements, 2003: 267; Kolhatkar and Ingalls, 2011). These powerful figures have not been under criminal prosecutions due to the Amnesty Blanket Immunity Law and if not repealed, the police will not attempt to bring powerful individuals that have guns, money and political connections to justice (Hartmann, 2011: 186). In these situations where the police, prosecutors and judges are either unable or unwilling to investigate and institute criminal proceedings against such senior public officials that are suspects of corruption and heinous human rights violations due to disincentives, intimidation and death threats, the rule of law and human rights cannot be preserved (OHCHR, 2002: 158). Powerful Afghan local power holders that weaken security, continue impunity and human rights abuses that are released or have cases dropped from the judicial and correctional process can only be challenged if criminal prosecutions are implemented by a truly independent judiciary with non-infiltration from the Afghan government (Human Rights Watch (HRW), 2010; UN, 2010a).
Hence, Karzai’s cabinet are ex-leaders of Afghan anti-Taliban factions during the 1990s and many warlords were responsible for thousands of innocent civilian casualties but the amnesty law pardons them from retrospective crimes (Graff, 2010). In relation to JSR, the justice sector is usually under resourced in comparison to focusing on protecting physical security (Sedra, 2006a: 100), criminal prosecutions can be strengthened with more funding and oversight from external actors which will benefit SSR insofar that powerful individuals of former and current regimes will be investigated and prosecuted for human rights abuses and corruption. Alongside repealing amnesty laws, robust vetting from the outset of an appointments process concerning all government and public sector employees in order to check backgrounds for human rights violations can be endorsed in weak failed states.
2.4.4 Vetting
Vetting can be defined as a process of assessing qualities and also integrity in relation to human rights standards and checks to regulate public employment (Czarnota, 2007: 223; Womack, 2007). Vetting is necessary for anyone that has access to vital information and funds or any individual who has significant powers such as government officials, security actors and justice providers (Democratic Control of Armed Forces (DCAF), 2006: 1). Vetting is utilised within security and justice sector reforms to rebuild trust and legitimise corrupt and abusive public institutions by removing those deemed as obstacles to such institutional reform and disable structures to avoid the recruitment of further violators (ICTJ, 2008b).
In transitional settings, there are two main vetting processes: review and (re)appointment to assist institutional reform by removing abusive individuals that hinder public institutions (Mayer-Rieckh, 2007: 485, 487). These main processes examine the backgrounds of serving public employees, security actors and justice providers as a long-term strategy to promote integrity and professionalism (Fithen, 2009: 26). This is to disband those unsuitable for their role due to previous or on-going abuses and under (re)appointment, the most suitable public, security and justice employees are selected to develop trust and enhance competence in all sectors (Mayer-Rieckh, 2007: 488).
In order to do this, applicant’s backgrounds and identities are checked by a vetting unit that is centralised, decentralised or private, before entering office or a position within the security forces or judiciary (HRW, 1999a). General methods of vetting include initial disclosure forms requiring names, employment history and previous criminal convictions for risk assessment (Smith, 1998; Cowburn and Nelson, 2007: 296). This is pursued by electronic and identity checks to verify the authenticity of documents such as a passport (Chawdhry and Vakalis, 2010). Subsequently, background and criminal checks and medical and financial records are undertaken followed by subject interviews that consist of questions concerning the disclosure form, family background, health and reference checks (DCAF, 2006: 4). Additional techniques include psychological and medical examinations, fingerprints and a polygraph interview that has reached many police selection processes (Handler et al, 2009: 71).
Countries that have suddenly become democracies or are in the transition of doing so utilise these recruitment, screening and human rights checks to exclude incompetent or abusive public employees from the civil service and government related ministries (Pion-Berlin, 1992; Neild, 2003: 198). Lustration is a legal process which authorises a government to investigate and screen those engaged in previous regimes to purify state organisations from wrongdoings under former communist regimes, thus promotes ‘decommunisation’ via vetting practices (Boed, 1999: 358; Gibney, 1997). Lustration has been widespread in Eastern Europe – Poland, Bulgaria and the Czech Republic to identify and disband abusive and corrupt officials from office to enhance the credibility, democratisation and accountability of public institutions (Grodsky, 2009: 26).
Vetting bridges SSR and JSR together due to the fact that checks for human rights violations and performance reviews enhance the professionalism and discipline of the security forces to understand and adhere with international human rights standards (England, 2010; Fithen, 2009: 5, 14). Most important, with vetting over the security forces, the rule of law can be implemented insofar that potential military and police forces have their backgrounds checked on good behaviour and are removed or prevented from being hired if human rights and minority violations are found (Finci, 2007: 217-218; Sotiropoulos, 2007: 138). In order to achieve this, institutional reforms are needed in the government, security-related ministries and public sector to implement vetting to either remove or prevent individuals with previous human rights abuses to enter government and security institutions (van Zyl, 2005: 213-214).
2.4.5 Institutional Reform
Institutional reform involves making certain changes to primary organisational structures such as retraining lawyers, judges and prosecutors and the state police, or restructuring the court system (Carothers, 1998: 98). This may include the reform of the judiciary or Ministry of Interior (MoI) with a pay and grade reform which has been attempted in Afghanistan (SSR Network, 2008). In 2006, a pay and grading reform within the MoI alongside anti-corruption training for the police and judges commenced as fundamental institutional reforms of both the security and justice sectors (Moldovan, 2007: 11; United States Agency for International Development (USAID), 2009: 25, 37). In addition, many programmes and organisations such as the Justice Sector Support Programme have attempted to reform the Ministry of Justice (MoJ) to reduce corruption across the country (US Department of State, 2010b: 13). Understanding structural and systemic problems, such as low wages and corruption in Afghanistan, that have hindered public services are important aspects to reform the institutions responsible (International Crisis Group, 2010: 25). Therefore, institutional reform links both security and justice sectors insofar that in war-torn countries, the MoI and MoJ are restructured and more trainings are introduced to benefit professionalism and the services they provide (Call, 2007b: 12).
In relation to institutional corruption, public administration reform (PAR) has been endorsed in many states in order to provide better public services and reduce corruption and poverty (Mussari and Cepiku, 2007). PAR is a strategy to downsize the civil service, reduce overlapping duties and enhance the efficiency and competency of public sector employees, implement a meritocratic appointments system (Macciavelli, 1999: 760; Brillantes, 2001) and increase the wages of staff to provide economic security (UN, 1995: 1). In Afghanistan, PAR and more specifically pay and rank reform, as stated earlier, started in the civil service and has entered the MoI and Ministry of Defence as an anti-corruption strategy (Wilder, 2007; Johnson, Jr., 2009: 9-10). Hence, these internal prospects of transitional justice, more broadly JSR, has the potential to not only enhance the efficiency of the civil service and security forces, but increase their wages to avoid survival based corruption which seriously hinders SSR.
The Department for International Development (DFID) (2000) and Brzoska (2006: 1) recognised that institutional corruption severely hampers attempts of reforming the security sector. Therefore, the focus on physical security, recognised as a pitfall of SSR in the first chapter, can be avoided by not only focus on training and professionalising the security forces, but also endorsing an anti-corruption strategy such as PAR and pay and rank reform. Yet, in common SSR practices, reforms are compartmentalised which leads to external actors focusing more on either security or JSR to suit the interests of foreign donors involved (Degnbol-Martinussen and Engberg-Pedersen, 2003: 208-209). However, both security and JSR can be intertwined with institutional reform in the security, military and justice institutions to benefit the efficiency of personnel via incentives for good behaviour such as pay and rank reform so that low wages which lead to survival based corruption will be reduced.
Such initiatives discussed above can derive from institutional reform that also benefit land and water reforms for various members of a society to reduce poverty but gender imbalances are often not sufficiently addressed (Mubaya, 2009: 137). Institutional reform and public policy can therefore include more than pay and rank reform, PAR, vetting, land and water reforms. Institutional reform has the potential to promote gender justice via law-making and equal access to justice to benefit all members of societies within fragile and war-affected states in order to make every effort for social justice, an element of human security (Ellis et al, 2006: 71-72; Stiles, 2012: 167).
2.4.6 Gender Justice
There have been efforts to challenge impunity and violence to enable equal access to justice and redress of human rights abuses. There has been international recognition for gender rights during war and post-conflict as many upcoming democracies are gender-blind despite SC Resolution 1820 (2008). This Resolution was mandated to address the vulnerability of women in conflict, namely prevalent systematic sexual violence during a military, political or guerrilla culture of impunity which seriously impedes international peace and security (UN Women, 2010). Gender-based abuses have continued despite the mandates of truth commissions, policy proposals and reparation programmes (Gray, 2010). By way of illustration, Borer (2009) highlights that truth-telling in South Africa’s TRC failed to uncover gendered truth which had an impact on its national reparations policy and peacetime gendered violence continued.
Furthermore, in Afghanistan, many women’s rights are overridden at decentralised levels, namely with human rights and access to justice (Amnesty International, 2008; CARE International, 2011: 12). At the provincial and rural levels of the country, baad is utilised as reparations or an exchange to solve a dispute – where girls or young women are surrendered by the perpetrators family to the victim for unconsented marriage to promote reconciliation (United Nations Assistance Mission in Afghanistan (UNAMA), 2010: 6, 9). In addition, if a girl or young woman is raped in a village or rural area, the family of the raped victim will surrender their daughter to the perpetrator for marriage to avoid shame and restore honour of the family within the community (UNAMA, 2010: 11). Women’s role during community disputes is virtually non-existent and it is discredited by a community if a woman brings a dispute to a tribal elder, even if complaining against forced marriage or rape (HRW, 2011). These actions of forced marriages without consent clearly breach Shari’a Law and Article 3(4) of the 2009 Law on Elimination of Violence against Women which is punishable to short imprisonment not exceeding two years under Article 517 of the 1976 Afghan Penal Code. More inclusion and participation from the vast efforts of CSOs and NGOs, such as The Asia Foundation, ActionAid and the International Development Law Organisation (IDLO) can be promoted to promote awareness and campaign for equal women’s rights at all levels.[10]
Taking the above into consideration, gender justice can have a positive effect on SSR insofar that human security, which is part of gender justice, can promote individual rights, human rights and social justice for women by combating exclusion and discrimination against women to reinstate human dignity (Porter, 2007: 35, 118). Human security complies with the holistic SSR strategy, as identified in the first chapter, which can be adhered with to ensure that women have equal access to justice and are treated fairly in comparison to male comparators. Post-9/11 intervention in Afghanistan had a just cause of preventative war – feminist ethics of war concerning the oppression of women under the brutal Taliban regime (Hutchings, 2010: 153). Yet, it is the focus on physical security after 9/11 with large investments from international actors that support US and coalition externally driven and security-focussed compartmentalised agenda that has weakened attempts on promoting human security (Sedra, 2006b: 330; Rukavishnikov, 2007: 27-28), particularly in relation to gender justice. Hence, gender justice is a transitional justice tool of JSR that can bridge a link with SSR and peacebuilding by promoting human security and eliminating structural violence.
Despite the potential that gender justice has of bridging JSR with SSR in local justice dispute mechanisms, the rule of law is hindered for women and access to justice, human rights and equality before the law are discriminated frequently in male-dominated societies where a formal rule of law is virtually non-existent.
2.4.7 Local/Informal Justice
An important part of post-conflict reconstruction involves international donors and governments of post-war states focusing on JSR for the state to deliver the rule of law and justice (Report of the SG, 2004). Often, underlying assumptions claim that post-war states are fragile with limited state capacity and are also unable to provide basic services. This in turn leads to donor funded multidimensional PKOs, SSR and judicial reform programmes. The UN and the international donors that fund the security and justice programmes are interdependent and not well coordinated. These multidimensional programmes invest in achieving state capacity-building in order for the police and justice personnel to be fairly recruited and trained effectively. In addition, these programmes aim to rebuild basic infrastructure, eliminate methods of capital punishment and promote effective management (Baker and Scheye, 2009: 171).
International interventions assume that post-conflict justice programmes must rebuild state policing and formal justice systems to satisfy the wants of citizens. In these states, international actors aim to reform domestic justice with a written constitution based on universalism[11] which incorporates basic human rights and rules contained in Western democratic governance. Moreover, these courts are centralised within the state and are inaccessible to most of the rural population. Despite this, international donors focus on the construction of JSR and police developmental programmes in order to strengthen the domestic government. This in turn aims to provide efficient national security and justice services to benefit the entire state population currently and benefit the next generations (Baker and Scheye, 2009: 172). The assumption is that the reform of the security and justice systems can be sustained with financial and human capital once donor assistance ceases (Hanlon and Yanacopulos, 2006).
International criminal justice for gross IHL is better at the national level in liberal democracies but in post-conflict environments, local justice is also a required instrument of transitional justice to promote the rule of law, accountability, truth-telling and victim gratification (Alvarez, 1999: 482). Both methods, national and local, have prescribed legal pluralism; two or more legal systems that co-exist simultaneously in many post-conflict societies. However, the misunderstanding of the history, conflicts and rituals of post-conflict states leads to the lack of access to national justice. Usually, post-war states do not have an available formal justice system as a means of providing dispute resolution and redress (Buur, 2006). The SG Report (2004: para. 36) stresses that post-conflict countries and the international community must give regard to indigenous justice and comply with both international standards and local ethical traditions. Therefore, the role of more accessible local justice should be incorporated as a part of donor-supported JSR that is based on internal communal cultural and historical contingents (Baker and Scheye, 2009: 171-172). This needs to be analysed from a cross-cultural perspective.
Local justice has three main parameters that focuses on groups instead of individuals, promotes communal compromise and social harmony and prefers restitution over methods of punishment (Waldorf, 2006a: 9). Local processes aim to reconcile perpetrators with victims as a method of reconciliation and can also reintegrate former combatants into societies (Duthie, 2009). In addition, local justice has attributes of easy accessibility, is cheap, quick, involves public participation and is easy to understand for illiterate persons (Dale, 2008: 2; Coburn and Dempsey, 2010: 1).
Local justice networks include customary and religious courts, market association hearings and councils ran by village elders (Scheye, 2008: 74). The provision of security includes informal organised community groups, neighbourhood patrols, trade and civic associations, crime prevention organisations, customary and religious police, commercial security firms and political party security (Baker and Scheye, 2009: 174).
In weak post-war states, local justice networks provide the majority of security and justice. These networks provide 70-80 per cent of the service delivery (Baker and Scheye, 2007). In 2004, DFID attempted to support these networks (DFID, 2004). In 2006, the UN Development Programme (UNDP) recognised that these networks with accessible justice to poor people of disadvantaged countries provide an effective informal dispute resolution that caters for 80 to 90 per cent of these populations (Wojkowska, 2006). In 2007, the OECD stated how justice developmental practitioners may support these local justice networks (Ball et al, 2007; OECD, 2007). For example, in Nigeria, there are 16 methods of informal policing structures in four federal states to deal with crime due to the ineffectiveness and absence of formal state institutions (Alemika and Chukwuma, 2004: 6). Therefore, non-state local justice is the main provider of informal security and judicial services in post-conflict war-torn states (Alemika and Chukuwuma, 2008).
2.5 Informal Justice Case Studies: South Sudan, Rwanda and Afghanistan
The majority of the populations in war-stricken environments in Asia and Africa reside in rural locations and rely on community-based dispute resolutions with mediation provided by trusted community tribal elders that are in compliance with ethical traditions, customary law and religion practiced for centuries (Kudat and Bayram, 2000: 270; Fred-Mensah, 2008: 137). Hence, local justice plays an important contribution to SSR insofar that community elders also appoint decentralised police and local security networks that are limited to their communities under chieftain power to provide security and protection (Kratcoski and Cebulak, 2000: 33). In addition, tribal elders or community chiefs advocate justice in rural parts of the country that are faster, cost-effective, easier to understand and less corrupt than the formal centralised legalism (Coburn and Dempsey, 2010). The case studies of south Sudan, Rwanda and Afghanistan will examine these points raised.
2.5.1 South Sudan
Post-conflict African states consist of overlapping formal and informal dimensions of power which includes a clientelistic culture (Chabal, 2006: 1). Judicial and policing roles overlap and their roles are difficult to be separated and outlined. In south Sudan, normative parallel state systems and customary rules are based on democratic constitutional defined principles and ethnically-based customary rules within African institutions. Both of these structures operate with informal acceptance that legally recognises state authority and constitutional integration (Nina and Scharf, 2005). Yet, the civil war in south Sudan with the Khartoum government has seriously hindered the reforms of state and local judicial systems and physical infrastructure.
In Nairobi, on 9 January 2005, an attempt to cease the insurgency in south Sudan emerged with the Comprehensive Peace Agreement (CPA) between the Sudanese government and Sudan People’s Liberation Movement/Army (Harbom and Wallensteen, 2005: 127; Harbom et al, 2006). Both had been fighting to defend local customs, religion and languages against Islamic and Arabic dominance since 1983 (Leonardi et al, 2010: 3). This Agreement formed a transitional Government of National Unity (GoNU) to function until the outcome of the 2011 referendum (Centre for International Governance Innovation, 2011: 2). Meanwhile, an interim constitution has been the legal basis of the Sudanese governance system (Abdelgabar, 2009: 1). The CPA also created a separate semiautonomous Government of Southern Sudan (GoSS) which has its own ministries and constitution with little infrastructure remaining after the devastating civil war (Reuters, 2010).
The CPA has stressed that half of the oil revenues that is generated in south Sudan are to be handed to the GoSS (Sudan Tribune, 2009). This has been problematic due to the fact that the CPA has not been thoroughly implemented and borders of the oil fields, with the majority located in the south, remain a grey area (Norwegian Agency for Development Cooperation, 2011: 8, 15). Consequently, GoSS spent 38 per cent of its budget on equipping and professionalizing its security forces for the possible renewed conflict after the 2011 vote for secession (Osland et al, 2007: 27). South Sudan eventually reached independence on 9 July 2011 after the CPA in 2005 ended the civil war (British Broadcasting Corporation (BBC) News, 2011a).
State-based justice and security is also overwhelming. The northern regime/National Islamic Front (NIF) had dismissed hundreds of police and judges in south Sudan during the civil war (Home Office, 1999; Baker, 2008: 1). Moreover, military and special courts were established to try political opponents and National Intelligence and Security Services are able to arbitrarily arrest and detain persons whilst enjoying immunity as part of their work under the 1999/2010 National Security Forces Act (UN General Assembly, 2010: 2; Bureau of Democracy, Human Rights, and Labour, 2011: 4, 7).
Newly trained judges of Shari’a jurisprudence were appointed by the NIF’s ‘Islamisation policy’ in south Sudan (Baker, 2008: 1). Yet, due to the severe conflict, the outside towns had no state judiciary and the police were virtually non-operational (Albrecht, 2009; HRW, 2009: 13). In 2008, the judicial framework of GoSS contained penal and criminal codes in draft form which are yet to be completed (Kuai, 2008). There was no university faculty of law, law library and judicial training centres and Bar Associations were non-existent (OECD, 2009a: 55, 76).
Article 174 of the 2005 Interim Constitution of Southern Sudan recognises the role of traditional authority according to customary law (Hoehne, 2008: 9). A state-centric justice system in the next generations seems unlikely and will not substantially benefit the delivery of security and justice (Baker and Scheye, 2009: 177). This is due to the fact that the majority of people in rural south Sudan areas prefer traditional dispute resolutions and local security (OECD, 2009a: 52). Most people live in rural areas and state police and courts that are situated in towns are not immediately accessible (UN General Assembly, 2001; UN Environment Programme, 2008: 301). The police are immobile due to rainy seasons affecting the poor conditions of roads (Woolf, 2011).
When citizens contact the state judiciary and police, indifference and bribery have led to unsatisfactory experiences (HRW, 1999b: 426; Berman and Biden Jr., 2008: 529). Accounts suggest that the police are incompetent in imposing legal and local orders and the customary court clerks and community officers are trusted more than the police (UNDP, 2006). Hence, an estimated ten to one people prefer local tribal chief settlements over the formal judiciary for dispute resolution due to the fact that they are accessible, cost-effective and culturally relevant (Mennen, 2010: 14-15). Improvement of the local justice networks are expressed wants of the people rather than total judicial replacement (Leonardi et al, 2010).
Furthermore, similar to many community-based dispute resolutions, gender-based violence (GBV) is virtually unaccounted for in this protracted conflict setting which has led to failures with local justice in south Sudan (Elia, 2007). Traditional justice favours restorative and negotiated settlement rather than punitive action when women report sexual violence (Ali, 2011: 9). Social and cultural practices of everyday life harm women such as sexual violence, limited understanding of gender equality, communal perceptions of gender issues as illegitimate and outlandish and the formal justice system that has some regulated laws to protect women lacks infrastructure and is inaccessible for most of south Sudan (Ali, 2011: 1). In relation to other gender justice issues, women in south Sudan are pushed into forced marriages and female genital mutilation for social acceptance and eligibility for motherhood persist (Miraya: United Nations Mission in South Sudan, 2011). In addition, women face limited access to education and negative labelling if affiliated with political activity (Edward, 2011).
2.5.2 Rwanda
In the aftermath of the genocide, Rwanda has adopted a tripartite system of justice (Betts, 2005: 735). Low-level perpetrators are judged and reintegrated at the local level (gacaca); the national ordinary courts try for high crimes and the International Criminal Tribunal for Rwanda (ICTR) prosecutes high-level perpetrators that inflict a threat to domestic and international peace and security (Waldorf, 2006a: 87). Rwanda put most of the country on trial with the government utilising local gacaca dispute resolutions ‘to try hundreds of thousands of suspected génocidaires in approximately nine thousand local communities’ (Waldorf, 2006a: 3). Despite the gacaca also filling the role of ordinary courts, there are too many cases and it is estimated that it would take 200-400 years to try over 100,000 perpetrators of the 1994 genocide in prisons built for 15,000 (Daly, 2002: 356; Schabas, 2004). On 29 July 2005, President Paul Kagame’s government began to release over 36,000 genocide suspects, many of them had been detained for over a decade without a trial, that confessed and showed remorse for roles in the 1994 genocide as a third phase of releases to tackle over-crowdedness (BBC News, 2005; International Monetary Fund, 2005: 75). Hence, many cases are referred to gacaca rather than ordinary courts due to the weak prison system – low capacity and resources.
In the current gacaca, the objective of accountability dominates the court system to fill in for the slow and expensive ICTR by speeding up trials, reducing prison populations, reconciling victims and perpetrators and reintegrating génocidaires into society via community service (Flinterman, 2004: 286; Burgoyne and Maguire, 2006: 83). Gacaca consists of a small village and several cells are grouped together. In total there are 12,103 established gacaca courts across Rwanda that is presided over by 169,442 local judges (inyangamugayo) (Ingelaere, 2008: 41). These local judges are elected on popularity and integrity with prerequisites to have no legal training, experience and no education (Stefanowicz, 2011). In October 2001, the election of traditional gacaca court members began where Rwandans elected approximately 255,000 people to act as civil judges in these courts[12] (UN Integrated Regional Information Networks, 2001). The tribunals derive from traditional community courts where elders sit on the grass to resolve community conflicts for less serious crimes (Daly, 2002: 356).
The objective of gacaca is to restore social relationships and rebuild social and cultural fabric (Clark, 2010: 326). Local participation is important due to the genocide which has left accountability disentangled (Cobban, 2002). The gacaca in Rwanda brings reconciliation with intensive ritual contexts which is carried out within religious discourse. This discourse aim to bring about social reintegration by building a consensus based democracy and is centred on reconciliation and legal positivism,[13] truth-telling and the collection of evidence (Vandeginste, 1999; Clark, 2004). The first stage involves building evidence against the detainee. This is done by returning the accused party to their originated community where public deliberation in an accessible public forum commences to add to the filed evidence against the detainee (Betts, 2005: 747). If no evidence is enclosed then the accused is released. Sentencing may also include community work or be annulled in exchange for confessions (Corey and Joireman, 2004). Individuals found guilty may appeal the decision to the same jurisdiction where they was initially tried if they believe that they did not receive a fair hearing and if still dissatisfied; the individual can take it to a higher jurisdiction (Clark, 2010: 155). If an accused person receives a custodial sentence, then that person is taken to prison immediately and if they have served the sentence in detention whilst awaiting trial, they are set free.
There are four categories of crimes based on the severity of particular wrongdoings. The new March 2007 law[14] of the gacaca court system is categorised from 1 to 4 with one representing the most severe crimes that are excluded from gacaca jurisdiction (Schabas, 2008: 574). Category 1 covers crimes committed of the highest degree, such as instigators during the genocide and sexual torture, who are to be tried in national courts that can lead to the sentence of life imprisonment or the death penalty without a confession (Hankel, 2006: 181). With a confession, the sentence for the highest classified crimes is reduced to 20-30 years of imprisonment and in all cases, usually in cases of lesser crimes; the custodial sentence can be halved and altered to community service[15] (Vandeginste, 2003: 273-274; Redress and African Rights, 2008: 26-27). Category 2 crimes include homicide and serious attacks on those who intended to kill and those who did attack others without the mental intention to kill mens rea (Pitsch, 2002: 4). Category 3 consists of serious assaults and grievous bodily harm that have not resulted to death and category 4 concerns lesser crimes that include property crimes, theft and looting (Harrell, 2003: 69; Karekezi et al, 2004: 72).
Despite the intentions of gacaca, justice at all levels has been manipulated due to state, local or global interests. It is debatable whether the tripartite justice system of Rwanda has helped achieve social reintegration. Constituent local interests have manipulated the courts to promote the condemnation of the Hutus by the Tutsis. The gacaca courts target Hutu crimes for prosecution which hinders the reconciliation process. This in turn risks ethnic division and the lack of due process for Hutus (Amnesty International, 2002). Hence, gacaca is imposed by the central government as a way to institutionalise racial justice and there is no popular engagement and in practice the trials have little traditional component (Waldorf, 2006b: 422-432). This system is dominated from a top-bottom process to try those for lesser classified crimes during the genocide. Local justice is politicised insofar that the local elders are not entirely impartial and use their discretionary rulings to serve communal harmony rather than individual justice at the state level (Drumbl, 2005: 549). This may override national legislation and international human rights, not only against Hutus, but also disempowers women in communities providing public testimonies in a local cultural context that opposes the authority of women (Scanlon, 2008: 35).
2.5.3 Afghanistan
In Afghanistan, community dispute resolutions differ across the country but they are all based on restorative justice and the maintenance of communal harmony to resolve the majority of disputes in rural areas (Coburn and Dempsey, 2010: 1, 3). An estimated 75-80 per cent of people live in rural areas in Afghanistan which means that the state centralised formal justice system is inaccessible (Coburn and Dempsey, 2010: 2). In most of the country, dispute resolution commences via traditional mediation procedures that include community elders, mullahs: religious leaders and other respected persons in which both parties agree to and trust (Centre for Policy and Human Development (CPHD), 2007). Disputes at the informal level include civil cases concerning land, water, inheritance and natural resource disputes and criminal matters which are all held at local councils (Shuras) and ad hoc meetings (Jirgas) (Wardak, 2003: 4). Both methods include community leaders or other respected individuals to discuss disputes and other community political concerns. Rather than determine a victor or losing party during a dispute, both parties are brought together and compensate for wrongdoings to restore communal harmony (Claude, 2010: 5).
Therefore, informal dispute mechanisms are accessible, trusted, cost-effective, fast and easily understood and more preferred than the formal justice system (Wardak, 2004: 340-341). The formal justice sector is centralised and inaccessible for many illiterate Afghans and the demand of bribes to speed-up a slow process of waiting for cases or pay enough to have a favourable decision is prevalent (Institute for War and Peace Reporting, 2007; International Crisis Group, 2010; Wyler and Katzman, 2010) due to low salaries for judges to cater for living costs (Patel, 2008: 159). This is a consequence of low funding in the justice sector that only received three per cent of funds in comparison to the 88 per cent spent on military and police reforms from SSR’s inception in 2002-2005 that prioritises protecting physical security (World Bank, 2005a: 43).
Despite these criticisms of the Afghan formal justice sector and public preference of community-based resolutions, rulings at the Jirga level do not always comply with the Afghan constitution and international human rights (UNAMA, 2009). As stated, Jirga outcomes may recommend baad, which offers a young woman or girl, without her consent for marriage, as reparations to a male family member of the victim and the female is often reluctant to complain against the actions of relatives due to their inferior role in communities (Amnesty International, 2010; HRW, 2011). Yet, in post-conflict countries, state institutions have weak capacity and are undeveloped to deal with all basic civil cases (Lockhart, 2005: 7; Perrotta, 2010: 3). Local justice processes have the potential to work with deteriorated national legalisms and adhere with international human rights in order to deal with a high number of perpetrators and reintegrate them with community service for social harmony (An-Na’im, 1995; Ministry of Foreign Affairs of Denmark, 2010: 5).
2.6 Conclusion
SSR focuses on physical security, is externally driven and compartmentalised which has affected funding in war-stricken states insofar that most is invested on professionalising and training the security forces which leads to severely under-funded judicial reform. Low funding and subordinate focus of the justice sector in a conflict-affected environment seriously hinders criminal prosecutions insofar that investigations, prosecutions and independence of the judiciary remain weak.
As illustrated in Afghanistan, warlords and those that have committed previous mass atrocities in previous regimes are rewarded into the government and chief provinces that remain insecure due to continual human rights violations, lack of rule of law, a culture of impunity and amnesty protecting such investigations (Porter, 2009; Graff, 2010). To overcome such problems, amnesty laws can be repealed and vetting over government staff and the security forces can enforce the rule of law by checking the backgrounds of human rights and behaviour leading to removal if such violations are traced (Finci, 2007: 217-218). In order to install vetting procedures, institutional reform can promote such change in the government, security institutions and public sector bodies. In relation to institutional reform, pay and grading and PAR strategy enhances the competency and efficiency of the civil service and security forces with an increase in wages to reduce survival-based corruption as corruption in the security forces seriously hinders the role of the security actors and SSR overall (UN, 1995; Mussari and Cepiku, 2007; Wilder, 2007; Johnson, Jr., 2009). Focus on anti-corruption strategy and enhancement in competency and skills can derive from PAR and pay and rank reform.
Gender justice concerns human security, which is included in the holistic notion of SSR, which can promote the rule of law by promoting women’s human rights, political and community-dispute inclusion and social justice and eliminate discrimination (Porter, 2007: 35, 118). After 9/11, the focus on physical security from compartmentalised externally driven reforms has led to the lack of effort and investment in protecting human security (Sedra, 2006b: 330; Rukavishnikov, 2007: 27-28). All three local justice cases abuse the human security of women insofar that in south Sudan, GBV are rarely accounted for and forced marriages persist; in Rwanda women have an inferior role in the gacaca during testimonies and in Afghanistan baad exploits girls and women for reparations to the victim’s family.
In relation to south Sudan, ethnic-based customary roles are endorsed at the local level for community resolutions but the formal justice system has extremely dire infrastructure after a civil war with the Khartoum government leading to the breakdown of formal and local justice systems (Elia, 2007; Lual, 2009: 74). Similarly, in Rwanda, the gacaca process aims to promote reconciliation, reintegrate génocidaires into society with community service and thus fill the gap of the severely under-resourced ordinary national courts due to dire judicial and correctional facilities as a consequence of the civil war and genocide (Ingalaere, 2008). Furthermore, thirty years of war in Afghanistan has shattered the formal justice sector and has dire physical infrastructure – lack of courts, law libraries, education for jurists and poorly interpreted statutes nationwide which is a main reason why most citizens that reside in rural areas utilise community-dispute resolutions (Wardak, 2004; Senier, 2006).
Access is poor as an estimated 75-80 per cent of both populations in south Sudan and Afghanistan only have access to informal community-based dispute resolutions (Baker and Scheye, 2007; CPHD, 2007) and in south Sudan, the roads and transport is poor, especially in long wet seasons (Woolf, 2011). In south Sudan’s outside towns, there is no formal legalism and police are non-operational due to poor roads and the severe civil war (Albrecht, 2009). In both south Sudan and Afghanistan, traditional justice is more accessible due to poor transport and insecure conditions reaching the formal judiciary, is more trustworthy, less corrupt than the formal justice system, cost-effective, easier to understand, culturally relevant and decisions are determined by trusted tribal elders (Wardak, 2003; Coburn and Dempsey, 2010: 1-3; Leonardi et al, 2010; Mennen, 2010: 14-15; UN Environment Programme, 2008: 301).
The formal justice system is too weak in both south Sudan and Afghanistan and due to the protracted conflicts, low funding and spending on the justice sector is evident insofar that most capital and aid is invested on protecting physical security – reforming the military and police (World Bank, 2005a; Sedra, 2006a; OECD, 2009b). Due to low investment in the formal judiciary, infrastructure is dire and the demand of bribes in the Afghan and south Sudan formal judiciaries and national police persist due to low wages (Berman and Biden Jr., 2008: 529) and the prisons lack basic sanitation facilities and are overcrowded in rural Afghanistan (Nojumi et al, 2004: 30). Similarly, the prison system is too weak to detain prisoners leading to the release of 36,000 in July 2005 in Rwanda (BBC News, 2005) which all hamper JSR, namely criminal prosecutions and institutional reform.
Despite such criticisms of justice in these three case studies, rituals and religious discourse at the local level have been applied in Rwanda and other post-conflict societies, such as south Sudan and Afghanistan. It is not a matter of enforcing the dichotomy between retribution and restitution; it is a matter of reconciling national and local justice in post-war states due to the absence of formal and decentralised state legalisms. The international community could provide principles of cosmopolitan law[16] to eliminate communal power relations.
All levels of justice can be placed above the false dichotomies of retribution versus restitution and relativism versus universalism. All of these principles and theories of justice may be integrated simultaneously at the cross-cultural grassroots level which will differ within each post-conflict community based on their internal varying custom, history, religion, ethical tradition and current justice system. The establishment of the rule of law and justice may contribute to SSR if civilian oversight (including the legitimisation of local justice networks if applied with basic fundamental human rights), democratic transparency, and accountability are applied in post-conflict justice. The rule of law can be adopted into indigenous justice that is based on religious texts if reinterpreted and modernised in contemporary times (Kwak, 2009: 5-6). This is to protect basic human rights standards such as the elimination of arbitrary arrest and detention, the promotion of the right to a fair trial, the right to appeal (International Covenant on Civil and Political Rights, 1966: Article 14) and promote gender justice under transitional justice – the elimination of discriminatory practices against women.
In sum, local justice networks are far more accessible than formal systems of justice (Bott et al, 2005: 24) and are very important to bridge the rule of law and justice with SSR, especially in remote areas. More funding, recognition and importance of functional local conflict resolution would help international interveners understand that aspects of community dispute resolutions are an integral and historical segment of everyday local life. Local rituals can be understood, protected and linked with universal standards and the rule of law by the international community as long as fundamental human rights are not violated (Spring, 2004: 71-72). This will link SSR locally to the justice sector with the establishment of the rule of law and communal police that are most accessible to the majority of people in rural areas of post-conflict states. Not only state-centric JSR is to be the focus with SSR, but the international community can analyse the rule of law and justice from a cross-cultural perspective before linking the rule of law and post-conflict justice with SSR.
The cases analysed in this chapter, UN interim administrations, focus on international projects of JSR within post-conflict contexts and transitional justice is the content in these projects. In relation to these cases and the three on local justice, transitional justice concerns non-functional states and the breakdown of the rule of law and a legacy of informal power-brokers, local culture and informal justice systems that regularly violate basic international human rights standards. This is a complex structure and the rule of law is difficult to achieve in an environment consisting of a legacy of injustice and conflict. To reiterate, in a war-torn failed weak state, informal justice and power lies with informal power holders due to dire infrastructure and resources to sustain a competent and accessible formal legalism. This chapter has addressed the failures of justice which lead to insecurity and conflict due to the lack of rule of law. JSR can support SSR by acknowledging the challenges of legacies of injustice, a failing state, unjust informal justice and legacy of local power holders. Failure to address justice will inhibit successful security.
Unless SSR and JSR are linked together successfully, then it is difficult to contribute to sustainable peacebuilding in post-conflict states. If the security sector continues to be mishandled and not reformed in time, funds will continually be misapplied which severely constrains post-conflict reconstruction, namely JSR (Anderlini and Conaway, 2007: 31). It is imperative that both the security and justice sectors are integrated for sustainable peacebuilding to apply the rule of law and effective justice to counter corruption and clientelism in both sectors – particularly the police institution. The main components of transitional justice will be addressed and examined throughout the thesis hereinafter in order to underline the current failures and convey ways how to benefit both the rule of law and justice and SSR simultaneously. To provide one example, vetting, a principle of transitional justice, is not undertaken in weak failed states such as Afghanistan which has led to warlords involved in previous and current human rights violations dominating politics, weakening the rule of law and justice and increasing insecurity across Afghanistan. However, vetting can be utilised to promote meritocracy, screen public employees and remove government, security and judicial actors that have been involved in human rights abuses to develop trust, enhance the rule of law and security.
Chapter III: Afghanistan Conflict Analysis and Security Sector Reform
3.1 Introduction
The first two chapters of the thesis have provided an examination of the main problems and three pitfalls of security sector reform (SSR). SSR: i) focuses on physical security, ii) is externally driven and iii) compartmentalised, which need to be complemented with the rule of law and justice to avoid such shortcomings. After this critique, the integration of reforming both the security and justice sectors will be analysed in Afghanistan. This chapter initially examines several phases of conflict and regimes – from the Soviet invasion, Mujahidin and Taliban regimes to the Karzai-democratic regime constantly fought by the insurgency[17] that have devastated the physical infrastructure and ethnic relationships in Afghanistan for over thirty years.
3.2 The 1979-1988 Soviet Invasion: Rise of the Mujahidin
During the Soviet invasion to preserve the Najibullah communist regirme that was crippling, the armed resistance supported by the CIA continually fought the Soviet regime. On 16 April 1992, Najibullah forcefully resigned as president due to pressure from his own PDPA ruling party and Abdul Rahim Hatef, one of the vice-presidents, took control of Kabul for two weeks (Shay, 2002).
During this time, Hekmatyar, leader of the majority-Pashtun Hizb-i-Ismali (HIG) ordered his troops to seize Kabul and communist cities. The civil war continued with Professor Sibghatullah Mojaddedi, Rabbani, Massoud and Hekmatyar seeking power to gain presidency of the country which led to numerous alliances and tactics to gain support and surrender short reigns (Khan, 2011).
The attacks in Kabul lasted until early 1995 when the Taliban launched attacks and Hekmatyar’s forces fled their Chaharasyab base, with Hekmatyar exiling to Tehran for a few years which left vast resources for the triumphant Taliban (Sinno, 2009: 65). Subsquently, the Taliban protested with rocket attacks in Kabul during late September 1996 (Maley, 2002: 215-216).
3.3 The Battle of the Taliban Regime against the Northern Alliance
On 27 September 1996, the Taliban, under the organised Mullah Mohammed Omar, seized Kabul, brutally killing the former Soviet-backed President Najibullah, his brother and allies at a UN facility in Kabul, claiming legitimacy as the power in control of an estimated 90 per cent of Afghanistan (Larkin, 2000: 491; Rafferty, 2002: 97; Smyser, 2003: 223).
During this period, the United National Islamic Front for the Salvation of Afghanistan, hereinafter the Northern Alliance was headed by Rabbani and created in 1996, was in constant opposition of the Taliban but only controlled 10-15 per cent of the country (Marston, 2008: 223). Despite the Taliban controlling over 90 per cent of Afghanistan, the Clinton Administration and the UN did not recognise them as a legitimate government and seated Rabbani’s cabinet in meetings rather than the Taliban (Katzman, 2009a: 6).
3.4 Post-9/11 International Intervention
After the 9/11 terrorist attacks on the World Trade Centre and the Pentagon that almost killed 3,000 American citizens, the US launched the global war on terror, expanding US counterterrorist operations (Rabasa, 2004: 50-51; Harrison and Dye, 2008: 406). US President George W. Bush’s aggressive unilateralism and assertive foreign policy forced the Taliban out of Kabul and hunted Bin Laden in Afghan caves with the use of illegal biochemical substances (Chomsky, 2001; Riedel, 2008: 2; Bonyanian, 2009: 15).
The war on terror gained the support of the UN immediately after 9/11. Subsequently, on 7 October 2001, the US, UK and allied Northern Alliance under Operation Enduring Freedom (OEF) immediately bombed Taliban military compounds and Al-Qaeda training bases with airstrikes leading to Bin Laden’s worldwide broadcast for all Muslims to support a Jihadist holy war against the US (Fishpool, 2004: 2; Doubler and Listman Jr., 2007: 134; Bergen, 2011: 92). Subsequently, the Northern Alliance militia seized Herat, with local warlord Ismail Khan returning from exile across the border of Mashhad and the Alliance commanded by General Bismullah Khan headed towards Kabul which was conquered a day later (Parker, 2009: 184; David, 2009: 496).
After the Taliban was driven out of power in late 2001, a transition of hope was promised to the people of Afghanistan after 23 years of civil war and the collapse of state institutions (Giustozzi, 2008a: 179). A central government had to be built from scratch and efforts to transform warlord politics to electoral peaceful politics has been problematic due to warlords continually operating as power-brokers which has hindered the legitimacy of the Kabul government (Otfinoski, 2004: 47).
The Bonn Agreement of 5 December 2001 led to the current interim rule of the Afghan government which authorised International Security Assistance Force (ISAF) troops; requested the Northern Alliance to leave Kabul and urged the international community to counter narcotics, terrorism and crime and draft a new constitution (SC Resolution 1385, 2001; Paris, 2004: 225; Katzman, 2009b: 1; Cordesman et al, 2010: 219). The Taliban was formally excluded from participation during the Agreement but built cooperation amongst other former warring signatories (Barakat, 2008; Clements, 2003: 184).
On 9 December 2001, the Taliban regime was defeated when Mullah Omar fled and surrendered Kandahar, the final Taliban stronghold, and Hamid Karzai declared that the Taliban rule was over (Meher, 2004: 234; Shimko, 2010: 137). Subsequently, in June 2002, the Emergency Loya Jirga was attended by many representatives leading to Hamid Karzai’s power in charge (Giustozzi, 2008a: 182).
3.5 Conclusion
After 9/11, aggressive US foreign policy led to the war on terror against Al-Qaeda despite the CIA and ISI previously arming and training Mujahidin warlords to defeat the Soviet invasion which formed much of the current security problem (Khan, 2011). Ex-Mujahidin commanders that were supported to fight the Soviet invasion have joined the Taliban such as Hekmatyar’s HIG and the Jamiat-i-Islami that fight against Western intervention and poppy interdiction efforts to fund arms and fight for a strict Islamic regime which has caused insecurity nationwide (D’Souza, 2009; Townsend, 2009).
The Bonn Agreement led to the April 2002 SSR strategy to construct formal security and judicial institutions in challenging conditions of a devastated country and economy in over two decades of civil war, fragmentation and factionalism (Katzman, 2009a: 8-9). SSR in Afghanistan has three pitfalls. First, the programme focuses on ‘physical’ security and little attention is paid on human security (Hutchful, 2003). Most expenditure is on the national army and least in the justice sector which consequently lags behind, leaving an unaccountable legal system and failure to install the rule of law and accessible justice to bring an end to impunity and curb corruption (Sedra, 2003c: 5; Jalali, 2006: 10). ANA costs amounted US$171 million during the fiscal year 2004/05 which is the equivalent to an estimated 25 per cent of the Afghan government’s entire $721 million operation budget (Ward, 2010: 8). Second, the reform programmes are externally driven, which makes local ownership seem impossible and promotes foreign impositions that all support the war on terror (Chappuis and Hänggi, 2009: 51). Third, reform is compartmentalised within a five-pillared system that is each headed by a different donor nation driving their own interests and poorly collaborate amongst each other (Bhatia and Sedra, 2008: 159). These three pitfalls have led to prevalent corruption and clientelism in the Afghan government, security and justice institutions. Therefore, security with the complementarity of the rule of law and justice is for the benefit of both anti-corruption and counter-insurgency. Put simply, successful JSR allows better reform of the security sector.
Chapter IV: Problems of Corruption and Clientelism in Post-Conflict and Developing States
4.1 Introduction
The first three chapters have stressed that the rule of law and justice need to be complemented with security to benefit the reform of both security and justice sectors. The purpose of this chapter is to specify the main problems that corruption and clientelism bring in a post-conflict setting and developing country. Ths identifies corruption, namely administrative, as a problem for post-conflict development which impacts on state effectiveness, the misuse of aid and the rule of law and security via state capture in interests of non-state illegal criminal, guerrilla and drug networks.
The second part analyses strategies to combat the main causes of corruption via United State Agency for International Development (USAID) and World Bank international anti-corruption strategies which is followed by the success stories of Singapore and Hong Kong followed by difficulties to curb corruption in narco-states – Colombia, Mexico and Nigeria and highly corrupt Zambia. The final sections examine additional anti-corruption strategies – security and the rule of law briefly due to its broad discussion in the initial two chapters; Public Administration Reform (PAR), civil service reform and meritocracy and pay reform to reduce survival-based corruption.
4.2 Corruption as a Problem for Post-Conflict Development
As indicated from the first three chapters, corruption has devastating effects on both security and the rule of law in societies that are war-torn and developing from international transitional periods. In the context of reforming Afghanistan’s security and justice sectors, corruption and clientelism are the main drawbacks of such reforms. In support of this notion, 70 per cent of the survey respondents of Integrity Watch Afghanistan (IWA) believe that corruption is the most prevalent problem across Afghanistan that hinders the services provided by the security, justice and public sectors (IWA, 2010: 23). Corruption has threatened state-building, state-society relations and supports the insurgency, increases social inequality, breaches human rights daily and hampers the rule of law and access to basic public services, which constrains economic development and affects the poor sternly (IWA, 2010: 9).
4.2.1 Impacts of Corruption on State Effectiveness
These problems briefly identified hinder state effectiveness and namely affect the poor. Afghan households with an income that is less than US$60 (3,000 Afghanis) per month are most vulnerable to bribery and these households consider corruption as the biggest challenge across the country (IWA, 2010: 12). Corruption has increased in Afghanistan due to weak governance and unaccountable decision-making which has resulted in institutional corruption that is prevalent in every Afghan government ministry, agency and department (Gupta et al, 1998; Achakzai, 2010: 2).
The most basic conception of corruption is ‘individual deviancy’ which refers to the abuse of public office to achieve private gain which is usually committed by the main stakeholders in-charge of funds and resource allocation that impacts on state effectiveness (Green and Ward, 2004: 11). These actors are individual government officials or other political elites that can embezzle funds from the state (Martinez-Vasquez et al, 2007: 50). This can also be referred to as ‘administrative corruption’ and in criminology it is ‘white-collar crime’ at the corporate and political levels (Ruggiero, 2000: 107). Petty bribery is a segment of administrative corruption that alters the implementation of policies due to the demand or norm of junior officials requesting small sums of money (World Bank, 1999). Petty forms of corruption are less reported but a small bribe paid to a public servant for a state service may appear a minor wrongdoing, but when millions of citizens are paying bribes, the impact is enormous which erodes the legitimacy of state effectiveness and public institutions (Langseth et al, 1999: 128). Simply put, ‘administrative corruption involves delaying or denying a service until a bribe is paid’ (Pathak and Prasad, 2006: 436).
Corruption has similar trends in all countries which include petty bribery, extortion, theft or deliberate misuse of government assets, foreign aid and procurement which leads to protracted poverty (Asian Development Bank and OECD, 2007: 5). Corruption leads to continued poverty insofar that households of the poor are mostly affected of paying bribes to get public services which should be free of cost (USAID, 2009). Corruption has a disparate impact on the poor insofar that poor people mostly pay a higher slice of their income on corruption via bribes than those that are in higher income groups (Askari et al, 2010: 70). Corruption influences governance which has an impact on poverty levels and corruption influences economic progress such as decreasing national and foreign investment slowing economic growth, lessening entrepreneurship and education equality and reducing both high-quality public infrastructure and a competent tax system (Gupta et al, 1998: 10-12; Wuthi-Udomlert, 2002: 13; Chetwynd and Spector, 2003).
For instance, in Sierra Leone, extremely fragile government institutions has led to corruption in the public services and engaged high-ranking officials which has failed to reduce almost 80 per cent of rural dwellers living in poverty and establish an economic infrastructure deteriorated from over a decade of civil war (Mbaku, 2007: 320; Wang, 2007: 21). In Cambodia, citizens willingly give officials a small gift for their time to get the work done on time or faster which means that this relationship of corruption has been accepted as a way of daily life (Indochina Research, 2007: 7).
Furthermore, the misuse of aid from corrupt practices is persistent in many developing nations and post-conflict environments which hinder alleviating poverty, promoting economic development and reaching those intended (Cullen, 2008). The donor community is concerned that development aid for social and political reform and economic growth is being misappropriated by beneficiary governments to finance corrupt and unproductive disbursements due to the fact that a minimum 25 per cent (US$130 billion) from the World Bank’s US$525 billion since 1946 is misused (Moyo, 2010). Hence, foreign aid has been criticised for breeding political corruption insofar that it is simply pocketed by corrupt senior officials and dictators (Rodrik and Rosenzweig, 2010: 4459). For instance, in Sierra Leone, the delivery of aid mainly funds ‘elite accumulation’ due to the engrained institutional patronage-based system which does little to alleviate poverty and enhance economic development despite vast amounts of donor aid (Kandeh, 2008: 328-329). During the 1991-2002 civil war, the majority of aid did not reach civilians in need but instead fed the Revolutionary United Front (RUF) and in Angola the late guerrilla leader Jonas Savimbi misused aid to preserve his rebellion group (Ngomba-Roth, 2007: 79).
Therefore, corruption, more specifically administrative corruption, has a serious impact on state effectiveness insofar that the poor struggle to afford paying for daily bribes to enjoy basic public services (Bisogno et al, 2010: 31). Public sector corruption erodes state effectiveness, economic performance, governance and democratic legitimacy which reduce public confidence of the government and state legitimacy (Mainwaring et al, 2010: 20-21). Political corruption negatively impacts on foreign aid for economic growth, poverty alleviation and development that fails to reach targeted groups due to undemocratic institutional structures with poor monitoring due to state ineffectiveness (Kandeh, 2008: 328). Both poor governance and weak economic factors prolong poverty and thus anti-corruption over the last two decades has been included in SSR and Poverty Reduction Strategy Papers (PRSP) to reduce petty corruption as a means to alleviate poverty, particularly for the most poor that are forced to pay for public services (Cooper and Pugh, 2002: 16; Ball, 2007a: 94). It is poverty and inequality, poor economic development, lack of job opportunities and poor subsistence that breeds conflict which hinders both the rule of law and security (Addison, 2000: 316-317; Newcombe, 2011: 167).
4.2.2 Impacts of Corruption on the Rule of Law
Corruption undermines the state as a constant threat against the rule of law which results in resources being channelled away from the benefit of public use into private pockets and distorts the daily decisions and actions that government officials, the police and judicial staff undertake (Voorhoeve, 2007: 113). In Pakistan, the erosion of the rule of law is the biggest concern of the public insofar that a lack of accountability and fragile rule of law has fuelled numerous corrupt practices (Mahmood, 2007: 118). The Pakistani public pay between US$2 and $4 billion per annum in bribes, an average of Rs.9,670 Rupees per bribe, mainly to the judiciary departments due to entrenched corruption, weak rule of law and a lack of accountability (Fair and Chalk, 2006: 38-39). Moreover, it is difficult for poorer people to start businesses or continue working due to government officials requesting three times the amount of a small fee, as a bribe, for a liquor license from budding restaurant owners and Indian truckers pay an estimated US$5 billion per annum to maintain their merchandise rolling (Messner, 2009: 89).
Corruption clearly abolishes public trust of the government and the services that it provides and undermines both the rule of law and work ethic in developing and drug-fuelled countries which infiltrate the government and put the country at a high risk of poverty (Leiken, 1996: 46). In Zambia, the government is easily targeted by the narcotics business to pocket cash which subverts the rule of law and the fight against both poverty and holding drug smugglers accountable for drug-related offences (Ihonvbere, 2003: 69). Bribery is part of everyday life in Zambia from local customs officers and traffic police (McIntyre, 2008: 102) and the poor are least able to pay requested or expected bribes in order to enjoy basic public services (Shamapande, 2007: 55). In addition, drug-lords are virtually unaccountable for drug-related crimes and corruption due to links with powerful politicians and elites (Segell, 1998: 60; Ivonvbere, 2002: 147).
Similarly, in Afghanistan, the opium economy results in widespread corruption which erodes the rule of law and the opium trade flourishes with constant protection of Karzai’s cabinet and illegal groups’ lucrative drug industry (Glaze, 2007: 6; Hughes, 2010; Oxford, 2010). Alongside a profitable drug industry, Afghanistan’s high amount of aid is distorted by corruption and a weak rule of law with insufficient efforts to deter abuses and thus aid fuels corruption, insecurity and delegitimises the Afghan government due to little oversight of fast monies spent by donors (Carter and Clark, 2010: 9-10).
Hence, narco-states are in opposition to democratic values insofar that ‘the rule of law is eroded’ and these fragile states lack popular legitimacy and are susceptible to drug-related corruption or infiltration from criminal networks and government members that retain immunity from prosecution (Buxton, 2006: 129). In both narcotic and developing states, corruption – bribery, extortion and the misuse of aid impacts on the rule of law and particularly on the poor (Uslaner, 2008: 88; Phy, 2009: 14).
4.2.3 Impacts of Corruption on Security
Once a fragile state with weak institutions is seized, political figures in powerful positions capture state resources, sell appointments and engage with drug traffickers, criminal networks and drug cartels whilst holding immunity from prosecution because of political and criminal influence (Blaydes, 2008: 1, 11). State capture concerns security forces, a majority ethnic group or a political party that seizes the state on behalf of criminal networks, powerful drug traffickers or other armed groups and advance the agenda of the group which seriously affects the security of the state (Karklins, 2005: 30; Petersen and Staniland, 2008: 97).
The weakness of justice provision in Afghanistan has eroded the rule of law and weakened the national police that are directly involved in corruption, drugs and arms smuggling due to a lack of government presence in relation to security which leaves a security vacuum filled by the Taliban (Carter and Clark, 2010: 10). The weak state’s politicians, police, courts and customs officials have been seized and a judge and a Chief of Police (CoP) can easily be owned, controlled or bought in which all serve the narrow interests of drug traffickers which severely pervades domestic politics and economics (Naím, 2005: 27; Cornell, 2007a: 109).
In many Latin American states, security is hampered by widespread police corruption that is driven by a lack of professionalism and human rights training in a culture of impunity (Windsor, 2006: 60). The Colombian and Mexican police and judges are frequently intimidated and threatened to take bribes by the ruthless drug cartels to nullify state law enforcement that may pose a risk to clans at the expense of weak governments which has hindered security (Radu, 2006: 320; Buckman, 2007: 113; Anderson and Sloan, 2009: 114; Emmerich et al, 2009: 8; Marcy, 2010: 53).
In weak failed states, ‘illicit trading networks’ from criminal groups and armed groups easily seize main government administrations, the police, judiciary, customs officials and borders that serve the interests of international drug, diamond and human traffickers that has deeply permeated bureaucratic, political and economic life (Naím, 2005: 27-29). Police and judges are bribed and politicians are bought or intimidated to reflect the interests of organised criminal networks and armed groups in failed states that are harmed by illicit enterprises and enrichment such as narcotics, arms and human trafficking (Rose-Ackerman, 2004: 316; Patrick, 2011: 141).
4.3 Anti-Corruption Strategies to Address the Causes of Corruption
This section initially examines international anti-corruption strategies endorsed by both USAID and the World Bank focusing on enhancing transparency and accountability followed by these strategies in the context of the success stories of Hong Kong and Singapore and failures in narco-states – Colombia, Mexico and Nigeria and the highly corrupt Zambian administration.
4.3.1 International Anti-Corruption Strategies
International anti-corruption strategies provide the basis of a national strategy to include strong accountable and transparent institutions, the involvement of the civil society to restore public confidence politically and strong political will from both the national government and international community (Doig and Riley, 1998). Although each country is unique with its own history, conflict, ethical traditions and culture, the political system, economic and social development, experiences and lessons learned are transferrable with other states (Huberts et al, 2008: 244). Countries should develop internal domestic strategies to eradicate corruption and promote good governance that ‘require strong political will at the highest levels of the government’, be nationally owned (not externally-driven) based on specific circumstances and issues in each state to succeed (Botchwey, 2000: 6).
USAID and the World Bank are highly involved in financing many anti-corruption strategies (US Committee on the Judiciary, 2006: 116). Arguably the biggest funder for anti-corruption strategies and non-governmental organisations (NGOs) is USAID (Nichol, 2009: 27; Henry, 2010: 57). The main goal of USAID (2005: 1) is to decrease prospects and enticement for corruption by supporting judiciaries to become stronger and independent with the promotion of oversight bodies, public education and civil society organisations (CSOs). This approach also combats grand corruption and state capture manipulated by powerful political elites, the executive, and judiciary for interests of wealth, tribe, village or polity which is harder to challenge (USAID, 2006: 175).
USAID’s anti-corruption strategy consists of three main components. First, corruption and development: a global consensus to fight corruption in order to bring about development (Miller, 2007: 162). Second, corruption and US national security: enhancing global awareness of corruption and promoting the ratification of the United Nations Convention against Corruption (UNCAC) in developing states to increase US national security (Seidler, 2008: 37). Third, defining corruption: understanding that corruption moves beyond the abuse of public office for private gain to other forms of administrative corruption such as smaller transactions taken from lower government officials (Lho and Cabuay, 2005: 81).
Similarly, the World Bank (2000b: 58) has identified that strategies should be based on the lessons learned in other international experiences to benefit the prioritisation, sequential and combination of reforms in the targeted country. Moreover, a realistic timeframe to get significant results and an understanding of the country’s legacy, the history of violence and political context is required (World Bank Independent Evaluation Group, 2008: xii). Combating both administrative corruption and state capture simultaneously is fundamental to the creation of an effective anti-corruption strategy (Bhargava and Bolongaita, 2004: 24). Anti-corruption must identify how different aspects of corruption, administrative corruption and state capture link which limits state capacity and effectiveness to proceed with the planned reforms at the implementation level (World Bank, 2000b: 14, 58). Anti-corruption strategies based on reducing medium forms of state capture and administrative corruption focuses on favouring conditions to strengthen political transparency and accountability (World Bank, 2000b: 59). This is to enable institutional reforms such as PAR, judicial and security reforms and promote transparency to enable monitoring over public expenditure (World Bank, 2007: 263).
Raising awareness of corruption and anti-corruption education is crucial in post-war environments or transition states (World Bank, 2000b: 77; Bryane, 2005: 53). CSOs, which are often weak, help to address certain issues to the public, government, institutions and ministries involved (World Bank, 2000b: 64; Kpundeh, 2005: 89-90). The civil society can disseminate reports that raise awareness and spread education publicly even though civil society constituencies are unlikely to have the capacity to formally request a national fight against corruption (Gootnick, 2004: 32-33; World Bank, 2006: 187). These prevention demands will enhance monitoring over the public sector institutions and strengthen detection and sanctions to challenge the legitimacy of the government to curb corruption (World Bank, 2000a: 12).
After an assessment of both USAID and World Bank international anti-corruption strategies, six anti-corruption country cases will be examined across the globe. Singapore adopted PAR and Priority Reform and Restructuring (PRR) that included meritocracy and pay reform to make salaries competitive with the private sector and the Corrupt Practices Investigation Bureau (CPIB) attained independence making this country one of the least corrupt in the world (Quah, 1994: 210-211; Sung, 2006: 124; Saxena and Bagai, 2010: 16-17). In Hong Kong, the Independent Commission against Corruption (ICAC) aims to combat endemic corruption within government departments via ‘a three-pronged approach of law enforcement, prevention and community education’ (ICAC, 2007a). This is to educate the communities about the legal conception of corruption; mobilise officials and citizens in the enforcement and reporting of corruption and increase social condemnation of corruption (Manion, 2004a: 44). ICAC emphasised on publicising, naming and shaming and succeeding with prosecutions of protuberant police officers and ‘top-level political will’ in a ‘most corrupt place’ which was ‘transformed into a clean society’ (Man-wai, 2010: 138). Both ICAC and CPIB have the authority to respond and investigate complaints on their own initiative despite both not having powers to prosecute directly (Meaghar and Voland, 2006: 11).
However, in many Latin American countries, state capture, the narcotics trade and human rights violations are prevalent (de Ferranti et al, 2004: 127; Cleary, 2007: 129). In December 2004, President Álvaro Uribe Vélez attempted to combat corruption in Colombia by strengthening investigation, prevention and prosecution and punishment in both public and private institutions under the Presidential Programme of Modernisation, Efficiency, Transparency and Fight against Corruption which has been replaced twice (Kelly et al, 2008: 215). Colombian anti-corruption strategy has helped to lower the rate of corruption with a highly independent national judiciary and both the supreme and constitutional courts have controlled government abuses by holding state officials accountable for malpractice (Uprimny, 2004: 33). There have been four public officials that have been dismissed for acts of corruption every week totalling 232 in 2006 (Kelly et al, 2008: 215). Yet, cocaine trafficking has led to ‘illicit political finance and state capture’ (Kupferschmidt, 2009: 12). Drug cartels have infiltrated the justice system by imposing bribes, intimidation or fear at the municipal level (Transparency for Colombia, 2009: 3).
Mexico demonstrates a similar scenario where there is an absence of an independent anti-corruption agency and no legal protection for whistle-blowers despite the Inter-Ministerial Commission for Transparency and the Fight Against Corruption (Guerrero, 2010: 17; Morris, 2010: 153). Mexico is infiltrated from powerful drug cartels that results in weak law enforcement, high money laundering and undocumented immigrants (Ross, 2011); and sex and money to bribe US border patrol to preserve immunity and narcotics trafficking (Cable News Network (CNN), 2011; Gibson, 2011).
In Nigeria, corruption, fraud and no anonymity for whistle-blowers within the Independent Corrupt Practices and Other Related Offences Commission has hindered efforts to counter corruption and international narcotics trafficking (Ovienloba, 2007: 40; Enweremadu, 2010: 7; Ojukwu and Shopeju, 2010). In addition, the National Drug Law Enforcement Agency is infiltrated from the narcotics trade and is fuelled with malicious corruption which results in few criminals being arrested and prosecuted (Stares, 1996: 97; Gyong and Tanimu, 2010: 127).
In Zambia, the Anti-Corruption Commission (ACC) was established in 1980 with a mandate to prevent corruption in both public and private institutions and to deal with bribery, complaints, investigations and prosecutions and education – spreading information on corruption (Matsheza and Kunaka, 2000: 64; Goredema, 2002: 27; Kpundeh, 2004: 275). However, the ACC is hindered from the lack of political will and prevalent political interference under the second administration of President Frederick Chiluba (1991-2001) which has crippled the national economy due to huge embezzlement of funds exceeding his US$10,000 annually (van Donge, 2008). The eight year trial to hold ex-president Chiluba accountable for corruption had failed on 17 August 2009 when he was acquitted of all corruption charges due to untraceable funds and failure to present sufficient evidence (Ngilazi, 2009; Smith, 2009).
Anti-corruption strategies need realistic time expectations because they cannot make a significant difference of combating corruption in a short time span (World Bank, 2000b: 58). To succeed combating corruption, USAID promotes a sustained campaign that involves the public for the long-term to strengthen government institutions and establish the rule of law rather than a short-term approach (Atwood, 1998: 14). This can work towards a Western Europe model of anti-corruption that includes monitoring of the national and local anti-corruption strategies and law enforcing bodies and detection, prevention, investigation and prosecution (Klemenčič and Stusek, 2008: 32). There is no set length on how long it takes a country to install applicable anti-corruption measures even with continual donor support (Chêne, 2009b: 6). Afghanistan is attempting to prescribe CPIB and ICAC approaches but this is extremely difficult in a state that is currently being infiltrated by the narcotics industry, as in Latin America and Nigeria. State capture, namely infiltration from the drugs industry, was not a problem in these two Asian states – Singapore and Hong Kong which is why it was easier to install anti-corruption programmes effectively.
4.4 Security and the Rule of Law as an Anti-Corruption Strategy
Often in fragile states with weak law enforcement, dire judicial institutions and unprofessional security forces, corruption is systemic as it becomes embedded in the public sector, government, security and judicial institutions (Paoli et al, 2009: 230-231; Ruggiero and Gounev, 2012: 24-25). Corruption undoubtedly wastes resources and the poor lose out on job opportunities and expenditure for public services such as education, health and infrastructure are misapplied to advantaged groups and corrupt leaders (Bach, 2006: 270). When corruption becomes systemic and engrained within state institutions, it is extremely difficult to combat even with the support of donor aid and international strategies due to grand corruption and the political culture of a misappropriated distribution of public goods for private gain and preservation of loyalty and interests (Heilbrunn, 2006: 135; Rothstein, 2011: 108).
For instance, the Ugandan government showed willingness to its donors that they were fighting corruption with the creation of an anti-corruption commission to secure the maintenance of funds even though the government has intervened in the Commission making it weak in investigative processes (Moyo, 2010). In Sierra Leone, the funds to help unprivileged groups and civilians with humanitarian aid were channelled to rebellion groups, most notoriously the RUF (Ngomba-Roth, 2007: 79). Therefore, high political or military figures are able to misuse aid and utilise political corruption to either prevent reform changes or fund their conflict (Nathan, 2008: 24; Milton-Edwards, 2009: 142).
Corruption is a widespread threat against the rule of law where resources are channelled from the targeted beneficiaries such as the poor and economic growth into illicit private accumulation of wealth which distorts governmental and court decisions and daily policing (Voorhoeve, 2007). Weak governance and poor oversight of the security forces in fragile states fail to curb corruption in the forces that usually remain loyal to pre-existing factional and militia commanders which erodes the rule of law (Nojumi et al, 2004: 26). In Latin America, the police retain enormous power to deliver security that entails engagement in corruption which is not classified under the rule of law nor pledges protecting fundamental international human rights (Trebilcock and Daniels, 2008: 111).
Security has the potential to combat corruption if it is complemented with the rule of law. As stated in the first chapter, features of SSR include training the police and armed forces human rights, ethics, acting under the rule of law and national constitution and resistance to corruption as part of the professionalisation process (Cooper and Pugh, 2002: 16; Hänggi, 2003; Brzoksa, 2006: 1). The rule of law can only be implemented if the judiciary is truly independent and anti-corruption and investigative units are not manipulated by senior political officials that have been seized by large bribes, a lucrative illicit industry or fear and intimidation to serve the narrow interests of non-state criminal and armed groups.
As previously discussed, powerful drug cartels in Colombia and Mexico have facilitated state capture by intimidating judges which hinders the rule of law (Anderson and Sloan, 2009: 114; Ross, 2011). Yet, it is still possible to reduce the level of corruption from strong political will as evident from Uribe’s administration in Colombia despite state capture (Uprimny, 2004: 33; Kelly et al, 2008: 215). Combatting state capture is however ‘hard to combat’, particularly in Latin America that is manipulated to serve and protect the interests of illicit narcotics trading that also entices ‘wealthy elites’ that often ‘tilt government interventions in their favour’ (López-Calva and Lustig, 2010: 19). State capture institutionalises corruption, patronage, nepotism and job buying in drug areas to extort more bribes which is evident in many African, Asian and Latin American countries that have no state control (Bach, 2004: 237; Ahanotu, 2006: 1; Bedner, 2008: 24; Demirbüken et al, 2009: 139). Despite such shortcomings, PAR, civil service reform, meritocratic recruitment and pay reform have the potential to improve incentives for clean behaviour, reduce corruption and enhance the rule of law and security with enriched transparency and accountability – fear of being caught for corrupt and immoral acts (Kaufmann and Dinino, 2006: 22).
4.5 Public Administration Reform
PAR concerns the reform of the entire government bureaucracy to benefit poverty reduction obligations and promote both economic growth and social development whilst maximising utilisation of ministries and government bodies to ensure that duties do not overlap (Macciavelli, 1999: 760; Brillantes, Jr., 2001). PAR has two main functions for the improvement of development. First, an efficient public administration primarily functions to provide public services and service delivery such as health, education and basic subsistence needs to the poor (Mussari and Cepiku, 2007: 355). Second, an increase in wages, more economic opportunities and strategies to reduce scarce and dire infrastructure of public institutions are endorsed in order to allocate public resources under new policies (United Nations, 1995: 1).
A public administration refers to ‘the aggregate machinery’ which includes all of the organisational structures, personnel, policies, procedures, rules and systems funded by the national budget and is ‘in charge of the management and direction of affairs of the executive government’ (United Nations Development Programme (UNDP), 2010e: 1-2). A public administration also communicates with stakeholders involved in the country, the civil society and external environment. In addition, it also concerns the ‘management and implementation’ of government decisions, laws, regulations and the management in relation ‘to the provision of public services’ (UNDP, 2010e: 1-2).
Within a public administration, an effective oversight and monitoring body, usually independent civil servants and civilian demands are required for PAR to legitimise public services and boost its credibility. Merit-based recruitment, pay, grading and fair promotion are embedded within PAR, more specifically PRR (Lister, 2005: 6). Since June 2003 in Afghanistan the Independent Administrative Reform and Civil Service Commission (IARCSC) was mandated with the responsibility for appeals, appointments, management and administrative reform (World Bank, 2007: 5). The PRR Decree was passed by the Afghan government on 10 July 2003 forming the machinery for modernising and reforming predominant vital governmental functions permitting ministries to place important staff on a raised fixed-term pay scale (Byrd et al, 2005: 52).
The main significance of PAR is to develop a productive and efficient civil service which includes the downsizing and restructuring of a more efficient and competent public sector with enhanced ‘policy making capacity’ (UN Department of Economic and Social Affairs (UN DESA), 2006: 10). In addition, PAR contains anti-corruption strategies to improve the provision of public services that also enables an environment to develop the private sector under public management reform (Wescott, 2004). A basic tactic in the mid-1990s included shifting resources from the host state to privatisation opportunities which has produced over half of central Eastern Europe’s GDP in 1999 (Mussari and Cepiku, 2007: 356).
Despite the initial ideas of PAR and public management reform during the 1990s, the relationship between the international institutions, governments and the public was weak. Administrative corruption and state capture heavily restrain economic development in post-socialist countries which in particular discourages foreign direct investment (FDI), private competition and local entrepreneurships (Fabri and Zeghni, 2006). One example is the context of Afghanistan. The International Trade Administration (2010) underlines that Afghanistan can develop by implementing high international banking standards and can achieve high-value low-volume means of production for exportation by attracting foreign investment for job creation.
PAR is usually sequenced by international financial institutions such as the World Bank that utilises a two-fold strategy: quickly building institutions and focusing on wider managerial elasticity (World Bank, 2000a). Strategic planning throughout a public administration, steady fiscal and budgetary management and human resources management are notable features in most PAR programmes (Mussari and Cepiku, 2007: 357). In post-socialist states, civil service reform is undergone prior to PAR. PAR is included as a priority to overcome poverty and promote development in a national PRSP (Adei and Apenteng, 2004; IMF, 2004).
4.5.1 Civil Service Reform and Meritocracy
Civil service reform is a careful action to develop the effectiveness, efficiency, democratic character, professionalism and characterisation of the civil service in order to promote an improved delivery of state services and public goods with improved accountability and reduce poverty (Gray and Gupta, 2002: 3-4; Kotchegura, 2008: 31-34). Methods to improve the civil service and its services include meritocratic appointments, rules of conduct, streamlining and downsizing ministries and government agencies to reduce costs, enhancing human resource management, training, pay and a benefits package to compete with the private sector and supporting procedures for transparency, combatting corruption and public participation (Shihata, 1994: 12-13; Chhibber et al, 1997: 96; Gray and Gupta, 2002: 3-4, 58-60). In the 1960s, civil service reform advocated civil rights, enhanced good governance by defining merit-based appointments and the promoted government staff at the state, federal and municipal levels (Couturier, 1975: 68-72).
Meritocracy is the procedure of appointing and promoting government employees centred on their skill and competence to perform, rather than being reserved for privileged groups via political, nepotistic or patronage-based connections (Hartigan and Wigdor, 1989: 32). Meritocracy in recruitment, hiring, promotion and firing can complement raising the salaries of public sector employees to reduce corruption (Thomas et al, 2000: 152; Kaufmann and Dininio, 2006: 18). A meritocratic civil service increases qualified and competent staff, boosts the reputation on civil service posts and motivates good performance by prescribing tough entrance and aptitude examinations to winnow more skilled workers from lowly skilled candidates and regular performance reviews setting targets (Chhibber et al, 1997: 92-93).
Successful civil service reform in states rests on numerous variables that include partisan association of the governor with the legislature, the characterisation of the public bureaucratic workforce and the country’s economic situation (Coggburn, 2001). In addition, the success of civil service reform needs the authorisation of vital constituencies alongside a chief executive that is truly devoted to extensive reform (Naff, 2006: 260). However, in patronage-based societies such as Afghanistan, supporters of a political figure, local commander or warlord are rewarded for their loyalty which hinders meritocracy (Lansford, 2003: 57).
Economic and civil service reforms have taken place in Poland. The Law on Economic Activity was legislated to reduce corrupt opportunities between public and private sectors and the Civil Service Law aimed to curb politicised appointments and promote careers based on integrity and merit (World Bank, 2000b: 62). At the end of Polish communism, a dispersive relative wage policy was installed to raise the salaries of the core group of public administration employees in numerous agencies, mainly in Warsaw, due to competition from the private sector and wages increased significantly (Nunberg and Barbone, 1994: 260). Three main Civil Services Acts of 1996, 1998 and 2006 attempted to move beyond an instable Polish civil service but these legislations have been watered down in practice and the legacy of path dependency – communist centralisation and politicisation has been difficult to overcome with negative perceptions of the public administration (Majcherkiewicz, 2008: 140-141).
During the 1990s, Ugandan government salaries remained among the lowest in Sub-Saharan Africa which led to civil service reform working on the implementation of a national minimum wage and computer systems to avoid endemic ‘ghost’ workers (Sedigh and Ruzindana, 1999: 191-192). In January 1988, the public sector had rapidly increased from 298,000 to 320,000 employees in August 1992 (Robinson, 2006: 16). In response, the Ugandan government introduced civil service reform to cut the 1992 figure by 50 per cent in 1995 with voluntary retirement schemes and the national armed forces was condensed from 90,000 to 50,000 (Robinson, 2006). In 1992, the ministries were downsized from 38 to 21 which saved costs and paved the way for PRR (Osei and Nwasike, 2010: 34). Pay reform had enhanced with three salary increments that led to 85 per cent increases in the fiscal year 1992/3 and more the financial year later (Kiragu and Mukandala, 2005: 266).
In Uganda, civil service reform was successful insofar that the efficiency of the service improved with decentralisation trickling the reform to the district levels to assume ‘80 per cent of service delivery’ with a sufficient pay structure with enhanced efficiency and performance (Reinikka and Kitabire, 1996: xii). In particular, since the problems of low wages highlighted by the salaries commission in 1982, reducing the numbers of staff has freed resources for increasing salaries with teachers and other public employees substantially (McCourt and Eldridge, 2003: 145-146).
4.6 Pay Reform
Within the restructuring of the civil service, pay reform has been advocated as a strategy to reduce incentives of public sector employees engaging in corruption as a ‘survival strategy’ due to declining or stagnated pay in the civil service and to retain qualified and competent workers from going to the private sector (Rose-Ackerman, 1999: 71-73). Pay reform enables an increase of competition in the national economy and provides incentives for good behaviour and performance which can reduce corruption (Kaufmann and Dininio, 2006: 18). The main goal behind pay reform is to not only create an efficient civil service or professional police force but to also free public sector employees from poverty, instability and insecurity to cater for their families. However, implementing PAR and more specifically human resources management of pay reform has been a difficult task due to frail capacity and political interference (IMF, 2007: 12; World Bank, 2008: 61). Pay reform has recently been part of new public management policy that is based on performance but the pay structure for public servants is often low for those at the local level and thus decentralisation is needed to redefine pay reform at districts.
In Malaysia, patronage-based appointments have been replaced with meritocracy via rigorous competitive examinations, disciplinary oversight, performance reviews and the promotion of ethics standards into hiring with pay levels being preserved in line with the private sector (Newfarmer and Nunberg, 2000: 108). However, as a result of high levels of corruption in the Malaysian police due to low salaries, proposals for a 10-20 per cent salary increase was proposed by the Inspector General of Police, Tun Hanif Omar (Peletz, 2002: 221). Providing a higher salary to a corrupt police force or other government service may deter corrupt practices insofar that higher wages purchase insulation against both ‘patronage and bribery’ (Leiken, 1997: 68).
In Afghanistan, salaries in the higher civil service and professional areas are insufficient to maintain and interest qualified and competent staff insofar that many government employees are recruited by the UN, NGOs and donors but PRR in the civil service provides the hope of hiring higher paid professionals (Evans et al, 2004: 64). Late October 2004, 7,900 civil service posts proceeded with PRR approval for a new pay scale and the IARCSC introduced meritocratic recruitment with the pay of grade 1 general civil servants from 1,908 Afghanistan Afghani (AFN) to 2,688 AFN monthly and grade 10 from 1,818 to 2,058 AFN per month (Byrd et al, 2005: 53-54). In addition, the ANA has undergone pay reform with increases of US$45-70 per month – captains formerly earned $270 and second lieutenants received $210 which has been increased to $345 and $275 per month respectively and the base-line rates have led to an increase of Afghan armed force staffing and retention (Johnson, Jr., 2011: 12). Yet, even after the further reform of pay rates in the ANP in 2009, problems with pay and corruption persists as a main cause of Afghan policemen leaving their jobs (Cordesman et al, 2009: 120; Cordesman et al, 2010: 137).
4.7 Conclusion
Corruption increases poverty, seriously hinders development and economic growth, misuses aid and negatively impacts on the rule of law and security. Administrative corruption concerns petty bribery and extortion from public sector employees to supplement incomes when opportunities arise due to weak law enforcement and few constraints (Díaz-Briquets and Pérez-López, 2006: 185). This is part of a culture of corruption and then it becomes systemically embedded in state institutions at the higher levels to the lower ends (Lodge, 2009: 404; Yadav, 2011: 133).
Strategies to combat causes of corruption have been addressed by PAR, pay reform and various anti-corruption strategies. Each explanation has a different response. USAID and World Bank international anti-corruption strategies and both success stories in Singapore and Hong Kong demonstrate that PAR and meritocratic recruitment are part of such strategies to provide incentives for good behaviour and compete with the private sector. In relation to these strategies endorsed by USAID and the World Bank and prescribed within Hong Kong and Singapore, four themes arise as elements of successful anti-corruption strategies that can curb corruption: i) raising awareness; ii) prevention; iii) detection; and iv) prosecution and sanctions.
Chapter V: Methodology
5.1 Introduction
The previous chapter has identified that administrative corruption and state capture is prevalent in Afghanistan’s government, security and justice sectors – petty bribery from government officials demanding unofficial payments and those in senior positions have seized state resources. These officials with the power to sell appointments and link with narcotics traffickers whilst enjoying immunity from judicial, corruption and criminal investigations due to political manipulation in order to act in the interests of non-state criminal groups.
The methodology chapter covers a historical narrative of the research conducted including the analysis of the data collected and security challenges that the researcher faced. The first sections provide a justification of using qualitative methods followed by the dynamics of the field visit in Kabul and briefly Bamiyan, May-June 2010, prescribing both semi-structured interviews and focus groups. The details on the field visit will provide a comprehension of the challenges that the researcher faced; namely, security, logistics and contacts in an extremely volatile country undergoing a protracted armed conflict. The third segment addresses a brief analysis of the data collected from the field which generates two theoretical propositions on pay and corruption to answer the research question.
5.2 Qualitative Methodology: A Phenomenological Justification and Challenges
There are merits and demerits of using quantitative or qualitative research methodology (Taylor and Trumbull, 2005: 244; Bless et al, 2006: 44). Generalizability is a problem for qualitative research methods due to measurements and observation made by the researcher on small-scale results and the comprehensive understanding gained is less generalizable than rigorous sampling (Rubin and Babbie, 2010: 230). In this study, the researcher can understand the actions, behaviours and opinions of security and justice in Kabul and Bamiyan but the study is unable to carry these specific insights to general levels across the country. In contrast, quantitative methodology collects large-scale data via surveys and other statistical analysis that allows a broader study, including a higher number of subjects, and augments the generalisation of results to support generalisations of the study more accurately (O’Neill, 2006). To achieve this, quantitative research adopts procedures to ensure reliability and validity, including few variables, so that the research can be analysed, replicated and compared with other studies (Carter and Porter, 2000: 30). Kruger (2003) argues that quantitative research methods allows generalisations and summaries to be made based on huge sources of information and enables comparisons across similar subjects over time.
Unlike quantitative methodology, qualitative methodology may be small-scale but it provides more depth and detail by analysing interpretations and the reasons why certain behaviours or actions occur than its quantitative counterpart (Miles and Huberman, 1994; Patton, 2002). Validity reveals the reason(s) for action or an act rather than percentages and statistics (Convington, 2007: 265). In relation to this study, the reasons of corruption as an action is revealed as a motive of economic necessity due to low wages rather than merely analysing the percentages of bribes extorted in a particular Afghan province. Quantitative research alone in this study would show widespread corruption by statistics but would fail to reveal any context. Adopting a quantitative approach solely would therefore fail to promote the reasons of phenomena and the views of the recipients researched (Gueye, 1999).
Qualitative methodology provides a more holistic perspective and is subjective as the researcher is heavily involved in constructing the data (Durkin, 1997: 96). Qualitative data analysis is associated with early ‘exploratory research’ (Hall, 2008: 215). Interpretivists, phenomenologists and interactionists aim to use qualitative methodology such as interviewing techniques to understand what an individual feels, thinks and believes about a particular research area or why certain phenomena occurs (Berger and Luckmann, 1967; Dunleavy, 2003: 68-70).
In order to understand aspects of a society, participatory research, if designed correctly, can avoid biases and promote validity via reflexivity. In qualitative research, validity in studies makes the research trustworthy, credible, plausible and defensible (Maxwell, 1996). To counter research bias, reflexivity engages the researcher critically upon oneself which raises self-awareness and controls biases (Rubin and Rubin, 1995). This involves researchers boosting self-awareness of their personal background, beliefs and motives and their personal experiences of the setting studied and being self-critical of own research methods and findings (Payne and Payne, 2004: 191). Research biases that have been previously identified by Chambers (1983: 13): spatial, project, person, dry season, diplomatic, professional language, subject and sampling are associated with the Western researcher applying their own mentality, ethics and ideas from an external perspective unknowingly which may hinder the validity of the research. These biases can be avoided by triangulation that looks at multiple research methods to improve accuracy which derives from the investigation and methods concerning the exact locations of the research settings and the researched (Neuman, 2006: 149).
5.3 The Field Visit in Kabul and Bamiyan, May-June 2010
After a brief justification of qualitative methodology, the primary methods utilised for qualitative data collection during the initial visit in Kabul and briefly Bamiyan from May-June 2010 were predominantly elite semi-structured interviews, informal conversations with local people and also focus group discussions. The researcher intended to research the views on security and justice in the capital consisting of mainly Pashtun and Tajik ethnicities and compare the data collected with a province, Bamiyan, to form a contrast between urban and rural settings. Bamiyan was selected as the comparable province due to the province being relatively safe and secure in small Hazara communities that are mainly Shia Muslims and live in virtual isolation from Sunni persons (Banting, 2003: 15; Williams, 2012: 55).
These methods were used flexibly[18] and included many open-ended questions to provide the respondents the potential to highlight the most important issues for them concerning the Afghan security and justice sectors. Closed-ended questions such as ‘do you want justice?’ was avoided as the question is too direct, narrowly focused and there are many aspects of justice that may not be fully understood from the recipients. 70 interviews were mainly conducted during May-June 2010 with predominantly organisations. The interviews conducted during the first visit consisted of mainly elites to find the core of the problem in relation to reforming both security and justice sectors – namely, corruption and clientelism, to conjure a narrower focus to the study, pay reform as an anti-corruption strategy in the Afghan Interior Ministry. The researcher was not able to interview all of the elites that were hoped for which resulted in gaps of the data collected (Richards, 1996: 204). Nonetheless, interviewing elites did provide insights from major security and justice sector players that is crucial to grasp an understanding of how the concepts explored are controlled, utilised or even exploited.
During the field visit which mainly consisted of interviewing elites, security was as an issue due to the current on-going armed conflict and the researcher risked his well-being. The protracted conflict is complex that concerns many armed opposition groups and religious movements who are fighting for different reasons (Barakat et al, 2008). The researcher kept a low profile and avoided unwelcome attention via behaviours that may trigger hostile responses (Pickup et al, 2001: 240). For instance, the researcher did not dress like a tourist and only left the guesthouse for arranged appointments.
5.3.1 Elitist Semi-Structured Interviews
Kabul was mainly targeted to conduct semi-structured interviews with elites due to the fact that the majority of organisations that work in development, security, justice, the rule of law, human rights and gender justice are located in the capital. The semi-structured interviews followed a format with certain set questions that adopted a flexible approach. Thus, some questions were avoided if deemed unnecessary and some questions were worded differently if required. Moreover, some responses led the researcher to ask follow-up questions. The semi-structured interviews lasted from 60 to 90 minutes approximately. The interviews commenced with a general interaction about the interviewees’ current situation during the elongated armed conflict and their roles within certain work. This was followed by open ended questions based on the interviewees’ priorities in relation to security and justice and any other factors.
The researcher also trained a group of students from Kabul University at Jamal Mina who were fluent in Dari and spoke English to translate questions, engage in the interviews and focus groups and allow the participant to stage their voice and express all opinions. Consent of the persons interviewed occurred prior to any methods of data collection (Bailey, 2007). Anonymity was respected prior, throughout and post-data collection. Prior to data collection, permission to tape-record the interviews and focus groups and confidentiality was assured. The researcher used the services of the students when interviewing fellow students. All of the interviews, except a few when permission was overruled, were tape recorded using an Olympus VN-5500 Digital Voice Recorder (Dictaphone) which were mainly in English and others were translated from Dari into English. The digital recordings and translations were transcribed verbatim. Translation presented the research with challenges but the researcher and trained team worked amongst one another until a direct translation was agreed.
The logistics of a post-war environment such as the community, roads and initial contacts need to be established at the outset of research (Maxwell, 2005: 55). The researcher prepared in advance, arranged interviews with some organisations and booked drivers from Afghan Logistics and Tours. This enabled an organised structure and provided deadlines and meeting places for the researcher and targeted organisations to successfully complete the research (Raudenbush, 1994: 315). In Kabul, access to organisations was adequate due to the location of the researchers’ guesthouse situated in Shar-e-Naw, Kabul, which is a town that was built in the 1960s. Many organisations and high security is scattered around this town which neighbours Wazir Akbar Khan. The majority of organisations, including embassies are located in Wazir Akbar Khan and Shar-e-Naw which the researcher travelled to in Kabul. The logistics were at first difficult insofar that many organisations are not named on the gates due to potential targets from insurgent militia. Afghan Logistics and Tours were familiar with the surroundings and the researcher contacted the interviewees prior to the predetermined meetings to get the specific location.
Contact with the organisations went better than the researcher had expected and vast knowledge from these organisations working in the field on security and justice issues in secure and hidden locations with the strategy of snowball sampling establishing new contacts worked relatively well in a hostile setting. The research strategy was based on initial contacts from the University of York’s Post-War Reconstruction and Development Unit (PRDU) and the Afghanistan Research and Evaluation Unit A-Z Contacts booklet. At the end of the interviews, the researcher asked for recommendations of other security and justice actors relevant to the research in order to establish the next interviewees. The researcher also located PRDU alumni in Kabul to gain access to numerous organisations and ministries. This method of snowball sampling led to further stakeholders participating as the initial set of contacts put the researcher in touch with additional contacts (Cohen et al, 2007: 122).
Snowball sampling is based on informal social networks to identify relevant respondents who meet the subject criteria for study which then leads to further contacts and respondents when asking interviewees to recommend others in the field (Trochim, 2006). This method was convenient, time and cost-effective and did not require a large team of researchers to assist the research conducted (Xiong, 2007: 27). In addition, the researcher avoided dangerous surroundings and unknown territories in a hostile environment undergoing armed conflict (Barakat et al, 2002: 997). The researcher overcame security challenges by interviewing mainly elites in relatively safe and hidden organisations due to the fact that organisations do not have signs on the outside to avoid potential insurgent attacks, except for ministries, embassies and UN bodies. In addition, the researcher established follow-on contacts by networking in the field for potential interviews in relatively safe environments such as a hidden organisation venue, secure hotel or Park Palace, Shar-e-Naw, Kabul, the guesthouse where the researcher was staying. However, it must be noted that this method does not lead to representative samples but it is useful to locate actors that are hard to find particularly in a non-familiar hazardous environment (Patten, 2007; Rubin, 2008: 190). Although Participatory Research Methods was worked upon to build social relationships with local participants, this approach was not heavily invested in by the researcher due to the success of snowball sampling – social networking.
It must be noted that the researcher faced dangerous security conditions during the field visit in predominantly Kabul which made it extremely difficult for conducting thorough research with ordinary Afghan citizens in the capital, establishing contacts and sustained fieldwork. In Kabul, research was conducted with students and civil society organisations to get the perceptions of everyday Afghans. Urbanised Kabul was the focus of the data collection due to the security situation across the country which makes it difficult for researchers to travel in insecure provinces and remote areas with dire logistics (Agency Coordinating Body for Afghan Relief, 2006: 3; Fowler, 2007). It would have been ideal for the researcher to conduct research for two-three months but due to constant security threats in a volatile state undergoing a protracted armed conflict with regular insurgent attacks and public discontent with an array of international actors; it was not feasible to further put the researcher’s life at risk.
To provide one account, prior to a scheduled interview with the Assistant to the Resident Representative of the International Monetary Fund on Monday 31 May 2012 at 14:30 (delayed until 15:45) on the third floor of Da Afghanistan Bank, Kabul, there was a suicide bomb threat. A man was strapped with explosives and attempted to enter the Bank which is Afghanistan’s Central Bank – a popular and busy bank where Afghan public sector employees, governmental services, the police and international staff collect their wages and transfer monies. Fortunately, the man was stopped by the Afghan police, to the alarm of panicking civilians that crossed the researcher. After a delay and constant security checks from the Afghan police, the researcher entered the Bank, which was closed for the public prematurely due to the security threat, to conduct the interview on the third floor over one hour after the scheduled appointment.
In relation to security challenges, the lack of representation and sampling techniques with the interviews is a result of an extremely volatile environment undergoing armed conflict and numerous Taliban-led security threats against international intervention and the Karzai administration[19] (Boyle, 2012; Los Angeles Times, 2012). By way of illustration, during the field visit, the researcher had no organisation affiliation and dire logistics due to a hostile environment. Insecurity was evident on the first day of the Peace Jirga, Wednesday 2 June 2010, as there were many security threats such as the police gunfight with two Taliban-led suicide bombers and rocket explosions which hindered President Karzai’s national peace council meeting to promote reconciliation with insurgents (Chick, 2010; Rubin and Nordland, 2010: A10). The researcher always monitored possible security risks. For instance, in Kabul, the researcher arranged interviewees’ transportation to the guesthouse during the Peace Jirga. The methods utilised were safe to conduct in various organisations and the researchers’ guesthouse and permission with the director of organisations was also asked beforehand.
The data collection mainly included semi-structured interviews with centralised-level actors in Kabul and one week of short research was conducted in Bamiyan at the district level. In both locations, the researcher interviewed Afghan government officials, international organisations, foreign governments and oversight and human rights bodies. Civil society groups, developmental organisations, research and advocacy groups, other non-governmental organisations (NGOs) and local citizens were interviewed. The table below lists the organisations interviewed in Kabul.
Table 1: List of Organisations Interviewed in Kabul
|Type |Organisation/Body/Actor |
| |Ministry of Interior (MoI) |
|Afghan |Ministry of Justice (MoJ) |
|Governmental/ |Ministry of Women’s Affairs (MoWA) |
|Ministerial |Attorney General’s Office (AGO) |
| |Ministry of Agriculture, Irrigation and Livestock (MAIL) |
| |Ministry of Rural Rehabilitation and Development |
| |(MRRD) |
| | |
|Developmental |Flag International, Afghanistan |
|INGO/NGO |International Assistance Mission (IAM) |
| |Afghan Development Association (ADA) |
| |Roots of Peace (RoP) |
| | |
|Oversight/ |High Office of Oversight and Anti-Corruption (HOOAC) |
|Human Rights |National Democratic Institute (NDI) for |
|Bodies |International Affairs |
| |Afghanistan Independent Human Rights |
| |Commission (AIHRC) |
| |Afghanistan Human Rights Organisation (AHRO) |
| |Afghanistan Independent Bar Association (AIBA) |
| |Justice Sector Support Program (JSSP) |
| |Human Rights Research and Advocacy |
| |Consortium (HRRAC) |
| |Global Rights – Partners for Justice |
| | |
|Civil Society |Integrity Watch Afghanistan (IWA) |
|Group/ |Accessibility Organisation for Afghan Disabled (AOAD) |
|Media Press |Institute for War and Peace Reporting (IWPR) |
| |Afghan Civil Society Forum organisation (ACSFo) |
| |Youth Assembly for Afghan Rehabilitation (YAAR) |
|Type | Organisation/Body/Actor |
| |Afghanistan Research and Evaluation Unit (AREU) |
|Research, |American Institute of Afghanistan Studies (AIAS) |
|Advocacy and |Cooperation for Peace and Unity (CPAU) |
|Consultancy |Altai Consulting |
| |Centre for Policy and Human Development (CPHD) |
| |Max Planck Institute |
| |Kabul University students: various faculties |
| |Taxi drivers: Afghan Logistics and Tours |
| |ActionAid |
|Other NGO/ |The Asia Foundation |
|INGO |International Development Law Organisation (IDLO) |
| |Aga Khan Development Network (AKDN) |
| |Agency Coordinating Body for Afghan Relief (ACBAR) |
| |United States Institute of Peace (USIP) |
|Foreign |Afghanistan Rule of Law Project (ARoLP), |
|Government |US Embassy |
| |Department for International Development (DFID), |
| |UK Embassy |
| |British Council (BC), UK Embassy |
| |Japan International Cooperation Agency |
| |(JICA), Japanese Embassy |
| |German Development Service (DED) |
| |United Nations Assistance Mission in |
|International |Afghanistan (UNAMA) |
|Organisation |International Monetary Fund (IMF) |
| |World Bank: Afghanistan Reconstruction Trust |
| |Fund (ARTF) |
| |World Bank HLP Program |
| |European Union (EU): Delegation to Afghanistan |
The researcher conducted interviews with 45 organisations contained in the eight various types as highlighted in Table 1 above. These were conducted in Kabul, unless stated. Additional interviews were conducted with the local population, e.g. students of Kabul University or local residents in Bamiyan. The researcher spent one week in Bamiyan and assistant researchers interviewed mainly local people. 70 interviews were conducted in total, mainly in Kabul with some in the Bamiyan province and York. The various organisations in Kabul were a mixture of the eight different categories disclosed in Table 1 and several focus group discussions were held with students in Kabul and local people in Bamiyan. Interviews were also conducted with families if the husband and father of the family had a customary role to accompany any family member during discussions, similar to a focus group. This approach offered support during upsetting discussions and provided an insight to security and justice mechanisms relevant to the community.
5.3.2 Focus Groups
In the context of this research, the preliminary participatory methods were conducted in mainly secure urban areas. Eight focus groups were held in Kabul: one with Flag International, one with AOAD disabled persons and six with Kabul University students. The two large focus groups were conducted in Bamiyan. Bamiyan was visited due to the province being a relatively safe area that does not provide a safe haven for the insurgency or hold any animosity for international intervention in the province. Most of the land in Afghanistan is rural and thus it is only fair to represent views of those living in rural areas if possible (Barakat, 2008). This is why the researcher conducted a few interviews and focus groups in Bamiyan. Bamiyan hosts a historical site that contains many Buddhist monuments, artefacts and statues which remains today. In March 2001, the Taliban destroyed two 1,500 year old Buddhas including the ‘Sleeping Buddha’ on the grounds of representing false idols that is condemned under Shari’a Islamic law (Agence France-Presse, 2008). These actions have remained fresh in the minds of the people of Bamiyan and thus do not provide a safe haven for insurgents (United Nations Educational, Scientific and Cultural Organisation, 2010). The province is well-policed and safe with various Provincial Reconstruction Teams including New Zealand Peacekeepers.[20]
In Bamiyan, many people are semi-literate or illiterate which is why verbal based research was conducted by the research team. The research team in Bamiyan largely consisted of the main researcher and two local guides that the researcher had met and built rapport with during the initial visit in Kabul. One member was Pashtun and the other Hazara. The dynamics and gatekeepers in Bamiyan were known when the researcher was introduced to two employees of Flag International, Afghanistan in Kabul. The researcher interviewed both employees in order to understand the roles of the main actors. This included the role of security actors and the methods adopted during informal community-based dispute resolution mechanisms. The local people of Bamiyan in remote villages required the researcher to actively engage with participants prior to interviews and focus groups. The trip had taken three days by car to get to Bamiyan which included stop-offs on the way due to security threats and alertness of the driver. A contingent in returning to Bamiyan is that it can take around eight hours to reach the Bamiyan city centre and the logistics are virtually impossible.
Subsequently, the researcher met the local villagers in Bamiyan with the support of the elders to gain trust and engage with potential interview participants. Focus groups were used in Kabul with a few in and Bamiyan. The findings from the interviews conducted with many organisations and governmental ministries were discussed with students of Kabul University and local Bamiyans. The focus groups was to cross-check the findings and gather data from a local perception concerning significant variables destabilising both Afghan security and justice sectors.
Remaining impartial is a fundamental aspect of research in the domain of post-conflict reconstruction (Hart, 1998: 79). The researcher was aware of the ethical dilemmas faced in the areas researched and remained impartial and respectful of relevant ethnic and religious backgrounds. A balance of insider and outsider relations – groups such as gender, religious backgrounds and other vulnerable groups were respected and represented wherever possible from the outset of the research (Holloway and Jefferson, 2000). This thesis aims to rid of power relations. The focus groups also targeted marginalised groups, e.g. women and disabled persons to share their experiences together. When conducting focus groups with solely women, the researcher hired a female research assistant to undertake the forums. This benefited the research within an environment which was ‘more secure for the expression of feelings, particularly where all members feel some solidarity’ (Robins, 2010: 187). One focus group was held with local female villagers in Bamiyan that was conducted by a female research assistant.
The research methods conducted in this study have been selected to strengthen the data collected. The constraints are based on accessibility and physical security of the researcher and team in a hostile state. For instance, southern parts of Afghanistan were avoided due to high levels of violence, insecurity and inaccessibility (Chouvy, 2010: 56). Although the majority of opinions and responses provided by elites and the local population have had experiences of working and living in other Afghan provinces, the country consists of 34 provinces that all practice different models of security and justice. More than one method was utilised, namely semi-structured interviews, surveys, focus groups and informal conversations,[21] with other primary data such as civil society surveys. This complies with triangulation[22] that supports interviewee opinions with the use of literature and pre-existing civil society surveys in order to strengthen the reliability of the data collected to make the research more credible.
5.4 Conclusion
This chapter has addressed the need for pay reform as a strategy that could mainly reduce survival-based corruption.
Two months in Kabul and interviews complementing the surveys on pay and rank reform in the police institution would have been preferred but this was not ideal or feasible in such a hostile environment undergoing numerous attacks. All decisions made by the researcher concerning the methods of data collection were based on the practicality of researching with dire logistics, limited contacts and on-going security threats; recently, the policemen dealing Taliban riots in the capital and the removal of international deployment at Kabul’s Interior Ministry and numerous attacks on both the US and UK embassies.
Chapter VI: Corruption in the Afghan Police and Justice Sector
6.1 Introduction
Chapter IV has underlined the main causes and practices of corruption which range from administrative corruption, patrimonialism, clientelism and patronage, low pay and bribery, state capture by criminal networks and armed groups linked with the drug trade and global anti-corruption strategies. After the discussion of the common problems of corruption and clientelism within a global context and briefly in Afghanistan, a more concrete insight into corruption and clientelism will be analysed in Afghanistan. Subsequently, the final parts will critically examine Afghan anti-corruption strategies based on Public Administration Reform (PAR), the Afghanistan Compact and the Afghanistan National Development Strategy (ANDS), High Office of Oversight and Anti-Corruption (HOOAC) and the Attorney General’s Office (AGO) anti-corruption units.
6.2 Analysis of Literature
Anti-corruption strategy features P&G to raise the salaries of lowly-paid public sector employees to avoid survival-based corrupt practices of bribery and extortion (Evans et al, 2004: 103). Moreover, PAR was installed to downsize the civil service and ministries to enhance efficiency, meritocracy and avoid the overlapping of duties under oversight bodies and PRR was initiated to elevate salaries and reform departments with the IARCSC heading administrative reform, civil service management, appointments and appeals (Byrd et al, 2005: 52-53). In addition, the establishment of the Afghanistan Compact, the ANDS, the HOOAC and AGO anti-corruption units have addressed corruption as a major issue and have the authority to investigate corruption cases and drug-related crimes and transfer such cases to the MoJ to pend trial.
Despite anti-corruption efforts, low capacity of the HOOAC and efforts of the MCTF and other anti-corruption units have failed to challenge impunity within the Afghan government insofar that no minister or provincial governor has been indicted for acts of corruption (Hartmann, 2011: 189). State capture and political corruption seriously hinders the effectiveness of the rule of law, justice and anti-corruption efforts, strategies and units due to the fact that the government and political elites are manipulated into drug-related corruption by the infiltration of non-state criminal interests (Hafvenstein, 2011: 136, 140).
It can be identified that administrative corruption, state capture, systemic and political corruption, patronage, cronyism and drug-related corruption have hindered law enforcement insofar that institutions and anti-corruption units have been infiltrated by the government to serve criminal interests – drug trafficking. This has distorted both security and the rule of law. The police and judges remain weak to uphold the rule of law and provide security due to low pay enticing survival-based corruption, opportunities to engage in lucrative drug-related corruption and manipulation from government intervention that protect drug traffickers’ narrow interests.
There are many damaging effects of corruption and clientelism within both of Afghanistan’s security and judicial institutions, focusing on the police and judges – resulting in petty bribery, extortion and infiltration from political elites and affiliated powerful drug traffickers (Blanchard, 2009: i; Lenzen, 2010: 182; Grigsby, 2012: 56).
Low wages in both the ANP and judges has led to survival based corruption which is evident with traffic police engaging in roadside extortion (HRW, 2003: 37-38; Cordesman et al, 2009: 130) and judges demanding bribes to determine the outcome of a decision (Neumann, 2009: 97; Bisogno et al, 2010: 24). These common features are hindering the effectiveness, efficiency and competence of both security and judicial institutions.
In relation to security at the senior levels of the police, CoP positions in poppy-rich districts are sold to the highest bidder that are willing to provide protection to narcotics traffickers with a rate of US$100,000 for a six month post with a $60 per month clean salary (Rubin, 2007b: 36).
Internal MoI anti-corruption strategy has attempted to curb corruption within the police with various investigation units but in high drug-related cases that are transferred to the MCTF and other units such as the HOOAC, political interference influences the cases and many are dropped due to cronyism (Huffman, 2011). This is a consequence of state capture insofar that the Afghan state has been infiltrated by the narrow interests of non-state criminal networks and powerful elites linked with the illicit and lucrative opium trade which manipulates all investigation, security and judicial duties (Filkins and Mazzetti, 2010; Fields, 2011: 109).
Chapter VII: Holistic Anti-Corruption Strategy for Afghanistan
7.1 Introduction
The previous chapters have identified that administrative corruption and political or grand corruption have a negative impact on state effectiveness, the rule of law and security in Afghanistan. In particular, corruption is engrained in both the police and judicial institutions. As a consequence, citizens are forced to pay bribes for basic police services and favourable decisions in courts. Street vendors selling produce are forced to pay the police bribes to allow trading on the streets. The poor are affected the most as they pay a higher slice of their income on bribes to police and judicial services and for basic administrative tasks to speed-up processes in the public sector. In addition, the parts of the state have also been captured to serve the narrow interests of non-state criminal and armed groups affiliated with the drug trade which entices political officials, governors and the Chief of Police (CoP) to engage in such lucrative illicit activity which manipulates anti-corruption investigations. Positions are sold and bought at high-drug producing districts and borders by politicians, governors, CoPs, border police and customs officials. These positions are paid for either by a large bribe to their superior or are rented with monthly payments with a portion of the bribes collected as a stipend to reimburse their bosses.
Pay reform aims to reduce survival based corruption by increasing police salaries. After an analysis of corruption and clientelism, national anti-corruption strategies and pay reform in the police institution, this chapter covers other aspects that need to be taken into consideration to curb corruption in Afghanistan. An anti-corruption strategy to benefit the security and justice sectors whilst reducing corruption and clientelism in a state infiltrated by the drug mafia and powerful elites is provided.
7.2 Planning a Holistic Anti-Corruption Strategy for Afghanistan
Despite USAID and the World Bank anti-corruption strategies, there are difficulties that have been illustrated, namely the problems that derive in high drug-producing countries which need to be taken into account when designing an anti-corruption strategy for Afghanistan. Currently, the counter-narcotics strategy has reduced poppy cultivation but it still generates lucrative income and there are few alternative means of economic necessity to reduce the incentives of Afghans engaging in poppy cultivation (International Monetary Fund (IMF), 2006; Fields, 2010b: 111). The police are currently engaged with international forces and trainers to fight the insurgency and thus community/civilian policing is needed to undertake the tasks of police law enforcement in an ordinary society (Coyne, 2011).
In addition, whistle-blowers are not protected which discourages the Afghan public and civil society to put forward corruption complaints (UN Asia and Far East Institute, 2009: 209). Moreover, many services are centralised which fail to reach the majority of rural Afghans (World Bank, 2005b: 136) and the capacity of security and judicial services are weak (IMF, 2008b: 6). Furthermore, there is no case tracking system at the provincial level which fails to monitor human rights at the local council, Jirga and Shura level (Rule and Nagarajan, 2011: 104-105) and government accountability remains weak (Connolly, 2010: 223).
7.2.1 Counter Narcotics: Alternative Livelihood Programmes
Poppy cultivation is very lucrative for many farmers in provinces across Afghanistan (Johnson, 2004: 41). Yet, alternative livelihood programmes will not only counter narcotics but will also reduce incentives for engaging in any illicit activities engaged in the opium industry from cultivation to trafficking which will help a holistic anti-corruption programme (Katzman, 2009a: 55).
Alternative livelihood programmes at the agricultural level can provide farmers with opportunities to grow licit crops rather than the poppy crop (Hafvenstein, 2011: 141). This will result in lower numbers of farmers growing poppy and thus will weaken the narcotics trade that fuels the insurgency and heightens insecurity (Katzman, 2009a: 22). Supplying and educating farmers to grow grapes, almonds and pistachios will reduce the likelihood of farmers to grow opium that is considerably linked to the insurgency which affects the security sector. Similarly, International Relief and Development (IRD) (2008) states that almost one third of people in Afghanistan (7.4 million) are susceptible to join the insurgency to feed their families due to low economic security, low household income and low agricultural productivity. There are three notable American based alternative development projects: Afghanistan Vouchers for Increased Production in Agriculture (AVIPA) Plus, Afghanistan Water, Agriculture and Technology Transfer (AWATT) and Roots of Peace (RoP).
AVIPA Plus is a USAID project that has a US$360 million budget to provide vouchers to farmers to purchase agricultural materials that include seeds, fertiliser and tools, particularly in southern Afghanistan (IRD, 2008). In addition, the Director of Flag International Afghanistan also claimed that this non-governmental organisation (NGO) also provided many training projects for farmers that are awarded these farming utilities and money when they attend training sessions. The AVIPA project has provided tree and vine crops to replace poppy and provided small grants that average US$100,000 for work projects and cash to local entities and communities (US Congress, 2010: 86-87). Moreover, AVIPA Plus has distributed wheat seeds and fertiliser vouchers in 18 provinces to farmers as at August 2009 (IRD, 2008). More recently, AVIPA has distributed vouchers to farmers in both Kandahar and Helmand where 32,266 vouchers were used for poppy alternatives: melon, okra, legume, corn and vegetable seed and fertiliser (Fields, 2011: 103).
AWATT has a US$24 million budget from USAID to increase food security, employment and agricultural productivity in rural parts of Afghanistan (Fields, 2011: 104). AWATT attempts to strengthen support services and improve irrigation techniques to help farmers to grow alternative crop than poppy (AWATT, 2011). In Herat’s Shindand district, AWATT has focused on inter-connected wells and 11 delivery canals that reclaimed an extra 30 per cent of arable land by rehabilitating old irrigation systems that produced less water with engineers installing gates so that rural farmers could control water flow and reduce water waste (USAID, 2010: 15).
RoP has received a budget of US$11.8 million in 2010 and aims to substitute mines for vines by helping rural farmers improve their cultivation and focus on higher value crops: grapes, green apples, almonds, pistachios and apricots in 23 provinces (RoP, 2011). Farmers are trained on how to increase the productivity of their agricultural crops that includes methods of pollenating utilising bees.[23] RoP has helped with the export of high value fresh fruits that include the above mentioned crops to neighbouring Tajikistan and Pakistan and also India, Canada and the Netherlands (RoP, 2011). RoP has provided assistance with storing fruit and selling it in seasons where it profits the most to avoid problems of selling them prematurely to Pakistani merchants and then buying them back for higher prices.[24] RoP is a NGO which has assisted farmers in planting high-value orchards and vineyards.[25]
7.2.2 The Role of Community Police and Community Development Councils
Community policing enhances police and communal partnerships to address community concerns to ensure that the police meet the needs of the community that can be facilitated via Community Development Councils (CDCs) (Siegel, 1995: 218). An example of community policing is the context of Venezuela when community councils monitor local police forces that provide the community the chance to share their information and present project initiatives to actively engage civilians in consultative forums (Fernández Blanco et al, 2009). In Mexico, community policing has helped to boost accountability to citizens and faith in community policing which engages the local neighbourhoods with a familiar police presence in which they get to know and trust (Anozie et al, 2004). The government, state police and the civil society needs to support communal policing in order for community policing to be successful (USAID, 2007).
In the context of Afghanistan, Provincial Reconstruction Teams have helped to build the capacity of CDCs at the provincial level to encourage tribal elders to get involved with local security networks, namely the gendarmeries and civilian military personnel to meet the needs of the villagers[26] (Singh, 2009: 48). In a survey reported by the UNDP (2009: 5), 65 per cent of over 5,000 respondents nationwide claimed that interaction between police officers and the public would improve police performance and communal meetings between both parties can improve security and develop watch groups (54 per cent). During Operation Moshtarak which started on 13 February 2010, ISAF’s full-scale war against the Taliban in Helmand’s poppy-growing belt did involve international forces engaging with tribal elders’ Shuras (community-councils) to gain their trust and protect their security needs (Clark, 2010; Ghosh, 2010).
The National Solidarity Programme (NSP) needs more resources from the Afghan government.[27] The international community should ‘stay working with the informal justice system connecting that with the formal one and put more resources into building the capacity of traditional structures’.[28] This would help ‘build the capacity of CDCs’ and a cluster of CDCs should be inserted ‘in the district level councils not only giving them money for projects but building the capacity on conflict resolution, good governance, basic ad hoc systems’ to give ‘Shuras a role on security and justice’.[29] CDCs have been financed by the ARTF alongside micro-finance projects to get local businesses up and running and the NSP, which was established by former Minister of Finance Dr Ashraf Ghani, paved the way for community block grants.[30]
This is again where the money comes from the Afghan government where it wants to create a solidarity for its people and also between these people to overcome the conflict and rivalries from the local level about water, land justice. And these block grants were delivered with a facilitating partner who mobilise communities who do CDC kind of work of electing a council, adult secret ballot and the whole village can decide on the grant size application. There are now 22,000 villages that are part of this programme.[31]
The Aga Khan Development Network (AKDN) is engaged in ‘rural development with local councils through the NSP which gives a lot of support to CDCs to try and build local government and to get local communities in development’.[32] Aga Khan supports the NSP by providing ‘agricultural programmes and helping to build the infrastructure on the engineering side and water sanitation projects’.[33] Alongside the NSP, the ARTF has financed another model ‘of community-based programmes of rural access programmes of engaging communities in the construction of small roads and infrastructure called the National Rural Access Programme’.[34]
In 2001, the NSP was designed by the Afghan government and is managed by the MRRD with external donor funding, namely the World Bank, and has contracted over 24 NGOs which has established over 1,800 CDCs as of July 2008 to create public services and goods in rural Afghanistan (Brick, 2008: 11). This has improved state-citizen relationships and caters for ‘individual communities’ infrastructure needs’ (Banerjee, 2008: 249). In addition, the Afghan government expands informal rural financial services, especially to women and the poor, via the Microfinance Investment Support Facility in Afghanistan that provides financial investment and products for small businesses and medium-sized enterprises (IMF, 2006: 148).
7.2.3 Role of Civil Society Groups and Whistle-blowing
There is high confidence in the role of non-state actors and the civil society to fight corruption. A nationwide survey found that 55 per cent of the respondents believed that the civil society and religious leaders should be associated in a preventative approach to combating corruption (Integrity Watch Afghanistan (IWA), 2010: 14). Although there has been data collected on civil society perceptions on corruption and public services in Afghanistan (UNDP, 2009; IWA, 2010; The Asia Foundation, 2010), the civil society is weak and unable to provide oversight or monitoring over the formal justice sector (IMF, 2006: 58; IMF, 2008b: 61). It has been contended that the ‘formal justice sector is not controlled by civil society at all’ and ‘the civil society has played an entirely insufficient role’ and until there is a higher ‘demand for a better justice sector’ from ‘civil groups that includes women for a better justice system’, then it will not change.[35]
Despite various national anti-corruption efforts and the hotline mechanism to protect whistle-blowers (Kabul International Conference on Afghanistan, 2010: 19), protection for whistle-blowers remains weak. Articles 32 and 33 of UNCAC underlines that signatory countries are encouraged to undertake national legislations to protect whistle-blower witnesses, their families and relatives that disclose wrongdoing from harassment, threats, intimidation or retaliation (Sule, 2010: 6). In Afghanistan, there is an office for complaints with boxes and a website, but the paragraph in the Anti-Corruption Law for the protection of whistle-blowers is extremely difficult to implement in practice which fails to enhance complaints and protect whistle-blowers (UN Asia and Far East Institute, 2009: 209).
Public complaint mechanisms against state services, namely the police, need to be compliant with safe, anonymous and non-discriminative whistle-blowing to enhance transparency and follow-up investigations and avoid harassment from the police or other reprisals (Born, 2003: 60-61; Klockars et al, 2006: 107). Currently, many Afghans do not report complaints against police officers or the government due to the fact that complaints-handling is ineffective and limits whistle-blowing. The UNDP (2009: 6) suggested that most Afghans, 54 per cent of the respondents, believed that filing a complaint against a police officer is not worth the hassle ‘because no action against the police was expected’.
Hence, whistle-blowing and complaints-handling from independent agencies such as the HOOAC need the authority and capacity to act more robustly to ensure that Afghans do complain about both state services and the security forces without fear of harassment. Yet, 12 per cent of IWA’s respondents do file complaints mainly against district or provincial governors when individuals have had to pay high bribes for government services (IWA, 2010: 14). Civilians can feel obliged to report police corruption but the recipient authorities should have sufficient capacity and resources to investigate complaints, protect whistle-blowers and enforce punitive sanctions (Chêne, 2010: 8). These complaints commissions should be independent, accessible, accountable and transparent with increased public awareness to provide effective opportunities for consumers to complain about public services (United Nations Office on Drugs and Crime, 2007: 19).
7.2.4 Decentralisation of Public Services to Challenge Corruption
Other PAR approaches include decentralising public services, as done in the context of Albania, in order to strengthen accountability and transparency so that the duty bearers can work closely with the public (Humphreys and O’Donnell, 2006: ix; IMF, 2008c: 36). Strong capacity within decentralised administrations is needed to also combat corruption and alleviate poverty (Council of Europe, 2006: 38).
Despite excessive funding from the US, EUPOL and LOTFA, costs are wasted on unnecessary salaries to police commanders based on ANP numbers that are non-existent in insecure areas due to inadequate government checks and balances[36] (Deflem, 2010: 174; Sedra, 2011: 233). Internal control and accountability within the police institution is poor and the equipment such as cars and weapons are abused for personal use (Wilder, 2007). As a result, armed attacks have increased from 1,558 to 4,542 in 2006 and the Report of the Secretary-General (2008: para. 2) indicates that 36 out of 376 districts are inaccessible for government officials. Moreover, in 2009, UNAMA (2010: 5) identified that 2,412 Afghan civilians had been killed during the war which had risen by 14 per cent from the previous year and 3,566 civilians were injured during 2009. In addition, the work of the UN has been criticised due to their large salaries and reluctance to travel to decentralised areas of Afghanistan where there is a threat to the peace which clearly undermines peace and security.[37]
At the local level, the Afghan Local Police (ALP) programme involves a two month concentrated instructed programme by selected mentors to train performance, confidence and equipment usage and then the local units return to their districts and communities (Levin, 2009: 331). These are small defence units that also include Shuras with oversight and control provided by Afghans (Office of the Secretary of Defence (OSD), 2011).
At the end of 2010, the Afghan Government and ISAF had created an additional 14 ALP defence sites that were located to warrant a balance of ethnic, tribal and geographical representation (Fields, 2011: 61). In addition, Village Stability Operations ‘is a bottom-up strategy’ that focus on anti-insurgent communities resisting the Taliban mainly in areas that have little ISAF and Afghan security force presence (US Congress, 2010: 67). ANA Special Forces help to assist security, governance and development at many sites.
Overall, the ALP has helped to weaken the Taliban at the communal level where the Taliban and other insurgents often utilise for both support and a safe haven. Taliban chief Mullah Mohammad Omar has stressed his concerns of ALP sites undermining rural Taliban support including his home province, Uruzgan, and neighbouring Kandahar, Zabul and Daykundi (US Department of Defence, 2010). Consequently, ALP sites have been attacked by insurgents and the Afghan government has called for these local initiatives to operate for 2-5 years. Disarmament, Demobilisation and Reintegration (DDR) of former combatants strategy will be included, namely the reintegration of demobilised ALP members into the ANP which is occurring in the Helmand province (OSD, 2011).
Moreover, there are also problems with decentralised administrations and services. Local civil servants may be protected by the neo-patrimonial system which provides little voice to the local society and thus corruption may become more prevalent when resources and administration are both decentralised.
7.2.5 Increasing Capacity: A Generational Task
In order to promote effective SSR and JSR, strengthening the capacity of the security and judicial institutions at both the state and decentralised levels alongside the participation and control of the civil society is paramount to stamp out corruption across Afghanistan. However, this is not a short-term solution and is thus a generational process that can eventually assist in providing efficient, effective, transparent, impartial and accountable government, security and judicial sectors.
In terms of raising institutional and civil society capacity, SSR will take ‘generations other than a few years’ so raising ‘the capacity of the people who are working there’ and ‘the younger generation is very important’.[38] The ‘younger generation needs to be involved in the justice system because all the judges who are still in power are all old people and they have different minds’.[39] In the ‘Supreme Court, you cannot find a judge of the age of 35 or under, all of them are like 60 and it is time for them all to retire and they really have a different mind of thinking’ and ‘are involved in bribes’ and need replacing to truly ‘fight against corruption’.[40] It is a generational task to establish a formal justice sector that complies with international human rights standards and challenge political interference from the executive that manipulate justice (Coburn and Dempsey, 2010: 2). Sharing ideas with the youth of Afghanistan that makes up an estimated 67 per cent of the population is needed.[41]
7.2.6 The Need for a Comprehensive Case Tracking System
Training is provided from organisations such as the International Development Law Organisation (IDLO) to a vast amount of the judiciary to improve case handling such as the two year judicial reform project in March 2005 for the senior judiciary in the Prosecutor’s Office (Nauta, 2008). The Afghanistan Rule of Law Project (ARoLP)[42] has trained over 1,000 judges, supported tracking, case management and open information for judicial development and developed a code of ethics for judges (USAID, 2009: 18-19). Since 2004, ARoLP largely focuses ‘on the Supreme Court and the judges’, then ‘on the law schools’ and finally work ‘with the informal justice system which involves the use of Shuras and Jirgas at the community level’[43] which also promotes women’s rights under Islamic law and access to justice (Tondini, 2010: 82-83). ARoLP trained judges from 2004-2007 which included a 36 week course for judicial candidates, one month training for current judges and trained trainers to conduct training in the Supreme Court (Tondini, 2010: 83). By June 2008, ARoLP had trained more than 70 per cent of Afghan judges (Tondini, 2010: 83).
However, there is no official record-keeping system for decisions made in the informal systems which can lead to disputes re-emerging particularly in land cases (Coburn and Dempsey, 2010: 15). A case tracking system is absent and is blocked when conflicting interests and legal and political actors are involved despite efforts from the international community and JSSP[44] that have spent a lot of money to ‘improve the attorney and the results are catastrophic when you look at the corruption’.[45] When analysing the perceptions and experiences of corruption, ‘the biggest amount of corruption in the justice system happens at the district level then at the provincial and then at the national level with the Supreme Court and other bigger institutions but the core of it is really in the province and so it needs to be addressed’.[46] Yet, ‘there is no case tracking system or control over ‘the people that are being dominated’. In addition, the tracking systems that are not in place leads to manipulation by judges that avoid using certain laws for their own interests and this persists due to the lack of training and capacity in the justice sector.[47]
Communication between tribal elders with the state judiciary, an installed written-case report system at the informal level and monitoring of decision-making to uphold international human rights norms and Afghan laws can help the integration of both formal and non-state systems of justice (Coburn and Dempsey, 2010: 18). The lack of tracking systems has been reiterated, particularly at the district level as many decisions are not written down and are unreported with the parties agreeing to a resolution without a record.[48] This leads to many ‘instances of human rights violations, particularly regarding women’ and find difficulty resolving ‘complicated land disputes’. ARoLP are working on a case tracking system so that a decision will be reported and passed ‘to the district court or district governance office so there is some recording or knowledge at the district level of what is going on’ and then assistance can be provided for complex land disputes.[49] A monitoring system is needed with the installation of a tracking system by increasing the capacity within the entire justice sector to curb corruption and human rights violations in the judiciary across the country, particularly at the district and provincial levels influenced by Jirga decisions.
7.2.7 Building Accountability from the Bottom-up Process
In relation to judges falling under an accountability process, work is needed amongst ‘tribal leaders with traditional structures to give them power and decision-making and give them accountability to keep an eye on the government offices in districts and provinces’.[50] This would provide an oversight mechanism from the top and bottom ends doubling-up including provincial councils and the civil society over the security forces and justice providers.[51] Oversight and accountability needs to also include tribal elders as they are trusted by the people and the formal centralised justice system is not and the formal system lacks the resources to provide the rule of law and accountability.[52]
Building accountability and oversight mechanisms from the bottom-up process can also provide opportunities for the informal system to deal with less severe cases legitimately. The Justice Adviser of DFID’s work in Helmand provides evidence that accountability and the policing of judicial corruption from the bottom-up process also helps the communal actors attain oversight over the formal sector.[53] In terms of building social accountability from the bottom-up process, IWA, which is mainly funded by Tiri, has been involved in building the capacity of CDCs and Shuras in a few villages and educating Mullahs and local elders to develop oversight, transparency and accountability.[54]
The Network for Integrity in Reconstruction (NIR) is part of IWA’s mission to increase transparency, accountability and integrity reform, aid monitoring and anti-corruption via engaging with the civil society and local leaders (Making Integrity Work: Tiri, 2012). NIR works in Parwan province with communities by monitoring reconstruction projects selected by the communities in accordance with community priorities in which the communities themselves monitor and Tiri and IWA build the capacity of local monitoring groups (Tisné and Schouten, 2012: 1-2). This enables community-based monitoring promoting social awareness via social audit and mobilisation at the communal level (IWA, 2011: 1). IWA supports local monitors over an estimated 200 rehabilitation of physical infrastructure projects in four provinces (Ebrahimkhail, 2011: 66). IWA created Provincial Monitoring Boards and Provincial Development Councils to empower civil society engagement in anti-corruption and building social accountability from the bottom-up process reporting to the local government and local elected bodies.[55]
The bottom-up process can help ‘the government have some consultation and make appointments with the Shuras and the tribal leaders but somehow you can feel a gap between the state structure and the traditional community structure’.[56] Building social accountability from the bottom-up process can empower Mullahs with education and also support them to intertwine religion and ethics in a religious-based state on the fight against corruption and promoting honesty, national pride and integrity.
Hence, another important factor to stamp out corruption is to link all sectors with religion, ethics and social values under a long-term vision. This led to the success of National Integrity Plan in Malaysia, which increased the pride and integrity within the police force in a society that hold strong religious and spiritual values and is supported by ethical practice and behaviour (Razak, 2006: 9; Embong, 2007: 156). Similarly, Falola (1998: 274-275) contends that the Nigerian government should concentrate on dual Muslim and Christian religion and ethics and use religion and ethics to overcome immoralities such as corruption, greed and violence which will lead to meritocracy and fairness when competing for jobs and political office. Linking religion is very important, particularly in an Islamic state, such as Afghanistan, which has radicalised religion to fight against invasions from the former Soviet Union, the Mujahidin. In addition, the Taliban radicalised by Mullah Omar to fight Western intervention and destroy America (Zahab and Roy, 2004: 52). Therefore, increasing the salary of the Afghan police to cater for poor wages is a colonial answer of solving corruption.[57] Anti-corruption strategies in Afghanistan, an Islamic state, are merely based on secular Western ideals and implemented in short-term programmes via bilateral and multi-donor projects with different goals.
Without a system or institutionalism, the mind-sets are not changed and remain for corrupt thinking; so even if the police are paid more, say even £40,000 or much higher, they will still do corrupt things.[58] Moreover, the more Western aid and external short-term policies driven by the international community for statebuilding will increase corruption by forming more revenue and opportunity (ReliefWeb, 2011). Mullah Omar opened up Afghanistan for Osama Bin Laden and other rich and powerful Islamic activists and they advanced radicalism which resulted in international segregation and a strict Islamic regime (Bowker, 2007: 36-37). Mullah Omar taught in a madrasa and radicalised refugees in Pakistan camps by inspiring his students to arm themselves in order to capture and kill the abusive and unjust warlords that terrorised, raped and murdered local Afghans to fulfil Allah’s work (Aboul-Enein, 2010: 195). In the Shaldara madrasa located in the Pashtunabad district, Quetta, Pakistan, has allegedly recruited and radicalised vulnerable young men that join ‘the Taliban as suicide bombers in Afghanistan’ (Gohel, 2009: 137).
Although the Taliban and Al-Qaeda did not initially share the same ideology, the Taliban became radicalised under jihadist ideas to eradicate western intervention after the US and coalition military campaign during October and November 2001 (Zahab and Roy, 2004: 52). After the US invasion, the Afghan Taliban fled the country and entered Pakistan to radicalise the Pakistani Taliban (Farwell, 2011: 102). Mullah Omar and the Taliban had shared Bin Laden’s ideological position which previously led to the destruction of Bamiyan’s Buddhas, arrests of Christian humanitarian aid workers and declaration of Mullah Omar on 15 November 2001 to the BBC to destroy the US (Zahab and Roy, 2004: 52).
The IWA’s Afghan public corruption survey (2010: 95) also underlines that Mullah and Ulema (55 per cent of survey respondents) is the best institution to be efficient to combat corruption in Afghanistan, with only 25 per cent claiming that they would not be efficient to do so. In particular, integrity is lacking and police positions are filled by patronage (Cordesman et al, 2009: 100).
Wardak et al (2007) suggests that a modal system at the district level can establish both a human rights and Jirga unit to work collaboratively with the district administration to handle minor cases at the traditional level and channel upper cases to the higher courts. This is similar to the Rwandan Gacaca process insofar that minor offences such as theft and breach of property rights are assigned to the community system (Bisong, 2009: 24), and higher crimes such as murder or rape are transferred to national courts (HRW, 2004: 18). However, hybrid systems of justice are hard to prescribe when a district is dominated by insurgents, particularly Taliban law-making, and therefore security in remote areas is needed prior to such initiatives.
7.3 Holistic Anti-Corruption Strategy for Afghanistan
Both of the main law enforcement institutions, the MoI and MoJ, are considered as two of the most corrupt institutions in Afghanistan (Cordesman et al, 2009: 103; Cordesman et al, 2010: 175), which makes it difficult to incorporate sanctions and robust accountability as part of an effective anti-corruption strategy. This is due to a neo-patrimonial system of political elites and senior personnel at ministerial levels engaging in illicit, lucrative and corrupt activities with drug traffickers (Geller and Moss, 2007; Hussman, 2009: 3). CSOs and the media need to be involved in neo-patrimonial state systems but access to information is not sufficient without ‘enough education, training and empowerment’ in terms of accessing and utilising information (Disch et al, 2009: 10). Therefore, raising awareness via the media, strengthening the involvement of civil society groups and education are also needed as part of both overall security and justice sector reforms (Azami, 2009: 4). A holistic anti-corruption strategy boosting the following four components is required in Afghanistan. These components include raising awareness, prevention, detection and prosecution and punishment alongside a collaborative counter-narcotics system, as the nucleus, to combat corruption, clientelism and state capture – infiltration of the government, security and justice institutions from the drug mafia and AOG.
It is paramount to note that some of the components contained in the strategy are identified with targets provided in the London, Paris and Kabul Conferences, the Afghanistan Compact and ANDS. However, Afghanistan’s national anti-corruption strategy is failing. The Afghan government has been unable to effectively implement the National Drug Control Strategy (NDCS) which has failed to provide sufficient support to provincial leaders that are keen to combat poppy cultivation and smuggling in their provinces (US Department of State, 2009). In addition, the government ensuring the independence of the HOOAC and CAO within six months to combat high-level corruption and improve the transparency of public funds (Kabul International Conference on Afghanistan, 2010: 9, 19), is inadequate.
Hence, the targets and lead-up to these international conferences merely provide rhetoric on enhancing accountability and combating corruption (MacKenzie, 2010b). This is due to various failures, such as the President’s interference in the Major Crimes Task Force (MCTF) and anti-corruption bodies when investigating senior crimes of corruption (World Bank, 2009: 2; Boone, 2010b; Katzman, 2010: 16-17). In addition, all government departments and the Supreme Court, AGO and MoJ suffer from endemic corruption (World Bank, 2005b: 60; Jones, 2008: 85).
Anti-corruption and counter-narcotics strategies are needed to be placed on the top of the agenda in international conferences. This may push the Afghan government to actually exercise its political will to comply with such strategies and targets; otherwise, the security and justice sectors will remain incompetent to perform their mandated duties and specified targets underlined in the ANDS to significantly reduce drug criminality, corruption and clientelism.
Figure 1: Recommended Afghanistan Holistic National Anti-Corruption Strategy
|Raising Awareness | Prevention |
|* Publish documents & anonymous whistle-blowers |* Install PAR, PRR, P&G and internal anti-corruption |
|* Training on morality and ethics |* Revise lottery appointments if sole breadwinner |
|* Legal training/education teaching |*Understand nepotism and conflicting interests |
|* Promote a culture of zero-tolerance |*Quarterly auditing and monitoring: external bodies: funds, per |
|*Transparency in public procurement |diem and salary |
|*Police Code of Conduct and more familiar |*Capacity-building and training institutions |
|community police |*Vetting/meritocracy for public, security and justice jobs |
|*Strong communication between all various |*Case-tracking system at judicial provincial/district level |
|stakeholders, institutions and agencies involved | |
|*High-media coverage, naming and shaming | |
Raise salaries of civil service, security and justice actors to avoid individual and organisation deviancy and compete with private sector to enhance incentives for educated applicants
Collaborative Counter- Narcotics System (CCNS)
*All Ministries to have functional internal CCNS and communicate with each other
*Understanding of state capture by political elites related to drug smuggling
*Increase political will of international donors to work with the Karzai government
*Install more legal authority for the AGO, ACU, HOOAC and MCTF to investigate all forms of corruption, especially drug trafficking that is prevalent at the southern (trading) provincial level
*These specialised units must be free from political interference in cases, even if political aides
*At provincial level no governor/cabinet member to be immune from prosecution & meritocracy
*Install NDCS. Alternative development needed such as AVIPA Plus, AWATT and RoP helping farmers to cultivate substitute crops to weaken poppy incentives that fund the insurgency
|Prosecution and Sanctions | Detection |
|*HOOAC/ACU/AGO investigate corruption cases |* Maintain MoI and MoJ contro internally |
|*Enforce accountability: independent judiciary to |* Build capacity of HOOAC and IARCSC legal authority and |
|apply harsher disciplinary procedures, fines and |complaints procedure |
|custodial sentences |*Build capacity of CAO to monitor fiscal spending and |
|*Transfer HOOAC/ACU/AGO investigated cases to |control of funds |
|MoJ and Supreme Court to try and prosecute |*HOOAC should attain the highest oversight to implement UNCAC |
|* Strengthen and provide CID, PID and other |and protect whistle-blowers |
|Internal bodies the capacity and legal enforcement | |
|to investigate corruption and misbehaviour | |
Figure 1 includes a CCNS at the nucleus to challenge the current misery of prevalent corruption. Corruption is mainly associated with bribery, weak law enforcement and drug trafficking (IWA, 2010). Bribery is usually affiliated with low pay which is why Priority Reform and Restructuring (PRR) and pay and grading (P&G) scaling has been installed to remove survival-based corruption due to many civil servants at the sub-national level living in poverty and struggling to cater for their families (USAID, 2009: 25). Azfar and Nelson Jr. (2007: 471) state that; ‘Increasing government wages and increasing the difficulty of hiding corrupt gains both reduce corruption’. In relation to weak law enforcement, specialised agencies such as the HOOAC and Independent Administrative Reform and Civil Service Commission (IARCSC)[59] need stronger legal authority, coordination and capacity to challenge all forms of corruption and avoid overlapping donor goals (Neumann, 2009: 198). This will raise awareness, apply preventative measures, detection and prosecution and punishment which would provide the potential to also educate and inform the Afghan government and wider society of nepotism, illegal enrichment and ‘moral economy’ to enhance zero tolerance and the shame and stigmatisation of corruption in the government.[60]
Furthermore, prevention and prosecution and sanctions are increased when various laws of a constitution, international treaties and the rule of law are implemented (Asian Development Bank and OECD, 2007: 56). The link of reforming both the security and justice sectors to promote sustainable peacebuilding must start at the fight against corruption with the pre-existing enacted anti-corruption laws, ANDS and the 2005 Counter-Narcotics Drug Law under the Afghan constitution and ratification of the United Nations Convention against Corruption (UNCAC) to stamp out corruption. This has to be for the long haul with robust political will from donors and the host government, which led to the success of Hong Kong and Singapore, alongside more powers provided to the HOOAC to act as a truly independent ACA with investigative powers to transfer cases to the MoJ and AGO. In addition, further pay reforms need to incorporate enhanced transparency and vetting to challenge clientelism in recruitment which is paramount to security and justice.
7.4 Conclusion
This chapter has addressed alternative measures to combat systemic corruption that is embedded in all Afghan institutions due to state seizure and patron-client relations in order to bring about better security and justice to contribute to the peacebuilding process. Figure 1 provides a holistic anti-corruption strategy for Afghanistan that moves beyond pay reform, although a central tenet alongside a counter-narcotics strategy, to better the chances of reducing corruption in the Afghan government and security and judicial institutions over time.
The holistic anti-corruption strategy includes the additional segments covered in this chapter. The strategy incorporates the involvement of community policing, civil society groups, protected and anonymous whistle-blowers and CDCs to raise awareness and enhance accountability from the bottom-up process. In addition, the strategy includes alternative livelihood programmes to combat poppy cultivation; decentralisation of public services to strengthen accountability and transparency at local levels and increase the capacity of institutions to strengthen the competence and internal anti-corruption strategies at institutional/ministerial levels. Moreover, in relation to judicial reform, the installation of a case tracking system and merging of accountability, the rule of law and basic human rights into community-based dispute resolution processes have the potential to maintain consistent and fair standards across Afghanistan. These additional strategies addressed complement the success stories of Hong Kong and Singapore, USAID and the World Bank anti-corruption strategies, as analysed in Chapter IV – i) raising awareness; ii) prevention; iii) detection; and iv) prosecution and sanctions.
However, on a bleak note, as argued in the previous chapters, systemic corruption and clientelism in a weak and narco-state with fragile institutions and a legacy of warlordism – the patrons that distribute state resources to clients in exchange for loyalty is extremely difficult to combat.
Chapter VIII: Conclusion – Drafting an Anti-Corruption Strategy for Afghanistan
8.1 Introduction
This final chapter will conclude the findings based on the thesis in relation to corruption and clientelism that hinder the processes of security and justice sector reforms in Afghanistan and answer the research question. The conclusion starts with the critique of statebuilding efforts in Afghanistan – the manipulation of the liberal peace followed by the main problems when sequencing an anti-corruption strategy. The main problems consist of the shortcomings of Public Administration Reform (PAR), prevalent nepotism and clientelism, low pay and state capture leaving rampant administrative corruption at all levels. The final part provides recommendations for a holistic anti-corruption strategy for Afghanistan and initially answers the research question which argues that pay reform and PAR have the potential to deal with the lack of economic provision. However, systemic corruption, clientelism and state capture would persist and continue to permeate law enforcement activity, anti-corruption and drug-related investigations which seriously hampers security and the rule of law in Afghanistan.
8.2 Critique of the Liberal Peace in Afghanistan
In Afghanistan, the liberal peace has been hijacked without comprehensive concern over the fragility of the security and judicial institutions to hold such democratisation but merely to protect United States (US) interests (Ramsbotham et al, 2011: 223). The liberal peace was instead rushed at the planning phase after the Bonn Agreement leant in favour of US foreign policy – not to directly establish a better regime for Afghan citizens but to eradicate terrorist threats to the US via the funding and support of anti-Taliban Afghan combatants, namely the Tajik-led Northern Alliance, to fight the Taliban (Melanson, 2005: 307).
Paris (2004: 8) argues that institutional reform in all ministries need to be installed so that security and justice sector reforms can actually sustain free trade and democratisation to adhere with ‘Institutionalisation Before Liberalisation’ to avoid the costs of ‘quick and dirty’ 1990s approaches. However, institutional strengthening and capacity-building was not installed in the security and justice sectors in Afghanistan. This has consequently left the Ministry of Interior (MoI), Ministry of Defence and Ministry of Justice (MoJ) in frail conditions to hold democratic principles such as effective and efficient transparency, procurement and accountability.
Corruption and clientelism has increased due to aid, low salaries and bureaucratic strategies involved in a state hampered by decades of abuse of power and systemic corruption (Waldman, 2008; International Crisis Group, 2010: 25; Integrity Watch Afghanistan (IWA), 2010: 13). The influx of foreign aid and bureaucratic strategies are centralised leaving tribal self-administrations, warlords and governors in the countryside to retain nepotistic ties in exchange for loyalty (Mankin, 2009: 195).
8.3 Sequencing Anti-Corruption: Identifying the Main Problems
The likelihood of detecting corruption declines once corruption has spread into all state institutions, particularly in an ineffective justice system (Dal Bó et al, 2007: 305). In order to decrease systemic corruption, public policy needs to implement a plan prerogative to monitor high-level administrations that have limited officials and no external auditors (Buscaglia, 2001). Anti-corruption strategies can range from fiscal macroeconomic policies such as decreasing tariffs, adopting single exchange rates, decreasing enterprises’ subsidies and other barriers to free marketing trade and privatise government assets in competitive markets (World Bank, 1997: 35-36). Additional methods of curbing corruption include establishing a meritocratic service sector, eradicating overlapping functions and civil service reform to improve governance and increase the quality of public services (Thomas et al, 2000: 152). In addition, judicial reform striving for independent law enforcement is another strategy to protect poorer citizens from the manipulation of administrative corruption and challenge patronage and state capture (Sarrica and Stolpe, 2007: 159).
Anti-corruption strategies need to be sequenced to encapsulate the ambiguities when addressing the causes and effects of corruption (Gulati and Rao, 2007: 137). The planning process of an anti-corruption strategy proposed by the researcher is three-fold. First, an evaluation of the most systemically corrupt institutions need to be addressed that is based on research such as surveys with local taxpayers related to each ministry and institution. Second, an analysis of the types of corruption should be established so that a specialised anti-corruption agency (ACA) can work to fight against specific aspects of corruption such as administrative corruption and extortion in public services. Third, after the variables of corruption and occurrence in government services and ministries have been identified, civil society organisations (CSOs) should implement and play a ‘watchdog’ role over anti-corruption policies due to the extensive research with citizens they conduct.[61]
The nationwide surveys conducted by both the UNDP and IWA underline that unemployment, insecurity from the Taliban and corruption are the main security concerns in Afghanistan (UNDP, 2009: 8; IWA, 2010: 25-26). High unemployment and the Taliban are intertwined that impinge on both security and justice and this can only be resolved if there are job opportunities to retain Afghan loyalty with the government and reduce numbers joining the insurgency.
Currently, criminal networks intensify and support systemic corruption that stems from the exclusionary political system and are linked with government officials and the insurgency (McChrystal, 2009: 2.9-2.10). These criminal patronage networks fight for the withdrawal of international intervention and poppy interdiction which undermine security, weaken the government, hinder economic development and challenge the rule of law (International Security Assistance Force, 2011: 5.1). Most financial resources of the insurgency derive from the cultivation and smuggling of narcotics and extortion from poor persons (Islamic Republic of Afghanistan: MoI Affairs, 2010: 5). In short, the lucrative narcotics industry funds the insurgency and provides openings for corruption in public institutions which destroy the lives of Afghan people that are forced to pay for services that should be free (Afghanistan National Development Strategy (ANDS), 2008: 154).
PAR has been endorsed as a strategy to enhance transparency and accountability and minimise corruption in Afghan public institutions to provide better services for Afghans (International Monetary Fund (IMF), 2008b: 7). The Afghan government and donors have been requested by ANDS to simplify their procedures, including PAR, to avoid overlapping duties, delays and provide simplified safeguards to minimise corruption with limited conditionality from foreign assistance (ANDS, 2008: 161). In addition, the Control and Audit Office (CAO) and the Ministry of Finance (MoF) are responsible to strengthen the government’s monitoring and control over finance and funds in order to curb and prevent embezzlement of public funds (ANDS, 2008: 150). In terms of public financial management (PFM), in 2010, the Afghanistan Financial Management Information System spread to all the ministries and decentralised to all provinces but capacity at the ministerial level remains weak. Yet, the audit and wages of civil servants and PFM met 18 out of 28 PFM performance indicators which enhanced good governance and anti-corruption efforts (Ebrahimkhail, 2011: 67-68).
It can be argued that PAR has huge constraints in Afghanistan. Afghanistan’s public administration is weak and the commitment of ownership and leadership is uneven and confusing (IMF, 2006: 123; IMF, 2008b: 62). PAR has notably been superficial concerning the restructuring and downsizing of ministries that has focused ‘on higher pay rather than fundamental change’ (Lister, 2006: 2). Furthermore, the meritocratic appointments process and the eradication of patronage and kinship ties from recruitment ‘still have a long way to go’ which continues to hinder human development (Aria and Kakar, 2009: 324).
A solution with the vetting and recruitment phase is to raise salaries at least equal to rival armed opposition groups (AOG) in the security forces once trained and screened so that the security forces will not join insurgent groups or remain loyal to warlords or commanders (Barakat et al, 2008). However, it is difficult to break the local culture and ethical traditions of nepotism that persist within a ‘moral economy’ at the provincial levels across Asia (Olivier de Sardan, 1999), particularly Afghanistan. The concept of ‘moral economy’ concerns the political elite exploiting the control of vetting and recruitment and the flow of resources to their targeted beneficiaries i.e. extended family, friends or villagers (Vel, 2009: 144-145). This is evident at the top level during the appointments of government officials, provincial governors and representatives that have been publicly involved in mass human rights violations and still enter Karzai’s cabinet (Clammer, 2007: 40). President Karzai brought back former generals and war criminals General Abdul Rashid Dostum and Marshal Mohammad Qasim Fahim[62] for parliamentary re-election and Ahmad Wali Karzai remained governor of Kandahar despite growing international scepticism of involvement in the drug industry (Blanchard, 2009: 26; Gebauer, 2009; Rubin, 2009; Girardet, 2011: 361).
Yet, ‘some ethics violations are not necessarily obvious: giving a government job to your brother for instance; some people may not view that necessarily as corruption; somebody’s got to fill the job why can’t that be my brother?’[63] It is hard to break this mentality to challenge the current cycle of clientelism because it is deemed as a moral economy. This identifies a dull future of merit-based appointments and vetting procedures for human rights violations to combat the impious corrupt governmental officials. If Afghanistan is to hold a trusted and accountable government, then the newly ratified Amnesty Law must be repealed via international pressure groups such as the UN and Human Rights Watch (HRW) encouraging Karzai to revoke this Law (HRW, 2010; UN, 2010a). Afghanistan is currently heavily infiltrated by the opium trade which involves Karzai’s cabinet and senior officials that retain immunity from prosecution (Ahmed, 2007: 271; Clammer, 2007: 40).
8.3.1 Drug Problems Challenging Anti-Corruption Efforts
Afghanistan is a narcotic and war economy where political elites, state and criminal actors are engaged in the drug trade for their own narrow purposes, namely profitable gain (Byrom and Walker, 2007: 204). Narcotics trafficking in Afghanistan plays major roles in corruption, particularly state capture, infiltration and many powerful drug-lords are unpunished from the justice system which in turn hinders security and the battle against the insurgency (Byrd and Buddenberg, 2006: 1; IMF, 2006: 88; Greenhill, 2009: 100). Drug-lords bribe or intimidate poorly-paid judges and police or link with higher officials to avoid prosecution (Hickley, 2008). The ‘bribery of law enforcement officials further minimise the risks of being caught, arrested and prosecuted’ (Chêne, 2008a: 2). The decisions in courts are purchased and judges, the police and officials demand bribes or gifts to perform their duties and arrests, investigations and prosecutions are reinterpreted to protect drug traffickers and powerful officials which pervert the rule of law[64] (Young, 2007: 10; Grim, 2010).
Strengthening the judiciary, criminal justice system and anti-corruption institutions will help to improve law enforcement to reinforce disincentives for those engaging in corruption and the drug industry (ANDS, 2008: 150). Prevention, detection, prosecution and harsher sentencing will reduce the likelihood of state officials engaging in deals with criminal or insurgent networks related with the drug trade to combat corruption and organised crime more effectively (IMF, 2008b: 16). The Afghan government ‘can do a lot’ and restore trust by simply implementing ‘the law’ and prosecuting the ‘hundreds of cases of corruption of senior officials’ and all levels which is what Afghan citizens want.[65]
ANDS (2008) recommends the Afghan government to promote a multi-faceted approach that intertwines counter-narcotics, counter-insurgency, good governance and development, but corruption plays one of the most prevalent challenges to counter-narcotics (Blanchard, 2009). Widespread corruption in the Afghan government and governors at the district level forms a constructive environment for drug traffickers which weaken the rule of law (Bertelsmann, 2009; Blair, 2009: 17).
Robust counter-narcotics agencies and an independent ACA, the High Office of Oversight and Anti-Corruption (HOOAC) is needed with powers not only to educate and raise awareness but to have legal authority from the MoJ and Supreme Court’s screened prosecutors to detect, prosecute and impose more robust sentencing to boost prevention. However, this recommendation is a long-term strategy that needs strong political will and continual funding from both the Afghan government and international community to provide more powers to the HOOAC to succeed like the Independent Commission against Corruption (ICAC) in Hong Kong and the Corrupt Practices Investigation Bureau (CPIB) in Singapore.
Moreover, adequate wages, the promotion of codes of conduct in the MoI and MoJ, more resources and increased capacity for law enforcement agencies is needed to enable effective detection, investigations and prosecutions and strengthen the criminal justice system (Chêne, 2009b: 2, 4). This will reduce incentives for law enforcement actors to accept bribes from criminal networks due to receiving sufficient wages subject to performance reviews and attract higher qualified judges (Rose-Ackerman, 1999: 158; Ogden, 2002: 235), with prospects for bonuses under PAR performance review strategies. Support with civil society participation also raises awareness and boosts education and civic programmes to underline the devastating effects that corruption has on public services (Asian Development Bank and Organisation for Economic Co-operation and Development (OECD), 2007: xviii).
8.4 Recommendations
Besides pay reform that can increase the salaries of the Afghan security forces and judges, with further reform, to reduce corruption due to the lack of economic necessity, other factors are required to strive towards a comprehensive anti-corruption strategy. This is to fight systemic corruption, clientelism and parts of the state that have been captured, including the government, security and judicial institutions to serve and protect lucrative drug interests of illegal criminal networks, armed groups and corrupt elites. The strategy is based on the four points raised in international and successful domestic anti-corruption strategies – i) raising awareness; ii) prevention; iii) prosecution and sanctions and iv) detection alongside v) a collaborate counter-narcotics strategy to challenge state capture. A holistic anti-corruption strategy for Afghanistan which reflects on the literature and interviewee responses on how to benefit the reform of both security and justice sectors includes the following recommendations to reduce corruption and clientelism over time:
1) Raising awareness
i. Publication of documents on anti-corruption, reporting procedures and rights
ii. Anonymous whistle-blowing when making complaints against public officials
iii. Training on morality and ethics to also empower the role of Mullahs that links the detriments of corruption with Islam which overlaps with 2) Prevention
iv. Legal training and education on legal practice, human rights and corruption
v. Promote a culture of zero-tolerance – no immunity for crimes of corruption
vi. Transparency in public procurement to ensure that all funds are not misused
vii. Police Code of Conduct (for consistency) and more familiar community police
viii. Strong communication between all various stakeholders, institutions and agencies involved – in all reforms and anti-corruption to avoid wasted capital
ix. High media coverage, naming and shaming – for education/moral deliberation
2) Prevention
i. Raise the salaries of the civil service, security and justice actors to prevent individual and organisation deviancy and compete with the private sector to enhance incentives for educated, honest and trustworthy applicants
ii. Take into account familial structures and the number of breadwinners per household prior to endorsing lottery assignments
iii. Promote private competition so markets can compete for economic growth
iv. Promote Public Administration Reform to reduce overlapping of functions and oversight from IARCSC of civil servants and ministerial equivalents
v. Follow constitutional procedures as there are anti-corruption and anti-drug laws which are often not pursued – resist political interference and abide laws
vi. Boost the capacity of CSOs as pressure points to voice/campaign against corruption and promote human rights such as gender justice at the Jirga level
vii. Understand nepotism and conflicting interests as initial anti-corruption policy
viii. Quarterly auditing and monitoring, including external bodies’ funds, per diems and salaries to police the misuse of funds and financial remuneration benefits
ix. Build the capacity of government, justice and security institutions
x. Stronger vetting procedures to ensure that all appointments of public officials, security and judicial personnel are meritocratic and not based on clientelism or other corrupt means, including governors and police chiefs bidding for posts at poppy-rich provincial levels
xi. Case tracking system at all judicial levels, including provincial and district
3) Prosecution and Punishment/Sanctions
i. Empower the HOOAC, Anti-Corruption Unit (ACU) and the Attorney General Office’s specialised units to investigate corruption cases independently that are free from political interference and third party infiltration
ii. Enforce accountability – Independent judiciary to apply harsher disciplinary procedures, fines and custodial sentences for corruption and drug offences
iii. Transfer HOOAC, ACU and Attorney General’s Office investigated cases to the MoJ and Supreme Court to try and prosecute crimes of corruption
iv. Strengthen the capacity and legal enforcement of ministerial internal bodies, such as MoI’s Criminal Investigation Department, to investigate corruption
4) Detection
i. Maintain MoI and MoJ control with internal investigation units
ii. Build the capacity of the HOOAC and IARCSC legal authority complaints procedure to boost the quality of the services dealing with corruption claims
iii. Build the capacity of the Control and Audit Office to monitor fiscal spending and control funds to detect embezzlement of funds in public office
iv. Ensure that all international monies and activity is tracked by the Afghan Ministry of Finance so that transparency is endorsed at both ends, not just international actors monitoring Afghan fiscal activity but spending from international agencies being traced. This also overlaps with 3) Prevention
v. Empower the HOOAC as the highest level of oversight that truly implements UNCAC and laws contained in the Afghan Constitution to curb corruption
5) Collaborative Counter-Narcotics System (CCNS)
i. Ensure that all Afghan ministries have a functional and internal CCNS and communicate with each other to enforce existing anti-drug laws and follow the procedure under the Afghan Constitution
ii. Promote the understanding of state capture by political elites related to drug smuggling and lucrative illicit deals leading to criminal activity and corruption
iii. Increase the political will of international donors to work with the Karzai government on enforcing anti-corruption strategy as a main priority of the ANDS and future conferences and reduce political intrusion in such efforts
iv. Install more legal authority for the Attorney General’s Office, ACU, HOOAC and the Major Crimes Task Force to investigate all forms of corruption, especially drug trafficking that is prevalent at the southern (trading) provincial level
v. Support measures/regulations that protect these specialised anti-corruption units from political interference in major cases, even if political aides
vi. Install the National Drug Control Strategy to fight illicit poppy cultivation
vii. Continue the promotion of alternative livelihood programmes, such as the Afghanistan Vouchers for Increased Production in Agriculture Plus, Afghanistan Water, Agriculture and Technology Transfer and Roots of Peace. This is to help farmers cultivate substitute crops to weaken poppy incentives that fund the insurgency which causes nationwide insecurity.
8.5 Answering the Research Question
In relation to answering the research question, pay reform does have the potential to increase the salaries of the lower ends of the Afghan police and judges to combat avoidable survival-based corruption. This supports both propositions – that corruption is related to the lack of economic provision and raising pay has an effect of reducing corruption. It can therefore be argued to a slight extent that corruption can be reduced if the Afghan security forces and judges are paid more.
However, if pay is increased to an adequate level to cater for living and familial expenses to void the premise of survival-based corruption, corruption and clientelism will still continue.
As a consequence, systemic corruption, patronage and clientelism and seizure of the Afghan state serving the narrow interests of non-state criminal networks and AOG linked with the narcotics trade persists due to many high-producing poppy areas across Afghanistan, frail institutions and weak law enforcement. Traditional social contract of clients – the police, tribes and other clans offering loyalty to their patrons – the warlords, tribal leaders and governors in expectation of the redistribution of state resources and other financial gain has empowered provincial leaders and tribal chiefs (Misdaq, 2006: 17; Geller, 2008). Provincial leaders are able to recruit preferred tribes or groups that are expected to provide loyalty under the qawm system and government officials are able to appoint those that can bring financial incentives which avoid compliance with meritocratic recruitment (Evans et al, 2004: 99; Geller and Moss, 2008). This has increased patron-client relations with the police chiefs who receive monthly bribes from the lower-ranked policemen, customs officials and border and counter-narcotics police, the clients, to retain profitable appointments in high poppy trading regions (Mankin, 2009; Hafvenstein, 2011: 125). Governor, police chief, border police and customs officials positions are bought and sold in potential high-earning poppy areas to earn high amounts of money via bribery and extortion with an expectation of a high lump sum or monthly slice of bribes and drug-related corruption paid to the superior, the recruiter (Demirbüken et al, 2009: 139; Gwertzman et al, 2009).
Moreover, President Karzai has cycled and transferred human rights violators and drug traffickers in his cabinet and not discharged his head of ministries, governors and political cronies, even when international pressure calls for their dismissal for blatant drug-related crimes such as Sher Mohammad Akhundzada (Clammer, 2007: 40; Blanchard, 2009: 26; Piano, 2009: 17; Shanty, 2011: 202). Hence, in relation to answering the research question – an increase of wages in the Afghan security forces and judges would not significantly reduce corruption and clientelism. Put simply, if salaries of lower police and judges are increased to a sufficient level to meet all economic provision, Afghanistan will still be captured by non-state illegal AOG and criminal networks linked to the narcotics industry that funds the insurgency and warlords that hinders both security and the rule of law.
Furthermore, in Afghanistan, over emphasis has been invested on protecting physical security from the externally driven Bonn Agreement consisting of foreign stakeholders supporting the war on terror to preserve national security interests (Goodhand and Sedra, 2010: S82; Ward, 2010: 8; Engelhardt, 2011: 137). As a consequence, low-funding in the judicial sector has led to the failure to challenge corruption, install accountability and rebuild legal infrastructure and poor accessibility for formal legalisms persists (Jalali, 2006: 10). The lack of rule of law during the initial Security Sector Reform in 2002-2006 forming Taliban support to provide informal security and community-based dispute resolutions led to the re-emergence of the Taliban due to public resentment of the weak, corrupt and illegitimate Karzai government and incompetence of the slow and corrupt formal judiciary (Hayes and Brunner, 2007; Giustozzi, 2008a: 179, 182; O’Hanlon and Sherjan, 2010: 13). Alongside poor justice reform and a weak rule of law, factional struggles of Mujahidin commanders fighting to distribute resources from aid to the population in exchange for support, inherited from the Soviet war, has formed ethnic fragmentation, prevalent clientelism and insecurity in the countryside (Roy, 1990; Roy, 2008).
Due to high insecurity, clientelism, an illegitimate government and the lack of rule of law, fragile state institutions and poor law enforcement, the Afghan state is unable to combat greediness and profitable prospects in narcotics trafficking which has led to the failure to curb corruption and implement a nationwide rule of law. Systemic corruption and state capture has resulted in political intrusion in the majority of anti-corruption and drug-related investigations by the police and judges, the HOOAC and MCTF, to protect Karzai’s political cronies, powerful warlords and drug traffickers engaged in the illicit and lucrative opium trade which extremely hinders anti-corruption, security and the rule of law (Bassiouni, 2005: para. 14; Department of Justice – Canada, 2010; Farah, 2011: 19, 23; Huffman, 2011).
Afghan state institutions, namely both security and justice institutions are too frail to deal with these challenges. Informal justice and security can fill absent state resources, as done so with the Rwandan gacaca. However, to avoid shortcomings in Rwanda[66], Afghanistan can attempt to link basic human rights and gender justice with traditional community dispute resolutions to avoid the absence of a defence lawyer in remote provinces; forced marriages being the resolution for dispute settlements and women being ignored by decisions.
Therefore, in order to bring about better anti-corruption, the narrow focus on justice reform leading to security issues and a lack of rule of law due to over focus and funding on security needs to be addressed, as argued in the first three chapters of the thesis.
Appendix: Questions for the Field Research – Interviews, May-June 2010
The appendix provides the opening statement conforming to ethics, confidentiality and the assurance of anonymity; warm-up questions to build rapport and gather an understanding of job roles; lists the provisional questions as a basic guideline to the semi-structured interviews and specifies the closing statement.
Opening Statement: Code of Ethics
Thank you for attending the interview. The interview should last between 30-60 minutes approximately. The information that you provide in the interview will be used solely for the fulfilment of my doctoral thesis. Confidentiality is assured and your name will remain anonymous. This project will only be used in the thesis and is non-affiliated with the international community or any other body. This project will only be submitted to the University of York and names used during the interviews will be anonymous. Now, some ground-rules will be brought to your attention. I will be asking the questions in English and my translator will be translating the questions from English to Dari and your responses will be used for this research. If you do not want your interview to be tape recorded, then the translator will translate your responses from Dari to English and I will or another researcher will be taking notes.
Prior to the interview, could you inform me of any facilities, space, environment or any conditions preferred due to any physical impairment or disability that you require. You do not have to answer any of the questions that you do not wish to. You may stop for a break whenever you desire to. In addition, you may call to stop and cancel the remainder of the interview whenever you wish to.
Warm-up Questions and Understanding of Job Roles
What is your current occupation?
How long have you worked in this post?
What does your current position entail?
What are the difficulties that you face during your post on a daily basis?
What changes would you make or push to promote in order to benefit doing your job to the best of your ability?
Describe the current situation of security sector reform? What can be done to improve this process?
Describe the current situation of justice sector reform? What can be done to improve this process?
Civilian Control/Local Ownership
In your opinion, to what extent are the security and justice sectors in Afghanistan controlled by civilians? Does local ownership exist? What could be done to improve these processes?
Police and Military Reform
Describe what measures have been undertaken during the police reform process? What actors have been involved? What have they achieved and what could be done to improve this process?
Describe what measures have been undertaken during the military reform process? What actors have been involved? What have they achieved and what could be done to improve this process?
Accountability
Are external contingents accountable for malpractice such as corruption and human rights abuses? If so, what measures are taken against them and are they effective in practice?
Are internal security actors (the national armed forces and state police) and justice providers (judges, lawyers and prosecutors) held accountable for acts of malpractice? If so, what measures are taken against them and are they effective in practice?
Is there a sustainable rule of law that holds all accountable for involvement in criminal activities and human rights violations?
Oversight Mechanisms
Describe how oversight bodies, if any, monitor behaviours and practices of security actors and justice providers?
How can oversight bodies strengthen capacity in order to fulfil their roles more effectively? Can you provide any suggestions how oversight bodies can be improved?
Planning and Implementation/Good Governance
How are reforms over the security sector planned prior to implementation? What can be done to improve this process? What areas need re-thinking prior to proceeding with certain policies and practices? To what extent does the national government play a role during security sector reform? What can be done to promote good governance in order to benefit security sector reform?
How are reforms over the justice sector planned prior to implementation? What can be done to improve this process? What areas need re-thinking prior to proceeding with certain policies and practices? To what extent does the national government play a role during justice sector reform? What can be done to promote good governance in order to benefit justice sector reform?
Access to Justice: Traditional Justice Systems
To what extent are security actors, the national army and state police, accessible to citizens? Can these be easily reached in rural areas? Do security networks in rural areas differ from centralised urban locations? If so, describe how formal security networks operate in urban areas followed by rural areas. What can be done to improve access to state formal security?
To what extent are justice providers, prosecutors, judges, lawyers and courts accessible to citizens? Can these be easily reached in rural areas? Do justice networks in rural areas differ from centralised urban locations? If so, describe how formal justice networks operate in urban areas followed by rural areas. What can be done to improve access to state formal justice?
Additional Questions Asked in Bamiyan
Describe the mechanisms of justice provided within your community? Who or what body exercises the deployment of justice? Is this effective? What experiences have you or your family had with this system of justice?
What does the judicial system aim to provide justice for?
Do the Afghan Ministry of Justice and the Interior operate initiatives within your community? What are your experiences with them? Have they been positive or negative?
Do international forces provide justice or hinder it? What are your experiences or your families’ experience with them? Are they positive or negative?
Is the justice system easily accessible within your community? When one is of need of legal remedy or redress in your community, who or what body is consulted? Is this effective? If not, then why?
In your opinion, what can be done to improve the service of providing justice in your community? In your opinion, what can be done to improve the service of providing justice throughout Afghanistan?
Closing Statement – End of Interviews, Kabul and Bamiyan, May-June 2010
I would like to thank you for taking the time to attend this interview. As stated prior to the interview provided in the ethical guidelines, the data analysed will be used confidentially. You will be addressed anonymously and the information that I will use will only be used for the sole purpose of my doctoral thesis, not for the international community or any other non-affiliated project. Once more, myself and on behalf of the University of York, we would like to thank you and may peace be upon you.
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[1] The survey conducted by IWA (2010) is the first truly national survey that covers the perceptions of 6,500 respondents across 32 Afghan provinces out of a possible 34 in December 2009.
[2] White (2005) recognises that peace accords are signed under political oath and are not legally binding.
[3] DDR, in basic terms, includes disarmament, demobilisation and reintegration. Disarmament is the collection, control and disposal of light weapons and small arms and the development of management programmes for responsible arms (Sedra, 2008a: 158; UN, 2009: 666). Demobilisation is the process when the armed force of the government, opposition or factional forces either downsize or utterly disband (Vandewiele, 2006: 51). Reintegration is ‘the process whereby former combatants and their families and other displaced persons are assimilated into the social and economic life of (civilian) communities’ for war-torn states to recover from conflict (Özerdem, 2002: 962). Since the end of the Cold-War era, the UN has included DDR to strive for sustainable peacebuilding in war-torn societies (Brahimi Report, 2000: 18).
[4] In this context, human security is understood in collective terms via collective intervention in order to meet basic human needs, promote distributive justice and monitor and supervise political participation (Peou, 2002: 51). In broad terms, human security represents the freedoms: from want to fear, with reference to individuals rather than the state (Brauch, 2005: 3). A more comprehensive approach of human security includes basic human needs that are deprived from ecological damage, large population growth, disorder of community and family life, trade barriers, debt burdens, large disparities between rich and poor, trade barriers, human welfare with intervention into individual’s rights, exclusion, discrimination and lack of democratic participation, social injustice, economic despair, political oppression and brutal cultural, ethnic, linguistic, religious and social strife (Boutros-Ghali, 1992: 6-8).
[5] It must be noted that there are repercussions in holding the security forces accountable for negligence. For instance, in the context of Argentina, the armed forces have been held accountable for committing crimes which has consequently led to three ‘bloody’ military rebellions. Thus, full accountability for committing crimes under the retributive and universalistic models of justice may actually provide an obstacle to democratisation and further enhance impunity.
[6] Relativism concerns moral, religious, cultural and ethical traditions that observe varying beliefs and those different beliefs depend on communal context and interchangeable circumstances such as conflict that may not comply with human rights standards (Caney, 2006: 25, 45). Social anthropology analyses the diversity of cultures within communities and the differences between the particular vernaculars (all sub-groups including those of different languages and ethnicity) within the groups (Tambiah, 1990: 11).
[7] It must be noted that during a states’ transition to democracy, particularly in Latin America, challenges arise due to the non-existence of civil society so there is no experience with an open society. Therefore, citizens continually distrust the government and do not know what the rule of law loosely entails, even in an emerging democracy, due to decades of violations from dictatorships (Kritz, 2004: 42-43).
[8] Yet, the ‘big fish’ can easily get away in frail countries and newly emerging democracies that have dire judicial capacity, weak law enforcement and are infiltrated from political elites. For example, Bowman (2004), an international prosecutor for the new UNTAET justice system in East Timor, underlines that the UN-led transitional authority has failed to hold the ‘big fish’ accountable for their widespread crimes.
[9] However, it must be noted that in transitional societies, prosecuting all past human rights violators may surpass the capacity of the judicial and correctional system and may incite the security forces to oust the current democratic regime (Buergenthal, 1995: 328).
[10] Author interviews with the Manager for Women’s Rights of ActionAid, Kabul, Wednesday 26 May 2010, at 09:00; Program Director for Law, Human Rights and Women’s Empowerment of The Asia Foundation, Afghanistan, Kabul, Wednesday 26 May 2010 at 16:00; Gender Associate: Gender Department of IDLO, Monday 31 May 2010, at 09:00.
[11] Universalism refers to theological, religious and philosophical concepts that apply to all by virtue of being human which includes inalienable fundamental human rights (Twining, 2009: 217). Universalism applies to all humanity which derives from cosmopolitan theory and Western rationality (Kant, 1963).
[12] However, they received little training and the gacaca scheme commenced in late 2002.
[13] Legal positivism holds that law must be understood without reference to superior laws or morality (Harte, 1961). Legal positivism has been the recent dominant legal school of thought on defining the rule of law. For legal positivists, the rationality of the law over the quality of domestic laws of a state is paramount (Tamanaha, 2001: 96).
[14] Rwandan Organic Law No. 10/2007 of 1 March 2007.
[15] Rwandan Organic Law No. 13/2008 of 19 May 2007.
[16] Cosmopolitan law focuses on the status of individuals in their interactions with states as human beings rather than the interaction between states and a relationship of citizens of the state in which Kant coins as ‘a right to hospitality’ (Kleingeld, 1998: 72). Kant argues that some basic rights that states guarantee to their citizens should apply in other states or communities governed by no state to pave a channel to allow an international society with individuals to interfere with state sovereignty to protect certain fundamental human rights (Archibugi, 1995: 430).
[17] According to Jones (2008), insurgency is defined as an aim to overthrow the state government.
[18] One of the advantages of using qualitative research methods is that they have flexibility insofar that the research design can be modified at any time and the researcher can always be prepared to engage in these research methods whenever an opportunity may arise (Maxwell, 2005: 22; Boeije, 2010: 19).
[19] Author interview with the Deputy Director of the Agency Coordinating Body for Afghan Relief, Kabul, Monday 31 May 2010, at 11:00.
[20] Author interview with the Business Development Services Officer of Flag International, Afghanistan, Kabul, Sunday 30 May, at 11:00.
[21] PRA or participatory action research were utilised when opportunities arisen to do so prior to the interviews in order to build working relationships with the participants (Chambers, 1994). This way, all of the parties had a sense of ownership (Whyte, 1989).
[22] In social science, triangulation can be loosely defined as the combination of two or more research methods (multi-methods) in order to check and determine the likelihood of a certain trend or phenomena (Bryman, 2003). This is to achieve research objectives – social adaptations, political, social and economic changes, processes of the conflict, the effects of armed conflict and conflict resolution (Barakat et al, 2002: 996, 998).
[23] Author interview with the Country Director of RoP, Kabul, Sunday 30 May 2010, at 18:45.
[24] Author interview with the Country Director of Flag International Afghanistan, Kabul, 26 May 2010.
[25] Author interview with the Country Director of RoP, Kabul, Sunday 30 May 2010, at 18:45.
[26] It must be noted however that in circumstances when the insurgency has taken over the security of a province or highly mobilised a district, the gendarmeries play lip service to high security provided by ISAF, coalition forces and the national security forces to defeat insurgents.
[27] Author interview with the Program Director of the Cooperation for Peace and Unity (CPAU), Kabul, Sunday 30 May 2010, at 09:00.
[28] Author interview with the Program Director of CPAU, Kabul, Sunday 30 May 2010, at 09:00.
[29] Author interview with the Program Director of CPAU, Kabul, Sunday 30 May 2010, at 09:00.
[30] Author interview with the Operations Officer of the World Bank’s ARTF, Kabul, 5 June 2010, at 11:00.
[31] Author interview with the Operations Officer of the ARTF, Kabul, Saturday 5 June 2010, at 11:00.
[32] Author interview with the Head of Communications, Afghanistan of AKDN, Kabul, Sunday 6 June 2010, at 09:30.
[33] Author interview with the Head of Communications, Afghanistan of AKDN, Kabul, Sun. 6 June 2010.
[34] Author interview with the Operations Officer of the ARTF, Kabul, Saturday 5 June 2010, at 11:00.
[35] Author interview with the Country Director of Global Rights – Partners for Justice, Kabul, Thursday 3 June 2010, at 17:30.
[36] This in turn undermines the narrow doctrine of SSR which is to ultimately reform the security forces and institutions with civilian control in order to minimise resource use and costs (Brzoska, 2000: 12).
[37] Author interview with the Deputy Managing Director of Afghan Development Association, Kabul, Tuesday 1 June 2010, at 11:30.
[38] Author interview with the Assistant Resident Representative of JICA, Kabul, Saturday 5 June 2010.
[39] Author interview with a former translator of ISAF, Kabul University, Kabul, Sunday 6 June 2010, at 16:45.
[40] Author interview with a former translator of ISAF, Kabul University, Kabul, 6 June 2010, at 16:45.
[41] Author interview with the Director of the Youth Assembly for Afghan Rehabilitation (YAAR), Kabul, Sunday 6 June 2010, at 17:00.
[42] USAID via the ARoLP provides assistance to the Afghan MoJ and Supreme Court and supports the faculties of law and sharia which are located in five provincial universities (Tondini, 2010: 82).
[43] Author interview with the Team Leader of ARoLP, Kabul, Thursday 3 June 2010, at 16:15.
[44] The JSSP has provided mentoring and training for the police-prosecutor and works with the Focused District Development (FDD) ran by CSTC-A in numerous districts (Tondini, 2010: 82).
[45] Author interview with the Director of IWA, Kabul, Thursday 3 June 2010, at 14:00.
[46] Author interview with the Director of IWA, Kabul, Thursday 3 June 2010, at 14:00.
[47] Author interview with the Director of IWA, Thursday 3 June 2010, at 14:00.
[48] Author interview with the Team Leader of ARoLP, Kabul, Thursday 3 June 2010, at 16:15.
[49] Author interview with the Team Leader of ARoLP, Kabul, Thursday 3 June 2010, at 16:15.
[50] Author interview with the Program Director of CPAU, Kabul, Sunday 30 May 2010, at 09:00.
[51] Yet, in reality it is important to state that the legality enabling an active civil society such participation in Afghanistan is extremely weak despite new organisations being created by donors without clear policy frameworks (Ayrapetyants and Johnson, 2005). Therefore, it would be premature to promote the civil society as watchdogs for Afghan justice and security actors without the effective capacity to do so.
[52] Author interview with the Justice Adviser of DFID: UK Aid, Kabul, Sunday 6 June 2010, at 13:00.
[53] Author interview with the Justice Adviser of DFID: UK Aid, Sunday 6 June 2010, at 13:00.
[54] Author conversation with a lecturer of the MA Post-War Recovery programme at the Post-War Reconstruction and Development Unit (PRDU), York, Friday 3 February 2012, at 14:45.
[55] Yet, this may prove another layer for corruption (Ebrahimkhail, 2011: 67).
[56] Author interview with the Horticulture Program Director of the World Bank HLP Program, Kabul, Sunday 30 May 2010, at 19:15.
[57] Author lunch conversation with the Director of the PRDU, York, Friday 3 February 2012, at 14:30.
[58] Author lunch conversation with the Director of the PRDU, York, Friday 3 February 2012, at 14:30.
[59] In particular, the IARCSC is responsible for PAR across the government departments which aim to improve public service delivery by good management in order to combat administrative corruption (ANDS, 2008: 150).
[60] Author interview with the Advisor of the HOOAC, Kabul, Friday 4 June 2010, at 14:00.
[61] Examples include the nationwide surveys and research conducted by IWA (2010), The Asia Foundation (2010) and the United Nations Development Programme (UNDP) in Afghanistan.
[62] Author interview with Research Officer: Transitional Justice of the Afghanistan Research and Evaluation Unit, Kabul, Wednesday 26 May 2010 at 14:00.
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';?OJPJQJ^J(hAuthor interview with the Team Leader of USAID’s Afghanistan Rule of Law Project (ARoLP), Kabul, Thursday 3 June 2010, at 16:15.
[76] Author interviews with the Deputy Chair for AIHRC, Kabul, Thursday 27 May 2010, at 09:00; JSSP Legal Consultant for the AGO, Kabul, Sunday 29 May 2010, at 15:00; Advisor of the HOOAC, Kabul, Friday 4 June 2010, at 14:00.
[77] Author interview with the Advisor of the HOOAC, Kabul, Friday 4 June 2010, at 14:00.
[78] As stated in Chapter II section 2.5.2, the gacaca is actually driven from a top-down process which drives impartial national interests that institutionalizes racial injustice and disempowers women (Drumbl, 2005: 549; Waldorf, 2006b: 422-432; Scanlon, 2008: 35).
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