KABUL — When defense lawyer Saif-u-Rahman Zahid showed up at a courthouse here recently to represent an Afghan police officer, he wasn’t even sure what charge his client faced. Before he could pick up the case file, a judge told him the trial was about to start.
“I didn’t have any information at all,” said Zahid, who quickly learned the officer was involved in a high-profile murder case.
Three days later, the trial was over. Zahid had spoken for just five minutes in defense of his client, who was charged with not stopping the mob killing in March of a 27-year-old woman who had been falsely accused of burning a Koran.
In all, 49 people were charged in the case, an aggressive and swift response to a national outcry over the death of the woman, named Farkhunda. But now, the speed of the trial is being criticized, with human rights activists calling it a sign of the weakness of the legal system 13 years after the fall of the Taliban government.
Since 2001, the United States and other international donors have spent more than $500 million establishing new courts and training judges and prosecutors. But Afghanistan still lacks adequate evidentiary standards, enough defense lawyers, the right of cross-
examination and protocols for ensuring that suspects get enough time to prepare a proper defense, according to Afghan and Western legal experts. Afghan courts also are still easily influenced by public opinion and political leaders.
“Unfortunately, our justice system has been, in most cases, dysfunctional, corrupt and unable to deliver fair justice,” said Nader Nadery, a former commissioner of the Afghan Independent Human Rights Commission. “And though it’s been very slow most of the time, when it comes to some of these heinous crimes, which attract huge public attention, they want to move fast. But in moving faster, they undermine due process.”
Afghan prosecutors, police officials and judges counter that Afghanistan has made tremendous strides in overhauling a justice system that had been battered by decades of war and pressure from hard-line Islamist scholars. By pursuing charges against not only the killers but also the police officers who did not protect Farkhunda, Afghan officials say, they have sent a powerful signal that those in authority will be held accountable if they look the other way when a woman is abused.
“We were embarrassed,” Sediq Sediqqi, a spokesman for the Interior Ministry, said of the brutal attack on Farkhunda, who used one name. “We are trying to tell people, and increase awareness, that it’s a crime and you have to be careful about the rights of women, and we have to stop violence against women and children.”
On May 19, two months after Farkhunda was killed, an Afghan court completed its sentencing of the defendants. Four of them face the death penalty, while eight were sentenced to 16 years each in prison. Eleven police officers, including Zahid’s client, were sentenced to one year in prison for dereliction of duty in not stopping the attack. Twenty-six suspects were freed for lack of evidence.
Several analysts say the trial was neither fair nor consistent.
The defendants were called for trial two days after the police report was sent to prosecutors, according to defense attorneys and international legal experts who followed the proceedings. Only three of the 49 suspects were represented by a lawyer. Since the U.S.-backed rewrite of the Afghan constitution in 2004, Afghan law has required that all suspects who face five or more years in prison be represented by an attorney. If a defendant cannot afford one, the government is supposed to appoint one.
The attorneys for the three suspects were given just a few hours to review the cases before being allowed to submit written responses — on the night before the last day of the trial, according to the defense attorneys and international legal observers.
“Every day I was going to the court to get access to my client’s file, but I was not allowed access,” said a lawyer, Mohammad Aziz Sufi Zada, who represented a police officer. “The judge kept telling me, ‘Come the next day.’ . . . To this day, I don’t know the charges against my client.”
Now, even those groups that had pushed for convictions in the case question whether justice was served.
“The way the court meetings were held and decisions are made have raised a lot of questions on the transparency and independence of the court,” the Afghan Women’s Network, a Kabul-based civil rights organization, said in a statement.
Safiullah Majaddidi, the judge who presided over the trial, said in an interview that he would have allowed the defense attorneys to speak for as long as they wanted had they requested the time.
Asked why most of the defendants had no legal representation, Majaddidi said most Afghans are scared of lawyers.
“Unfortunately, in Afghanistan, due to a lack of education, if you give them a free lawyer, they will consider that free lawyer the same as the guy prosecuting them,” Majaddidi said.
For some human rights activists, the trial reinforced concerns raised in September, when an Afghan court handed down death sentences in a gruesome case in which several women in a wedding procession were beaten and raped.
Amid a public outcry, police quickly arrested seven suspects, who were then blindfolded and made to appear at a televised news conference during which they confessed. Their trial lasted just two hours. Human rights officials expressed concern that the defendants had been tortured.
Because rape is not a capital crime in Afghanistan, the suspects were convicted of “banditry,” which carried a death sentence under the country’s communist government in the 1980s.
Five of the men were hanged in early October, while death sentences for the two others were overturned.
But some legal experts say all of the men should have been spared because a 1992 reform of the Afghan criminal code abolished the death penalty for banditry, absent a corresponding homicide.
Majaddidi, who also presided over that trial, denies that the death penalty was removed for such convictions.
“We want to take advantage of that law and get rid of these bad guys,” Majaddidi said, noting that the suspects had confessed. “They are a kind of germ in society, and if we do not take advantage of our democracy, then one day again Afghanistan will be a source of terrorists.”
Belquis Ahmadi, an expert on Afghanistan at the U.S. Institute of Peace in Washington, said both trials reflect an Afghan legal system that lags in fairness, even if officials appear well intentioned.
“The justice sector should be independent,” Ahmadi said. “Unfortunately, it seems it was influenced due to the public outcry and the political pressure to just basically close this chapter.”
Kim Motley, a lawyer who briefly represented Farkhunda’s family, conceded that high-profile trials often move “too fast.” But Motley, an American who began working in Afghanistan in 2008, said the trial in the Farkhunda case also represented a milestone for the criminal justice system.
In addition to holding the officers accountable — as well as the perpetrators of the crime — it was the first time that a trial has been widely televised in Afghanistan, Motley noted.
“The fact we can look at a trial and cut it to pieces and analyze it — we didn’t have the opportunity in 2008,” Motley said. “I used to have to fight to bring my clients to court.”
The number of registered lawyers has more than doubled in Afghanistan over the past five years, she noted.
But Zahid said the system failed his client, the police officer. Had he been allowed to present a more robust defense, Zahid said, he would have told the judge that his client and the other officers had phoned their superiors requesting backup to control the mob attacking Farkhunda. That help never arrived, he said.
“It was impossible for only one police station to control that big group of people,” Zahid said. “They didn’t have any advanced equipment, like tear gas or electric sticks, to confront an angry crowd.”
Misbah Sahil, president of Afghan Legal Consultancy Services, a Kabul-based law firm, noted that three of the four men sentenced to death had no attorney.
“So what is the difference between the people who killed Farkhunda and the judges who issued a verdict for executions without considering all of the laws?” Sahil said.
Majaddidi, who started working as a judge 14 years ago, said it will take time for the Afghan justice system to develop standards of transparency and fairness “like the United States and European countries.”
“But we are moving in the right direction,” he added. “Give us 10 years.”
Mohammad Sharif contributed to this report.