One of the greatest challenges that our court monitoring program, highlighted in this article, faced (even more challenging than securing court authorization for local monitors to attend court sessions) was the challenge of convincing citizens that they had a role to play in enforcing transparency and accountability guidelines at trial proceedings. Convincing them that they could impact the implementation of such guidelines by simply being there to monitor these judicial sessions.
When we decided to launch the program in Bamiyan in 2012, we went to a village on the outskirts of the city. We knew no one there, but met and talked to a villager standing in front of the mosque. We told him that we would like to speak with the villagers about some issues. He left and returned with five or six people. I remember that most of them were initially under the impression that we were there to talk about launching a construction project in the village.
We began our discussion with a slow, yet deliberate approach. We talked about corruption in the courts. We asked them to share with us their experiences with corruption. One said that he had a case pending in court and that they have not been able to proceed because court officials are involved in some sort of scam. Another said his case has also been stuck at the prosecutor’s office for no reason. Everyone had a story to tell.
That was a perfect time for us to open discussion about the monitoring of the courts. We started with the law assuring them that they are allowed to participate in an open court and monitor its process. We continued our discussion and indicated that if they do so, the court would, in response, slowly begin to observe the law and carry out legal procedures in a timely manner.
The participants started to chatter among themselves. Most of them did not believe us. One of the participants raised his hand and said “How can we monitor the work of the judiciary? It is none of our business”. Another got up and said, “How can we get to courtrooms?” And yet another commented, “Monitoring of courts is useless, focus and work on something else!”
We responded by admitting that, while all these changes may not happen overnight, we needed to raise awareness regarding our rights as citizens and then seek accountability on the part of judicial authorities. .
The discussions continued accordingly. Finally, some of the participants agreed to volunteer for Integrity Watch's court observation program in Bamiyan.
As we began implementation of the monitoring program, the judges were reluctant to discuss public hearings. They constantly hedged us in and were dismissive in their initial response. Finally, we decided to meet with the head of the Appeals Court. There was a judge named Mr. Nasro Minallah Rahimi who sat on the appeals court in Bamiyan city. He met us and promised to introduce us to other courts in the city. The first public court hearing was held in 2012, albeit with great difficulty. I remember, one of the first sessions we attended. It was held under the chairmanship of the head of the Appeals Court. There were three female local monitors with us as well. The court case had to do with counterfeit money. This particular session was held according to the standards and guidelines we had in mind. After issuing the verdict, the judge turned to us and said that “despite the fact that the court is an independent institution, I would like to ask one of the women who is accompanying you for her opinion about the session”. He asked if the trial process was fair. My companion asked why the accused did not have an attorney. The judge explained that the accused had requested to present his own defense. .
In fact, there were only four defense attorneys in Bamiyan in 2012. Two of them were court appointed public attorneys (appointed by the government for defendants who could not afford attorney’s fees). This means that even if the accused wanted to hire a defense lawyer, there were no attorneys in the area to represent them in court.
As I said earlier, the primary courts refused to allow local monitors under various pretexts. Sometimes our Local monitors were turned away because they were told that the case was domestic. . We had no choice but to revisit the head of the Appeal Court. The head of the Appeals Court decided to install a notice board at the front gate of the Courthouse with the information and details related to the cases. That's why the public got a lot of information about the sessions and they slowly began to attend the public sessions of the court.
Monitoring of the court's public sessions progressed slowly; and, we started collecting reports from our local monitors. I should also mention that the focus of our observation was limited to procedures. We did not monitor or comment on the substantive issues such as the fairness of verdict etc. We began identifying and sharing problems that were extracted from the notes kept during the court proceedings. We shared them with the head of the appeals court. In order to make sure that problems were addressed, we tried to attend the judiciary meetings. According to a presidential decree, these meetings are held every month. They are attended by judicial authorities and law enforcement agencies in the Court of Appeals under the chairmanship of the head of the Appeals Court. We asked the head of the Appeal court to grant us membership in these forums which comprised of the Police chief prosecutor, a representative from the governor's office, advocates, Justice Directorate, Human Rights Directorate, a representative of NDS and others from the security sector. Our request was granted quickly.
Another strategy we employed in an effort to establish our monitoring status in the courts was mobilization of the Civil Society Organizations (CSOs). In those years, the Executive Director of Integrity Watch Afghanistan (IWA) made a presentation in which he criticized the judicial institutions. After this, Bamiyan courts effectively banned our local monitors from attending the public court sessions. I went to see the head of the Appeal Court. He said that they did not expect us to generalize about Afghanistan's court system, but rather that we would confine our judgments to Bamiyan courts. Other judges also had complained about this. The meeting produced no results. We therefore decided to meet other Civil society Organizations including UNAMA and raise the issue with them. After getting the support of other CSOs, we called the head of the Appeal court in order to request permission to resume the monitoring process. When court authorities saw the unity among the CSOs, they agreed.
Since 2012, significant improvements have been made in the observance of procedural guidelines in the courts of Bamiyan. For example, the Judiciary Committee is now composed of three people. Also, cases are often heard in the presence of advocate defense attorneys. In most of the cases, the sessions are held publicly and are decided according to the legal procedure and finalized within the designated time. I should mention that the judges now welcome the presence of our local monitors. Some of them even say that if the monitors are not present, the entire judicial process is faced with serious flaws.
Since 2012, the people are more assertive in monitoring and criticising trial proceedings. For example, in the beginning, people were experiencing some reservations as they sat through trial proceedings. Now they freely and boldly assert their right to participate in the monitoring process. These days it is not easy to dissuade local monitors from showing up in court. For example, once a courtroom was filled to standing room only capacity and the police were not allowing any additional people to enter. The people asked why the court session had been announced publicly and people invited to attend if there was not adequate space. After a little back and forth, the police finally allowed people to enter the hall so some were able to stand and observe the session.
Finally, I have to say that because of the monitoring that now goes on in the courts and the working relationship between the monitors and officials, the people now believe that achieving the goal of transparency and accountability in the criminal court system is not an impossible dream. However, building the same confidence in civil cases will continue to require a great deal of work and persistence.