Kabul, May 2012: Jawid, a young Afghan carpenter, was put into prison for fourteen days after having stolen medicine for a value of 350 Afghanis (approximately 7 US dollars) to cure his sick child. “It was horrible. My prison block had no running water due to a broken pipe and a lot of violence is going on inside.” There are no real alternatives to incarceration in Afghan criminal law and inadequate consequences such as this are just one example of why the Penal Code needs to be reviewed. The prisons are overpopulated and the associated costs of imprisonment for society not only in terms of maintaining prisons but also in terms of economic loss of having one part of the population not contributing to the system or their families is not in proportion to the crime committed.
“I am confused”, says Mr. Hashim, a police officer from Balkh province. “When I went to Kabul last month, I learned that my colleagues there don’t apply the law in the same way that we do back home”. It may be difficult to disperse legislation throughout the entire territory and raise awareness of new laws, even among the police and judges. It is equally important not to forget Sharia Law. The fact that so many Islamic law provisions have remained largely uncodified, especially those referring to “moral crimes”, has contributed to a high level of legal uncertainty.
The discrepancy between different provinces regarding the implementation of the law is striking. During the nearly 40 years that have passed since Afghanistan’s current Penal Code was created, many laws have been enacted, incorporating communist ideas after the Soviet era followed by Taliban ideals and the post-conflict period measures. All the different regimes have put their touch on the legislation. Siv Thorsköld from EUPOL explains: “In total, apart from the 1976 Penal Code, there are more than 60 different laws in force in Afghanistan containing penal provisions. It is not only difficult for implementing authorities to find these laws, their often inexact language leaves room for interpretation of how criminal provisions should be applied. These facts have created a need to review the Law. Customary law and penal provisions need to be harmonized and unified into one single Penal Code.”
The Government recognizes this by recently having launched a review of the Penal Code. To revise it is a major and important task that is not done over night. It brings along with it numerous challenges such as how to fill gaps in the Penal Code, measures to codify customary law and the need to ensure that the new Penal Code is harmonized with international treaties that Afghanistan has ratified, especially those containing human rights provisions. To kick-start the process, EUPOL organized a Rule of Law Roundtable on 23 May 2012 with the theme “Legal review of the Afghan Penal Code: How the Government, International Community and Civil Society join efforts to update the law”. Siv Thorsköld, one of the organizers, says: “It’s an excellent opportunity to get together representatives from the Afghan Government, international community and civil society to meet for informal discussions.
It was very encouraging to see the extent to which the Afghan participants and National authorities actively engaged in the discussion during the general debate. This might be the best indicator of the positive outcome of the event.” The Roundtable was very successful and with more than 60 attendees it registered the highest number of participants since its establishment in 2009. This may be a sign of the interest not only by authorities but also by the general public in reforming the criminal law. Hopefully, the revision of the Penal Code will lead to a clearer and more detailed law that improves legal certainty and contributes to its uniform application throughout Afghanistan. The new law should also be more nuanced and proportional when it comes to consequences for criminal acts so that individuals like Jawid won’t need to be deprived of their freedom for a theft worth only 7 US dollars.