The Taliban, the Afghan state and the rule of law

The Taliban took over Afghanistan with great ease that few expected. Now that all foreign troops have withdrawn, the group faces the more difficult task of governing the country. Will it be able to cope?

The heartbreaking images of Afghans dying as they tried to catch a flight out of the country, as well as a general sense of anxiety and fear that many Afghans who remain in the country express to friends and the media, suggest that there are serious doubts about the Taliban’s ability to govern.

The Taliban leadership, on other hand, have been expressing confidence they are up to the task, touting the group’s ability to stop crimes and maintain security in the country. “We do not have any crimes happening at the moment”, said Abdul Qahar Balkhi, a Taliban official, during a recent interview for Turkish channel Habertürk. Meanwhile, pro-Taliban social media accounts continue to share footage of alleged thieves being paraded around Afghan cities, or alleged robbers shaking in fear after arrest.

The recent horrendous attack at Kabul airport challenged this narrative, but the group blamed it on the US and the mishandling of its withdrawal from Afghanistan. The Taliban leadership seem to think they have, at the very least, the security part of governance figured out.

However, I argue that the Taliban have a flawed understanding of what it means to provide security for a nation. People can only feel safe if they feel protected not only against criminals and terrorists but also against abuses by the state and those in power. The latter safeguard can only be achieved if the society is governed by the rule of law.

Although the term “rule of law” is widely used, there is no agreement on a single definition. In its wider meaning, it can include good governance and human rights guarantees, but here I will use a more practical definition. Society is governed by rule of law if: first, the laws are clear, easily accessible, and non-retroactive, second, all public institutions, including members of the ruling power, are accountable to the law and, third, independent, impartial judges apply the laws.

If Afghans are not clear on what the laws are and cannot be sure that future laws will not be applied to their past actions, they will not feel safe. They will live in constant fear of state-sanctioned violence.

The Taliban is yet to either confirm that the existing laws of the country will remain in force or to lay out a new legal system. They often make general statements that suggest “Sharia” will be the law but anyone familiar with Fiqh, the human understanding of Sharia through which it is applied, knows that such statements raise more questions than they give answers.

The Taliban needs to clarify the basic rules in domains Afghans care most about as soon as possible to calm the nation and curb the exodus of citizens and capital flight. Sadly, the opposite seems to be happening. The Taliban has postponed answers on important questions, such as Afghan women’s rights, to an uncertain time in the future when its fighters are “trained” to deal with women.

If Afghans cannot be reasonably confident that those in power are constrained by transparent rules and that there are consequences for violations, they cannot feel safe. Right now, a person holding a gun who looks a certain way has the power to brutalise, abuse, humiliate and possibly kill Afghans. Afghan social media is filled with examples of this.

How can everyone, including those in power, be made accountable to the laws?

First, achieving this objective requires the separation of power. If the power to make rules, enforce rules and adjudicate disputes is in the hands of a narrow group or those who are tasked with these functions are appointed, controlled, and loyal to a narrow group, then it is unlikely that the powerful will be held accountable. This means that different state powers should be vested in different institutions to enable them to maintain a system of checks and balances.

There should also be a certain degree of decentralisation of power to local authorities as well as direct political participation of the people via elections. Having Afghans elect local and national officials would ensure that power is distributed among different constituencies. This would provide meaningful constraints on the power of the state over its citizens.

Scholars have disagreed about the rule of law throughout Muslim history. Some have argued that Islam contains the perfect example of rule of law and separation of power since Fiqh is not under the control of the ruler but rather it is developed by the ulama, an independent class of Muslim scholars. Others have argued that the ulama and Muslim rulers were often allied to protect their own interest: to fend off heterodoxy, in order to preserve the position of the ulama and clamp down on political dissent to maintain the power of the ruling elite.

In the Afghan context, there is very little evidence that the ulama would be able to act as a constraint on the group. In the past, the Taliban simply ignored, or at times targeted, those ulama who did not align with it.

In addition to the separation of power, due process of law and judicial independence also need to be observed. Whenever the state or its representative makes a decision that could potentially adversely affect a person, due process of law must be observed. That means there must be a transparent process where the potentially affected party can challenge a decision by the state and the behaviour of state agents and feel reasonably confident that their challenge would be seriously considered by an impartial judge following rules that the challenger can understand.

The judge must be able to provide effective remedy should a violation be proven, and judgments must be enforced against the state or those in power. No single person presiding over a case as a judge should have the final say on important matters. The unsatisfied party must have the right to appeal.

The Islamic Republic of Afghanistan suffered from a lack of judicial independence in politically important cases as both Afghan presidents and their close allies nurtured a self-serving constitutional theory that the president as the head of state has oversight power over all three branches of the state, including the judiciary, and holds any residual powers not explicitly allocated under the constitution.

The Taliban, in the past, also did not adopt institutional measures to protect the judges from political influence. Following an understanding of the role of the judge in classical Fiqh, which treats it as an extension of political rule, and a judge as the agent of the ruler, the Taliban generally did not consider the need to protect the institution of the judiciary and the individual judges from the ruling power.

The Taliban has not shown an appetite for governing through institutions. It has tended to consider rule and governance personal and allegiance to the ruler a requirement. Its leadership tend to assume that good governance only requires the right people, which they understand to be those who are aligned with their ideology and have their trust.

That is why they have been staffing state institutions almost exclusively from within their ranks as they try not only to take control of the state and improve governance. Not enough attention is paid to the institutions of governance.

The only way the Taliban can govern Afghanistan to convince those Afghans, who want to leave, to remain and contribute to its development is by establishing the rule of law, due process and working to create good institutions.

For people to feel like their lives, property, and honour are protected, it is not enough for criminals and terrorists to be punished; it is equally, if not more, important for the state and those in power to be held accountable. The power must be constrained with institutional mechanisms of control such as separation of power, local and national elections, anddue process of law.

By Haroun Rahimi – Assistant Professor of Law at the American University of Afghanistan

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