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Afghanistan's Fight Against Corruption

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Afghanistan's Fight Against Corruption AFGHANISTAN’S FIGHT AGAINST CORRUPTION Groundwork for Peace and Prosperity UNITED NATIONS ASSISTANCE MISSION IN AFGHANISTAN May 2019 UNAMA May 2019 | Anti-Corruption Report Contents 1. Introduction .......................................................................................................................................... 6 1.1 Afghan context .............................................................................................................................. 6 1.2 Purpose, scope and methodology of the report ........................................................................... 7 2. Anti-Corruption measures and reform framework (focus: executive branch) ...................................... 9 2.1. The Government’s delivery on international commitments to fight corruption ............................... 9 2.2. The High Council for Rule of Law and Anti-Corruption .................................................................... 12 2.3. The Anti-Corruption Strategy’s implementation and revision ......................................................... 14 2.4. Legislative reforms ........................................................................................................................... 17 2.4.1. The new Anti-Corruption Law ................................................................................................... 18 2.4.2. The new Law on Whistle Blower Protection ....................................................................... 21 2.4.3. The ongoing revision of the Supreme Audit Office Law ..................................................... 21 2.5. The Civil Service Reform and the Civil Service Commission ............................................................ 23 2.6. Successes in registering assets of public officials should lead to the creation of functioning verification systems ................................................................................................................................ 26 2.7. Public procurement reforms ............................................................................................................ 29 2.8. Increased transparency in budget planning, execution and financial management ....................... 31 2.9. Reforms at the subnational level ..................................................................................................... 33 Recommendations: .................................................................................................................................... 35 3. Detection, investigation, prosecution and adjudication of corruption offences and anti-corruption measures in the judicial branch ................................................................................................................. 36 3.1. Justice reform ................................................................................................................................... 36 3.1.1. Reforms in courts ...................................................................................................................... 37 3.1.2. Reform measures in the Attorney General’s Office ................................................................... 38 3.1.3. Reform steps in the Ministry of Justice ..................................................................................... 41 3.1.4. Reforms of police and the Major Crimes Task Force ................................................................. 42 3.2. The new Penal Code providing an improved basis for corruption prosecutions .............................. 45 3.3. Adjudication of corruption cases in provinces .................................................................................. 47 3.4. The Anti-Corruption Justice Centre .................................................................................................. 48 3.4.1. The ACJC’s fluctuating output ................................................................................................... 50 3.4.2. Enforcement of warrants & summonses and difficulties to ensure defendants’ attendance . 54 3.5. The Supreme Court’s jurisprudence in corruption cases .................................................................. 55 3.6. Asset recovery tools ......................................................................................................................... 56 1 UNAMA May 2019 | Anti-Corruption Report Recommendations: .................................................................................................................................... 60 4. Anti-Corruption measures in the Legislative Branch ............................................................................ 61 4.1. Anti-corruption measures in the Legislature .................................................................................... 62 4.2. Criminal accountability and the National Assembly ......................................................................... 63 4.3. Parliamentary oversight ................................................................................................................... 65 4.4. The 2018 Wolesi Jirga elections ....................................................................................................... 65 Recommendations: .................................................................................................................................... 68 5. Independent institutions’ anti-corruption work ....................................................................................... 69 5.1. Independent Joint Anti-Corruption Monitoring and Evaluation Committee/ MEC .......................... 69 5.2. The new independent Access to Information Commission .............................................................. 71 Recommendations: .................................................................................................................................... 73 6. Civil Society initiatives on anti-corruption ................................................................................................ 74 6.1. Enhanced civil society engagement, Open Government Partnership .............................................. 75 6.2. Enhanced Civil Society Engagement in Policy Making and Monitoring ............................................ 75 Recommendations ..................................................................................................................................... 77 7. Conclusion ............................................................................................................................................... 78 2 UNAMA May 2019 | Anti-Corruption Report Executive summary In 2018 and early 2019, Afghanistan continued to pursue the implementation of anti-corruption reforms. While implementation challenges remain, the reform efforts have come a long way towards establishing a robust anti-corruption framework and dedicated institutions to implement it. The coordination of anti-corruption reforms at the highest level in the High Council for Rule of Law and Anti-Corruption, the work of a dedicated Anti-Corruption and Justice Centre (ACJC), the codification of all mandatory corruption offences in line with the United Nation’s Convention against Corruption (UNCAC) in the new Penal Code, and the adoption of a dedicated Anti-Corruption Strategy and Anti- Corruption Law are evidence of Afghanistan’s commitment to counter its rampant corruption problem. While the creation of institutions and adoption of laws and strategies are clear signs of commitment, implementing strategies and operationalizing institutions to consistently produce desired outputs requires persistent effort. The review period saw growing impatience that results from strategies and laws were not materializing quickly enough. In 2018, Afghanistan moved up Transparency International’s Corruption Perception Index from 177 (in 2017) to 172 (in 2018) out of 180, showing some improvement.1 The reporting period was also marked by major developments, including the 20-21 October parliamentary elections, the 27-28 November Geneva Conference on Afghanistan, and the acceleration of the peace process, which impacted the pace of anti-corruption reforms. Afghanistan continued to improve its anti-corruption legislative framework and adopted a dedicated Anti-Corruption Law on 5 September 2018, which now provides a solid legal basis for the ACJC and creates an Anti-Corruption Commission. The commission, once set up, should function as a corruption-prevention body in line with Article 6 of the UNCAC. The adoption of a dedicated Whistle-Blower Protection Law and an improved Access to Information Law should further boost anti-corruption efforts. The latter was ranked among the best in the world and, remedying past shortcomings, establishes an independent Access to Information Commission to promote citizens’ right to know. The 2017 Anti-Corruption Strategy was revised in late 2018 and most of its benchmarks were implemented, in particular the civil service and legislative reforms. The institutional framework of anti-corruption bodies remains to be consolidated. Implementation of the new Penal Code, which codifies all mandatory and some optional offences of the UNCAC brought challenges and opportunities to investigate, prosecute and adjudicate corruption cases. The Supreme Court supported its implementation by issuing interpretation guidance to judges throughout Afghanistan. The ACJC mastered the transition to the new Penal Code and its indictments
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