I. Introduction

Back in 2014, following a controversial presidential vote, Ashraf Ghani’s first order of business was tackling the largest banking fraud case in Afghan history: the nearly $1-billion Kabul Bank scandal. During a donor summit in 2015, Ghani claimed that his anti-graft policies “broke the aura of impunity that had surrounded high level malfeasance.”

Six years later, the Kabul Bank fiasco remains a glaring example of the prevailing culture of impunity in Afghanistan. Despite Ghani’s pledges, roughly $600 million of the bank’s funds are still missing. Moreover, the government has been criticized for shying away from properly investigating powerful actors allegedly involved in the embezzlement such as the brother of former president Hamid Karzai and the brother of the former first vice president.

In a broader sense, the case is also emblematic of the precarious state of the rule of law in Afghanistan—a predicament engendered, in key part, by the government’s increasingly authoritarian tilt. The most indispensable requirement of the rule of law is the enforcement of legal constraints on government power, lest the rule of law degenerate into “rule by law” or “rule of man.” To that end, Afghanistan’s 2004 constitution, while beset by serious flaws, established a rudimentary system of checks and balances among the executive, legislative, and judicial branches of the state.

Unfortunately, the constitution has been more robust on paper than in practice. Despite being charged with implementing the constitution, the executive branch, in particular, has routinely and unabashedly flouted the separation of powers. Relentless executive encroachment on legislative prerogatives and judicial independence has thrown the nebulous checks and balances system into disarray—and dealt debilitating blows to the rule of law in the fledgling democracy.

II. Undermining Parliamentary Authority

The president has actively compromised the parliament’s legislative, oversight, and representation functions. A favorite executive tactic has been the undue deployment of its emergency legislative competence. Defying the constitution’s “immediate need” clause, the president has regularly trespassed on lawmakers’ turf by issuing legislative decrees during parliamentary recess. The president’s chutzpah in abusing his power has even led to allegations of surreptitiously manipulating anti-graft legislation for self-serving reasons.

The executive has also made a mockery of the legislature’s constitutional oversight prerogative by ignoring parliamentary summonses, extending its roster of unconfirmed “acting” ministers, and circumventing scrutiny of government spending.

The most recent brazen ploy to bypass parliamentary oversight over public finance was the failed dismantling of the Ministry of Finance to stealthily transfer critical ministry functions to the president’s office. The audacious, unconstitutional gambit—halted, at least for now, after State Department pressure—follows an intensifying pattern of other troubling practices such as expanding the use of emergency funds and failing to disclose financial audit reports to the parliament.

Another recent cavalier presidential decree effectively requires lawmakers and judges to declare their assets to the executive branch—as opposed to an independent body. Such an approach, disguised as a transparency initiative, is at odds with international norms, creates conflicts of interest, and imperils the separation of powers.

Moreover, the executive has unduly intervened in the legislature’s electoral process. In addition to meddling in the last parliamentary polls, the president has raised eyebrows by allegedly “firing” a senator who, against Ghani’s command, decided to run for the senate speaker position and challenge a strong Ghani loyalist.

The president has also outmaneuvered the parliament via the Loya Jirga (grand assembly) mechanism. Despite its dubious legality in light of the constitution’s express requirements, the president has convened the Loya Jirga on various occasions, most recently on releasing Taliban prisoners, to effectively advance the government’s agenda. The parliament, unsurprisingly, has deemed the “consultative” Loya Jirga—an unelected, parallel gathering that is de facto handpicked by the executive—as an illegal body deployed to bypass the country’s sole duly-elected national assembly.

III. Attacking Judicial Independence

Executive overreach hasn’t just afflicted the legislature; it has also buffeted the judiciary. Judicial independence, while a cornerstone of the rule of law, has been under increasing assault in Afghanistan.

The politicization of the Supreme Court, whose justices are appointed by the president, was on full display before and after the recent presidential vote. Last year, contrary to constitutional stipulations, the chief justice rubber-stamped Ghani’s request to extend his presidential tenure. The approval entrenches a dangerous quid pro quo practice, between the president and the Supreme Court, of prolonging each other’s terms extra-constitutionally.

Following the disputed polls, while negotiating another power-sharing scheme, candidates Ghani and Abdullah reportedly discussed allocating various state institutions—including the Supreme Court and the Attorney General’s Office—between themselves, exacerbating concerns over judicial autonomy.

The executive has strategically exploited the top court to undercut the parliament as well. The Supreme Court has routinely ruled in the president’s favor to undermine parliamentary authority over legislative, oversight, and impeachment proceedings. In addition, at Ghani’s behest, the chief justice recently signed off on a questionable financial transfer from the central bank to the Ministry of Finance—another example of contempt for parliamentary scrutiny.

The president has also weaponized the Attorney General’s Office (AGO) to punish rivals and reward acolytes. While the AGO has incessantly chased certain critics of Ghani on dubious charges, it has turned a blind eye to many well-connected big fish. The United Nations has bemoaned the AGO’s failure to investigate and prosecute numerous major cases.

The judicial apparatus is further hampered by selective enforcement of court decisions, especially vis-à-vis politically-connected actors. The case of Ahmad Yusuf Nuristani, the former election commission chief who oversaw the fraud-riddled 2014 polls, is illustrative. After being declared the president, Ghani appointed Nuristani to the senate. Nuristani’s political clout emboldened him, and the police, to ignore judicial arrest warrants for his malfeasance. Even after conviction, Nuristani easily managed to flee the country despite travel bans for criminals. While triumphant in eluding justice in Afghanistan, the former election chief has been convicted of federal welfare fraud in the United States. Nuristani’s smooth international escape, as a convicted felon, stands in stark contrast to the government’s obstinate and unlawful denial of domestic travel to its own ministers.

Additionally, interference in judicial sanctions—such as Ghani’s recent commutation of the sentences of nine ex-elections commissioners—and disregard for the security of judges have further jeopardized the bench and reinforced the culture of impunity. According to the United Nations, no case of an attack against the courts—a favorite target of insurgents and criminals—has ever resulted in an indictment.

The insolent manipulation of the judiciary in the service of the executive, while a long-standing Afghan tradition, is antithetical to the hopes of institutionalizing the rule of law, and an overarching reason for public distrust in the bench. Injecting confidence in the justice system demands utmost diligence to not only vigorously defend judicial independence, but also the appearance of independence. Perception of judicial autonomy is also pivotal.

IV. Conclusion

The rampant disdain for the rule of law isn’t surprising given the country’s enduring dissonance with this principle. Afghanistan’s history is largely defined by violence, political tumult, and authoritarianism. The legislature and judiciary, when present, have often served symbolic roles at the ruler’s pleasure.

History’s strong gravitational pull, however, necessitates heightened vigilance. The current descent into de facto autocracy must be reversed. In the medium term, constitutional amendments must de-concentrate executive power to fortify the checks and balances system. Indeed, part of the quandary stems from the poor delineation of the contours of the three branches’ powers and the vaguely broad authorities conferred upon the president. In the interim (and beyond), an attitudinal shift must occur that recognizes the significance of fidelity to the law in promoting peace, prosperity, and justice. Hollow rhetoric and cosmetic gestures, aimed at international donors, must give way to bona fide measures to bolster the parliament, courts, free press, and other vital institutions.

Cultivating a rule of law culture is an arduous endeavor, but an exigent priority to avert a free fall into Afghanistan’s dark, despotic past.

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Mehdi J. Hakimi is the Executive Director of the Rule of Law Program and Lecturer in Law at Stanford Law School. This brief essay is adapted from parts of the author’s forthcoming Article dealing with similar issues.