Prosecuting offenders for obstruction of justice
[Excerpt from our submission to UN CEDAW Committee in February 2020]
Obstruction of justice is defined under the Afghanistan Penal Code in several forms: concealment or destruction of evidence, corruption of public officials, intimidation and inducement of witnesses and threats to victims and their families. These acts are so widespread and systematic, that the protection arms of the government are often complicit. As it stands today, law only applies to the weak. Powerful offenders walk away with impunity.
The full burden rests on victims, most of them traumatised and indigent, to safeguard their own lives, limb and safety, whilst obstruction continues with absolute impunity. This has forced many victims to flee Afghanistan or relocate internally. The government has failed to take even the slightest steps to hold the powerful accountable.
For example, in the prosecution of such cases, obstruction to justice is never included in amended charges, evidence of obstruction is never admitted as evidence of the primary offence. The police, prosecution and the courts readily and openly admit to incidences of obstruction but fail to report them and consider them when deciding on matters of protection, confidentiality, anonymity, arrest, bail and evidence. It is as though the offence of obstruction is separate to and not integral to the primary offence. Even written warnings, stop orders or gag orders on offenders and their families are not done as part of an order for protection.
Further, when several powerful offenders are working together as accomplices and accessories in a systematic plan to commit crimes, unless these offenders belong to ‘criminal gangs’, they are not prosecuted as an organised criminal group where evidence against one offender can be viewed in association to another and where the severity of joint criminal activity can be fully reflected in the sentencing accordingly.
The mode of prosecution in all high-profile cases is to prosecute the lower-ranking suspects to appease the public and most, if not all of the higher-ranking suspects who are the brain and the engine behind the crimes walk away.
The government should refine and fund a sophisticated Victim and Witness Protection Program which is informed by the lived experiences of victims/witnesses.
The government should put in place a prosecution policy for high-profile offenders where the complexities of high-profile prosecutions can be adequately addressed. Such a policy should give victims the right to make submissions on their interests and rights which may differ from the State’s position on the matters.
The government should collect data on crimes committed by high-profile offenders. The data should be disaggregated with details on, inter alia, whether offenders were arrested, banned from travel, bailed, indicted, prosecuted, convicted, sentenced and discharge upon fully serving sentence.