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Afghanistan: Government Announces New Draft Penal Code

(July 1, 2016) On May 1, 2016, Afghanistan’s Ministry of Justice announced that a draft of the first part of a new penal code has been finalized. (Maryam Hussaini, Peshnawais Code Jazaee Afghanistan Nehaee Shod [The Draft of the Afghanistan Penal Code Is Finalized], 8AM.AF, (May 13, 2016).) At a press conference in Kabul, Minister of Justice Abdul Basir Anwar stated that the new draft code was developed to respond to certain challenges that Afghan law enforcement agencies frequently encounter. (Bakhse Awale Tarhe Code Jazaee Afghanistan Az Sowe Gorohe Eslah Wa Baz Negari Qanune Jazaee Afghanistan Ba Wezarate Adleya Seporda Shod [Penal Code Reform and Revision Group Has Submitted the First Part of the Penal Code to the Ministry of Justice], WEZARETE ADLEYA (May 4, 2016).)

These challenges include the existence of an abundance of separate laws that address criminal issues, the emergence of new crimes that are not adequately addressed by the current laws, and the incompatibility of the current laws with Afghanistan’s obligations under international treaties to which it is a signatory. (Id.) “Naturally, faced with lots of laws [on criminal issues], it makes it difficult for an attorney to defend a case or for a judge to make a final decision on a case; therefore, the then President [Hamid Karzai] decided in 2010 to make the country’s criminal law a single code and he tasked the commission with that function,” the Minister was quoted as saying. (Gulabuddin Ghubar, Afghanistan’s Penal Code Revised: Officials, TOLONEWS (last updated May 1, 2016).)

The Minister added that some of those international treaties and conventions to which Afghanistan has become a party, and that affect Afghanistan’s legal system in general and its criminal code in particular, include the United Nations Conventions against transnational organized crime, against corruption, and on the rights of the child; the protocols to prevent, suppress, and punish trafficking in persons, especially women and children; and the protocols against the smuggling of migrants by land, sea, and air. (Id.) According to the Minister’s statement, the new penal code will be focused on deterrence and on providing for the proportionality of crimes and punishments. (Hussaini, supra.)

Some Features of the Draft Code

At the press conference, Mohammad Ashraf Rasooli, the head of the Penal Code Reform and Revision Group (the commission that was established by presidential decree to unify the criminal laws and draft a new penal code), indicated that currently Afghanistan has about 11 independent criminal laws, including a Penal Code. (Id.) This large number of laws creates confusion and misunderstanding among law enforcement agencies including judges, prosecutors, and police officers, and the public, and it is difficult to apply the laws properly, he added. (Id.) The new penal code will unify all the criminal laws into one collection of provisions. (Id.) Another change is the length or type of punishment for minor crimes. The new draft penal code consistently provides for alternatives to imprisonment, such as fines, for minor crimes. (Id.)

According to Rasooli’s statement, the Penal Code Reform and Revision Group studied the penal codes of several countries, including Egypt, France, Germany, Iran, Malaysia, Monaco, Morocco, and Turkey, and applied the knowledge gained from this in drafting the new code. (Id.) It is expected that the draft of the second part of the new penal code will be finalized in the next five months. (Bakhsh Nokhost Code Jazee Afghanistan Ba Wezarate Adleya Taslim Dada Shod [The Draft of the First Part of the Penal Code Is Submitted to the Ministry of Justice], RADIO AZADI (May 12, 2016).)

The new draft penal code must be passed by the two houses of Parliament and signed by the President before it will enter into force.

Prepared by Abdul Mahir Hazim, Law Library Intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.