01.2003 - Source: Overseas Development Institute

Situation of law and necessary reforms ("Afghanistan’s political and constitutional development (Authors: Chris Johnson, William Maley, Alexander Thier and Ali Wardak)") [#11961],  [ID 785]

"The 1964 constitution and the `existing law' currently provide an interim legal framework for Afghanistan. As far as substantive law is concerned, an overwhelming majority of legal professionals, Ministry of Interior personnel and academics interviewed agreed that the 1975 Afghan Civil Code and the 1976 Criminal Codes provided some of the most comprehensive and `balanced' legal documents. They added that these codes, alongside the amended 1973 Law of Criminal Procedure, the 1973 Law of Police and Gendarmes and the 1966 Laws of Saranwali (Prosecution), are as applicable today as they were when they were introduced. They also agreed that, as stipulated in the 1964 constitution, in areas where no law existed the Hanafi School of Shari'a should be considered as applicable. However, the existing legal codes and laws of procedure need some rethinking and reform. For example, the Afghan Shi'ite (who form around a fifth to a sixth of the population) are mostly followers of the Ja'afari School. The inclusion of this alongside the Hanafi School as a secondary source of law needs serious consideration. Despite the fact that judges at the High Court, as well as Islamic theologians, Afghanistan's political and constitutional development insisted that the Hanafi School must remain as the secondary source of law, senior academics at the Faculty of Shariat (Islamic Law) at Kabul University argued that Sunni and Shi'ite jurists need to `sit together' and find some common ground between the Ja'afari and the Hanafi schools. They suggested that jurisprudential issues on which the two agreed, as well as those on which they differed, must be reflected in future law. In addition, certain aspects of existing laws need to be modernised. For example, some of the provisions regarding divorce, inheritance and witnesses reflect the patriarchal structure of Afghan society and appear to be influenced by a less liberal version of Shari'a. A modern legal system must provide a broad multi-dimensional framework that reflects the social, cultural and religious values of Afghan society, and has the capacity to address fundamental human rights issues."

Document(s): Open document

18.03.2002 - Source: UN Security Council

UN Secretary-General: All decrees and legal documents passed by previous authorities cancelled ("The situation in Afghanistan and its implications for international peace and security S/2002/278") [#6057],  [ID 784]

"The Interim Administration has passed four major decrees since its inauguration on 22 December. The first of these cancelled all decrees and legal documents passed by previous authorities. The second banned the cultivation, production, processing, use and trafficking of illicit drugs (and the Interim Administration is looking to the support of the international community for help in implementing this decree). The third decree set out a framework for the press and radio and television broadcasting, including principles for freedom of the press and procedures for licensing of the press by the Minister of Information and Culture. The fourth decree established procedures for signing contracts or agreements with the international private sector and donor and development agencies, according to which all agreements must be ratified by the Afghan Assistance Coordination Authority."

Document(s): 02216afgh.pdf