Afghanistan Legal Profile

Proelium Law LLP

Afghanistan Legal System Overview

This legal profile of Afghanistan provides an up-to-date summary of the latest activities in the country aas of January 2023. It includes comment regarding the Taliban takeover in 2021 and the immediate ramifications of this; the structure of Taliban leadership and governance of the country; and what the Taliban regime means for citizens, the economy, and business in the country.

The Taliban Takeover: Background and Immediate Ramifications

Following the Taliban takeover in August 2021, the previous government, headed by President Ghani, was replaced by what is now known as the ‘Islamic Emirate of Afghanistan’.[1] In this way, the Taliban transitioned from an insurgent fundamentalist group into an allegedly functional government. However, this so-called ‘functionality’ should be taken lightly, as the Taliban have yet to provide the population with security, suitable food provisions, and economic opportunities since their return.[2] Furthermore, many Western countries have refused to recognise and establish diplomatic ties with this administration and have since shut down their diplomatic missions.[3]

Despite promises made by the Taliban to restore peace and curb lawlessness by securing their strict interpretation of Sharia law, it remains unlikely that relations between Western countries and the current Islamic Emirate of Afghanistan will improve in the near future. Since their emergence they have re-establised the Ministry for the Promotion of Virtue and Prevention of Vice. This ministry enforces prohibitions on behaviour supposedly contrary to Islamic beliefs and values[4] with corresponding brutal punishments such as public executions of adulterers and amputations for those convicted of theft.[5] The Taliban have also backtracked on previous promises to recognise gender equality in Afghanistan. They have imposed a series of restrictions on women, such as laying down regulations on clothing, forbidding access to public areas without a male chaperone, and scrapping female education.[6] The UN Assistance Mission in Afghanistan (UNAMA) has also noted how one hospital has reported up to double the number of female patients presenting with injuries due to increasing “violence against women” since the Taliban regained control of the country.[7]

Western nations have suspended most humanitarian aid to Afghanistan and the World Bank and International Monetary Fund have halted payments to the country although efforts are under way for the World Bank to reenter Afghanistan. Further, the US has frozen roughly $9 billion in assets belonging to the Afghan central bank, blocking the Taliban’s access.[8]

There are significant concerns that the Taliban takeover will facilitate and create a “safe haven” for terrorism capable of launching attacks against the West, despite Taliban promises to the contrary.[9] However, given the disregard for promises made prior to the takeover, it is unsurprising that such anxieties persist.

Taliban Leadership Structure

The current Taliban leadership regime, announced in September 2021, is supposedly an interim administration.[10] However, no timeline nor any clarity on a potential transition to a more permanent structure. There is anecdotal evidence that courts have reopened, but how effective they are remains to be assessed. Anyone working in Afghanistan should not expect recognition of the rule of law or basic human rights. It is likely that this is due to the Taliban’s principal focus on maintaining internal unity and ensuring territorial control.[11]

The Taliban enforce a strict interpretation of Sharia Law.[12] It has been claimed that this interpretation of the law denies citizens their basic human rights, particularly women.[13] This claim has been reinforced by the abolition of the Ministry of Women’s Affairs.[14] It is unclear, currently, how previous governance and previous understandings of the law in Afghanistan will be affected by the Taliban’s regain of control in the country. Therefore, it cannot be said with any certainty how the Afghan constitution will be applied moving forward nor can it be said with any certainty as to how the country will be run at all in the near future given the lack of guidance as to when a more permanent administration will take shape.

International law remains unlikely to be at the top of thew agenda. The Taliban are unable to currently grasp the principals of this area of law, or at least are not overtly recognising it.

That said, some of the formalities and structure of the Taliban administration can be stated here with some certainty. Firstly, Hibatullah Akhundkada is the Supreme Leader of the Taliban and has ultimate authority on political, religious and military affairs. The Prime Minister is Hasan Akhund who acts as a second-in-command to the Supreme Leader and has claimed that this Taliban administration will work towards greater inclusivity this time around[15] (although no actions have been taken to support this claim). Mullah Abdul Ghani Baradar is the Political Deputy and head of the political office in Doha. Then, the first Deputy is Mullah Muhammad Yaqoob, the son of the Taliban founder, Mullah Omar, and is the Taliban’s military operational commander. The second Deputy is Sirajuddin Haqqani and is the head of the Haqqani network, a militant group in Afghanistan and a designated terrorist organisation in the US, UK and the EU.[16] Next, the Senior Judge is Mullah Abdul Hakeem who oversees the Taliban-appointed judiciary (although not much is known about this as of yet) and leads the negotiation team in Doha.[17]

The Leadership Council of the Islamic Emirate of Afghanistan is the central governing body of the Taliban, which uses a consensus decision-making model among its members. There are approximately 30 members of the Council and it is comprised of several bodies, including: Border Commission; Commission for Agriculture, Livestock, Ushr and Zakat; Commission for Preaching and Guidance, Recruitment and Propagation of Virtue and the Prevention of Vice; Commission of Military Affairs; Health Commission; and the Department of Power Distribution.[18] However, Hibatullah Akhundkada, the supreme leader and chair the council, has ultimate authority and may override or circumvent any consensus decision at any time.[19]

The Taliban government is comprised entirely of either former Taliban officials or individuals loyal to the group. A majority of the government are ethnic Pashtuns, and some are considered terrorists by the United States and are sanctioned by the United Nations.[20] In a report in May 2022, the UN sanctions monitoring team said the Taliban had “favoured loyalty and seniority over competence.”[21] It is understood that the Taliban are split between hard liners and moderates, something which does not bode well for the population.