FINDING COMMON GROUND ON CORRUPTION TRIALS BETWEEN

C O N F I D E N T I A L SECTION 01 OF 02 KABUL 005980

SIPDIS

SIPDIS

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E.O. 12958: DECL: 12/28/2016
TAGS: PREL PGOV PTER ASEC MARR AF
SUBJECT: FINDING COMMON GROUND ON CORRUPTION TRIALS BETWEEN
THE ATTORNEY GENERAL AND THE CHIEF JUSTICE


Classified By: Charge' d' Affaires a.i., Richard Norland for reasons 1.
4 (B) and (D).

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SUMMARY
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1. (C) Afghanistan,s Attorney General Sabit has made a
number of comments recently to officials of the U.S. and
other governments that are critical of the policies and
practices of Chief Justice Azimi in connection with
anti-corruption cases filed in some provinces by Sabit. Some
of these comments have filtered their way back to the Chief
Justice, creating the danger of a personal rift as well as a
professional difference of opinion between two of our
greatest hopes for judicial reform. We are working to find
common ground between the two of them on a professional level
and allow that to rebuild their trust and confidence in one
another on a personal level. END SUMMARY.


2. (C) In recent weeks, Attorney General Sabit has been
talking with various USG officials in Kabul and those
visiting from Washington about the need for a special
anti-corruption court. He has been making similar overtures
to other members of the international community (IC). His
basic model for the proposal has been the existing criminal
justice task force (CJTF) and the counter-narcotics tribunal
(CNT). However, he has offered alternatives such as moving
all corruption cases above a certain amount for trial in the
existing Kabul district courts.


3. (C) Among the primary justifications for Sabit,s
proposals are his frustrations with the outcome of cases he
has filed during his visits to &monitor the implementation
of the law8 in provinces like Herat, Nangahar and Kunar. In
Herat, Sabit claims that the trials of the cases that he
filed were not public, in contravention of the Constitution,
and that the sentences resulting from the convictions were
ridiculously low. In the cases filed in Kunar and Nangahar,
Sabit is frustrated by the fact that the Supreme Court has
refused to change the venue of the cases to Kabul.


4. (C) In each instance, Sabit has personally blamed Chief
Justice Azimi for failing to intervene appropriately. Sabit
wanted Azimi to warn the Herat judges against taking bribes,
and Azimi refused. Azimi also refused to change the venue in
all of the cases requested by Sabit. Sabit believes part of
the problem is that Azimi is &jealous8 of the attention
that Sabit is receiving for his anti-corruption efforts.


5. (C) For his part, Chief Justice Azimi resents the fact
that Sabit airs his complaints to the IC rather than
internally. Azimi says that he has started to hold monthly
meetings that include the AGO, MOJ, MOI, MCN and others to
work out strategy and conflicts. He believes that Sabit
should air his concerns in that forum, and that his outreach
to the IC is &egotistical.8


6. (C) Contrary to Sabit,s claims, Azimi says that the Herat
cases were not &closed,8 although no one apparently
attended them. Azimi says that he has instructed all his
judges to make sure that all cases initiated by Sabit on his
provincial trips are held publicly. As for the light
sentences, Azimi says that the trial judges in Herat were
qualified and were the only ones to review the file; he sees
no reason to second-guess them. In general, he believes the
courts in Herat are stronger than those in Kabul. Moreover,
Sabit can appeal the sentences if he wishes to do so.


7. (C) As for complaints about his refusal to change venue,
Azimi says that a change of venue is warranted only in
exceptional cases, citing the example of a warlord being
tried in a district court with inadequate security

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provisions. He believes that Sabit is trying to use the
provision too broadly. Azimi has granted some of Sabit,s
requests, moving some cases to Kabul and recently moving one
of the cases Sabit filed in Kunar out of that province, where
he believes the courts are weak. But he changed the venue to
Nangahar, not Kabul, because Nangahar is much closer to the
locus of the crime and the location of the witnesses, and
because he believes the Nangahar courts are just as strong as
those in Kabul. For the same reason, he has turned down
Sabit,s requests to change the venue of the Nangahar cases
to Kabul. In Azimi,s view, changing the venue of the case
because of doubts about securing a fair trial is a
significant step. It imposes a burden on litigants and
witnesses and constitutes a major insult to the local
officials involved, including both the provincial judges and
the governors. It should therefore be a measure that is used
only when necessary.


8. (C) For similar reasons, Azimi opposes Sabit,s idea of
moving all (or all significant) corruption cases to Kabul,
whether in a new specialized tribunal or for trial in the
regular Kabul courts. He is willing to do that in the
exceptional case, but not as a matter of course. He believes
that many of the provincial courts are capable of trying
these cases just as fairly and effectively as are any courts
in Kabul. He feels the same way about narcotics cases and
for that reason does not believe that the creation of the
special Counter-Narcotics Tribunal (CNT) was a good idea.


9. (C) A number of our IC colleagues feel similarly about the
CNT, still smarting over the fact that the CJTF and CNT were
a USG-sponsored creation established by decree on the eve of
Parliament,s establishment. They have not been receptive to
the idea of another special tribunal carved out of the
judiciary. They have been more open to the notion of cases
above a certain monetary level being moved to the Kabul
courts for trial, where they would be more open to IC
oversight.


10. (C) While Post has some sympathy for Sabit,s views, and
acknowledges that moving parts of the judicial system forward
in a concentrated fashion has certain advantages over trying
to drag the entire regime into the 21st century, we are also
extremely sensitive to: the need for visible rule of law at
the provincial level; the views of the IC; and finding a
common position between Sabit and Azimi. The two of them
represent the best hope for progress at this time in the
justice community. If they disagree on an approach and either
or both of them look to the international community to
resolve their personal or professional differences, Post can
not envision the development of an effective policy.

11. (C) COMMENT: It appears at this time that the common
ground between Sabit and Azimi, and within the IC, is to
avoid the creation of a new specialized tribunal and to focus
instead on changing the venue of major corruption cases from
weak courts to strong ones that are better able to withstand
threats and corruption. Post and the IC here will work with
the Attorney General and Chief Justice to find a compatible
system for determining which cases fall into that category
and which courts are suitable for trying them.


NORLAND