By Kimberley Motley
07 Jul 2015
On March 19, a mob of male attackers viciously attacked 27-year-old Farkhunda. They beat her, set her body ablaze, and tossed her into the shallow waters of Kabul river.
Promises of a transparent legal process were once again shattered by the Afghan judiciary. This week, its precipitous decision regarding the Farkhunda case was leaked from a "secret" hearing in the Appellate Court. Blatantly disregarding the law, the court decided that the men convicted of having a primary role in Farkhunda's horrific death were entitled to a reduction in their sentence. This occurred without the presence of Farkhunda's family and presumably the prosecutor to argue against the reduction.
Major due process violations occurred when Farkhunda's family and the prosecutors were not notified of the hearing. They, and the public, were also subsequently barred from and denied access to, participating in the court's proceedings.
During this secret and unlawful hearing, the Appellate Court overturned three death sentences and converted the sentences to 20 years in prison, one death sentence was reduced to 10 years, and the court allowed for the acquittal of another of the main actors in Farkhunda's attack.
The written rationale for its decision, which is required from the court by law, has yet to be released - adding to the growing list of laws ignored during these proceedings.
Assertions of corruption mean absolutely nothing if those that are in power - like the Appellate Court judges - are allowed to continue to perpetrate such legal atrocities.
The primary court hearing, which was extremely transparent and televised on virtually every Afghan television network, was a remarkable step forward in allowing the public to indirectly participate in the legal process for the first time. However, for the Appellate Court to hold its hearings in such a secretive manner screams corruption.
Farkhunda's mishandled case is just one more to add to an already long list of cases corrupted by Afghanistan's judiciary.
A 12-year-old Afghan girl named Sahar Gul was forced into an illegal marriage, tied up, beaten, burned and kept captive in a basement for months. In this case, the Appellate Court quietly overturned the decision of the primary court in which the perpetrators of this torture received sentences of 20 years in prison.
Just like with Farkhunda's case, the Appellate Court had a secret hearing, did not inform the prosecutors, and has yet to share its written rationale for its decision with the public. A public which is entitled to an explanation by law.
Thankfully, a Supreme Court appeal to the Appellate Court's decision was successful and overturned, but it was simply ridiculous that the case needed to rise to that level in the judiciary system in the first place.
The best way forward for Farkhunda's case is for the prosecutor and the family to appeal the decision of the Appellate Court and push the case to the Supreme Court.
Farkhunda's case can also be used to promote some real change in the reliability and accountability of Afghanistan's tainted judiciary system. There must be an internal investigation launched against the Appellate Court judges who have, so blatantly, disregarded the law through their violations of the basic due process rights of the public, the victims, and their families by conducting these secret and unsubstantiated hearings.
It is appalling that the judiciary - an institution created with the sole purpose of upholding Afghanistan's legal principles and protecting its citizens' rights - should fail so astoundingly in doing so.
How many marches and protests is it going to take? How many laws need to be blatantly broken? And how many innocent victims and women like Farkhunda will be hurt or taken advantage of before the courts make a concerted effort to follow the rule of law? How much suffering and pain must be endured before the judiciary system of Afghanistan chooses to uphold the rights of its women?
Afghanistan's government must see that it is simply ignoring the rights of 50 percent of its population - its women - who are legally and morally entitled to equal protection and treatment.
By highlighting this corruption and the court's numerous failings, I do not mean to promote the execution of Farkhunda's attackers, but rather, to tirelessly advocate for the preservation of due process and the rule of law.
Afghanistan's courts cannot sweep what happened to Farkhunda under the rug and a clear line in the sand needs to be drawn in the way it handles this case.
Afghan citizens, men and women alike, deserve a country that respects their rights and protects their safety. They deserve a country which holds itself accountable to its moral and legal obligations. The vapid promises of improvement in women's rights mean nothing if the actions of the government continue to show otherwise.
Unfortunately, advocating for women's rights in Afghanistan is a never-ending battle with a bottomless pit of problems. The inability of the judiciary to handle Farkhunda's case in a fair and equal manner simply reinforces questions about its commitment to progress the status of women in Afghanistan.
How can Afghan society's regard for women be expected to change when its government institutions fail to lead by example? In this way, justice for Farkhunda means a small sense of justice for all Afghan women.
Amazingly, women's rights in Afghanistan have been praised as one of the only great successes of the US' longest war. But the reality is very different; true justice and progress for Afghan women - in legal, public, and private realms - remains painfully elusive.
During my seven years of working in Afghanistan, I have witnessed how the abysmal justice system in Afghanistan remains weighted against women. It continues to be grossly calibrated against women culturally, procedurally, and often times legislatively.
If Afghanistan insists on being a signatory to International Conventions of upholding human rights, then they need to be held accountable for protecting the rights of their women.
At every level of the Afghan justice system, there must be changes and mechanisms put into place that allow women to receive justice, report crimes, and prosecute cases - with confidence and without the fear of retaliation.
It is time that persons in Afghanistan and beyond take the country to task and demand that holding those accountable for murdering Farkhunda act to honour its laws both international and domestic. It is time for the Afghan government to work towards bringing confidence back in the rule of law and uphold its obligations to women's rights starting with Farkhunda's case.
Kimberley Motley is the former lawyer for Farkhunda's family and founder of Motley Legal. She is the first and only foreigner to litigate in Afghanistan's courts and has been working in the country since 2008.