The Future Legal Aid System in Afghanistan

There are essentially three options for the delivery of criminal defense or legal aid services: (1) a government-run public defender’s office, where the lawyers are government employees; (2) the assignment of private counsel, where private lawyers receive a fee from the state to represent the indigent; and (3) an independent private NGO contracted by the state to provide the constitutionally mandated service, where the lawyers are salaried employees, minimizing the potential for corruption and maximizing the quality of the service.

            1. A state-run public defender’s office.

This option has the advantage of giving the government control over how funds are expended for legal aid.  Its major disadvantage is that lawyers are state employees that cannot easily be fired for poor performance.  Although there is a Legal Aid Office at the Supreme Court in Kabul, lawyers in that office are plagued by poor training and low salaries, and they have expressed their unwillingness to represent the guilty, which is a significant problem for a criminal defense office.  Given the number of public employees in Afghanistan, building a new, and potentially inefficient, government agency carries risks.  This is particularly true in a country in which the public confidence in government-run services has eroded.  An additional problem with such a system in the short term is that the attorneys in the Supreme Court’s Legal Aid office are based in Kabul.  Although they have indicated a willingness to go to the provinces, they lack the infrastructure (e.g., offices) to be able to do so.

            2. Assignment of private counsel.

This form of legal aid system is common in Europe and exists in North America: private lawyers who handle private paying clients accept government funds to represent the indigent as well. Because the responsibility for representing clients is diffused among many attorneys, this option makes it difficult for the government to monitor the quality of service provided by each individual attorney.  This model further creates a serious risk of corruption:  Because private (paying) clients are few, lawyers would have to fight to make a living from the government-funded indigent cases.  Nevertheless, this option must exist for cases where co-defendants with conflicting interests need different lawyers.  However, it should be limited to conflict-of-interest cases, and lawyers accepting government funds should receive mandatory training in criminal defense to ensure a basic quality of service.  Having provided defense training for lawyers, ILF-Afghanistan is willing to continue providing free basic training for defense lawyers accepting government funds.

            3. An independent private NGO under contract with the government.

Under this system, lawyers are salaried so that they have no incentive to cut corners on state-paid cases (unlike private lawyers in the individual assignment model).  Because they are not government employees, these lawyers can be hired based on qualifications and fired for poor performance.  This hybrid option also allows control over the quality and quantity of the service provided.  If a provider does not satisfy the terms of the contract with the government, the contract can be ended or at the very least not renewed, ensuring the government that its funds are properly used. This hybrid structure exists in the United States.  The Legal Aid Society in New York, one of the oldest public defender’s offices in North America, is built on this model. 

In addition, this model would have the following benefits:

• No civil service restrictions:  ILF-Afghanistan employees are not government employees giving the organization flexibility in hiring and firing.  Lawyers cannot just sit around doing nothing.
• Quality representation:  ILF-Afghanistan’s lawyers have been trained on a day-to-day basis for the last three years by experienced defense lawyers from Europe and North America.  Given the wars over the past 25 years in Afghanistan, the culture of criminal defense had been lost.  When ILF-Afghanistan opened, other lawyers never went to see their clients, never investigated the case, rarely brought procedural challenges, and simply wrote a letter to the court asking for mercy.  That has changed.  ILF-Afghanistan lawyers are professional and well-trained.  By having ILF-Afghanistan become the primary provider – not the sole provider – of criminal defense services, the government will make sure that the level and quality of practice by other providers is also high.
• Cost-effectiveness: ILF-Afghanistan has set up an efficient financial reporting system.  With an independent board of directors monitoring the budget, ILF-Afghanistan can guarantee that funds are properly spent.
• Case load management: ILF-Afghanistan has case load management systems in place to make sure that everyone is carrying a proper case load and working efficiently.
• Efficient time management: ILF-Afghanistan has formed paralegals to increase the efficiency of the lawyers thus keeping the cost per case down.
• Training of other providers:  The primary provider of legal aid services in Afghanistan should be in a position to train other providers.  ILF-Afghanistan has already provided training to a number of groups including other legal aid providers, and it is thus best situated to continue this role.
• Gender integration: Like many countries, Afghanistan has a long history of segregating its woman professionals.  ILF-Afghanistan has worked to eliminate this segregation in the workplace by requiring its woman and men staff to share offices, train together, and discuss legal issues together.

ILF-Afghanistan does not believe that there should only one NGO providing public defence services.  It believes that it is in the best position to be the primary provider because it has well- trained lawyers and offices in every major population center of Afghanistan.

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