A 14 year-old girl is kidnapped by three males as a means of revenge against her family because her father refused her hand in marriage to one of her 30 year-old male captures.  For three days the girl is repeatedly raped and abused.  Finally, after being released, she goes back to her family – shamed – and is subsequently arrested and charged with kidnapping of herself and adultery while the men who have kidnapped her are never prosecuted nor arrested.  In court, the 14 year old is denied her right to allocution, she has no attorney, and based on her limited education is not even aware of her constitutional right to have an attorney according to Article 31 of the Afghan Constitution. Ultimately in court, absent any witnesses who could testify for or against the juvenile, she is convicted and sentenced to two years imprisonment.

A 16 year-old boy is stopped by a teenage girl who ran away from home due to sexual abuse.  The boy goes to his family to ask their permission to provide housing to the runaway and she stays with his family for a few days.  On the fourth day, the boy is instructed by his family to take the young girl to a local women’s shelter anticipating that they will be able to help her.  Instead, the 16 year-old boy is arrested, charged, and convicted for adultery-despite the fact that the girl testifies to his innocence.  After being arrested, the illiterate teenage boy is beaten and physically forced to thumbprint a written confession authored by Afghan police.   Going to court the boy is forced to represent himself in silence after the court refuses to hear him speak.  He is told by a panel of three Juvenile Judges that while the court believes that he is innocent that they rewarding him by only giving him two years imprisonment and that it is up to the Appellate Court , the upper court, to overturn the sentence that they just imposed upon him.

These are but a few of the tragic stories that plague Afghanistan’s children who find themselves trapped within the juvenile justice system.   Afghanistan’s detention centers and courts are replete with juveniles who are charged and convicted of crimes- often erroneously – while their civil liberties go virtually ignored and unchallenged.  For many, their convictions are upheld due to little to no tangible or intangible evidence, lack of witness testimony, absence of a defense attorney to represent their interests, and minus their right to even put forth their own defense.  With little International support, the juvenile justice system has little hopes for improvement.

Pursuant to Afghanistan’s Constitution Article 22 it states that men and women have equal rights before the law.   Despite this fact, girls are routinely prosecuted for moral crimes at a much higher rate then boys such as running away from home and adultery-both crimes which do not fall under the codified laws, but whose prosecution is justified based on customary law.  In addition to this, the vast majority of girls are uneducated and illiterate.  Many are married to men twice their age and a good percentage are young mothers.   Prior to their stay at the detention centers many of the girls recount details of being forced to beg in the streets by day, and being beaten at home by their husbands at night.  For the most part, girls are being represented in court, however, more often then not the girls do not invoke their right to testify most likely because of the subservient position that they are culturally accustomed to having.

Prior to court the boys tell consistent stories of being beaten and solicited for bribes by police.  The boys routinely show off their marks to prove the price that was paid to “confess” to the crimes they are charged with.  Despite the fact that illiteracy runs high, many court files hold written confessions that bear the thumbprint of the juvenile but authored by law enforcement.  These confessions, coerced or not, are often used as an iron fist to justify convictions.

In a survey recently conducted, several Afghan judges openly admitted to not allowing juveniles their right to allocution.  One juvenile judge proudly reported that out of her eight years as a sitting judge in Afghanistan that not one juvenile has maintained their innocence throughout a trial in her court.  She stated that when kids come to her court she instructs them not to lie for if they do they will be severely punished, admit to what crime they have committed and they shall receive a lenient sentence.  The judge further states that although some of the children in the beginning of the proceeding proclaim their innocence, after this speech most indicate that they are guilty.  The judge interprets that this speech is necessary because children lie all the time and should not be trusted.

Walking into the dungeons of the detention centers I stare into the faces of what is supposed to be the future of Afghanistan.  According to Article 12 of Afghanistan’s Juvenile Code, detention centers are supposed to provide social, educational, vocational, psychological, and health services. Although most of the juveniles are expected to be released from prison, lack of funding and resources does little to prepare them for reentry back into society.  In the more upscale detention centers, juveniles, if they are lucky, are given at most forty-five minutes outside per day where they can basically stand around or sit around with one another.  Many judges have reported that despite the fact that juveniles are supposed to be allotted 75 Afghanis or $1.25 USD per day for meals they ultimately get about .60 cents in USD per day which virtually eliminates fruits, vegetables, and meat from their diets.  Also within the centers, juveniles often serve as prison guards to other children who are also incarcerated.  As guards, these children are used to orient newcomers into the facility, they are given the authority to do searches of other kids and rooms, and in some occasions are even given the authority to determine punishments for misbehaving children.  With overcrowded bedrooms that often have more juveniles then beds allotted and little to no heat, the dismal environment offers anything but a rehabilitative atmosphere.

Overall Afghanistan’s juvenile justice system is not just broken, but it is a catastrophic disaster that arguably causes more harm then good to juveniles and Afghan society as a whole.

Kimberley Cy. Motley, Esq.  is a defense attorney from the U.S.  who has been working on civil rights and legal rights issues in Afghanistan for over a year.  She serves as an International Justice Consultant to Afghanistan Legal and Social Services Organization (A-LSSO).  For more information please feel free to email her at kim.motley.esq@gmail.com.

Discussion Points:

• What are the overall effects on society of a justice system that treats juveniles equal to or worse than adults?
• How can legal advocates and activists work to alleviate these systemic problems?