The West’s efforts to help rebuild Afghanistan have included considerable investment to strengthen the criminal justice process. Taxpayers in the USA, Canada, Australia and the EU have seen funds spent on drafting new criminal laws, training judges, constructing and renovating prisons. A bewildering range of UN and international non-governmental organisations have given increasing priority to establishing a coherent countrywide system based on rule of law.

Despite all this work, Human Rights Watch‘s assessment is that Afghanistan’s justice system remains weak and compromised with poor governance, lack of rule of law, impunity for militias and police, laws and policies that harm women, and conflict-related abuses.

As for prisons, 14 new centres constructed in the last two years have helped to improve conditions and cope with a sharply rising prison  population. But there have been many well publicised crises with hunger strikes, riots and allegations of torture all too frequent.

Unit 10 at Pulhi Charkhi prison was built to accommodate “high value drug targets”- the drug barons who were to be processed by Special Counter Narcotics Courts staffed by supposedly incorruptible judges meting out harsh penalties. The maximum security prison lay empty for some time after it was constructed- and embarrassingly for the UK and Canadian governments who funded it was then used to hold prisoners on death row. It is now fulfilling its intended role but the prison system as a whole is struggling to do so.

The two key challenges facing the prisons are perhaps most clearly illustrated by its   two biggest disasters- the mass escapes from Sarposa prison in Kandahar three years ago and in April this year.

The 2008 escape followed a heavily armed assault by Taliban insurgents which freed over a thousand prisoners. Holding former combatants alongside criminal prisoners presents enormous challenges in post conflict countries with prison administrators having to find the right balance between security and rehabilitation.  The option of keeping insurgents in security prisons brings with it dangers of torture and ill treatment- such as those alleged by the UN this year with consequent hand wringing in western countries whose military have transferred detainees into the centres. Undue security can create alienation which pushes prisoners more firmly into the arms of the Taliban.

This year’s escape by 400 Taliban through a hundred metre long tunnel focused attention on the second set of problems. These relate to corruption and collusion by prison staff.  Many observers find it hard to see how the tunnel was constructed without the knowledge or suspicions on the part of the authorities. While improvements in pay and conditions of prison staff may reduce financial corruption, staff commitment to the formal justice system may diminish when faced by threats and intimidation or the strength of family and tribal loyalties.

With a seemingly confused Government policy towards the Taliban, it is little wonder that the prison system – and the Western nations which support it- struggle to define a clear approach to the detention of insurgents.

There are analogous problems with the wider justice system in which traditional shuras and jirgas   deal with the majority of family, land and criminal disputes, often through oral procedures. For many like Human Rights Watch human rights abuses are endemic within the traditional justice system.  Certainly the lack of respect for the rights of women in many of these forums needs somehow to be addressed -although the fact that half of the women in prison have been sentenced for so –called moral crimes suggest that the formal system is not delivering much better justice.

For the US Institute for Peace the future lies in working to create linkages between formal and informal systems so that the quality of justice can be improved, disputes resolved and rights protected. If such a hybrid approach to justice is indeed best suited to the needs of Afghanistan, so too perhaps would be a more customised approach to the use and practice of imprisonment. Before building any more jails, donors should be looking at ways to develop that approach.