Prohibition Of Torture Under Afghan Penal Code And Its Enforcement Gaps
1. Legal Framework: Prohibition of Torture in Afghanistan
Afghan Penal Code (2017) explicitly prohibits torture under several articles:
Article 427: Prohibits physical and psychological torture, defining it as infliction of severe pain or suffering to extract confession or punish.
Article 428: Criminalizes ill-treatment of detainees and prisoners.
Article 29 of the Constitution: Guarantees dignity and prohibits torture and inhuman or degrading treatment.
Afghanistan is also a party to international treaties that prohibit torture, including:
Convention Against Torture (CAT) (ratified by Afghanistan)
International Covenant on Civil and Political Rights (ICCPR)
2. Enforcement Gaps
Despite clear legal prohibitions, enforcement is weak due to:
Lack of independent investigations into torture allegations.
Influence of powerful actors (security forces, local warlords).
Poor training and accountability mechanisms in law enforcement.
Fear of retaliation by victims and witnesses.
Judicial reluctance to convict security personnel.
Inadequate prison monitoring systems.
3. Case Studies: Torture Prohibitions and Enforcement Issues
Case 1: Torture of a Suspect in Police Custody in Kabul
Facts:
A suspect arrested for theft was subjected to beatings and electric shocks to extract a confession.
Legal Action:
Charges were filed under Article 427 and 428 against police officers.
Court Outcome:
Officers were acquitted citing “lack of evidence” despite medical reports confirming injuries.
Analysis:
Highlights lack of effective investigation and impunity of law enforcement agents.
Case 2: Death in Custody Following Torture in Herat
Incident:
A detainee died after being tortured by security personnel during interrogation.
Investigation:
Initial investigation was conducted, but no charges were brought against officers.
Human Rights Concern:
Failure to hold perpetrators accountable and absence of independent inquiry.
Legal Implication:
Violates Penal Code Articles 427, 428, and constitutional protections.
Case 3: Forced Confession Extracted Under Torture in Nangarhar
Facts:
A man accused of drug trafficking alleged severe beatings and suffocation during detention.
Trial Proceedings:
Confession obtained under torture was used as key evidence.
Court Decision:
Convicted despite defense objections and medical testimony.
Legal Issue:
Courts admitted evidence obtained through torture, violating due process rights.
Case 4: Torture of Political Prisoners Under Taliban Detention
Report:
Former detainees testified about severe physical and psychological torture, including beatings, isolation, and threats.
Legal Framework:
Taliban does not formally adhere to Afghan Penal Code, so accountability is almost nonexistent.
International Objections:
Violations of CAT and human rights norms called for international intervention.
Case 5: Sexual Torture of Female Detainees in Women’s Prison in Kabul
Incident:
Multiple reports emerged of female prisoners being sexually abused and tortured by guards.
Legal Response:
Official investigations were launched but ended inconclusively with no convictions.
Enforcement Gap:
Cultural stigma and weak institutional mechanisms impede justice.
Case 6: Use of Torture to Suppress Dissent in Detentions
Facts:
Political activists detained during protests reported torture to silence opposition.
Judicial Outcome:
Complaints dismissed; no formal charges filed against security officials.
Legal Concern:
Torture used as tool for political repression; violates constitutional and international norms.
4. Summary of Enforcement Challenges
| Challenge | Impact on Torture Prohibition |
|---|---|
| Lack of independent investigations | Perpetuates impunity for torturers |
| Influence of powerful actors | Hinders accountability and fair trials |
| Weak judiciary enforcement | Courts often accept torture-tainted evidence |
| Victim intimidation and stigma | Leads to underreporting of torture incidents |
| Insufficient prison monitoring | Torture and abuse go undetected |
5. Recommendations for Strengthening Enforcement
Establish independent bodies to investigate torture allegations.
Train police and security forces on human rights standards.
Ensure judicial independence and capacity-building.
Protect victims and witnesses from retaliation.
Improve prison inspection and monitoring mechanisms.
6. Conclusion
While the Afghan Penal Code and constitutional provisions clearly prohibit torture, enforcement gaps persist, resulting in continued abuse by security forces and other actors. Afghan courts have shown reluctance to convict perpetrators, and victims often lack effective remedies. Closing these gaps is crucial for upholding human dignity and rule of law.
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