The French political philosopher Montesquieu, in The Spirit of the Laws, argued long ago that separation of powers between the Legislative, the Executive, and the Judiciary is a fundamental safeguard against tyranny and misuse of power. After the US invasion of Afghanistan in 2001, the Afghan state was supposedly built based on the same model of separation of powers. However, in reality, the emphasis has been on the distribution of power among the corrupt elite rather than the separation of powers. This has led to state capture by corruption networks and tyranny in the form of corruption. After more than one and a half decades of such unsustainable and counterproductive efforts at state-building, history may well be on the verge of repeating itself.
Fundamental mistakes were made both in the design and practice of establishing a viable State since 2001. While entrusting too much power in the executive branch of an overly centralized state is a design problem, the executive has negatively influenced and has even corrupted both the legislative and the judiciary in practice. As a result, checks and balances have been undermined and corruption has prevailed in all state institutions. Our National Corruption Survey findings indicate that people face corruption in almost all state institutions which has destroyed public perception about the government and has ripped off the necessary public support for state-building. In fact, our successive surveys show that the spread of corruption helps the spread of insurgency.
With the reality of state institutions becoming centers of corruption, the government has failed to establish independent anti-corruption institutions to apolitically address this menace. Although the word “independent” appears in the name and function of quite a few institutions, in reality, there is no fully independent body as defined by international standards such as those enshrined in the Jakarta Principles and the United Nations Convention Against Corruption, to prevent corruption or prosecute the corrupt.
Institutions which are currently not independent, and which are prone to political interference and abuse are the civil service especially the Civil Service Commission, the Supreme Audit Office, the police, the Attorney General’s Office, and the courts. The selection of leadership for these institutions has been deeply political, and this has prevented the institutions from performing their duties apolitically. Independent actors such as civil society should be allowed to play a key role to ensure transparency and integrity in the selection process of anti-corruption leadership. In addition, other aspects of independence such as access to budget and fixed tenure of leadership have to be guaranteed in the enabling legislation. The government has now promised that civil society will be given a role in the selection of the Commissioners of Anti-Corruption Commission, after initially removing civil society from the process. It is also important to provide support to institutions such as Access to Information Commission which in theory has all the necessary legal independence but in practice has received little or no support from the government.
As the US government talks with the Taliban continue, the future of the Afghan state faces the danger of becoming even more tyrannical. Therefore, it is imperative that any future peace deal prevents the distribution of state institutions among the Afghan elite and ensures the separation of power and the independence of all anti-corruption institutions.