March 2018

JSSP assists the Criminal Procedure Code Working Group to draft new Law on Alternatives to Incarceration and Alternatives to Detention

Criminal Procedure Code (CPC) provisions enacted by the Afghan Parliament in 2014 prevented effective implementation of Alternatives to Incarceration (ATI) in Afghanistan.   The 2014 provisions gave the Ministry of Justice (MOJ) exclusive authority for sentencing adult offenders to ATI and proved contentious. Multiple justice institutions contended that those provisions undermined the judiciary by empowering an executive branch ministry to decide on sentences for convicted persons rather than the judge who presided at trial, and, therefore, violated the separation of powers principle of the Constitution.  It was deemed that a new Law on ATI and Alternatives to Detention (ATD) was needed to correct the issue.

In early 2016, the MOJ tasked the Criminal Procedure Code Working Group (CPCWG) to draft a new ATI/ATD law.  As the secretariat to the CPCWG, JSSP provided substantial legislative drafting assistance to the CPCWG as it drafted the 75-article law, and on December 26, 2017, JSSP and MOJ Taqnin (the MOJ legislative drafting office) representatives met with the Senior Legal Advisor to the MOJ to present the final draft of the Law on ATI/ATD.

The draft law resolves constitutional objections to the 2014 CPC by transferring authority for alternative sentencing from the MOJ to the courts.  The law also provides new protections for juveniles and creates Afghanistan’s first alternative sentencing regime for adult offenders such as home confinement and probation.  The draft law is a major step toward achieving several INL objectives, including ensuring laws are constitutional, mitigating prison’s harmful effects on low-level offenders, reducing prison overcrowding, and enhancing protections for women, children and vulnerable groups. The MOJ Senior Legal Advisor thanked JSSP for its rigorous efforts on the draft, and MOJ leadership is now reviewing the draft law in preparation for the Council of Ministers’ approval.

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