Article 26: Prohibitive Questioning of Family Witnesses

Earlier this month, Article 26 of Afghanistan’s draft criminal procedure code, dealing with the testimony of relatives as witnesses to a crime, was approved by Parliament and sent to the President for his signature.

The provision titled “Prohibition of Questioning an Individual as a Witness” is currently reflected in a bill written in Dari, the official Persian used in Afghanistan. Translated into English, Article 26 of the draft stipulates that certain people cannot be questioned as witnesses and includes relatives of the accused. Apart from relatives, others covered by the prohibition are children, doctors and defence lawyers. Hence a plain reading of this provision implies that family members, among other defined groups, will be banned by law from giving testimony against accused persons.

Contained in Chapter 5 of the code (‘Testimony’), Article 25 (the preceding article) explains that persons who have information about crimes can, and should be summoned as witnesses. The succeeding Article 27 allows witnesses not to answer questions that could lead to prosecution for themselves or their relatives. Yet, a stand-alone construction of Article 26 appears to impose a blanket ban on relatives from testifying. It goes on to say that prosecutors, officials and the court are obliged to inform the listed categories of their right to silence. The chapter is marred in ambiguity.

This draft bill has now been forwarded by the President to the Ministry of Justice for necessary amendment(s). The manifest prohibition under Article 26 raises a few legal issues:

1. The scope and ambit of the term ‘relatives’ needs to be ascertained: (i) Who does it cover? How does it apply to persons related to both the victim and the accused?

2. When a relative (or any other prohibited class of individual) actually does or attempts to give testimony against a related person: (i) Will this be merely a procedural infirmity, cured by striking off such testimony; or (ii) Will such a person be judicially restrained from providing evidence; or (iii) Will such evidence gathered during investigations be rendered inadmissible in Court? 3. When the testimony is substantially material to the elements of the crime, can the Court still summon that witness or admit its evidence? And if not, how does this exception sit alongside Constitutional safeguards and guarantees within Shariah to facilitate justice?

O you who have believed, be persistently standing firm in justice, witnesses for Allah , even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, Acquainted.

In light of the above, Article 26 in its present form clearly violates Article 3 of the Constitution on the primacy of Shariah law and the foundation of Shariah (maqasid-al- Shariah) on discovery and justice. Article 26 could also clash with certain provisions under Chapter Two (“Fundamental Rights and Duties of Citizens”) of the Constitution. For example, Article Twenty Two reads: “Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.” Constitutional Article Twenty Four speaks of liberty as a natural right. The selective prohibition of certain categories from exercising a ‘right’ might be interpreted by a competent court as discriminatory, unequal and bad in law.

Since certain persons cannot be questioned as witnesses, these individuals will effectively be stripped off the right to testify and put forth evidence in a criminal case. Especially in circumstances where the victim herself is restricted from presenting the facts of her complaint, or essential eyewitnesses are silenced on account of familial ties, Article 26 becomes a serious violation of fundamental freedoms. The prohibition is an infringement of basic safeguards accorded to the citizens of a country within the protections of law and religion.

Read more here: Article 26_Legal Opinion

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