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Convicts cannot become Wolesi Jirga members: Lawyers

Convicts cannot become Wolesi Jirga members: Lawyers

Nov 03, 2018 - 19:19

KABULinfo-icon (Pajhwok): Legal experts say individuals who are convicted by the court of law could not contest the Wolesi Jirgainfo-icon elections, but some convicts did so.

The experts argue the law bars convicted individuals from contesting elections until an upper court rules in his/her favor and restores their dignity.

If a person is sentenced to imprisonment by the primary court and he/she fails to appeal against the verdict in the given time, the primary court ruling is final and binding.

Article 37 of the Election Law says an individual who registers as a candidate or is appointed as a member of the National Assembly, he/she shall be a citizen of Afghanistaninfo-icon or shall have obtained citizenship of Afghanistan at least ten years prior to candidacy date or appointment; shall not have been convicted of crimes against humanity, as well as a crime or deprivation from civil rights by a court.

In addition, Article 82 of the Afghanistan criminal code explains if an individual is sentenced to more than or less than 10 years in jail for certain crimes “could not contest election or serve on election-related posts as long as his/her dignity is restored through an upper court decision.

Pajhwok Afghan News has already published reports about some Wolesi Jirga candidates who despite being sentenced to three to five years in prison contested the Oct 20, 21 elections.

Wolesi Jirga hopeful Haji Mohammad Mirza Katawazi from southeastern Paktika province was in the final list of candidates despite being sentenced to five years in jail by a court.

He was convicted by the primary court of first Police District in capital Kabul over committing fraud in issuing registration number plates for armored vehicles.

Ghulam Ali Wahdat is another Wolesi Jirga hopeful, who the appellate court of Kabul has sentenced to three years in jail over misusing his authority.

Jamshid Rasouli, the Attorney General Office (AGO) spokesman, told Pajhwok Afghan News that Ghulam Ali Wahdat, a former interior minister, and five other workers of the ministry were sentenced by the Anti-Corruption Justice Center (ACJC) on September 26.

Another Wolesi Jirga hopeful Abdul Karim Shafaq was in prison during his election campaign. He is serving a sentence over possessing a fake ID card of a disabled person for seven years despite having no disability.

His sons ran election campaign in his absence. Shafaq allegedly pocketed 60,000 afghanis annually through the disabled card and finally, intelligence officials identified and arrested him along with his brother.

Shafaq registered as a Wolesi Jirga candidate after he was released on bail before being sent back to jail.

Expert view

Some legal experts say if a person is convicted of a criminal case by a court, or is deprived of civil rights by the law cannot participate in Wolesi Jirga polls.

“If an individual is sentenced to over 10 years in prison and serving his/her jail sentence cannot apply for any election-related post unless the court resorts his/her dignity,” says Nasrullah Stanikzai, head of the Legal and Judicial Consultative Board of the Presidential Palace.

He added if a person was sentenced to less than 10 years in jail he/she could contest election after completing the punishment.

Experts believe individuals with the criminal background may not be able to represent public as per the law if they succeed in the election.

Abdul Shokur Dadras, another legal expert, said: “Individuals who have been sentenced from two to 10 years in jail cannot contest elections or serve on election-related post.”

He said individuals jailed over internal or externalinfo-icon crimes were disqualified from contesting polls or serving on the electoral post. “The period of jail term is not specified in these circumstances.”

Ajmal Hodman, head of the Lawyers Association, said if an individual is convicted in a criminal case and is deprived of civil rights in line with the law he/she could not contest the Wolesi Jirga election.

“Individuals who face criminal charges or awarded punishment in such cases are deprived of contesting polls,” he said.

Based on the law, incapacitation punishments matter when a person is accused of a crime. The court awards punishment to such convicts and deprived them of some civil rights including the right of candidacy.

In the penalty code, the punishment is divided into three types including imprisonment, supplementary and incapacitation, and the imprisonment punishment includes both jail and cash fined. Incapacitation punishment is enforced on a convict without clarification in the court.

When asked how convicts made it to the list of Wolesi Jirga nominees, Hodman said: “The IECinfo-icon asks candidates during their registration to provide information about their criminal record from police, so candidates use any possible ways to prepare a certificate that clears them of any crimes, which is questionable.”

Pointing to the case of Mohammad Mirza Katawazai, a Wolesi Jirga candidate from Paktika province, Hodman said: “When a person is sentenced to punishment by the court in absentia, such figures should be detained according to the penal code and their cases followed.”

He said corruption in the government organs concerned had paved the ground for convicts to escape from the law. “It is questionable that persons like Katawzai who present clearance certificates from police to the IEC despite facing criminal cases in judiciary organs.”

Hodman criticized the Ministry of Interior (MoI) for having no database about criminals and said: “Unfortunately the MoI does not have an organized database through which we can identify those incapacitated from civil rights during election process.”

Ministry of Interior (MoI)

MoI’s deputy spokesman Nasrat Rahimi told Pajhwok Afghan News: “The MoI has processed forms about candidates’ crimes through its biometric system, the criminal records of candidates who have committed crimes in the past are included in the forms, it depends on the IEC to accept or reject them.”

“All those who have criminal cases against them in the judiciary organs have been added to the MoI biometric system,” Rahimi said.

On the other hand, Ainuddin Bahaduri, a member of the Afghanistan Lawyers Association, said: “If a person is sentenced to more than 10 years of jail then the person is deprived of political and civil rights and he or she cannot nominate for elections, but if a person is sentenced to less than 10 years in jail he or she also cannot contest elections until the convict completes his or her jail term.”

He said even if such figures won the elections they could not represent their people according to Afghanistan’s laws. “Electoral commissions are responsible to find conviction documents of such people and police detain them.”

About conviction of Mirza Katawazai in his absence, he said it was questionable how Katawazi was able to nominate for the Wolesi Jirga polls despite his conviction.

“A court ruling in absentia of a person is given when the person is absent or inaccessible to Afghan security forces and attorneys, but not accepting the ruling is another crime the person has committed”, he said.

About the primary court’s decision in absentia and no appeal from the accused and ignoring summons, he said: “When the primary court hands down a verdict, it should come in presence of the defense lawyer, but if the accused does not have a lawyer then the government appoints a legal assistance who defends the accused in absentia and the court procedures continue this way.”

Shahla Farid, a political science lecturer in Kabul University, said if a person was sentenced to imprisonment or deprived of civil and political rights, he/she could not nominate for elections or have political activities.

Independent Electoral Complaints Commission (IECC)

However, IECC spokesman Ali Reza Rouhani said if there was evidence about candidates deprived of civil and political rights or sentenced by courts, they would be removed from the list.

He did not comment about non-removal of the two candidates from the candidate list by IECC, but said if there were legal documents that bar people from candidacy and political activities, they would be removed from the list of candidates.

Rouhani said the IECC was neutral in acts and decisions and acted according to the law.



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