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AGO hides info about convicted WJ candidate

AGO hides info about convicted WJ candidate

Apr 14, 2019 - 13:26

KABULinfo-icon (Pajhwok): The Attorney General Office (AGO) has concealed information about convicted Wolesi Jirgainfo-icon candidate Mirza Katawazai, who was released in accordance with presidential orders and declared successful, documents show.

Surprised by the decision, analysts condemn the hiding of information by AGO about the detention of Katawazai and his subsequent release as an unlawful act.

But Katawazai and some political commentators claim the court verdict cannot be implemented in accordance with Article 76 of the Criminal Procedure Law after three years and seven months.

However, legal experts are concerned that non-implementation of the relevant law will have dangerous consequence. A failure to enforce the court verdict will lead to a surge in crimes in the country, they warn.

The criticism comes as the AGO said last year that more than 8,000 individuals, including current and former officials, had been convicted in 6,500 cases. But they were neither arrested nor punished.

Complete report

In 2015, a court in 1st police district of Kabul convicted Katawazai of forging document and using fake number plates for his armored vehicles. He was sentenced to five years in jail

However, despite the passage of three years, he has not been jailed. Still at large, Katawazai told Pajhwok Afghan News he was informed of the court order through media. None of state organs has approached him so far, he insists.

The convict says documents about his sentence surfaced after he was declared a winner in the Wolesi Jirga election from Paktika province.

About where he was during the convicted term, he said: “I am a free businessman -- a contractor of the National Security Council (NSC), AGO, Supreme Court and. My main office located in Sara-i-Shahzada (money market).”

The court and AGO could have approach home easily. Certainly, I was unaware of the case,” he added.

Arrest and release

Findings indicate that three years after the judgment, the president not only ordered his arrest but also asked the election commissions to investigate him. But after the commissions were sacked, the president issued orders for Katawazai’s release.

An NSC document, whose copy has been received by Pajhwok Afghan News, shows the council sent the president a report regarding Katawazai’s conviction on February 7.

Subsequently, the president issued arrest orders for the convict. “The Ministry of Interior should immediately implement the verdict of AGO. The AGO should interrogate the election commissions on why it ignored documents of a convicted candidate.”

On February 12, the MoI arrested Katawazai at Hairatan Port as he was trying to escape to Uzbekistan. Gor his part, Katawazai says he was informed about his arrest warrants after he entered Uzbekistan.

“A security official came to me and asked whether I have any problem in my country, I told him my next trip is to Dubai from where I will return to Kabul, I then said I will go directly to my country for what I have heard I am sentenced to jail and the president has ordered my arrest, it was around 9pm when I arrived at Hairatan port in Balkh, police tried to arrest me, but I told them to be calm as I will personally solve my problem in a legal way,” he said.

It was the day when all election commissioners were dismissed but Katawazai was released a few days later in compliance with the president’s verbal order.

On March 5, a letter signed by Lt. Col. Mohammad Yasin Zia, the president’s advisor on national security, was sent to the AGO about the case.

The letter says, “A number of elders and influential figures of Paktia province have asked for the release of (Mohammad Mirza Katawazai) during their meeting with National Security Advisor (NSA) who then shared the issue with the president who then verbally ordered the release of (Katawzai).

The letter has sought action about the order.

Jamshid Rasouli, AGO spokesman, about the letter, told Pajhwok Afghan News, “A case of (Katawazai) was under process at the AGO, investigation into the case has been completed and sent to the court, this person was released by the AGO based on a credible guarantee.”

However, Rasouli did not provide further details about the issue.

But Katawazai said, “I was illegally arrested and the sentence is void, I approached the National Security Council (NSC) and the NSC discussed the issue with AGO and the Ministry of Justice… they found the sentence against me as void based on the 76th Article of penalty actions law.”

 “I also had the legal warrant and the NSC had suggested it to the president, when the president understood I am innocent, he immediately took action for my release, I thank him,” Katawzaai said.

The article 76th of the penalty action law says, “Punishment to a convict voids if charges are not applied after the release of sentence order during the stipulated time period: One: Execution sentence after the passage of 25 years, Two: life sentence with the passage of 20 years, Three: long term jail after the passage of 10 years, Four: mid-term jail after the passage of three years, Five: short-term jail after the passage of one year”

Katawazai also shared some documents with Pajhwok about his release.

NSC’s legal affairs advisor on March 5 had asked the NSA to analyze Mirza Katawazai’s case with AGO officials. The review of Katawazai’s case shows Katawazai can run for Wolesi Jirga election based on article 39 of Electoral Law.

The review says Katawazai’s crime was not among those that could deprive him of civil rights as the court also did not bar him from his civil rights.

The advisor also writes in his letter that the issue should be also shared with the president and a new order should be issued in this regard.

After the president’s order for the release of Katawazai, he was announced winner by the IECinfo-icon in the Wolesi Jirga election.

Based on the election data with the IEC, Katawazai had secured 5,142 votes in the Wolesi Jirga election in Paktika and he was top vote-getters.

Katawazai says nearly 96 percent of votes in Paktika were biometrically verified. The people are not responsible for problems election commissions faced during elections in Kabul, he said.

Poll win despite conviction

Findings of Pajhwok Afghan News show the IEC sought information regarding Katawazai’s sentence from the AGO and the police headquarters of Paktika, but they refused to cooperate.

Some sources reveal Katawazai is not subject to the implementation of the court decision and thus he was eligible to contest the elections.

Pajhwok has received copies of some documents showing that the AGO refused to share information regarding Katawazai.

One of these documents indicates that IECC asked the Paktika police headquarters to share information about his trial. In reply, the election watchdog said it was not responsible to answer the request.

In another letter written to the AGO on 10/07/2018, the IEC asked for information about the Wolesi Jirga candidate. The letter was accompanied by a digital versatile disc (DVD) containing names, father names, addresses and identity card numbers of candidates.

In response, the AGO said 60 of the 2,726 candidates registered in the database had been involved in criminal activities and the remaining had clean track records.

A source disclosed Katawazai was not among the 60 runners accused of having criminal backgrounds. Under the relevant law, an individual accused of a crime cannot contest elections.

Katawazai was sentenced to five years in jail for an offence that was not heinous.

According to Afghanistaninfo-icon’s criminal penal code law crimes is defined as an illicit act due to which a person is sentenced to punishment or long-term --- more than 50 years --- in jail.

IECC, through an inquiry letter, again asked the AGO on 31/12/2018 to provide information regarding the sentence of Katawazai. But a senior AGO official responded that no case of a heinous crime had been registered against Katawazai.

On 10/02/2019, the IECC yet again sent a letter to the AGO, with a copy of the memo from the National Directorate of Security (NDSinfo-icon) showing that Katawazai had been sentenced to five years in jail.

In this letter, the IECC asked the AGO for information until 12/02/2019 because an evaluation of complaints from Paktika was in final stages. However, IECC members were dismissed the same day.

Asked about the AGO silence on his background and sentencing, Katawazai said he was not entitled to speak on behalf of the AGO. He referred Pajhwok to the AGO.

Pajhwok strived to contact the AGO spokesman on why they refused to share information regarding Katawazai with the electoral bodies. But he only made promises to provide information in this regard. However, the required details were never shared.

Experts blame AGO

Kabir Ranjbar, a legal expert, blamed the AGO and the Paktika police for not sharing information regarding Katawazai’s criminal background.

He insisted Katawazai had committed an offence and the court had sentenced him but the AGO refused to share information with authorities concerned.

Ranjbar believed a case should be filed against the AGO and Paktika police for not sharing vital information.

Abdul Shakoor Dadras, another expert, said: “There is no other source to provide information regarding the criminal background and trial of an individual. A specific department in the AGO has complete information about the trials and crimes. If they don’t have this information, it is really surprising.”

Wadir Safi, another analyst, also assailed the AGO for not sharing information with the election bodies. “The AGO is to be blamed here,” he remarked.

Expert views

On President Ashraf Ghani’s verbal direction regarding the release of Katawazai, Ranjbar said: “Even a presidential order in writing is a brazen violation of the constitution.”

A decision handed down by the court must be implemented in line with Article 129 of the constitutions, he explained.

Article 129 says: “In issuing decisions, the court is obligated to state the reason for its verdict. All final decisions of courts shall be enforced, except for capital punishment, which shall require presidential approval.”

Ranjbar explained Katawazai was awarded a jail sentence by a primary court, whose decision was not final but was surely enforceable. The convict should be detained and his freedom curtailed. Doing this is the responsibility of AGO.

On the other hand, Katawazai’s Lawyer Mohammad Saeed Saeedi claimed order against his client was passed under Article 76 of the criminal procedure law and was no longer valid.

He said Katawazai, like any common person, was entitled to all rights and could nominate himself for elections.

But Ranjbar noted Article 76 was in conflict with Article 129 of the constitution. He suggested powerful individuals might have influenced the enactment of that penal code provision.

But other law experts told Pajhwok a primary court decision, if not appealed in a given time, automatically becomes final and irreversible.

The AGO in its report last year said that around 8,000 people, including current and former government officials, in connection to 6,500 cases have been tried by the courts but they escaped punishment or detention.

Referring to the article 76 of the criminal penal code on the bases of which many powerful individuals escaped punishment said: “This article has many flaws and provided impunity to around 8,000 people who have not been punished. Through such practices justice has lost its impact and meaning in a societyinfo-icon,” he said.

About the verbal direction of President Ashraf Ghani to release Mirza Katawazai, Safi said: “Katawazai’s was sentenced to over three years in jail and this sentence fall under intermediate detention category and under the article 76 of the criminal penal code of criminal law president’s verbal direction in this regard have don’t create any legal issue.”

“In my point of view it is not a fair article, but this person has secured release under the article 76 of the criminal law and once he become a common person, he could be entitled to all rights of a citizen including contesting election,”

Another legal affairs expert Abdul Shakor Dadras said, Katawazai’s punishment fall under the article 76 of the criminal penal code.

He said: “If the passage of time rule applied under the article 76 than Katawazai should have been freed automatically, if not the president could not issue verbal order and he should have issued a legislative presidential decree for Katawazai’s release because even verbal order of the court have no value in such circumstances.”

Referring to the clash of article 76 of the criminal penal code law with the article 129 of the constitution, he said according to some expert it may be in clash while some expert may have different view.

Sometimes the crimes could controlled through this way what article 76 had explained, he said, adding that sometimes a criminal may not appear before the concerned authorities fearing severe punishment or dangerous consequences.



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