Agence France-Presse

Death, then life, for downloading

Updated:

KABUL — The long ordeal of Sayed Parwez Kambakhsh, sentenced to death for downloading sensitive Internet content, may be coming to a close. But the case will leave a lasting and bitter taste in the mouths of those who had hoped that Afghanistan was making progress toward democracy and rule of law.

People around Kambakhsh say privately that there are some positive signs that President Hamid Karzai might finally honor his promises to pardon the 24-year-old student, who has now spent close to a year and a half in prison, most of it under sentence of death for blasphemy. An appeals court later reduced the sentence to 20 years in jail.

Kambakhsh exhausted his legal remedies in early February, when the Supreme Court upheld the appeals court verdict in a closed-door ruling that was never published; Kambakhsh’s own lawyer found out about it almost by accident, when an officer at the jail let it slip to the prisoner himself.

Now all hope is on Karzai, who has promised on more than one occasion to see that the young man is released. But Karzai is himself under siege at the moment, facing an uphill battle in his bid for reelection. A major concession to the increasingly unpopular West might not be in his best political interests at the moment.

A cause celebre in much of Europe and, to a lesser extent, in the United States, the Kambakhsh case has exposed the contradictions within Afghanistan’s much-touted Constitution, the weakness of its central government, and the failure of international efforts at judicial reform.

Kambakhsh was arrested on October 27, 2007, in the northern city of Mazar-e-Sharif. He was accused of downloading an article from the internet that criticized, in fairly harsh terms, Islam’s position on women. Kambakhsh is further accused of having distributed the offending material to three or four of his classmates in the journalism department of Balkh University.

For this he was condemned to death, in January of 2008, in a kangaroo court in which he had no representation, no witnesses and no opportunity to defend himself. He was deserted by his lawyers, who were threatened by unnamed sources, and abandoned by his friends, many of whom later said they had been pressured to sign affidavits condemning Kambakhsh.

His family scrambled for several months to find a new lawyer, and to have the case moved from Mazar-e-Sharif to Kabul, where, they felt, Kambakhsh had a better shot at a fair trial.

Attorney Mohammad Afzal Nooristani finally agreed to take on the challenge of defending Kambakhsh, and the Kabul Appellate Court held its first hearing in May 2008. The appeals process took several months, with numerous delays. At one session, Kambakhsh claimed that he was tortured into signing a confession during his initial incarceration by the National Security Directorate and his lawyer demanded a medical examination. The results were inconclusive, but the trial was pushed back by over a month.

The proceedings were a shambles: The judge, Abdul Salaam Qazizada, made little pretense of impartiality, repeatedly railing at the young man in the dock for his poor character and failure to adhere to his Muslim faith. Deaf to the defendant’s protests that he was innocent, the judge would point to him and thunder, “just tell us why you did it?”

Qazizada himself is a holdover from the Taliban regime, a deeply conservative judge with little grounding in civil law. He is not an exception: many legal authorities, even on the country’s highest court, have more of a background in Sharia law than they do in legal procedure.

This may account for the fact that Kambakhsh never faced an actual legal charge. He was prosecuted under Article 130 of the Constitution, which states that, in the absence of specific criminal articles, Sharia law applies.

“Article 130 was never meant to deal with criminal cases,” said Nooristani. “There was political or religious pressure here.”

Observers say there were both. Reporters without Borders, a French-based journalist organization, condemned the case, demanding in a recently issued report that Afghanistan’s political and religious leaders “stop politicizing the charge of blasphemy.”

Freedom of expression is guaranteed in the Afghan Constitution, drafted in 2003 with the advice and guidance of a team of Western legal experts. But time and again those legal assurances prove worthless when they bump up against cultural values that the more conservative elements in Afghanistan hold dear. No critical examination of religious, sexual, or ethnic questions is allowed, as many have found out to their detriment.

In 2005, the editor of a journal on women’s rights, Ali Mohaqeq Nasab, was imprisoned for three months for publishing articles that the courts felt called basic tenets of Islam into question. One piece criticized harsh punishments for homosexuality, while another suggested that it was unfair to hold that a woman’s testimony in court was only half as good as that of a man.

In 2006, a man called Abdul Rahman had to be spirited out of the country when he was arrested and charged with apostasy for converting from Islam to Christianity. Religious figures, the courts, and much of the public were calling for his execution.

Shortly after Kambakhsh was arrested in 2007, another journalist was detained for daring to publish a vernacular version of the Koran. Ghawz Zalmai also faces 20 years in prison; his case is now before the Supreme Court.

With Afghanistan facing a growing insurgency and a collapse in public confidence, many are wondering whether any progress has been made at all in the past seven years, since the U.S.-led invasion sent the Taliban packing and brought today’s rather ineffectual government into power.

Millions have been poured into so-called “democratization” projects, including an extensive, and costly, overhaul of the judiciary.

“Little progress has been made,” Nooristani said. ‘I don’t want to say that the money has been wasted, but … .”

Kambakhsh’s brother, Sayed Yaqub Ibrahimi, goes farther. A prominent journalist, Ibrahimi has stood at the forefront of his brother’s defense, making appeals for support from Bali to Barcelona.

“The Taliban were very clear,” Ibrahimi said. “They said what they were for and against. But this regime claims to be defending democracy and freedom of speech, while they are actually against these values. They are worse than the Taliban.”

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