In Afghanistan, laws of Islam are a constant

KABUL, Afghanistan - Wali Mohamed has spent weeks in a dank 5-by-8-foot prison cell at Kabul Provincial Jail, let out only for his five-times-a-day prayers and visits to the toilet. He gets a loaf of bread at breakfast, a handful of rice at lunch and a bowl of soup at dinner. Whenever authorities get around to giving him a trial, he's likely to receive a long prison term.

The 25-year-old potato farmer's crime? He's accused of having an illicit love affair.

The barefoot Mohamed, a father of three, claims he didn't even know the married woman in the case.

"I haven't committed any crime," he says.

Here in Afghanistan, a legal system dating to the seventh century and the Prophet Muhammad will be the judge of that. Though the Taliban and their public executions have come and gone, the country still relies on the traditional Shariah law of Islam.

"From the beginning of Islam until now, Shariah has been the law," says Judge Mohamed Azim Jalili, 75, a deputy to the chief judge in Afghanistan's Supreme Court, who resembles an Old Testament prophet in his silver beard, white turban and black cloak.

"It is part of Islam," he says. "Until the end of the world, it will exist."

Afghan officials say they will apply Shariah law more fairly and humanely than the Taliban did. They say there have been no stonings or whippings since the Taliban collapsed. But those punishments will be used again someday, several Afghan officials predicted, for flagrant and repeat offenders.

As part of the Bonn agreement reached last fall, Afghanistan's interim government was supposed to create a commission to plan the rebuilding of the criminal justice system and the protection of human rights. The commission has still not been named.

The resulting confusion has trapped prisoners such as Wali Mohamed. Tall and soft-spoken, he stands with his arms behind his back in his tiny cell, with its dusty carpet and pencil drawings of tanks and fighter jets on the wall. He shares the space with two other inmates.

If found guilty, Mohamed could be stoned to death. But the evidence in his case doesn't meet the strict standard set for Shariah adultery cases. To convict someone, there must be four Muslim male eyewitnesses to the act. On the other hand, prisoners here are presumed guilty until proved innocent. Afghan authorities predict Mohamed will receive a stiff five- to seven-year sentence.

"It is harsh," concedes Ghulam Mohamed Dareeze, a law professor, author and former law school dean at Kabul University. "But here, according to tradition, it is a serious crime. It is a very big shame for that family. He must be put in prison."

In their zeal to enforce Islamic law, the Taliban publicly chopped off the hands of thieves and whipped drug dealers. Relatives of victims shot convicted murderers in crowded stadiums. These gruesome spectacles outraged the world.

But Shariah law - a system used in a handful of Muslim states - ruled Afghanistan long before the Taliban came, and law enforcement officials here say it will continue to do so long after their collapse.

Afghan traditions also affect the law. Courts and tribal leaders have sanctioned so-called honor killings: any close relative who finds a man and woman having sex outside of marriage has the right to kill them both.

The woman Wali is accused of having an affair with was shot to death by her brother-in-law. He is being held at the Kabul Provincial Jail on murder charges, but only because he didn't catch his sister-in-law in the act, Afghan authorities say.

Actually, says Martin Lau, an expert on Islamic law at the University of London who is studying the Afghan legal system, the Koran does not permit honor killings - contrary to assumptions here.

"Many - I would think most - Afghans believe it is Islamic law," he says.

Afghanistan's legal system is particularly hard on Afghan women. For them, running away from home is a crime. So is seeking a divorce. Women almost never accuse men of raping them, since the four-eyewitness standard applies. If the man is acquitted, legal experts say, the accuser can be charged with having engaged in illicit sex - and her accusations used as evidence against her.

Outside of Kabul and other cities, there is barely any law at all. There are no police in most rural areas - just gunmen and pliant mullahs enforcing the decrees of warlords. In several provinces, including Ghazni southwest of Kabul, governors have refused to recognize judges appointed by the interim government, court officials say.

Part of the problem is sheer confusion. Since 1964, the nation has suffered a succession of coups, assassinations and civil wars, and seen five new constitutions. Each new government has issued its own edicts. Many are outdated.

After the 1990 drug law was adopted, United Nations officials say, Afghanistan underwent severe inflation. Today, the fine for cultivating poppies is just $1.

All the decrees by Taliban leader Mullah Omar - including those banning kite-flying and requiring long beards - were repealed in late December. Outside of that, no one seems certain which laws are in effect. So judges appear to be picking and choosing among those they are most familiar with.

"There are quite a lot to choose from," says Lau.

Meanwhile, prisoners like Wali Mohamed are piling up in the Kabul Provincial Jail.

Prisoners sleep in doorways and halls, crowding up to 17 in a single room. Authorities provide only enough food for 250 prisoners, the theoretical capacity of the jail. Instead, there are almost 400 - and some have been forced onto half rations.

There are also 16 women in the jail. Many have escaped from fathers and husbands. One married woman in her 20s who ran off with another man, jail officials say, faces a stiff prison sentence. Authorities would not permit a male reporter to speak to her.

"They will punish her," predicted Gen. Mohamed Khalil Aminzhada, chief of the jail and deputy chief in Kabul's police force. "They will not release her."

When the Taliban fled, every jail and prison in Kabul emptied. Perhaps 10,000 inmates escaped from the infamous Pol-e-Charki prison east of Kabul. Many were political prisoners, or jailed by religious police for listening to music or gambling. But thousands of others were being held for serious crimes.

Aghi Ghuljan, a 28-year-old taxi driver, sits in jail, very much afraid. He fears, he says, that authorities will cut off his hands. He was hired by three Jalalabad merchants to bring them to Kabul to change Pakistani rupees into the local currency - the afghani - at the city's riotous Currency Exchange.

When he drove the merchants back toward Jalalabad on April 3, the Toyota Corolla trunk stuffed with sacks containing 12 billion afghanis, worth about $400,000 at current rates, armed men in another car robbed them.

The merchants accused Ghuljan of tipping off the bandits in one of the largest robberies in Kabul since the Taliban left. The courts, he fears, may want to make an example of him.

"This is the worst thing that has happened to me," he says.

Afghans warn the West not to expect too many changes, too swiftly, in their legal traditions, which are intertwined with their tribal culture and fundamentalist religious views.

"This is not a democracy," says Aminzhada, the former general and deputy chief of police. "Democracy belongs to progressive cultures and literate people. We are not against democracy, but we will have a very hard time to reach this level. It is an Islamic society. People are Muslims. The Sharia law will be implemented."

When the accused finally reach court, they find few safeguards for their civil rights.

Police charged Rohilla, a 30-year-old Kabul man, with trying to sell a minuscule amount of heroin - 100 milligrams - on a Kabul street corner for about 60 cents back in December. They charged the hunch-shouldered, sad-faced man with being a heroin dealer.

Trials here are normally secret, but court authorities allowed a reporter to sit in on Rohilla's.

The courtroom consisted of a narrow office on the second floor of a building near the jail. Chief Judge Mohamed Kazem Rashid sat behind the only desk.

In what may reflect the influence of the days of Soviet occupation, two assistant judges also presided. (Russia still uses a three-judge system.)

In theory, Rohilla could have hired one of the few defense attorneys, who are beginning to reappear after being banned by the Taliban. He couldn't afford one, and there are no public defenders.

The trial was brief.

An assistant attorney general read a statement of the charges and evidence against the accused. He noted that Rohilla, who is illiterate, confessed to police. Because he couldn't sign his name, the confession bore his thumbprint. No witnesses were called.

Did Rohilla have anything to say? "Actually, I'm not a heroin dealer," he protested. He just wanted to sell a bit of heroin that he hadn't smoked himself. The judges sent Rohilla out of the room so they could deliberate.

"His crime is clear," said Parwin, a 30-year-old assistant judge. Rohilla, she said, deserved a year in prison.

Gulhraim, a 45-year-old assistant judge suggested eight months. Chief Judge Rashid suggested a nine-month term. That was the final word.

Rashid pressed a battery-powered bell on his desk. Face drawn and eyes darting, Rohilla reappeared, escorted by a skeleton-thin guard dressed in a green wool military uniform.

"Your crime was heavy," Rashid said gravely. "But we are giving you a light punishment."

Rohilla looked stunned. "I don't accept that," he said, demanding another trial. He had barely finished speaking when the guard locked manacles on his wrists and led him away.