65 decrees, edicts and instructions from Mullah Hibatullah have been published in the Official Gazette (announcement here). The original orders in Dari and Pashto, as well as an unofficial English translation by AAN are available in the Resources section of the AAN website. A list of the orders (brief title and number) can also be found here.
A forthcoming report on Taleban publications will examine, a book by their Chief Justice, Abdul Hakim Haqqani, “Al-Emarat al-Islamiya wa Nidhamuha” (The Islamic Emirate and its System of Governance), which may be the fullest and most authoritative account yet of the Taleban’s vision of governance.
Ruling by decree is nothing new. The Islamic Republic’s presidents, Hamid Karzai and Ashraf Ghani, and before them, the first Taleban amir, Mullah Omar, also issued decrees and edicts which had the force of law. According to the 2004 Constitution of the Islamic Republic, the National Assembly, with its two houses, was the highest legislative organ in the country (the cabinet could also suggest laws to MPs). The president could issue decrees of two types: administrative (regulatory) and legislative only in emergencies and which were supposed to be temporary and needed parliamentary approval (if MPs voted a decree down, it would be rescinded). The cabinet could also issue regulations, and ministries could issue policy documents, such as action plans and other administrative documents, without the need for approval by the cabinet or parliament.”
The Islamic Emirate’s legislative process is far less clear and there is far less literature on its nature and organisation. Existing literature suggests that among the Emirate’s key attributes are that “all branches of government are subject to the authority of the emir” and that “basic rights are defined/limited by Sharia as interpreted by the emir/leadership” (see this USIP report).
Hibatullah is the highest authority in the Emirate, and his orders are the law. Under the Emirate, there is no parliament and legislative, executive and judicial powers are the exclusive purview of the amir. The 2004 constitution has apparently been suspended (according to UNAMA, quoting the acting Deputy Minister of Justice on 22 September 2022 in which he said it was unnecessary (see TOLO News, “Officials: Afghanistan Does Not Need a Constitution”, quoted in UNAMA’s May 2023 report “Corporal Punishment and the Death Penalty in Afghanistan” p10). Islamic judges and muftis, including the Emirate’s fatwa-issuing institution, the Dar al-Ifta, are also powerful and their rulings are enforceable. Relevant departments have the authority to draw up legislation. It is reviewed by the Ministry of Justice and a special commission before being sent to Hibatullah for sign-off (see decree (9) on page 67 of AAN’s unofficial translation dated 24 October 2022, which sets out the process and principles for enacting legislative documents).
Like his predecessors, the numbering of Hibatullah’s orders is inconsistent, for example, in his first year as leader, he issued four orders, numbered 82, 85, 86 and 87, with 83 and 84 missing. One of the orders from 2022 also refers to an earlier unpublished set of instructions by name, date and volume number: it had forbidden officials from holding “needless and lavish” wedding ceremonies when they married for a second, third or fourth time. The 2022 order instructed the Taleban’s ‘morality police’, Amr bil Maruf, to identify those disobeying instructions and report them to the leadership.
Karzai and Ghani both issued decrees that were never published. It was unclear whether this was because they were too sensitive or too trivial or just because the system was not standardised. Maybe this is also the case for Hibatullah.[1] Whether or not this is a complete list, there is much in the 65 published orders that is of interest: they point to what was important at the time to the leadership.
The orders span the last seven years, with the first issued in 2016, when Hibatullah took over as Taleban supreme leader following the killing of his predecessor, Mullah Akhtar Mansur, in an American drone attack (Hibatullah’s second order accepts and endorses all of Mansur’s orders). 19 orders were issued during the insurgency (four in 2016, six in 2017, none in 2018, seven in 2019 and two in 2020), and the bulk since the Taleban and Hibatullah captured power in August 2021.
The insurgency-era decrees are mostly to do with keeping control of fighters and commanders and ironing out arbitrary or potentially problematic behaviour. Some cover conduct in war – how to treat prisoners, not growing long hair and not using profanities in communications – this is “inappropriate” and gives the enemy “an excuse for insulting the mujahedin [as the Taleban call themselves].” Also important is curbing behaviour in the field which would harm higher-order priorities, for example, accepting government soldiers who have switched sides, even if they bring no weapons with them, and not persecuting defectors; the leadership wanted to encourage defections and government soldiers and officials needed to have confidence that amnesties would be honoured to come over.
Other insurgency-era orders are to do with quasi-state functions, sometimes with an apparent eye to trying to prevent administrative corruption in the ranks, for example the ban on seizing land, the order to hand over Emirate property to one’s successor upon redeployment, not publishing books without the leadership’s permission and the proper use of seals. One of the decrees, about how to certify a person is missing so that a widow can re-marry (the decree only refers to dead male spouses), looks to be a response to a need for legal clarity in an organisation which saw so many of its members killed.
After the Taleban’s capture of power and its transformation, once again, into Afghanistan’s rulers, many more of Hibatullah’s orders have been to do with administration and ensuring order within the state: which ministries should report to which of the acting Prime Minister’s deputies, relocating departments and courts, defining the duties of various government bodies, defining the stages legislative documents go through and ordering the Supreme Court to send its decisions to the leadership. A good number look to be trying to head off administrative corruption, while many deal with the security services, including purging the ranks of “undesirable and corrupt people.”
However, it is noticeable that the 46 orders issued since the Taleban’s return to power are not aimed at redesigning the administration of the Afghan state. The ideology and aims of the Emirate certainly represent a very clear break from the past. The Emirate’s leaders, from the amir down to many in civil service middle management, are also new to their posts, along with almost all the security forces and judiciary personnel. Yet, the Emirate has largely kept the administrative and financial systems and institutions of the Republic intact, and Hibatullah’s orders are not those of a leader seeking to overturn them. Rather, the changes they institute are largely marginal to the state’s bureaucracy, financial system and administrative systems, aimed not at nullifying them, but, as the Taleban presumably see it, improving what they have inherited.
Some themes running through the orders
Hibatullah appears particularly concerned with two areas of governance, both as leader of an insurgent movement and later ruler of a state – firstly, the courts and secondly, the fighters who would become the Emirate’s security services – with some overlap, for example, the treatment of prisoners of war and the role of military courts.
This attention is hardly surprising. The Taleban’s founding legend, from 1994 Kandahar, is that its formation was prompted by the need to deliver justice and free the people from tyranny. During the insurgency, Taleban courts, whether fixed or mobile, have been the key service the movement has delivered, including during the insurgency in areas under its control or influence (education, health and other services continued to be delivered by the Islamic Republic, as AAN’s 2018-2021 series on service delivery in insurgency-influenced districts detailed). As to the orders’ focus on fighters/the security services, from 1994 until 2021, the movement’s primary activity was fighting. Much of the leadership’s attention has naturally been devoted to organising and controlling its large body of armed men. Some themes emerging in the orders are looked at in more detail below.
Land grabbing and other corrupt administrative practices/abuses of power
Land is the subject of six out of the 65 orders – roughly ten per cent of the total – and features both before and after the takeover: state land can be leased to the public (2017) and; private land must not be seized by the ‘mujahedin’ or anyone else (2019). After the takeover, the first two published orders concerned land. In the first five weeks after the Taleban captured the Afghan capital, Hibatullah ordered the end to what he said had been “the norm” under the “puppet administration” – the usurpation of state land. He also ordered provincial governors “to rigorously prevent the grabbing of Emarati [state] land and hand over usurpers to face Sharia law.”
A month later, in October 2021, he again banned land-grabbing, this time for land whose ownership was not clear. Only the supreme amir, the order decreed, “Based on necessity and expediency, can give [such land] to a member (of the Muslim community) as property.” The decree drew a parallel with what it said was the amir’s right to “withdraw from the public coffer [bait ul-maal]” and presumably give money to someone, again because of expediency. This is something also banned for others, elsewhere in this body of orders. In March 2023, the ban on officials selling land, or transferring land to individuals or corporations, was repeated unless there was a specific decree from the amir.
Land has always been and will remain a source of controversy and conflict in Afghanistan. Throughout the war, since 1978, it has been seized by successive administrations and victorious commanders, creating layers of claims and counterclaims. Even before the Saur Coup, rulers in Kabul ceded land, typically to particular ethnic groups and tribes for political reasons, making ownership an even more historic source of lingering conflict.That land has emerged again as an issue requiring the amir’s attention is entirely unsurprising.
Another issue that has appeared both in insurgency-era orders and since the re-establishment of the Emirate concerns state property: officials who are redeployed should not take “office accessories and state equipment,” including vehicles, with them but hand the property over to their successor (2019). In 2022, that ban was repeated twice, and in the second became even stronger and more explicit – a part of a long decree outlining the formation, duties and powers of the Security and Screening Commission, whose main task was to purge the ranks of the security forces, the text said:
Any individual involved in looting or removing without authorisation from the leadership, equipment, military or non-military vehicles, ammunition or gear belonging to the Islamic Emirate will be hunted down and the property of bait ul-maal (public coffer) will be recovered. If felt necessary, they should be expelled from the defence and security organisations and introduced to the military court.
The amir is explicitly excluded both from the ban on taking from the public coffer and the ban on transferring ownership of land. In these areas, Hibatullah has taken on monopoly powers. It is easy to see how new cycles of conflict could be set up by his giving away land, if the transfers are seen as biased or unfair. As to taking from the public coffer, if at scale, this would undermine the public finance system, given that budgeting and ensuring spending does not exceed revenues is so crucial to the steady running of government and stewardship of the economy.
There are also a slew of orders attempting to prevent different types of administrative corruption that have been issued since the Taleban recaptured power and its officials came to control so many resources. They include: a ban on double salaries (2022), that revenues must be collected transparently and then, “to avoid irregularities and chaos,” must be handed over to the Ministry of Finance, with no independent spending of them (2022), the establishment of a National Procurement Commission (October 2022), and various spending limits for ministries and departments set, above which the Commission has to approve procurements (also October 2022) and – because corrupt procurement was still a problem? – a ban on state officials and employees and private companies in which officials and employees have shares or management responsibilities tendering bids for goods, services or gaining contracts for building materials or mines (2023).
A particularly strong decree, quoting a Hadith threatening hell for perpetrators, was issued in 2022, forbidding ‘cronyism’ in public recruitments; officials should not award jobs to their relatives or friends, it said. The message was repeated in a later order that year in a long decree concerning the behaviour and attitudes of the ‘mujahedin’. They are ordered to act only for God, to be pious, fair, kind and just, to eschew arrogance, to “strictly avoid ethnocentrism, regionalism, language-centrism and cronyism and refrain from cheating the public coffer (repeated twice in the same order), to pray in the mosque and support the families of the martyrs. The order appeared aimed at closing the gap between how the movement views its ideal self and the reality on the ground.
Other orders look less concerned with preventing corruption and more to do with ensuring financial matters are regular and systematised: for example, aligning the financial affairs of state bodies when it comes to salaries, e’asha(lunch and other free food provided to staff) and other expenses within the financial system of the Central Bank and Ministry of Finance (2022) and aligning salaries in the three branches of the security services (Ministries of Interior, Defence and the General Directorate of Intelligence) (2022). In the same year, the amir also ordered the Commission of Economy to activate all idle state-owned sources of revenue generation and inform the leadership about them.
Justice: courts, prisoners, punishment and torture
15 orders, or just under a quarter of the total, deal with justice, including the courts, lawyers, prisoners and legislation. Before the takeover, the main focus was on the treatment of prisoners of war, with some orders repeated after the takeover, but concerning prisoners in general.
Hibatullah’s first published order, in June 2016, referred to what he said were recent instances of “captured prisoners of war being arbitrarily subjected to tazir [discretionary] or inappropriate punishment and, in some cases, even killing without the knowledge of the Islamic Emirate of Afghanistan’s General Directorate of Courts.” No one has the right to punish a prisoner, the order insisted, nor exempt them from punishment, with the exception of the amir or his deputy. Furthermore, filming the scene of a killing was banned, and if an execution was ordered, it must be by firing.
In 2017, the ban on filming executions was repeated, along with a ban on filming the beating of enemy soldiers and implementing hudud and qisas punishments, and all executions had to be approved by all three tiers of the justice system (primary, appeal and supreme) and the leadership.
Similar orders were given in November 2019 – quoting the Quran and Hadith, to treat captives well – and in November 2020, that “only a Sharia court has the prerogative to decide on the guilt of a suspect and punish criminals.” That order goes on to instruct all officials and mujahedin to pay the utmost attention to two points:
1. No one has the right to beat with sticks, [use] whips [dura] or cables or torture [a person] in any other way without a court order. When mujahedin take someone into custody, be they a political or criminal prisoner, they have no right to punish [that person] without a court order;
2. No one has the right to take photographs of the scene of a punishment or to film it.
Violators will be “considered criminals,” the decree goes on to say and will be punished for “disobeying Sharia norms and decrees, disturbing public order and defaming the Islamic Emirate.” In 2019, Hibatullah again ordered officials to refrain from torturing, because torture, like tazir punishments, could only be carried out with a court order. Also, suspects must not be kept under investigation for more than a month, unless, again, officials obtain a court order. Without court orders, it says, torture or punishment is “not justice, but oppression [zulm]. Preventing zulm is an obligation [wajeb], while allowing it to happen is forbidden [haram].”
For human rights advocates, this and some of the later orders are significant because, under International Humanitarian Law, torture is always illegal – regardless of whether a court or anyone else has authorised it. Others have deployed torture in Afghanistan in recent years, the United States military and CIA and the Republic’s intelligence agency, the National Directorate of Security (NDS) in particular, but they either denied it was happening, insisted what they did was not really torture or implied it was necessary, even though it was illegal. Only the Emirate has been so frank about torturing detainees.
After the takeover, in March 2022, all these commands were repeated: avoid torture and punishment of detainees – both are the “sole prerogative of the courts,” while keeping detainees under investigation was now not permitted beyond ten days, again, unless with a court order.
The frequent repetition of the same commands strongly suggests there has been a continuing problem with torture and arbitrary punishment. The latter has been tracked by UNAMA in its human rights reporting, most recently in a report published on 7 May 2023, which collated evidence both of non-court authorities, eg provincial and district governors, implementing punishments after a formal decision, and non-judicial officials, such as Amr bil Maruf, police and intelligence officials, carrying out punishments ad hoc. (See UNAMA, “UNAMA Brief on Corporal Punishment and the Death Penalty in Afghanistan” and AAN’s analysis.)
Since the takeover, the amir has placed an emphasis on the organisation of the justice system, especially the place of the military courts, setting limits on their jurisdiction (2021), ordering the establishment of an implementation force, merging military courts within the structure of the Supreme Court (2022) and finally, dissolving the Ministry of Defence’s military courts (2022).
Other orders have moved all specialisations in Islamic jurisprudence (fiqh) and issuing fatwas from the Ministry of Justice to the Ministry of Higher Education (2022), with Justice also losing the Law Department, this time to the Supreme Court (2022). The time taken for laws to be drafted has been set (2022), as has the time given to law courts to consider cases (2023), while new procedures were established for licensing law firms (2022).
The Emirate’s fighters/security services
Many of the 65 orders focus on controlling the ‘mujahedin’ and, after the takeover, organising them into security services and purging their ranks. The last published order before the Taleban’s capture of power was a decree liquidating ‘general fronts’, issued in January 2021. Like the mujahedin factions before them, the Taleban recruited and organised themselves organically in a multi-level military hierarchy of district and provincial commanders, ultimately all falling under the movement’s Military Commission. A ‘mahaz’, usually translated – somewhat confusingly as ‘front’ – is a grouping of groups of fighters, totalling anywhere between 200 and 1000 men, led ultimately by a single commander. This was highly useful and effective for organising an insurgency, but was always risky for the leadership as it created the potential for rival centres of power to emerge if a commander’s influence extended too widely. This decree sought to limit fronts to their commander’s own province. It banned recruitment from other provinces and said that any group loyal to a commander, but active in another province should come under the orders of that province’s governor. “General fronts,” it said, were “forbidden in the structure of the Islamic Emirate.
After the takeover, several orders were issued to do with ‘cleansing’ the ranks and ensuring those who fail vetting cannot join other services. The US military did not destroy biometric data gathered from members of the Republic’s Afghan security forces and NDS, which meant the Emirate had a database to work from (see reporting, for example, by Human Rights Watch, on 30 March 2022). In 2021, a new body, the Military Commission, was set up with the task of purging the Emirate’s security forces of “undesirable and corrupt people.” This was followed in 2022 by an order to the security services to register ‘mujahedin’ with biometrics taken and positions and salaries specified. Later that year, a very long and detailed decree set out the duties of another new body, the Security and Screening Commission, also with a mandate to purge.
Conclusion
The orders published in the Official Gazette give us insights into what was important to the leadership at particular moments. Where problems have not been resolved, orders have been repeated, for example, the multiple bans on various types of land-grabbing, officials taking state property when they are redeployed, arbitrary punishment and unauthorised torture.
The body of orders also gives insight into the thinking and principles behind the orders. References to consultations with the ulema and reference to Hanafi jurisprudence feature prominently in the texts. Citations backing up the orders include some verses from the Quran and Hadiths and named collections of fatwas and exegeses of the Quran (tafsir).
There are also insights into what appears to interest or annoy Hibatullah personally. Only ask for a fatwa – a religious decision on a particular matter – officials were told in 2022, if the issue you are concerned about has not already been decided in your ministry’s rules and regulations. Was the leader being pestered for decisions?
Another order, issued just before the start of the new university year in 2022, delved into the minutiae of the religious education curricula of university students, even referring to spelling mistakes in the draft. The length and detail suggest this subject is particularly close to the Taleban’s supreme leader’s heart.
All orders can be read in the Resources section of the AAN website, both the PDF original, issued by the Ministry of Justice and an unofficial English translation by AAN.
Edited by Roxanna Shapour and Jelena Bjelica
Afghanistan Peace Campaign
