Afghanistan sometimes seems like a suicidal cat: bent on self-destruction, but having nine lives. It almost lost a life when the Kabul Bank collapsed in spectacular fashion in September 2010. Even before the diplomatic dustups over the weekend between President Hamid Karzai and the NATO-led coalition during a visit to Afghanistan by U.S. Defense Secretary Chuck Hagel, last week’s verdict by the Special Tribunal established to prosecute those involved in the collapse looks like it might cost another life.

Afghanistan neighborhood
Photo courtesy of NY Times

Afghanistan sometimes seems like a suicidal cat: bent on self-destruction, but having nine lives. It almost lost a life when the Kabul Bank collapsed in spectacular fashion in September 2010. Even before the diplomatic dustups over the weekend between President Hamid Karzai and the NATO-led coalition during a visit to Afghanistan by U.S. Defense Secretary Chuck Hagel, last week’s verdict by the Special Tribunal established to prosecute those involved in the collapse looks like it might cost another life.

The widely reported verdict imposed extremely light sentences on the former founder and the former chief executive officer of the bank, Sherkhan Farnood and Khalilullah Ferozi, respectively. Each received five years in prison, and even that might be served under the lenient “house arrest” conditions they have enjoyed since being detained. Farnood was ordered to repay $279 million and Ferozi $531 million. That would seem to be a stiff penalty, except that it seems unlikely the state will actually be able to recover that much.

As Drago Kos, the chair of the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC), put it, these sentences were “relatively light.” They also seem to have been imposed under political influence. As The Guardian put it: “The judges took less than 10 minutes to ‘deliberate’ on the convictions, issued a one-page verdict with no explanation of the sentences and the prosecution of some regulators among the accused appeared to have a tenuous legal basis, raising concerns about political bias.”

Even more problematic than what appears to be a miscarriage of justice, this verdict has several broader repercussions that could undermine Afghanistan’s future.

The first problem is the verdict itself. The original charges against Farnood and Ferozi included money laundering and embezzlement. These carried potential 20-year prison sentences, and conviction for money-laundering would empower the state to seize the missing funds. According to regulators, the forensic audit carried out by Kroll and Associates has revealed the location of most of the missing money, worth hundreds of millions. The failure to convict on money-laundering means that the Afghan state must rely on the goodwill of the perpetrators to see it returned. Their conviction on a charge of “breach of trust” is almost comical in its understatement.

Why were those crucial charges dropped? The Guardian’s suggestion of political interference is plausible. According to the November 2012 report of the MEC, the Attorney General deferred to the executive branch on who should be prosecuted. It is not unimaginable that the Chief Justice would defer to the executive on what they were prosecuted for.

In the meantime, the government has deprived itself of hundreds of millions of dollars of stolen funds, meaning that the financial “hole” has to be made up with public money from the budget, which is funded by a combination of the taxes paid by Afghans and international aid. In a poor country where everyone is worried about the effect of the ongoing reduction in international aid, the Afghan state has forfeited hundreds of millions of dollars.

The second problem created by this verdict is the effect it will have on the independence of Da Afghanistan Bank, Afghanistan’s central bank. Among those sentenced were some staffers of the central bank. There is no question that the bank had institutional weaknesses, which made it easier for Kabul Bank to escape oversight. But to turn those weaknesses into criminal charges seems like an act of intimidation designed to ensure that the institution will in the future be neither competent nor independent. The similarity of the sentences meted out to the architects and beneficiaries of the fraud with the penalties against officials in the central bank makes a mockery of the judicial process as well.

If there is a positive lesson from the entire episode, it is that financial pressure on the Afghan government can work. By coincidence, the International Monetary Fund’s “Extended Credit Facility Program” for Afghanistan expired in September 2010, just as the Kabul Bank scandal broke. The credit facility is based on a series of measures agreed between the IMF and the receiving country to ensure that the country’s financial sector is sound. Donor countries rely on the existence of such a program to justify development funding.

In the wake of the Kabul Bank crisis, the IMF placed several conditions on the new credit facility. It required that the Afghan government conduct a forensic audit of Kabul Bank, put it into receivership, and initiate an independent review of what happened. The Afghan government resisted each of these conditions. During the standoff, the non-renewal of the credit facility made it legally impossible for many donors to continue funding Afghanistan.

By April 2011, the effects of the lack of donor funding began to be felt, and the government essentially agreed on all three conditions. However, a side effect of this effective use of conditionality is that funding through the national budget was cut off for a considerable period of time for programs that were making a difference in the lives of ordinary Afghans. Furthermore, after the government minimally fulfilled these conditions to renew the credit facility in the run-up to the Bonn Conference of December 2011, international pressure ended, and only limited further progress occurred as all sides focused on achieving a diplomatic success and “grand bargain” at the Tokyo meeting of July 2012.

The special tribunal’s verdict does not resolve the Kabul Bank crisis; it merely creates a new set of problems. The international commitment to fund the Afghan government after 2014, made at Tokyo last year, depends on a number of accountability mechanisms. Both the way that the Kabul Bank prosecutions have been handled and associated questions about the independence of the central bank may provide donors compelling reasons to be less forthcoming.

A wiser Afghan government would be doing everything it can right now to put its financial house in order. Instead, it seems to be acting as if it’s on its first of its nine lives. It seems to me, though, that it’s getting dangerously close to cashing out on its ninth. What effect do you think will be the effect of the latest tensions between the U.S. and Afghan leaders? Tell us your thoughts by submitting a comment below.

Scott S. Smith is USIP’s deputy director of Afghanistan programs.

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