AUS DEM SPIEGEL
Ausgabe 21/2008

A Deadly Text Free Speech Case Tests Afghanistan

By Jochen-Martin Gutsch

Part 2: 'It Wasn't Easy for Me to Demand the Death Penalty'


"He is easily offended," says Nazir, a fellow student. "He isn't an easy person. Pervez asked questions about politics and religions, questions the instructors didn't want to or couldn't answer. Sometimes they would accuse him of thinking in an un-Islamic way, and then he would accuse them of not thinking at all."

There were complaints. The court file contains an instructor's official complaint against Kambaksh for being disruptive in class. "Pervez underestimated the whole thing until the end," says Nazir, his fellow student.

On Jan. 22, the day of the hearing, Kambaksh based his case on a single argument, more or less: his right to freedom of opinion, holding it out to the court like a protective shield. He had written down a statement, which he was not permitted to read in its entirety. He invoked an article in the constitution. The court invoked Sharia law. He spoke of laws written by humans, and they spoke of laws created by God. Kambaksh and the court faced off like two boxers on the opposite sides of the ring.

"He kept repeating that he had not committed a crime, and that he believes in freedom of opinion," recalls Shafiqa Akbar, who has been working in the judicial service for 26 years and has been a prosecutor for 23 years. "He began to read a statement, but it was not a legal plea. He wanted to give a political speech. He wanted to have a discussion with us. I said: 'My boy, are you aware that this is a courtroom?'"

At the appeals court in Kabul, Akbar has the reputation of being one of the best prosecutors in the provinces. "It wasn't easy for me to demand the death penalty," she says. "He was still so young."

Judge Shamsurahman Mohmand, 53, a graduate of the Department of Sharia Law at the University of Kabul, presided over the hearing. "I asked him whether he could defend himself. He said: 'Yes.' I asked him about his health. He said: 'Everything is fine.' Then we began."

It was no layman's court, devoid of legal expertise, that convened on that day in Mazar-i-Sharif. Nor was it a tribunal of religious fanatics. This is what makes the case so difficult. It would be easy to explain away the verdict if it had come from laymen or fanatics. But not with this court. "Under Article 130 of the constitution, Sharia law can be applied to crimes that are not covered by the criminal code. And so I requested that Sharia be applied," says Akbar.

"The evidence against Kambaksh was clear," Akbar says. "We had a sheet of paper containing the text, with his name at the top. We had his confession. We had 11 written statements from students and instructors at the university. He was told that he could request an attorney. But he didn't. He was told that he had the right to remain silent. But he didn't. He was told that he should name counter witnesses. But he didn't. We said: 'Appoint your father, someone we can talk to, because you don't understand us.' But he continued to refuse."

Shafiqa Akbar shrugs her shoulders. Her image of Kambaksh is that of an obstinate child. He was given the hand that would have saved him, but he rebuffed it. Bridges were built for him, but he refused to walk across them. Judge Mohmand says: "I stood up and walked over to him. I said: 'My son, you can deny everything. Just say that you were not the source of this piece of paper. You have the right to remain silent. You are making a mistake.'"

Kambaksh says that his brother Yaqub tried to get him an attorney, but that no one felt confident enough to defend someone accused of blasphemy. Kambaksh says that he was under the impression that the sentence had already been decided, and that everything went very quickly. Kambaksh says that the things he was accused of are not liable to prosecution. He insists that freedom of opinion is unassailable.

Both sides were unwavering, firmly entrenched in their respective worlds.

Judge Mohmand handed down the death penalty. A copy of the sentence -- another piece of paper -- was handed to Kambaksh, who was then led from the courtroom.

A Barometer of Progress

Visiting Kambaksh at the Pol-i-Charkhi Prison is no easy matter. It requires a permit from Sarwar Danish, the country's justice minister. The Kambaksh case has become famous, mostly because no one in Europe or the United States understands why the case should exist in the first place. However one feels about blasphemy, it should not be punishable by death, goes the thinking.

Thus, a case that began in a small provincial court in Afghanistan entered the realm of world politics. President Karzai became involved, as did the United Nations, US Secretary of State Condoleezza Rice, and Hans-Gert Pöttering, the president of the European Parliament. The British newspaper The Independent started a petition among its readers to gain the release of Kambaksh in faraway Afghanistan, and his cause even triggered a small demonstration in Kabul.

The case now functions as a barometer of progress in the country. The West sends soldiers, money and advisors to Afghanistan. Everyone is waiting for the country to make its big step forward, a step in the direction of democracy, human rights and all the other good things from places like the United States and Germany, things of which no one can say for sure whether the Afghans even want them. Kambaksh's story now appears as evidence that not much has changed in Afghanistan.

Sarwar Danish, a quiet, amiable man, has served as Afghanistan's justice minister for more than three years. In the late 1970s, he fled from the Soviets to Iran, and after the fall of the Taliban he returned to Afghanistan. Now he sits in his office, his back to a bookshelf full of the kinds of law books lawyers like to consult, and gazes at a gilded statue of Justice judiciously dispensing the law on the desk in front of him.

Danish could call it a mistake. He could say that the provincial court up in the north issued a flawed ruling. But he doesn't.

"This person, Kambaksh, is a young student, a radical who doesn't consider his actions," he says. "He published things that are directed against our religion. The Koran is revered and respected by all Muslims. This is why Muslims cannot be expected to accept unjustified, hostile attacks. The attacks must be treated and punished as blasphemy. Blasphemy is prohibited everywhere in the world, and certainly in Germany. A court of appeal will soon review the sentence against Kambaksh. In Afghanistan, there are many steps before an execution can take place. In the end, the president makes the final decision."

Danish taps his finger against the gilded statue of Justice on his desk. "The symbol of law and justice," he says. "An international symbol." He makes it sound like a shared direction, like some straightforward, global idea. But sitting in Danish's office, one gains a sense of how complicated, in fact, everything is.

And how will President Karzai decide, if it becomes his decision to make? Danish smiles politely. "Our president has only allowed 15 people to be executed in six years. He doesn't like to do it at all."

Danish pulls a small, blue book from his bookshelf, which he intends to give as a present at the end of the conversation. He glances at the attractive cover with its gold lettering. The book is a copy of the Afghan constitution. But whether it means much to Danish is questionable.

Article 34 of this constitution states that freedom of opinion is inviolable. But Article 1 defines Afghanistan as an Islamic republic, and Article 3 stipulates that no law may contradict the holy religion of Islam. Afghans can think, say and write what they please. But they start running into problems when God enters the picture.

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© DER SPIEGEL 21/2008
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