March 5, 2015
Kabul: President Ghani’s spokesman has told AAN that jailed Afghan photographer Najib Musafer will be released from Pul-e Charkhi, although he gave no date. Musafer took a photograph of girls parading in an Education Day ceremony seven years ago and sold it to a production company which turned it into an image advertising Etisalat telephones. One of the girls complained, and Musafer was eventually sentenced by the Supreme Court to six months imprisonment. There are many strange aspects of this case, including that the courts have never specified which aspect of sharia law it deemed Musafer had breached. AAN’s Ehsan Qaane, a law graduate, and Kate Clark, a former BBC correspondent who knew Musafer as a photographer during the Taleban regime, have been looking into the case and find the law protects neither photographers or their subjects, or indeed Afghan citizens generally from the arbitrary decisions of the state.
Najib Musafer is one of Afghanistan’s most noted photographers. (1) Clark first met him when he was a student on a clandestine video camera course she taught in Kabul in early 2001 (photographing living beings was illegal at the time). Born in 1963 and with a degree in Fine Arts from Kabul University, he was one of a group of photographers and journalists participating in the ‘Hunger Belt’ project. They were tasked with getting footage and news stories out of the Central Highlands which, like much of Afghanistan, was suffering the worst drought in a generation. The project also delivered food aid across (Taleban/Northern Alliance) frontlines that winter and kept mountain passes cleared of snow for the first time ever. The organisers wanted the outside world to know what was happening in this remote part of the country – this was before mobile phones and the internet and, for the most part, international journalists had reached Afghanistan – hence the media side to this humanitarian project.
The humanitarian aspect to Musafer’s work was evident as his career flourished in post-Taleban Afghanistan. He has taken some of the more human and memorable photos of this period, working for the Killid Media Group (see some of his photos here) and setting up his own centre, the 3rd Eye Photo Journalism Centre in Pul-e Surkh, Kabul (see some of its photographs here) with other photographers. Musafer has put on numerous exhibitions in different parts of Afghanistan and abroad and also taught new generations of photographers.
Musafer in trouble
Najib Musafer’s current problems began in 2007 when he took photos of a national celebration for Education Day at the Ghazi Stadium in Kabul. Organised by the Ministry of Education and with President Hamed Karzai in attendance, Musafer and others were accredited to cover the event. In the court papers, which AAN has viewed, it says he sold two pictures, one of girls parading, the other of boys, to the Seventh Art Production Company, for 200 dollars each. In the contract, which is among the court papers, he agreed that Seventh Art could use the photos with the Etisalat communications company in advertising.
Seventh Art, according to its owner, Sayed Habib, cropped the photo a little and changed the image, replacing the picture of a basketball which the girls had been carrying with the Etisalat logo. Etisalat paid Sayed Habib 500 dollars and he also signed a contract agreeing that his company would be liable if there were any legal complaints.
Etisalat then used the image of the girls in a nationwide advertising campaign, putting up 20,000 billboards and posters. One of those pictured, an older teenage girl (who we will not name here) complained, writing to the Ministry of Justice to say that the use of her image in the adverts had damaged her reputation and she had received threats. She asked for justice against Etisalat. In the court papers, it says she initially asked for compensation of one million dollars, later reducing this to 10,000 and a visa to Germany.
The then Minister of Justice (now Second Vice President), Sarwar Danesh, wrote to the legal department of his ministry (riasat-e huquq) to look into the issue. That he contacted this department suggests he, at least, thought it was not a criminal, but a civil or commercial case (which fall under the remit of the riasat-e huquq). However, the department asked the Attorney General’s Office, which only deals with crimes, to follow it up.
The prosecutors at the Attorney General’s Office spoke to everyone involved, the girl, Musafer, Habib of Seventh Art and Etisalat (particularly its legal advisor). The girl, at this stage, wrote to say her case was only against Etisalat and also that she had forgiven Sayed Habib (who had apologised). She had never mentioned the photographer in her complaint. The prosecutor decided it was a civil, commercial case. However, he was overruled by his superior who said it should go to court, based on Article 236 of the Penal Code:
The person who supplies or attaches or archives any printed documents, writings, paintings, slides, [kalishaha – images?], statues, engraved images, codes and other things and pictures that are against public culture and behaviour, with the purpose of trade, distribution or rent, shall be punished in jail for not longer than two years or a fine of not more than 24000 Afghanis.
The state took no action yet against Etisalat – the two marketing managers, both Arabs, were no longer in the country and the legal advisor said he had known nothing about the manipulation of the image and had been in Pakistan when it had happened. (This case is still open.)
Musafer goes to court
On 6 December 2009 (15/9/1388), the primary court decided to base its case on Hanafi jurisprudence, the body of sharia law according to the Hanafi school of Sunni Islam which the vast majority of Sunni Afghans belong to. Article 130 of the constitution allows recourse to Hanafi jurisprudence where Afghan law is silent. However, the court never specified what aspect of religious law it was using:
The Court of Public Security (Diwan-e Amniat-e Ama) of the first district [of Kabul], in its judicial session on 15 Qaus 1388 [6 December 2009], on the basis of Article 130 of the Constitution, finds you, Najibullah, son of Mehrabuddin, responsible for selling a photo without the permission of the victim and you, Sayed Habibullah, son of Sayed Anwar, responsible for changing the photo and selling the photograph to the Etesalat Company with the purpose of business and printing advertisements. Each of you are fined 10,000 Afghanis. (2)
After the ruling, the prosecutor wrote to his superior, saying he agreed with the court’s decision. Both men thought there was no need for an appeal. However, it seemed the Deputy Attorney General did not agree, as the case did go to appeal, which needed his order. The Attorney General’s Office argued that the primary court had used the wrong law and the punishment was too lenient.
Three years later, on 3 December 2012 (13/9/1391), the case was heard by the appeals court which also ruled against Habib and Musafer and upheld the fine, but this time used Article 236 of the Penal Code. Presumably, it felt Afghan law was not silent on this matter and recourse to Hanafi jurisprudence was unnecessary. Neither man was present in court. If the Attorney General’s Office had sent them a summons, copies of the letter are not in Musafer’s file. A (new) prosecutor then decided the punishment was too light and the case should go to the Supreme Court.
On 1 January 2013 (12/10/1391), the Supreme Court reviewed Musafer and Habib’s cases. It reverted to using Article 130 of the constitution under the still unspecified aspect of Hanafi jurisprudence and increased the punishment to six months in jail.
Yet, it was only two years later, on 22 February 2015 (3/3/1393), that the Kabul police came for Najib Musafer. Friends and colleagues suspect the photographer may have offended someone powerful, although his laggardly detention may simply have been triggered by an order by Ashraf Ghani to the Attorney General’s Office to deal with all unfinished cases. We have yet to find out if Sayed Habib is also in jail or not. We could get no confirmation either way. His phone is not being answered.
Musafer’s friend and colleague, Reza Sahil who is also from 3rd Eye, told AAN the police took him to Kabul’s detention centre and then, two days later, to Pul-e Charkhi jail. Since news of his arrest emerged, there has been pressure on the government to review the case – from both legal rights activists and journalists. News of a presidential decree, which would not remove Musafer’s guilt of the crime, but would be an official forgiveness of it, has been circulating for some days. By law, once a case has gone to the Supreme Court, an official pardon is the only way to release a convicted person from jail. President Ghani’s legal advisor, Abdul Ali Muhammadi, has now written on his Facebook page that a presidential decree forgiving Musafer will be signed today.
Legal and procedural gaps and errors – no-one is protected
It seems reasonable to say that the girl’s image should not have been used without her consent. Here, photographer, production company and Etisalat would all seem to be at fault. Musafer said in his defence that manipulating images was outside his code of conduct as a photojournalist (3). Obviously, advertisers manipulate images all the time. He may well have been naive in this instance. It is also possible he should have known better, especially given that he signed a contract accepting liability for how it was used.
From the point of view of the girl, taking part in a public event was not the same as giving consent for her image to be used in an advertising campaign. Her complaint of harm done to her reputation also looks reasonable. However, the law hardly protected her or protects others like her who feel their image has been misused. Article 236 of the Penal Code does not even actually cover the offence she suffered, given that it was not the content of the photo that offended “public culture and behaviour” – otherwise the president of Afghanistan would have to answer for having overseen a ceremony offensive to Afghans. Rather, it was the manipulation of the image and its use in a national advertising campaign which meant her picture going up in thousands of locations, which is what caused her offense. Again, this was not an offence to “public culture,” but (potentially) to her personal reputation. Moreover, the key issue was the use of her image without her explicit consent, something which is not covered by Article 236.
Moreover, the phrase in Article 236 “offending public culture and behaviour” is so vague that almost anything could be banned or allowed on the whim of the prosecutor and judge.
The court’s nod to Hanifi jurisprudence without actually specifying what exact aspect of sharia it had in mind goes against natural justice. Such a ruling offers no guidance or protection to either photographers or their subjects. How do those working in the industry know they have broken the law? How can those who feel their reputation has been harmed know if what happened was illegal? (4)
However, Musafer’s offense hardly seems to match the punishment, whatever his offence actually was. Moreover, why was only the photographer and the production company and not Etisalat pursued by the state and why was the case pursued when the complainant had, very early on, dropped it? It is easy to see that harm was done to the girl, but in the absence of her complaint, what actually was the offence against the state (known as haq ullah)? Should the case have gone to a criminal court at all? Several of the legal experts working on it thought it was a purely civil or commercial affair.
There are also several procedural aspects of the case which were illegal. Under Article 9 of the Structure and Authority of Courts Law (2005), a court has to mention the reason/s, evidence and the exact article of a law on the basis of which it made its decision basis. The primary court and Supreme Court mentioned Article 130 of the constitution which refers the case to Hanafi Jurisprudence, but did not mention what exact aspect of sharia they had in mind.
Under Article 53 of the same law, a case cannot be sent to appeal if the sentence of the court is a fine of less than 50,000 Afghanis. (5) In this case, the fine was 10,000 Afghanis, yet the Attorney General’s Office sent it to appeal and to the Supreme Court. In another procedural breach, Article 76 of the 2014 Criminal Procedure Code demands that a short sentence be enacted within a year of its passing or it ceases to apply. In this case, two years had passed. (6) One would also like to know whether Musafer and Habib had actually been summoned to appear at the appeals court – which is the court’s duty.
A breach of freedom of speech?
Journalists have reacted to the case as one against free speech (see for example, here. This is not quite correct given that the reputation of the girl photographed was potentially harmed, and she appears to have given no explicit (certainly no written) consent for her image to be used. However, they are right in saying that Musafer’s case demonstrates how arbitrary the decisions of court and prosecution can be and that Afghan law gives almost no protection or guidance (7) as to what action is legal or illegal for photographers or their subjects. One also has to ask how many other Afghans are jailed – or freed – on grounds as capricious as those which led to Musafer being imprisoned. He, at least, is a public figure with friends and colleagues to champion him who hope he will soon be free.
(1) See Musafer’s biography here.
(2) This is another strange aspect of the case. The public security court is normally used for crimes against internal or external security, anti-narcotics cases, etc.
(3) See, for example, the Associated Press code of conduct, which starts:
Pictures must always tell the truth. We do not alter or digitally manipulate the content of a photograph in any way.
The content of a photograph must not be altered in Photoshop or by any other means. No element should be digitally added to or subtracted from any photograph. The faces or identities of individuals must not be obscured by Photoshop or any other editing tool. Only retouching or the use of the cloning tool to eliminate dust on camera sensors and scratches on scanned negatives or scanned prints are acceptable.
(4) Afghanistan passed a Mass Media Law in 2009 (see the text here) which covers advertising (Article 3). It explicitly protects freedom of speech, while also specifically outlawing “works and materials” which are contrary to Islam and other religions, those which defame, insult of are offensive to people or legal entities or which damage their “personality or credibility,” those which contravene the Constitution or penal code or which harm the “psychological security and moral wellbeing of people, especially children and adolescents.”
The law does not mention penalties for violations; rather it envisages other laws being passed: “Laws regarding the copyright, establishment of unions, punitive rules for media violations, advertisements, and seeking [access to] information shall be enacted in separate laws.” (Article 52)
(5) According to Article 53 of the Structure and Authority of Courts, if the amount of a fine is less than 50,000 Afghanis, the decision of the primary court is the final decision and the case can not be sent to appeal.
(6) Statute of Limitations for Punishment: Article 76:
The punishment shall be dismissed after passage of the following time periods after issuance of verdict:
1 If sentenced to execution, after 25 years.
2 If sentenced to continuing imprisonment, after 20 years.
3 If sentenced to long-term imprisonment, after 10 years.
4 If sentenced to medium-term imprisonment, after 3 years.
5 If sentenced to short-term imprisonment, after 1 year.
The previous codes were silent on this issue. However, in Afghanistan, the legal principle holds that if a new law benefits the convicted person, it applies to him/her. Moreover, Article 21 of Afghanistan’s Penal Code explicitly accepts this principle. For example, if an action was a crime according to an old law, but not according to a new law, the sentenced person should be released.
(7) Afghanistan has no copyright or specific defamation law.
Author: Kate Clark
For the Afghanistan Analyst Network