The Taliban took control of Kabul on September 27, 1996, though it would take them more than a year to control the whole of Afghanistan. The battle to remove the Taliban was one of the first priorities of Operation Enduring Freedom (initially called Operation Infinite Justice) when it was launched in September 2001, following the attacks of 9/11. Since that time, 482 U.S. military personnel have died in and around Afghanistan. 281 other members of the coalition have also been killed, including 87 Britons and 78 Canadians. This year, 7 U.S. soldiers and 7 coalition military have died.

Last year was the bloodiest year of fighting, with 117 U.S. and 115 Coalition fatalities. There are few signs that the fighting will diminish. The Taliban insurgents are already planning a spring offensive to match the one they mounted in 2007.

The Coalition has tried to restore political stability and democracy to Afghanistan, a nation riven by tribal factions that has not had any lasting peace since it was established as a monarchy in 1747. It was initially caught up in the expansionist strategies of Persia, Russia and Britain, and attempted its own expansions into India. Though a superficially "modern" constitution was briefly introduced in 1964 and democratic elections took place in 2005, one recent case highlights how "modern Afghanistan" is, at its core, essentially backwards, repressive and archaic.

On Tuesday January 22nd last week, a 23-year-old student of journalism was sentenced to death at a court in Mazar-i-Sharif in Balkh province, in the north of Afghanistan. A panel of three judges sentenced Sayad Parwez Kambaksh, of Balkh University, for committing a "crime" that should have no place in a modern society. Kambaksh had breached Afghan law by "insulting Islam."

Kambaksh (also spelled Kaambakhsh) also worked as a journalist for the newspaper Jahan-e Naw ("The New World"). He brought into his university class a page downloaded from an Iranian internet site. This was of an article that questioned why Muslim men can have four wives while women have no such rights.

According to Hafizullah Khaliqyar, the deputy attorney general of Balkh province: "Based on the crimes Parwez Kaambakhsh committed, the primary court sentenced him to the most serious punishment which is the death penalty."

The court at which Kambaksh was tried was not open to the public, and the student was not allowed any defense lawyers. The "crime" took place last fall, and since his arrest by agents of the National Directorate of Security (NDS) on October 27th, Kambaksh has been in jail. He is still in prison, while his appeals process continues. Under current conditions, there is little chance Kambaksh will be reprieved, unless President Hamid Karzai intervenes. He has to appeal to two courts, and the death penalty can not be enacted until ratified by a higher court.

The legal problems facing Kambaksh reflect problems with the national constitution. They also involve religion. The week before he appeared in court, religious clerics from Balkh and Kunduz provinces held a demonstration in Mazar-i-Sharif, urging the government not to release him. The Council of Mullahs called for Kambaksh's death.

There are also political issues which appear to indicate that Kambaksh is being used as pawn to place pressure on other journalists who have exposed corruption, including his older brother.

Afghanistan has had various constitutions since 1922. The first constitution was deemed too radically Western by religious leaders, and in 1931 the government of Nadir Khan replaced it with a constitution based on the Hanafi School of Sunni Islam. The constitution as it now stands is essentially an updated version of the one which was introduced in 1964. Moves to establish democracy based upon a viable constitution in Afghanistan came from the United Nations' Bonn Agreement initiated on December 5, 2001 On January 4, 2004 after being approved by a grand council of tribal leaders (loya jirga) it became law, leading to elections on September 18, 2005.

The 2004 constitution maintains (Article One) that: "Afghanistan is an Islamic Republic, independent, unitary and indivisible", where (Article Two) "The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam," where "Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law." Despite Article Two's claims to religious freedoms, the Catch-22 comes in Article Three, where "In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam."

Article 130 of the Afghan constitution states: While processing the cases, the courts apply the provisions of this Constitution and other laws. When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts' decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence and in a way to serve justice in the best possible manner.

It is under Article 130 that Kambaksh has been sentenced to death. The constitution, approved by an unelected body of feudal leaders, allowed for the formation of a "Wolesi Jirga". This is a 249-member house of representatives, who are individually elected by ballot. However, the 2005 elections have allowed this Wolesi Jirga to be comprised of a bizarre mix of factions, warlords and Mujahideen fighters. These include about 40 Hezb-e Islami, former followers of Gulbuddin Hekmatyar.

Disturbingly, the elections also brought at least one member of the Taliban into the fold of government. Mawlawi Mohammed Islam Mohammadi was the Taliban's governor of Bamiyan province. During his gubernatorial office, he allowed the destruction of the giant 3rd Century statues of Buddha at Bamiyan in March, 2001. Mohammadi was elected in 2005 as a representative of Samangan province. This is the much-vaunted democracy, Afghan-style, for which coalition soldiers have laid down their lives.

The case of Sayad Parwez Kambaksh has been taken up by groups inside and outside of Afghanistan. The president of the European Parliament, Hans-Gert P??ttering, has written to President Hamid Karzai, asking for Kambaksh's life to be spared. The National Journalists Union of Afghanistan (AIJA) is based in Kabul. Rahimullah Samander, president of AIJA ,said: "This is unfair, this is illegal. This is too big for a small mistake ??? he just printed a copy and looked at this and read it. How can we believe in this 'democracy' if we can't even read, we can't even study?"

Article 34 of the Afghan constitution guarantees freedom of expression. It entitles every Afghan citizen the "the right to print or publish topics without prior submission to the state authorities in accordance with the law." Since the constitution came into effect, newspapers have proliferated in Afghanistan. Kambaksh's brother, Sayed Yaqub Ibrahimi, works as a journalist for the Institute of War and Peace Reporting. Ibrahimi has been responsible for articles which have exposed atrocities carried out by senior politicians in northern Afghanistan.

Ibrahimi has told the international press watchdog Reporters Without Borders (RSF): "Any case involving the press should be heard first by the Media Evaluation Commission before going to the courts. Furthermore, the prosecutor only referred the case to the courts after the Council of Mullahs said he should be sentenced to death for insulting holy texts."

 The Committee to Protect Journalists (CPJ) has published a copy of its letter to President Hamid Karzai, suggesting that Kambaksh was "being targeted in order to put pressure on his brother." The letter states that "journalists are left vulnerable to prosecution for cultural transgressions as determined by the Ministry of Information and Culture. The ministry does so with the backing of the National Directorate of Security (NDS) and the Nationwide Council of Religious Scholars of Afghanistan."

Kambaksh is not the only person in a similar predicament. Dr Ahmad Ghows Zalmay is a former journalist who has also acted as spokesman for the Afghanistan attorney general. He translated the Koran into Dari, one of the two "official" languages of Afghanistan. His translation was criticized for "misinterpreting" tracts in the book, and for not providing a copy of the original Arabic adjacent to his translation. In Taloqan city, in the northern province of the same name, 1,500 university students protested. In Nimruz province in the southeast, 1,000 people demonstrated against his translation.

On Sunday, November 4, 2007 Zalmay, who is an imam, was arrested as he tried to flee into Pakistan. He now faces charges of blasphemy. The arrest of Zalmay has been condemned by CPJ, Reporters Without Borders and the International Federation of Journalists. Before his arrest, emergency debates were held in the Afghanistan parliament, with senators calling for Zalmay to be punished. One senator said that Zalmay was "worse than Salman Rushdie."

Before the 2004 constitution was introduced, there were problems with members of the press expressing views that were deemed to be "un-Islamic". Two editors of the weekly "Aftab" were arrested on June 17, 2003. Sayed Mahdawi and Ali Payam Sestani were accused of "libeling Islam" after they published an article in the previous week, called "Holy Fascism." This article, written by Mahdawi, suggested that a moderate and progressive form of Islam should be practiced. The article stated: "If Islam is the last and the most complete of the revealed religions, why are the Muslim countries lagging behind the modern world?"

President Hamid Karzai ordered that the two editors should be released, but only to allow them to prepare defense cases for their trial. The publication "Aftab" was officially shut down by the Afghan Information Ministry. They went into hiding after Islamists demonstrated to protest their release from detention. On August 6, 2003, both men were sentenced to death by the Supreme Court. Before the trial, the 13-member Council of Mullahs requested the death penalty. This was upheld by Maulavi Fazl-e Hadi Shinwari, president of the Supreme Court. One Afghan newspaper had, before the sentence, published fatwas urging their death. The two editors fled the country.

On October 1, 2005, Ali Mohaqiq Nasab was arrested. He was the editor of a magazine called "Haqooq-i-Zan" or "Women's Rights", and published articles which had "insulted" Islam. One of these questioned the harshness of Sharia punishments, such as stoning for adultery. Another article maintained that apostasy was not a crime.

Mr. Nasab was arrested after one of President Karzai's religious advisers had complained to the Supreme Court. Rahimullah Samandar, president of AIJA maintained that Afghanistan's Media Commission convened on October 18, 2005, and ruled that Islam had not been insulted by his articles. The commission ruled that as he did not have experience, Nasab should be prevented from acting as chief editor of a publication.

According to analyst Robert Kluyver, the case was politically and religiously motivated. He said: "It is a case where conservative Shia clerics are fighting the more moderate Shia. In other words, it very much reminds one of the problem that exists in Iran. It was a general Shia issue. Meanwhile, Ali Mohaqeq Nasab was also a candidate for parliament [and was] attacked by more conservative Shi'a clergy for his more modernist views on religion." Shia comprise 15% of Afghanistan's population. 

Ali Mohaqiq Nasab was given a two-year jail sentence with hard labor by the High Court in Kabul on October 23, 2005. Judge Ansarullah Malawizada said: "The Ulama Council (Council of Mullahs) sent us a letter saying that he should be punished so I sentenced him to two years' jail."

Nasab appealed against the decision , and on December 24, 2005, his sentence was reduced to six months' imprisonment. Three months of this sentence was suspended. As he had spent three months in prison, he was freed shortly afterwards.

In March 2004, before any representatives had been elected to the national assembly (Wolesi Jirga) President Hamid Karzai signed a Media Act. Under this decree, journalists could be detained only after their cases had been examined by the 17-member Media Commission. In Ali Mohaqiq Nasab's case, this protocol was not followed. Article 31 of the 2004 media law nonetheless maintained that journalists could not write about religion. This law was later discussed by the Wolesi Jirga.

Hamid Karzai is somewhat hypocritical. In February 2002 he introduced an earlier draft of the media law, which he claimed would allow freedom of the press. He said: "People can have their newspapers, people can have their radios and they can write things, they can criticize us as much as they want."

Another reform of the media law was introduced in 2006, which again promised less restrictions on press freedom.

In June 2007, revisions to the media law were awaiting final approval, after being approved by the Wolesi Jirga on May 22, 2007. The 53-article legislation still contained questionable rulings. It still prevented journalists from producing "content that goes against the principles of Islam," "publicizing and promotion of religions other than Islam" and "materials inconsistent with Afghanistan's constitution." On June 21, 2007, the law was finally ratified.

On its path to becoming law, the government and the Religious and Cultural Affairs Commission claimed that a truly free media would allow individuals to be discredited. The head of the Religious and Cultural Affairs Commission had reason to distrust a free and open media. He is Haji Mohammed Mohaqeq of the Wahdat-e-Islami party, who was formerly Karzai's planning minister.

 As a commander in the anti-Taliban Northern Alliance, Mohaqeq was blamed for practices of decapitations and nailing opponents to walls. He is based in Mazar-i-Sharif, where Sayad Parwez Kambaksh is jailed. Sayed Yaqub Ibrahimi, Kambaksh's brother, has written critically of Mohaqeq and divisions within the Hazara clan to which he belongs.

The current troubles of Sayad Parwez Kambaksh and Dr. Ahmad Ghows Zalmay reflect serious problems at the heart of Aghanistan's government, and raise the question of whether or not Hamid Karzai is really a trustworthy leader. Sure, he is urbane and well-spoken, but as President he has power to veto any parliamentary rulings. He helped to shape the current constitution, with all its contradictions, and has done little to question the role of the clerics in affecting Afghan life.

In practice, Karzai's constitutional position is not dissimilar to that of the monarch in the 1964 constitution. When Karzai stood for election in 2005, many other presidential candidates boycotted the event. In 2009, there will be new elections. If Karzai is not re-elected, problems with the "democratic" nature of Afghanistan will remain.

All member countries of the coalition have seen their soldiers killed to keep Karzai's government in power. It should be the right of these countries to question if their continued investment is paying the expected dividends ??? freedom of the press and freedom of expression. Such are cornerstones of any democracy, and on these the current government has not delivered.

 In March 2006, the Western world was shocked that an Afghan convert to Christianity, Abdul Rahman, was sentenced to death for the "'crime" of leaving Islam. The judge who convicted him was Ansarullah Mawlawizadah, the same official who sentenced Ali Mohaqiq Nasab to two years' jail for insulting Islam. To avoid a diplomatic incident, Abdul Rahman was smuggled out of the country. At the time of Rahman's death sentence, Condoleezza Rice had said: "Afghanistan is in its evolutionary state as a democratic state. We will have to work to resolve these contradictions as they move forward."

The current plight of Sayad Parwez Kambaksh and Ahmad Ghows Zalmay indicates that there are aspects of Afghanistan's legislation, and indeed its constitution, that offer no protection against theocratic tyranny.

Article 7, clause one, of Afghanistan's constitution maintains that "The state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights."

Afghanistan signed the UN Universal Declaration of Human Rights in 1948. Article 18 of the Declaration of Human Rights specifies: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."

Article 19 of the Declaration states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

While Western soldiers put their lives at risk to bring democracy to Afghanistan, it is surely time that Afghanistan is pressured to make good on its pledges to abide by Articles 18 and 19 of the Universal Declaration of Human Rights. Anything less is a travesty against justice for the people of Afghanistan, and an insult to the soldiers who have died to secure their freedom. The Taliban were ousted from Afghanistan for their religious tyranny that enabled al Qaeda's terrorism. It is sobering to consider that the new "democratic" Afghanistan still sees fit to engage in what Sayed Mahdawi called "Holy Fascism."