How Fair is Traditional Justice in Afghanistan?

Thursday, 4 December, 2014

The link has been copied

IWPR staff

The value of traditional  community assemblies as a dispute-resolution mechanism has been debated in a series of IWPR-organised events across Afghanistan.

The majority of participants in debates held in Kandahar, Nangarhar and Logar provinces believed that convening a council of community leaders, known as a "jirga" or "shura",  was an effective and culturally appropriate method of resolving local conflicts.

However, some argued passionately that the system was not a fair way of solving problems.

In Kandahar, locals said that ordinary people still turned to jirgas rather than formal judicial processes to solve disputes, and that most were happy with the outcome.

Haji Mullah Abdul Bari, chairman of the Arghandab district council, told participants that this approach to resolving disputes was approved of in the Muslim tradition. However, those taking part in jirgas had to be pious and well-informed about religious law. When that was the case, both parties to a dispute would accept the consensus ruling .

“There was a dispute over land ownership between two families in Arghandab that went on for 20 years,” Abdul Bari said. “Both sides sustained casualties as a result. When they referred the issue to scholars and tribal elders, a jirga was convened. We made a decision that both sides were happy with. Both families now live calm and contented lives on their properties.”

A civil society activist, Mohammad Isa, said the historical tradition was a matter of national pride. While he agreed that it would be preferable for disputes to be resolved through a formal court process, he acknowledged this did not usually happen.

“Although the country has a justice system with civil laws, people mostly rely on local solutions for local problems, because of the corruption in the judicial system,” he said.

Afghanistan’s new president, Ashraf Ghani, has noted concerns about corruption in the judiciary, and has asking the Supreme Court and the attorney general’s office to take robust action on it.

However, others argue that jirgas cannot deliver impartial justice for all.

“These local decisions do not uphold human rights because they do not guarantee justice,” Abdul Aziz Ikrami, spokesman for the Afghanistan Independent Human Rights Commission in Kandahar, said.

Ruqia Achakzai, head of Kandahar’s department for women’s affairs, said the assemblies often sidelined the rights of women and of others, too.

“In most cases involving local jirgas, the innocent party does not obtain justice,” she said. “Most outcomes favour the powerful. In particular, decisions involving women are completely against both sharia and civil law, because women are always seen as the guilty party.”

Participants in the debate in Logar province stressed that civil society institutions should play a part in resolving disputes.

Nur Ahmad Tasal, a civil society leader, acknowledged that Afghanistan was a devout country where most people turned to Islamic scholars and tribal elders to adjudicate on issues. But he said these decisions sometimes contradicted civil law.

“Most of the time, disputes between the families of a murderer and his victim are resolved by handing over a girl [in marriage] as compensation,” he said. “The murderer has to give his daughter or sister to the victim’s family. In such cases, women’s rights are severely violated and justice is not done.”

Tasal added that in cases of marital disputes, conservative traditions meant that mediators never found in favour of the wife.

One participant, Shazia, asked what kind of person would make a good mediator.

“Someone with sufficient experience in arbitration who is well-informed about the traditions of this country as well as the legal requirements,” Tasal replied. “A person who is respectable and has an honourable background, someone whom both parties to the case trust.”

Another participant, Azita, said that the root causes of disputes needed to be addressed.

 “Families bear a lot of responsibility,” she continued. “They should raise their children so as to avoid future disputes. They should be taught tolerance and raised to put the national interest ahead of their own personal concerns.”

However, Maulavi Asadullah, chairman of the council of Islamic scholars in Logar, argued that people trusted experts on religion more than other authority figures, so they were the best suited to mediating in disputes.

“Afghanistan is an Islamic country,” Asadullah said. “People respect religious scholars. They turn to them most of the time to resolve disputes. Scholars have resolved many tribal and family disputes taking into account both the laws of Islam and of Afghanistan. They have even mediated in peace talks between the government and the insurgents.”

“The scholars want only the best for our society,” he continued. “We always try to prevent disputes and find solutions to them in accordance with the laws of Islam.”

In Nangarhar, debate participants said young people should have a role in resolving local disputes as they were better-informed about legal matters than their elders.

“There’s a tradition in families and communities that younger people should not speak in front of their elders, while elsewhere in the world, younger people’s opinions are respected,” said Ehsanullah, head of the youth council in Nangarhar’s Behsud district.

Debate participant Abdul Basir Sabawun criticised the authorities for failing to value young people.

“The new government should pay particular attention to young people both within and outside the framework of the administration, because they are society’s energetic workforce,” he said.

Malek Nematullah, a tribal elder in Behsud, agreed that young people should be more involved in jirgas.

“We have taken account of young people’s opinions when solving disputes, and it is true that our youth are educated and well-informed,” he said.

At the same time, Nematullah emphasised the importance of traditional structures and the accumulated knowledge and experience that tribal leaders brought to them.

“The other day, our elders solved a complicated dispute that the courts and lawyers had proved incapable of resolving,” he added.

This report is based on an ongoing series of debates conducted as part of the IWPR programme Afghan Reconciliation: Promoting Peace and Building Trust by Engaging Civil Society.