Afghanistan: Paying for Justice in Khost
In much of Khost, a Pashtun province in southeast Afghanistan, crimes and civil cases never go before state courts or prosecutors. Instead, people take their disputes to traditional councils for arbitration.
There is no shortage of material for these informal trials, often conducted by local leaders who are unfamiliar with Afghan state legislation and are often illiterate. Land ownership is a constant source of dispute, but the councils or “jirgas” also handle feuding, robbery and murder.
The problem with this ad hoc form of justice is that it costs a lot of money. Members of jirgas demand fees for meeting to hear a case and pass judgement. Poorer residents of Khost say the price of obtaining a measure of justice is too high to make it worthwhile.
When it comes to serious crimes, the Afghan state judiciary often never gets to hear of them, and even if it did, it has no institutions on the ground in much of Khost to deal with them. In other cases, individuals do attempt to get lawsuits heard in the provincial centre, only to give up in frustration at the long delays and turn to the jirga instead.
A further problem is that verdicts delivered under customary law may be accepted by all parties at the time, but they ultimately lack the binding force needed to prevent long-running feuds from breaking out again, at the cost of many lives.
Khost has 12 administrative districts, eight of which – Nader Shah Kot, Gorboz, Musa Khel, Qalandar, Bak, Sabari, Dwa Manda and Aspari – have no courts or prosecution service offices, despite a decade of institution-building in Afghanistan since 2001.
For this two-month investigation, IWPR looked at one district, Gorboz, on the border with Pakistan. Gorboz has a population of 86,000 living in 80 villages, according to a survey conducted in 2008 by an NGO called Health Net.
Anyone who gets into a dispute here has no option but to ask for a jirga to be convened.
Eight residents who told IWPR about cases they had been involved in said the costs were so high that they sometimes exceeded any damage payments awarded, or even the value of the property that was in dispute.
Saber Jan, 20, has a grocery shop in his home village of Shekh Amir, and also owns some farmland.
About a year-and-a-half ago, he got into a dispute with fellow-villager Hajji Lambot, who objected to him irrigating land that he said was his.
"Hajji Lambot claims ownership of part of my land, which he says is his, so I have no right to irrigate it," he said.
Saber Jan took the matter to a jirga because he felt the district government head and police chief were biased toward his opponent.
Four jirga meetings have been held over a period of three months, with seven or eight senior tribal elders and Muslim clerics participating each time. No decision has been reached yet.
Saber Jan says he always knew the case would cost him a great deal.
"I spent 40,000 kaldars on the four sessions; my land isn’t even worth 30,000 kaldars," he said ruefully. “Kaldar” is the local term for Pakistani rupees, widely used in southern Afghanistan. Saber Jan spent the equivalent of 420 US dollars.
Saber Jan concluded, "I am a Pashtun. I spent money for my ‘ghayrat’ [zeal; honour], and I will spend more."
The rules for holding a jirga in Gorboz follow a general pattern.
First, each party to the dispute has to pay 2,100 dollars in advance to the assembly chairman, usually the local mullah. The idea is that if either party abandons the case before a verdict is reached, the money will be used to pay for food to be handed out to the village’s residents as a sort of compensation.
Once started, the jirga members – usually ten to 15 in number – convene for between three to six sessions, held at the homes of the disputing parties, in the local mosque, or in an open field.
The disputing parties have to pay each jirga member a fee of ten to 20 dollars and also provide them with lunch.
Khalil Jan, 26, also from Shekh Amir, drives a minibus as his main occupation but like most villagers, owns some farmland as well.
He got into a dispute with a local man called Naqibullah, over an area of land 8,000 square metres in size.
After paying the initial “management fee” of 2,100 dollars, Khalil said, "I paid 1,000 kaldars to each of eight tribal elders and 1,500 kaldars each to two imams at the first session.”
There have been three more sessions, and no end is in sight. Khalil reckons the four meetings have cost him 2,000 dollars, in addition to his advance payment. He believes the disputed land is worth 70,000 dollars.
"I don't know how much more I will have to spend until the jirga makes a final decision," he said.
Tribal elders who take part in jirgas say it is only fair they should be paid for their contribution. IWPR interviewed 12 elders in different villages, among them Hajji Khaki, an elder from the Nasruddin tribe in the village of Woro. Now 65 years old, he has been the village chief or “malek” for the past 30 years.
"I receive between 2,000 to 5,000 kaldars from both parties to the dispute at every session," he said. “We are not taking bribes from people – they pay us themselves."
FRUSTRATION WITH FORMAL JUSTICE MECHANISMS
The city of Khost, the provincial centre, has a court plus a prosecutor’s office with 18 officers.
The wheels of justice grind so slow in Afghanistan that many plaintiffs give up in disappointment. It is also difficult for them to make frequent trips from outlying districts.
Four of the eight jirga cases that IWPR looked at in Gorboz were originally brought to the state authorities in Khost.
Mohammad Anwar Jan, a 30-year-old farmer from the village of Kasi, said his land dispute with another man sat with the prosecutor’s office in Khost for a month without moving forward at all.
"I had to report to the prosecutor’s office every morning. I grew tired of going there. I spent 8,000 kaldars but achieved nothing. So I was forced to refer my case to the village jirga," he said.
Judicial officials in Khost say the reason there are no offices in the eight districts is that security is a concern, and also that they lack qualified staff. They said new recruits were not prepared to go out and work in the districts for a salary of 240 dollars a month.
"We have only 18 prosecution officers in the centre of Khost, where the [province’s] population is estimated at around one million," Mohammad Khalil Ghairat Zadran, head of the appeals service in Khost, said. "The most important thing for an prosecution officer is his personal safety and the security situation in the area where he works. There is no security in the districts of Khost."
Colonel Mohammad Yaqub, head of security at Khost police headquarters, confirmed that prosecution service officers were afraid to travel around the province, and said his force was not in a position to provide them with six to eight bodyguards.
"We can take the attorney officers out to the districts in the morning and bring them back to the city in the evening in police Ranger vehicles, but there is a risk of bomb attacks or direct Taleban attacks along the way,” he said. “We can’t guarantee their lives."
RULINGS NOT STRONG ENOUGH TO BREAK CYCLE OF FEUDING
The fact that people generally respect decisions made by the jirgas, but there is a limit to their power, especially in the case of bitter tribal feuds, which are liable to resume after a short break.
IWPR discovered six cases where this has happened in the last two years, and interviewed witnesses and participants.
The Borikhel and Nasruddin tribes have disputed ownership of around 12 square kilometres of land in the Makhi Kandu and Chikri for the last 80 years.
The dispute often erupts into violence. Salidad Khan, a Borikhel member from the village of Chandikhel, recalls “30 people killed or injured” in sporadic clashes during his 40-year lifetime. Five people died in one clash with the Nasruddin in 2010, he said.
Located in the mountains a few kilometres from the Durand Line which forms the border with Pakistan, the land has no ownership certificates granted by this or past Afghan governments.
Wali Shah Hemmat, the district government chief in Gorboz, told IWPR that the land belonged to the state, and not to either tribe. But he acknowledged that both groups felt it was their own.
The most recent jirga to attempt a mediated settlement was convened in July 2010, but the feud has continued.
Salidad Khan said the two tribes had 900 families between them, enough to field small armies equipped with a range of personal weapons – from Kalashnikovs and older bolt-action rifles to Russian-made heavy-machine guns and rocket-propelled grenade launchers.
A previous investigation which IWPR carried out in 2011 (Afghanistan: Khost Residents Armed to the Teeth) indicated that some 50,000 illegal weapons were in private hands, and were frequently deployed in feuds. In the report, Dr Hedayatollah Hamidi, director of public health in Khost, was quoted as saying there were 120 casualties from such feuds in 2011 alone.
The health department in Khost provided IWPR with figures for the first half of 2012, showing IWPR a list of 130 people from various tribes, all killed in land disputes.
"All 130 were killed with Kalashnikovs, pistols and rifles which people keep at home," Dr Hamidi.
If the Afghan government is manifestly unable to contain these local wars, the jirga as traditional justice mechanism is clearly failing to do so, either.
More generally, the lack of opportunities for judicial redress in much of Khost weakens any sense of statehood for people there.
Provincial governor Abdul Jabar Naimi, acknowledges that people in Khost use traditional justice mechanisms because government has so little reach. He predicts that they will continue doing so until the authorities pay for prosecution service buildings in each district.
Farid Zaher is an IWPR-trained reporter in Khost province, Afghanistan.
This report was produced as part of IWPR's Afghan Critical Mass Media Reporting in Uruzgan and Nangarhar project.