Three distinct judicial systems are in force in Afghanistan: the official courts, the traditional jirgas and Islamic scholarship. The country's constitution stresses the importance of international standards such as the UN's Universal Declaration of Human Rights, while jirgas and religious leaders largely ignore them. Michael Nienhaus reports
News out of Afghanistan is usually bad, whether it is about the tenuous security situation or the unrelenting influence of warlords and drug barons. The Afghan government is still struggling to assert its authority, and it continues to lose legitimacy.
Although there is positive news, it gets far less attention. Examples include the growing number of girls going to school, construction of hospitals and roads or the implementation of irrigation and drinking-water projects. Moreover, the Afghan people support such efforts by the international community, at least in the provinces in Afghanistan's northeast and north.
One tough question remains, however: can the rule of law and the separation of powers be introduced in Afghanistan? The international community has made doing so a priority. But achieving these goals will not only depend on a judiciary that is independent and free of corruption. It is also crucial that every citizen be allowed access to the courts, regardless of their family background, gender or income. Moreover, the courts' jurisdiction will have to be recognised as binding. None of these conditions are met in Afghanistan yet.
Traditional conflict resolution
Historically, Afghans hardly ever experienced an independent judiciary. While they are loyal to their families, village or their ethnic groups, Afghans are not loyal to the state. Therefore, Afghanistan can hardly be considered a single nation – even King Zahir Shah never controlled the entire country during his reign from 1933 to 1973.
Civil and criminal cases are usually adjudicated by traditional means, regardless of where the case is being heard or which ethnic group is involved. Jirgas, as traditional councils of elders are called, decide 70 to 80 % of all cases. Sometimes, these councils seek the advice of religious leaders. On the other hand, even state courts sometimes refer cases to jirgas. Doing so may serve peace in the short term, but it also proves that Afghans remain deeply suspicious of the state-run judicial system. Indeed, the official judiciary is prone to let cases pend for many years. Furthermore, many people believe that it takes bribes to get favourable rulings from the judges.
Traditional conflict resolution, however, has several drawbacks. One of them concerns women in rural areas. For two reasons, they frequently cannot invoke their rights:
– Many women do not know what their rights are, neither under the constitution nor under Islamic Sharia law
– Women may only appear before jirgas in the company of men, so they cannot receive any direct legal assistance. The sole exception is in a few districts in Badakhshan Province, home to the Ismaelites.
A further problem is that traditional conflict resolution is based upon customary law and Sharia law, both of which are often at odds with the Afghan constitution and its emphasis on the legally binding nature of the UN human rights charter. Members of jirgas tend to disregard these principles.
For instance, child marriage is still common, though banned under the secular constitution. But as child marriage has been the norm so far in rural areas such as Kunduz Province, that area's spiritual leader, the maulawi, considers the practice legally binding. He says that the people do so too, and that the tradition is therefore legitimate.
Another widespread tradition is the practice of compensation, according to which a woman or a girl can be "handed over" to another family that has been the victim of a crime. If a man murders the member of another family, he may, for instance, be required to turn his sister over to that family as a kind of reparation for the crime. This practice obviously violates basic human rights and, accordingly, the constitution of the country. Nonetheless, such compensations still occur, and particularly so in regions with majority populations of Ismaelites, Pashtuns or Tajiks.
Examples like these illustrate that customary and Sharia law can undermine the state's authority to mete out punishment. Many people, especially those living in rural areas, still neither trust state institutions, nor do they know much about them. Warlords and drug barons, who stack the jirgas with their followers so they can assert their interests in the event of land disputes, for instance, are particularly troublesome.
It would be difficult to combine all three judicial systems. They are often in conflict, even though the constitution states that all rules, laws and provisions have to be consistent with Sharia law. But state judges and prosecutors have only limited knowledge, if any at all, of traditional and Islamic law, in case they studied secular law.
There are two ways to study law in Afghanistan. There are the Sharia universities that teach traditional and religious law, whereas secular law is taught at the "Faculties of Law and Political Sciences" at the universities (for instance in Kabul and Mazar-i-Sharif). Only recently did the government start to draft a unified law curriculum.
It is quite difficult to find qualified lawyers in Afghanistan. There are some, but they usually work for international non-governmental organisations. These NGOs pay much higher salaries than the government. Judges earn only between $ 60 and $ 90 a month – whereas NGOs pay lawyers between $ 900 and $ 1,200 dollars a month. Organisations based in the USA frequently pay even more.
There are far too few female lawyers in Afghanisaten, and far too few female judges. Only three women justices work in the four northern provinces of Balgh, Kunduz, Tahar and Badakshan. Women, whom rural traditions already put at a disadvantage, suffer the consequences. Experience shows that women are rarely able to obtain a divorce from a jirga, even though Sharia law allows that to happen. But that law is nearly impossible to enforce; after all, women are not allowed to appear before a jirga on their own.
Things are difficult for women even before state-run courts. It is considered indecent to speak of marital problems in front of someone of the opposite sex, and the judges are almost always men.
The greatest obstacle women face, however, is their lack of knowledge of the law. That is the starting point for many Afghan NGOs. They offer workshops to boost the level of women's education. Workshops that deal with topics like health, child rearing or sewing also tackle legal issues. Women need their husband's permission to take part in such events, and some even obtain permission from the local mullah. NGOs often stage meetings with men in attempts to convince them of the workshops' importance. The mullahs play a special role: they can use Friday prayers to disseminate the message.
Afghanistan's Department of Women's Affairs has affiliated offices in all provincial capitals. This is where one does find women who are well versed in legal matters and who can provide advice to their fellow countrywomen. Sometimes, they assist women in the courtroom. It would probably make sense to support for these offices, especially at the district level. That way, women who lack money or have not obtained permission could still get advice, without having to travel to the provincial capital.
Schools – and in particular girls' schools – are probably the most effective place to boost legal awareness. Several approaches for doing so have been developed. What matters now is that teachers become more aware of rule-of-law issues. NGOs are organising relevant workshops too. However, principals at girls' schools complain that they have had to obtain permission from both the fathers and the mullahs for the girls to attend relevant lessons.
These are long-term suggestions on how to improve the legal situation for women in Afghanistan. Old-fashioned ways of thinking must be overcome – ways of thinking that are deeply entrenched and span several generations. But if Afghanistan is to develop a democratic legal system, then the country's people will have to develop a sense of justice.
© Development & Cooperation 2008
Michael Nienhaus is a lawyer and has advised German Technical Cooperation (GTZ), the government agency, in Afghanistan.