The current ineffectiveness in Afghanistan’s justice sector is a legacy of three decades of war and factionalism but not of an historical absence of a formal system of independent adjudication of disputes through courts of law. That it has not been rebuilt, is less due to an inherent inability but to a lack of political will – because justice was seen as ‘counterproductive’ for ‘stability’, argues our guest author Nader Nadery(*).
The common wisdom held today among foreign experts working on the justice sector in Afghanistan is that there has never been a functioning formal justice system in the country. In fact, Afghanistan had a long-lasting culture of formal and largely independent justice from the late 19th century, which broke down in the late 1970s.
A century after King Ahmad Shah laid the foundation of today’s Afghanistan, all judicial affairs came under the authority of judges and Muftis who were appointed by and received privileges from the government. It was under King Abdul Rahman in the 1880s that Afghanistan’s formal justice sector was institutionalised, which later on evolved into an independent and functioning state institution in the first half of the 20th century.
According to Dr. Hashim Kamali and Dr. Ashraf Ghani, both of whom have conducted extensive research on the formation and development of the law and judiciary in Afghanistan, in the late 19th century all judges had to pass a state exam and were not allowed to continue to serve as religious leaders or in any other role, so that their independence could be preserved.
The current ineffectiveness in Afghanistan’s justice sector, characterized by politicisation, an inability to hold the powerful to account or to protect the poor and weak, is a legacy of three decades of war and factionalism not an historical absence of a formal system of independent adjudication of disputes through courts of law.
The Afghan government and its international partners’ approach to reconstruction and capacity building of the justice sector after 2001 has failed to reintroduce a legal system capable of serving the needs and protecting the rights of the Afghan people. There has been a lack of political will on the part of the Afghan government and, until recently, an absence of adequate donor finance to challenge impunity, combat corruption and invest long term.
Short-term fixes based on donor timetables were favored to allow the international community to tout progress, while calls by reformists to bring major criminals to justice and establish strong mechanisms for human rights protection were treated as counterproductive to stability. Insufficient co-ordination among donors and lack of proper interaction between Afghan justice sector institutions also contributed to the failure of reform efforts to produce results.
The consequences of the failure to establish justice under the rule of law are far-reaching. In the absence of formal justice throughout most of the country, people are turning to traditional dispute resolution mechanisms and to the harsh arbitration of Taliban ad hoc ‘courts’. Reversing the damage done and advancing real justice sector reform at this late hour requires principled commitment to upholding international standards as much as it does recommitment of assistance funds. If the international community wants a peaceful Afghanistan with a viable state, it must get serious about justice.
Critical reforms after 2001 were pursued in a haphazard and under-resourced manner with little follow-up. The Judicial Reform Commission functioned for a year and then disappeared. Dozens of laws were reformed but not enforced or even widely publicised. Capacity-building programmes for judges and attorneys were implemented but little effort was put into monitoring their quality or assessing their outcomes. A similarly shortsighted approach is still being applied to the training of police, with an emphasis on quantity over quality. Authority over correctional institutions was moved from the Ministry of Interior to Ministry of Justice and numerous prisons were rehabilitated to meet humanitarian standards only to be filled once more with many innocent prisoners, including hundreds of women and girls incarcerated for ‘moral crimes’, such as running away from home — crimes that appear nowhere in Afghan law.
Eight and a half years since the overthrow of the Taliban regime, the vast majority of Afghans have yet to experience impartial justice, and the formal justice system is absent in parts of the country. As an example, in Kandahar province there is only one judge for five districts and an enormous case backlog. Informal justice institutions have not only continued to operate but have proliferated in this legal vacuum.
According to a 2007 report by the United Nations Office of Drugs and Crime (UNODC) as much as eighty-percent of all disputes are dealt with through traditional dispute resolution mechanisms. Under the banner of culturally-sensitive peacebuilding, international donors have supported these parallel institutions, confusing the process of building a formal judicial system and inadvertently sponsoring human rights violations.
Traditional dispute resolution bodies, usually composed of male elders and based on local customs and interpretations of Islamic law, do not, as is commonly argued, offer basic but equal justice to all. They are monopolised by local strongmen and their decisions are geared against women, who are barred from participating, the poor, and individuals disadvantaged by family or tribal affiliation. In many provinces, councils funded through pilot programmes have still allowed women and girls to be exchanged to settle disputes between families and tribes.
Another widely-publicised case In February 2010 a young Afghan girl was flogged many times in public after an informal justice council headed by a local warlord sentenced her on charges of running away from her husband. An investigation was launched — and is yet to report — only after the Afghanistan Independent Human Rights Commission released the video of the incident filmed by one of its activists.
Elsewhere, in the absence of the rule of law and functioning courts, people have turned to the illegal Taliban justice systems to resolve disputes. Through provision of swift and rough arbitration, the Taliban have expanded their para-state and won new insurgent recruits. Unaware of the consequences of a poorly devised reconciliation process on the rule of law, justice and accountability, some members of the international community, including the UK, strongly support efforts that would reintegrate the Taliban and their associated legal systems.
Some even suggest that reconciliation with the Taliban may also result in improvement of the delivery of justice through the use of ‘the already effective Taliban justice systems’. However, a grim reminder of the Taliban’s harsh justice system was the 200 lashes and shooting in public of Bibi Sanubar on charges of ‘illicit affairs with a man’ in Badghis province and the stoning of a couple last week in northern province of Kundoz, which outraged many Afghans not only towards the Taliban’s way of delivering justice but also unregulated informal justice systems.
Where it does exist, the formal judiciary suffers from a deficit of professionalism. Most judges come from religious, not legal, backgrounds, and are poorly versed in both Islamic and civil law. Short-term training programmes, widely implemented by international donors, have been helpful but not sufficient to correct this. Even well-trained judges and lawyers face pervasive pressure from local powerbrokers and insurgents, and struggle to work impartially in a climate of intimidation.
A judge from Nangarhar province recently complained to me that he has only a bicycle for transportation after working hours, while local warlords ride in armored vehicles. How, he asked me, can he be expected to reject pressure to rule in favor of the powerful and well-connected when he has no physical protection? The judge then showed me a log he keeps of demands for preferential rulings. Page after page was filled.
Abuses of power continue largely because transitional justice efforts to end impunity for past crimes were not supported by the international community in Afghanistan. The international community applied a completely different standard in Afghanistan than it did in the Balkans, Iraq and other similar situations. Here, individuals responsible for some of the worst mass crimes of the late 20th century have been allowed to entrench themselves in all state institutions, where they continue to prey on ordinary citizens, undercut political reforms, and impede social reconciliation.
Not only has there been no move toward criminal accountability, but electoral vetting, a process vital to both transitional justice and democratisation, has been repeatedly botched. Of the four elections held since 2001, only the 2005 parliamentary elections witnessed any attempt at disqualifying members of illegal armed groups from running.
There has been less determination by the Afghan government and its international partners to prevent predatory militia commanders and notorious figures from becoming parliamentarians in September 2010’s election.
Calls by civil society and the population at large for transitional justice have been treated by the international community as harmful to peace. At a parallel civil society event during the London Conference on Afghanistan in January 2010, a reformist parliamentarian summed up the international community’s approach when she bitterly described how former Special Representative to the Secretary General Kai Eide warned a group of Afghan justice advocates not to endanger peace for the sake of justice. ‘Now we have no peace and no justice,’ she said.
A comprehensive action plan for Peace, Justice and Reconciliation adopted in 2006 by the government has never been implemented. Similarly the Afghan government’s plan on justice sector reform, ‘Justice for all’, part of the new Afghanistan National Development Strategy, is long on promises and short on implementation details.
On 21 July 2010 at the international Kabul conference the Afghan government made new commitments to ‘fully implement’ the national priority programmes presented to its international partners within the next three years. The National Priority programmes on good governance, rule of law, justice and human rights set new benchmarks and present a new window of opportunity for the justice sector in Afghanistan. Its emphasis on quickly expanding access to justice countrywide and the establishment of mechanisms to effectively end impunity and establish justice is laudable. Implementation of these benchmarks must be rigorously monitored by Afghan civil society and donors to ensure these priority programmes are measured by quality and accepted as a success only if they meet quality standards.
There are few more effective ways to counter insurgency in Afghanistan than the establishment of good governance and the provision of justice that ends impunity and serves as an alternative to the Taliban’s harsh arbitration. It’s time for the Afghan government and its international partners to summon the strength and political will, which has been absent over the last nine years, to realize in full the objectives and commitments made at the Kabul conference on governance.
(*) Nader Nadery is a commissioner in the Afghan Independent Human Rights Commission. He also serves as chair person of the Free and Fair Election Foundation.
This article appeared first on 1 September 2010 on the ‘Parliamentary Brief online’, here. We reprint it with the author’s permission (and a slightly changed headline) as part of our discussion about peace and justice.
This article was last updated on 9 Mar 2020