Afghanistan's tribal elders still balancing scales of justice

In its struggle to leave behind a viable justice system, the US considers the alternatives, writes ERNESTO LONDONO in Mehtar …

In its struggle to leave behind a viable justice system, the US considers the alternatives, writes ERNESTO LONDONOin Mehtar Lam, Afghanistan

MUCH ABOUT Maamour Jilani’s death in this eastern Afghan city six months ago is in dispute.

Relatives called it a murder, saying a beating brought on the 52-year-old’s heart attack. Family members of the man charged in the case, however, said the pre-existing condition made it an accidental death.

All agree however on one key issue: tribal elders, not the courts, should be the arbiters. “We don’t have any faith in the legal system,” said Rabani Gul, Jilani’s son. “Its decisions are not impartial. There will be no justice.”

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That vote of no confidence reflects a much broader sense of concern in Afghanistan as the United States and its allies struggle to leave behind a viable justice system.

After the US-led invasion of Afghanistan that helped topple the Taliban in 2001, western powers attempted to create a more modern justice system, building courthouses and training judges, prosecutors, police and defence lawyers. However, the efforts, which cost billions of dollars, have yielded a system that many Afghans deride as corrupt, arbitrary and subject to political interference.

Now the US and other international donors are spending millions of dollars on projects that aim to better understand and legitimise Afghanistan’s traditional justice system, known as “informal justice”.

“For a long time, the international community thought, ‘We want nothing to do with informal justice’,” says Sylvana Sinha, an expert on traditional justice at the Kabul office of the US Institute of Peace. “They’ve now realised the formal system does not have the capacity and they are starting to find ways to work with the informal one.”

For decades, councils of elders have acted as the supreme authority in Afghan districts and villages that have had little support from, or access to, the state. The almost exclusively male-run bodies have served as arbiters for everything from land disputes to murders.

Afghanistan’s informal justice system handles an estimated 95 per cent of disputes in the country. Some are settled with money, others with a handshake.

When it comes to criminal cases, rather than simply punishing an individual, elders aim to find arrangements that restore harmony in communities beset by discord. Sometimes this is achieved through “blood money” payments. In other cases, the tribe or family of a suspect must settle a score by providing the aggrieved party with one of its young women.

US officials say they have not abandoned the goal of building a robust court system, but they say they are paying greater attention to ways in which they can support the informal system, because it will almost certainly be the only viable dispute resolution system available to most Afghans for years.

Some western officials in Afghanistan “want to build Switzerland and they want to do it fast”, says Lt Gen David Rodriguez, the operational commander of Nato troops in Afghanistan. “What the Afghan people want is security, justice and representation. They need to get back to traditional dispute resolutions. To get that, you need to provide sufficient security for those organisations to get back up.” Building a viable court system is not a foolhardy goal, he says, “but it’s a 20-year plan”.

The US Agency for International Development launched a $14.5 million pilot programme last year to support the informal justice sector. Its aim is to provide legal training to elders, seek ways to link informal bodies to the court system and find opportunities to give women a greater voice.

The price tag is a small fraction of what the US is spending on initiatives to support the formal justice system. Last year, for example, USAid and other American agencies spent $429 million on justice projects.

The growing interest though in traditional justice has upset some Afghan officials, including supreme court justices and members of parliament.

They have argued that recognition of the informal system is a tacit acknowledgment that the formal one is doomed.

“I think there is a rush by the international community,” says Fauzia Kofi, a member of parliament who heads its human rights committee. “They want to leave and they don’t want to leave projects unfinished, so they’re turning to quick fixes.”

The justice ministry has drafted a proposed policy to link the formal and informal sectors, but Afghan officials and rule-of-law experts say a compromise is years away. Among the most contentious issues are the marginalisation of women in the informal sector and how much authority, if any, councils of elders should have over criminal cases.

In Jilani’s case, his family and the relatives of the suspect, Abdul Hudood, have agreed to let a council, or jirga, broker a resolution. “We reached a resolution based on traditions from the old days,” says Qari Mirhatam Tarakhel, the head of the jirga.

After meeting both families for hours, 40 elders, led by Tarakhel, reached the following deal: Jilani’s family would have to forgive the suspect. Hudood’s family, however, would have to leave the village for at least 10 years. “It should serve as a lesson to others,” Tarakhel says.

Despite having given the jirga authority to settle the case, some of the suspect’s relatives reneged once they learned the punishment.

“Jilani had a heart problem,” says Jafar, the suspect’s brother- in-law, who goes by only one name. “He was not killed. He died from his heart problem, so why should we all be punished by that?”

– ( Washington Postservice)