Rule of Law in Afghanistan
The United States Institute of Peace (USIP) has been working since 2001 to strengthen the rule of law in Afghanistan. Through research and pilot projects, USIP is focused on enhancing access to equitable justice, promoting constitutional interpretation and implementation, increasing accountability for past and ongoing crimes, and supporting positive relations between Afghanistan's customary and formal justice systems.
Linking State and Non-State Justice Systems
An estimated 80 percent of all criminal and civil disputes in Afghanistan are resolved outside the formal legal system through various community forums known as shuras, jirgas, and jalasas. Disputants often prefer to have their cases resolved by community dispute resolution mechanisms that are popularly viewed by most Afghans as more accessible, less costly, more legitimate, and less corrupt than government courts. Many Afghans find the latter more in tune with cultural values promoting consensus and reconciliation, rather than punitive retribution alone.
However, customary justice systems in Afghanistan face a number of deficiencies and challenges. Most notably is their frequent failure to protect many basic individual rights, particularly as it relates to vulnerable populations. For instance, the exclusion of women from participating in decision-making can have serious consequences for women's rights, and some decisions rendered by customary dispute resolution bodies have been shown to violate the law - such as the use of women as compensation for violent conflicts.
While customary actors provide a valuable service in resolving community disputes at all levels of society, the government courts retain an important role in ensuring that cases are resolved equitably and in accordance with the law. USIP's program on strengthening the relationship between state and non-state justice has supported empirical research and analysis on existing links, pilot projects aimed at delivering community-based justice through formal-informal dispute resolution bodies, and policy planning and option for improving linkages.
In collaboration with two implementing partners, USIP has launched pilot projects in the northern, eastern, and southern parts of Afghanistan. These partner organizations bring together communities and government officials to discuss locally relevant issues of justice and to facilitate the resolution of civil, criminal, and family disputes. Partners have worked in close collaboration with different members of the district and provincial governments to explore effective mechanisms for strengthening communication, coordination with customary actors, and improving methods of documentation and record keeping.
In December 2006, USIP convened a conference to discuss the relationship between state and non-state justice systems in Afghanistan. The conference brought together actors from the informal system, civil society, and the aid community, including representatives from 20 of Afghanistan's provinces. To view the conference's agenda and other related materials, please click here.
USIP has also conducted in-depth research in the Kabul court system on the use of informal conciliators to identify where the system is working well and how it may be improved.
USIP research has revealed the following:
- While many Afghans are more familiar with and trust traditional dispute resolution mechanisms, the integrity, and effectiveness of shuras and jirgas has diminished in many areas due to conflict, migration, and an erosion of traditional authority.
- Traditional dispute resolution actors draw upon multiple and overlapping value systems in the adjudication process.
- Even in relatively peaceful and well-educated Kabul, informal resolution of commercial and civil cases is common, and traditional mediators frequently assist with settling disputes outside the court system.
- Jail sentences issued in the criminal justice system may be reduced if a civil compensation settlement is successfully brokered by informal mechanisms such as jirgas.
- Women's and at-risk population's access to justice and articulation of rights remain limited in all forums of dispute resolution, yet in practice, women tend to prefer traditional means of dispute resolution.
- Land cases remain the predominant driver of conflict, and the most intractable dispute in all forums of resolution.
Enhancing Women's Access to Justice
USIP is currently expanding its projects to focus on women's access to justice. Ensuring women's access to justice and protection of their rights is particularly challenging in Afghanistan. The justice landscape is marked by a complex array of formal and informal dispute resolution mechanisms with varying degrees of capacity to deal with women's disputes. Women face the added burden of overcoming conservative religious and complex cultural norms that limit their role in public life in many communities and further constrain their rights.
USIP seeks to promote more effective women's access to justice at the community level by conducting interviews and surveys of women's perceptions and experiences in navigating Afghanistan's complex justice landscapes and the ways in which women currently work within an adverse system to exercise their rights and overcome obstacles.
To identify innovative strategies for increasing access to justice for women and other marginalized groups, USIP also seeks to understand the interface of Islam and traditional dispute resolution. Members of traditional bodies heavily rely on customary norms, local legal principles, and local interpretations of Islamic law to provide a rationale for the decisions and procedures that define traditional dispute resolution. In many shuras and jirgas, religious leaders sit on such bodies to either guide resolution of a dispute or, at the very least, confer religious legitimacy on informal decisions. USIP seeks to establish an understanding of the Afghan-Islamic normative values that currently underlay traditional dispute resolution and to highlight alternative narratives of Islamic jurisprudence. USIP seeks to establish an understanding of the Afghan-Islamic normative values of Islamic jurisprudence. USIP is also expanding its programming to examine land dispute resolution and promote efforts to improve community legal awareness of rights and criminal law by engaging youth and media.
USIP also plays a role in defining Traditional Dispute Resolution policy, by working closely with the Ministry of Justice and a variety of Afghan international stakeholders to incorporate informal justice mechanisms into a national justice strategy. In 2011, USIP released a memorandum and PeaceBrief on women and Traditional Dispute Resolution (TDR), which sets forth guidelines and suggestions for future programming in TDR that reflects USIP's research and consultations with women in civil society. These recommendations are meant to mitigate TDR practices that are harmful to women and prevent recognition or reinforcement of them by official actors.
These programs that seek to engage actors that operate in and between the informal and formal justice systems will help develop models for collaboration between the two systems to improve the delivery of justice, resolve disputes, and protect basic rights for all Afghan citizens.
Constitutional Interpretation and Implementation
USIP's work on constitutional implementation is primarily aimed at analyzing fundamental questions regarding the 2004 Constitution, specifically regarding what entity or entities have the power to resolve constitutional disputes, and how that power is accessed. Without clarity on how to settle constitutional arrangements, the system becomes deadlocked when disputes arise, exacerbating tensions between Afghanistan's institutions.
On the one hand, Article 121 of the Afghan Constitution suggests the power to resolve constitutional disputes rests with the Supreme Court, which reads, "At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and their accordance with the law." Left unanswered was the Court's authority on controversies that did not directly pertain to laws, legislative decrees, international treaties as well as international covenants.
In 2007, the precise meaning of Article 121 was hotly debated among the three branches of government in what became known as the Spanta Case, in which the issue at hand was the precise meaning of a "presidential act." Out of this prolonged dispute over the presidential authority arose the National Assembly's invocation of Article 157 of the Constitution, which sets forth the creation of an entity known as the Independent Commission for the Supervision of the Implementation of the Constitution (ICSIC). The National Assembly, despite a Supreme Court declaration of unconstitutionality and overriding a veto from President Karzai, passed a law implementing the ICSIC in which Commissioners, appointed by the President and confirmed by the lower house of the National Assembly, are vested with the power of "Interpretation of the Constitution on the request of the President, the National Assembly, the Supreme Court, and the Executive."
It is increasingly important to bring further attention to these and other Constitutional issues. With this in mind, USIP hosted a conference in September 2011 in Labul to clarify uncertainties in Afghanistan's legal framework related to key constitutional questions. The conference brought together Afghan government officials, judges, legal scholars, and university representatives, and international experts of comparative constitutional law. Participants discussed comparative approaches to constitutional questions with an emphasis on the various kinds of judicial review available to nations with multiple constitutional courts and how Islamic states conduct judicial review. A summary of the proceedings can be found here. At present, USIP is exploring a partnership with the Afghan Academy of Sciences to promote the creation of a standing Center for Constitutional Study aimed at continuing academically-oriented research and analysis of the Constitution of Afghanistan.
Despite the face that for decades many Afghans have been victims of large-scale war crimes, crimes against humanity, and other human rights violations, many of these violations have gone unaddressed. In 2005, the Afghan government adopted an Action Plan for Transitional Justice, calling for investigation of past crimes, recognition of victims' suffering, and accountability of perpetrators. USIP is working with national and international NGOs to develop sound documentation practices and increase advocacy capacity. In August 2011, USIP co-sponsored with the International Center for Transitional Justice an advocacy training in Kabul, followed by a documentation training in Istanbul that brought together groups engaged in similar projects in Turkey, Burma, and Nepal. USIP is also working with the Washington College of Law at American University to establish a growing database of human rights abuses and international crimes reported by international organizations that will become an authoritative resource for victims groups and other actors to access past human rights violations.
Since November 2001, the Rule of Law Program (ROL) has been directly engaged in developing frameworks for establishing rule of law in Afghanistan. In December 2001, ROL assembled a high-level group of experts on Afghan law and post-conflict administration of justice and produced a report titled Rebuilding Afghanistan: A Framework for Establishing Security and the Rule of Law. One provision of the December 2001 Bonn Peace Accords between Afghanistan's warring factions was based directly on these findings and recommendations.
Recognizing the central importance of Islam in Afghan life, USIP is also working with Islamic institutions and legal scholars to develop thinking about how Islamic legal principles address the issues of truth-seeking, accountability, compensation, and forgiveness in relation to mass abuse. And finally, through its Grants Program, USIP is providing funds to local Afghan organizations to implement their own innovative ideas working with grassroots constituencies in the search for justice and reconciliation.
(Photo credits: First three photos courtesy of Scott Worden; last photo courtesy of Baheerullah Safi and Mohammed Shalizi)
USIP Rule of Law in Afghanistan on Dipity.
Related USIP Publications
- Traditional Dispute Resolution and Afghanistan's Women, Sylvana Sinha, December 2011.
- Constitutional Interpretation and the Continuing Crisis in Afghanistan, Scott Worden and Sylvana Sinha, November 2011.
- Analyzing Post-Conflict Justice and Islamic Law, Scott Worden, Shani Ross, Whitney Parker, Sahar Azar, March 2011.
- Real Change for Afghan Women's Rights: Opportunities and Challenges in Upcoming Elections, Nina Sudhakar and Scott Worden, August 2011.
- The Future of Afghanistan, J. Alexander Thier (Editor), January 2008.
- For more publications on Traditional Justice, Constitutional Interpretation and Implementation, Transitional Justice, Elections, Framing the Rule of Law, and other external sources on traditional dispute resolution, click here.