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Exploring Primary Justice in Afghanistan Challenges, Concerns, and Elements That Work

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Exploring Primary Justice in Afghanistan Challenges, Concerns, and Elements That Work Exploring Primary Justice in Afghanistan Challenges, concerns, and elements that work Friederike Stahlmann (ed.) Exploring Primary Justice in Afghanistan – Challenges, concerns, and elements that work Friederike Stahlmann (ed.) Colophon Exploring Primary Justice in Afghanistan – Challenges, concerns, and elements that work. Afghanistan country report of the project ‘Supporting Primary Justice in Insecure Contexts: South Sudan and Afghanistan’. This project was funded by NWO-WOTRO in collaboration with the Knowledge Platform on Security and Rule of Law. Carried out by: Van Vollenhoven Institute for Law, Governance, and Society, and Cordaid in cooperation with The Liaison Office, Afghanistan Authors: TLO and Friederike Stahlmann Editor: Friederike Stahlmann Design: UFB Grafimedia, Leiden © 2016 VVI / Author All rights reserved. Without limiting the rights under copyright reserved above, no part of this report may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author(s) of the report. The views expressed and analysis put forward in this report are entirely those of the author(s) and cannot be attributed to organizations involved in the project or its donors. Table of contents 1. Introduction (by F. Stahlmann) ............................................................................................. 5 1.1 Research settings – socio-economic profiles .......................................................................... 6 1.2 Political background ............................................................................................................... 7 1.3 Legal and institutional overview ............................................................................................. 10 1.4 Conceptual framework ........................................................................................................... 12 1.5 The analytical potential of disputes over land ....................................................................... 13 1.6 Methodology and practical limitations .................................................................................. 15 1.7 Introduction to the case reports ............................................................................................. 16 2. Eight case studies on primary justice (by TLO and F. Stahlmann) ..................................... 19 2.1 Common challenges in claiming land rights – a case from Istalif ........................................ 19 2.2 Land disputing processes facing corruption and favouritism – an example from Behsud .. 22 2.3 Intermediaries as part of the problem? A land dispute with a real estate agent, Istalif ....... 26 2.4 Commanders managing disputes – a case from Istalif .......................................................... 29 2.5 Uncontrolled abuse of power – the example of Behsud ........................................................ 36 2.6 Socio-economic barriers to women’s access to justice – an inheritance case from Istalif ... 43 2.7 Socio-political barriers to women’s access to justice – the example of Behsud ................... 50 2.8 Women’s participation in dispute management – the case of the women’s shura in Istalif 57 3. Concluding Analysis (by F. Stahlmann) ................................................................................ 66 3.1 Matters of legitimacy and general challenges with seeking justice ....................................... 67 3.2 Particular challenges for women in seeking justice ............................................................... 75 3.3 Conditions, options and limits to elements that work .......................................................... 80 Bibliography ....................................................................................................................................... 83 Laws and Regulations ......................................................................................................................... 88 1. Introduction By Friederike Stahlmann In the beginning of 2002, Afghanistan was not merely a country that had been riddled by decades of warfare and power abuse. It was, too, a country for which a new beginning had been declared. This new beginning was marked by immense hopes and expectations. The qualitative thresholds of success were accordingly set extremely high and timelines tight. Just as with the political roadmap that led from a military intervention to democratic elections, much has been achieved in the justice sector. Efforts like the facilitation of a constitution-making process and legal reform, the physical reconstruction and equipment of justice institutions, and the training and professional capacity development of justice personnel have led to tangible results (Wardak 2011 and 2016). Nevertheless, 14 years and many ‘rule of law’ programmes and projects later, it is more than apparent that hopes of quickly succeeding in establishing the rule of law in Afghanistan and providing ordinary citizens with access to justice have been just as disappointed as hopes for security.1 Defending one’s rights against the more powerful is a hope many have lost or keep for a later regime. While some of the reasons for the persistent injustice are sadly trivial, it is far from trivial to find answers to how to respond to the suffering that a lack of access to justice causes. The last 14 years have shown the complexity of interactions between the social order, the political order and the diverse institutions involved in dispute processes (Coburn 2015; Stahlmann 2015). Wars, after all, not only affect state infrastructure, but also society as such and the people that form it. They have also taught that the understanding of shortcomings just as the development of strategies for support have to start with the justice perceptions, experiences,2 concerns and interests of those being vulnerable to abuse. In line with this lesson learned, the research project aims to improve the understanding of challenges disputants face in seeking justice in an environment that is as insecure and volatile as in Afghanistan. The challenges people face in seeking justice are not the same in all of the country, but vary immensely from one setting to the next. Cordaid and the VVI thus decided to conduct this research in a comparative manner. Together with the Afghan partner organisation TLO (The Liaison Office), the districts Behsud in Nangarhar province and Istalif in Kabul province were identified as suitable research sites. These sites differ quite fundamentally in local power and governance arrangements, ethnic and religious composition, recent migration movements and the institutional landscape. To strengthen the comparative value of the concluding analysis, the findings of these two settings are compared with the results from Bamyan city that stem from a different research on the same topic.3 This introductory section provides some general background on the social, political, legal and institutional context as well as analytical and methodological considerations. It closes with an introduction to the eight case-study reports in section two. Section three summarises the findings of these case studies and embeds them in a more general analysis. This summary underlines that there are no quick answers and ready-made solutions to the challenges people face in seeking justice, and that any minor positive effect will take huge long-term efforts. This research still allows us to identify options for support and consider some of the more successful approaches. 1 On the detrimental security situation see e.g. Human Rights Watch 2015, on women’s security concerns e.g. UNAMA 2009. 2 On the importance of people’s experiences for the functioning of the legal order see Stahlmann 2015 and 2016. 3 For further details of that research and Bamyan city see section 3. 5 1.1 Research settings – socio-economic profi les As an earlier research conducted by TLO (2014) has explored, the districts of Behsud and Istalif allow for an interesting comparison in socio-economic regards. They not only differ in size and population, but also in ethnic composition and recent migration patterns. Figure 1: Eastern Afghan section of ‘Afghanistan Provinces and Districts 2012’ (The University of Texas at Austin 2016) The district of Istalif is located just 50 km north of Kabul and populated by approximately 60,000-70,000 inhabitants. The town Istalif serves as the district centre and has about 29,800 inhabitants. It is famous for pottery and leather production. The main livelihood remains agriculture and every family owns at least a garden, varying in size depending on economic resources available. The majority of the district’s community is Tajik (about 90 percent), including a small minority of shi’ite Tajiks, but also other ethnic groups, such as Pashtuns and Hazaras, live in the area.4 Currently, very little inward migration is taking place in the district. Conversely, high seasonal variations of income triggers winter migration of most of the male population – especially youth – to Kabul, and there are reports of increasing permanent migration out of the district to the capital or abroad, in search of better livelihoods opportunities (TLO 2014: 23, 135). Behsud district is located in the north of Nangarhar province, eastern Afghanistan, and populated by about 500,000 inhabitants. A majority of the
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