AFGHANISTAN RULE OF LAW PROJECT FIELD STUDY OF INFORMAL AND CUSTOMARY JUSTICE IN AFGHANISTAN AND RECOMMENDATIONS ON IMPROVING ACCESS TO JUSTICE AND RELATIONS BETWEEN FORMAL COURTS AND INFORMAL BODIES Contracted under USAID Contract Number: DFD-I-00-04-00170-00 Task Order Number: DFD-1-800-00-04-00170-00 Afghanistan Rule of Law Project Checchi and Company Consulting, Inc. Afghanistan Rule of Law Project House #959, St. 6 Taimani iWatt Kabul, Afghanistan Corporate Office: 1899 L Street, NW, Suite 800 Washington, DC 20036 USA June 2005 This publication was prepared for the United States Agency for International Development. TABLE OF CONTENTS I. INTRODUCTION AND STUDY METHODOLOGY .............................................................1 II. BACKGROUND OF INFORMAL AND CUSTOMARY JUSTICE.......................................4 A. Definition and Characteristics..........................................................................................................4 B. Recent Studies...................................................................................................................................6 C. Jirga and Shura..................................................................................................................................7 III. SUMMARY OF FINDINGS AND CONCLUSIONS............................................................9 A. The Informal System ........................................................................................................................9 B. The Formal System.........................................................................................................................12 C. The Role and Status of Women .....................................................................................................13 D. Political and Military Interference in Administration of Justice .................................................13 IV. RECOMMENDATIONS ....................................................................................................14 APPENDICES Appendix 1: Detailed Site Selection Considerations ......................................................................................16 Appendix 2: Detailed Social and Political Profiles of Field Research Sites .................................................19 Appendix 3: Findings Concerning The Formal Justice Primary Court System ............................................24 Appendix 4: Findings Concerning The Informal Justice System and Relations between the Government and Non-Governmental Systems of Justice...........................................................29 Appendix 5: Findings Concerning Property Issues.........................................................................................35 Appendix 7: Findings Concerning Women’s Rights and Access to Justice..................................................41 Appendix 8: Findings Concerning Criminal Law and Jurisdiction................................................................45 Appendix 9: Findings Concerning Bad, Badal, and Alishuni.........................................................................48 Appendix 10: Findings Concerning Public Awareness, Access to Justice, and the Rule of Law................51 Appendix 11: The Evolution of Shura and Jirga in Modern Afghanistan .....................................................52 Appendix 12: Representative Transcript Showing Limits of Formal Justice................................................59 Appendix 13: District Jirga/Shura questionnaire ............................................................................................60 Appendix 14: District Court questionnaire......................................................................................................63 Appendix 15: Selected Bibliography ...............................................................................................................65 FIELD STUDY OF INFORMAL AND CUSTOMARY JUSTICE IN AFGHANISTAN i I. INTRODUCTION AND STUDY METHODOLOGY This study was conducted under the USAID Afghanistan Rule of Law Project to assess the current condition and characteristics of the informal justice sector and make preliminary recommendations on improving access to justice and relations between the formal and informal justice systems. By the nature of the issues addressed, the study necessarily comprised both a sociological/ethnographic dimension and a juridical one. Normative principles and formal procedures were no more or less important than questions about key actors, questions of social status and local authority, and issues relating to the varying configurations of local power and the place of those local power structures in their regional and national contexts. The scope of this study is informal justice, defined as a legitimated and more or less institutionalized set of interactions between individuals and groups over matters such as dispute resolution and enforcement of agreements, which take place outside of the government courts system. These matters are most often resolved on the basis of norms and principles distinct from those legislated by government, and enjoy no entitlement to government recognition or enforcement. This study relies on a literature review of publicly available written research and studies and data and information collected in late 2004 and early 2005 during focus group discussions and interviews conducted in Nangarhar, Logar, Kabul, Herat, and Jawzjan provinces. Within the formal system interviews were held with active judges, court staff, government heads of districts, and police officers within the districts where focus group discussions were held. In addition, interviews were held with former judges and legal advocates, law school professors, protection officers, civil society and grassroots activists, and donors and donor funded international NGOs. Interviews were held with officials from the Afghan Independent Human Rights Commission (AIHRC), the Norwegian Refugee Council (NRC), the European Community funded Cultural Foundation (CF), the Abdul Haqh Foundation (AHF), UN-HABITAT, the International Red Cross (IRC), the United Nations High Commission for Refugees (UNHCR), and the Ministry of Rural Rehabilitation and Development (MRRD). We conducted interviews with clients of both the primary courts and the local Jirga or Shura in the districts of our field studies. The questionnaires utilized for the interviews are provided in Appendixes 1 and 2. The field study went first to provincial centers, then to districts, and then to the village level. Twenty-nine focus group discussions and 60 interviews were conducted during the period from December 2004 through February 2005. Each interview and focus group discussion is considered a unit of analysis based on quota sampling. Direct observations of Jirga and Shura meetings were conducted by attending one of their regular sessions or through a requested meeting with five to seven members of the local institution. In those Jirga and Shura which have filing systems, such as the Surkh Road District Shura in Nangarhar, a review of their records was conducted. In addition, interviews with one to three clients of a Jirga/Shura were held in order to investigate the level of satisfaction concerning settlement of local disputes. A similar method was followed with the clients and documents of the primary courts. The time period that was reviewed reflects cases that were brought to the primary courts between the first month of the Afghan calendar year Hamal (March 2004) to Dalw (January 2005). Each interview took approximately two hours to conduct, while each focus group discussion lasted for approximately three hours. FIELD STUDY OF INFORMAL AND CUSTOMARY JUSTICE IN AFGHANISTAN 1 Sites were selected to include the variety of local and regional cultural, political and geographical characteristics of Afghan society. The ethnic demography, local and regional systems of governance, and geographical features of Afghanistan have all been determinants of the particular shape taken by the informal legal sector. The large-scale displacement, migration, human losses, and destruction of physical infrastructure during the last 30 years have pushed the local communities to the edge and deprived them of normal institutional development. As a result, new elements (e.g. armed political groups, local commanders with their private armies, and returning refugees) have been added into the local social and political composition of state and society. These new elements have also influenced the development of local customs and traditions as they are applied to legal matters. Below are summary descriptions of the selected sites: 1. Kalakan District of Kabul Province: As the capital of the country, Kabul symbolizes the political power, legal influence, and functioning of the Afghan central government. In addition, Kabul is the main hub for the U.S., UN, and other international organizations. The International Security Assistance Force (ISAF) actively participates in maintaining security and enforcing law and order. Kalakan offered a prime example of informal legal practices in conditions of relative security and close proximity to the power of the Afghan central government and the international security and assistance organizations. At the same time, the ethnic composition in this district is an unrepresentative 92% Tajik and 8% Pashtun. 2. Surkh Roud District of Nangarhar Province: Three important criteria were considered in selecting Surkh Roud: