Negotiating justice sector reform in Afghanistan

Abstract

After almost 25 years of war, the formal justice sector in Afghanistan is dysfunctional, and comprehensive reform of both laws and institutions have been high on the Western-supported agenda for reconstruction. This article examines the post-2001 justice sector reforms in Afghanistan, which appear as a case of problematic legal transplants in a context of legal pluralism and intense political contestation. While Afghanistan's legal traditions are characterized by diversity and constant negotiations between Islamic principles, customary law and Western legal traditions, recent reforms lead by Western donors and Afghan legal modernists have accentuated the conflictual aspects of justice sector reform. The extreme dependence of the Afghan state on Western powers has reduced the element of choice in the reforms and limited the possibility for developing a syncretic (uniting what is different or opposing) and inclusive system. Building on fieldwork from rural Afghanistan, the second part of the article examines the views of village mullahs in a rural Pashtun heartland of the central region, a presumptive conservative religious constituency that wields moral authority and helps dispense justice at the local level. The fieldwork finding supports the limitations on the legitimacy and efficacy of simple legal transplants. To be legitimate and effective, legal reform needs to seriously engage with the foundations of justice in Afghan, i.e. Islamic law, as well as Afghan traditions, or what the mullahs describe as islamiyat and afghaniyat.

Who owns the peace? Aid, reconstruction, and peacebuilding in Afghanistan

“…In the justice sector, in a context of legal pluralism involving constant negotia tions among Islamic principles, customary law, and Western traditions (Suhrke and Borchgrevink, 2008), there have been few meaningful initiatives to build ties between the formal and informal systems (Hodes and Sedra, 2007). In fact, as Barfield, Nojumi and Thier (2006, p. 3) note, 'the postTaliban justice system remains a shambolic array of dysfunctional courts, ad hoc elder's councils, and rule by local strongmen'.…”

The Promise and Failure of King Amanullah’s Modernisation Program in Afghanistan

“…74 Like the tribal chiefs, the ulema detested Amanullah's centralising policies and social reforms, which were viewed as government intrusions into their traditional areas of influence. 75 For instance, the centralisation and secularisation of the judicial system threatened a significant source of income for religious officials, who were paid to settle disputes and other local legal issues. 76 The constitution and laws promulgated by Amanullah also posed a threat to the ulema's influence and power, which were derived from their role in defining and interpreting religious laws.…”

Challenges of Political Development in Afghanistan: Mass, Elite and Institutional Dimensions

“…The rule of law is a meta-legal principle that functions as a constraint on the abuse of power and, if it is neglected, then a 'legal system' will be only a shadow of what it should be. In addition, a state-based court system faces competitors in the form of traditional dispute resolution mechanisms that may enjoy a higher level of social acceptability because they seem less corruptible (Suhrke and Borchgrevink, 2009;Wardak, 2004). Reports of corruption within the legal system are legion (Richburg, 2010;Watson, 2006), and the effects of such corruption on the legitimacy of the state are likely to be devastating in the long run; indeed, where the rule of law is weak and inequalities abound, corruption is almost sure to thrive (Uslaner, 2008).…”