Afghans find their own local traditional ways to solve disputes.
Christian Dennys outlines his firsthand experiences of seeing Afghans create their own law and order through local councils. He argues that supporting this informal system is crucial during the long time it will take for Afghanistan to have a fully functioning judiciary system.
In early 2008 Qala-i Farhad, a village in the plains north of Kabul, was beset by a number of land conflicts. Some conflicts were between local families, others were conflicts with other local villages. Over time, the local Peace Councils worked with all of the parties, including some young people who pushed their parents to resolve their conflicts, to find suitable and fair resolutions. Local conflicts have not gone away in Kalakan (link), but since the Peace Councils were established there is now at least a forum for resolving them.
The types of disputes found in Qala-i Farhad are a common occurrence in many countries. What makes them significant in Afghanistan, however, is that the lack of an effective judiciary means that many Afghans can’t get access to basic justice and have to rely on informal dispute resolution mechanisms. In Qala-i Farhad, the disputes were resolved through local Peace Council members who had been specially trained in non-violent and non-discriminatory dispute resolution by a charity, Cooperation for Peace and Unity (CPAU).
The lack of access to justice is a key frustration for many Afghans. It is finally being recognised that reforming the formal justice system will take many years. However, there is no plan for providing justice except through the formal system - which means that most Afghans will not be able to access even basic justice for many years to come.
The Emergency and Constitutional Loya Jirgas (or Grand Jirga) held in 2002 and 2003 were a form of dispute resolution on a national scale.
Informal justice mechanisms already exist in almost all communities. They are generally called a Jirga or Shura, essentially meaning ‘council’. In some communities there are long standing traditions of conflict resolution with their own codes, such as Pashtunwali, which is used in predominantly Pashtun areas. Other communities use different terms. But the ingredients for informal dispute resolution remain largely the same; the councils allow for a claimant to lodge a complaint or ask for recompense, and the defendant can respond to the claim. The representatives of the community, generally including local elders, landowners and religious leaders, will give a decision which may involve the payment of a fine, a reallocation of land, or mutually agreeable terms for sharing a public resource such as water.
There are many examples of disputes being resolved in this manner. In fact, the Emergency and Constitutional Loya Jirgas (or Grand Jirga) held in 2002 and 2003 were a form of dispute resolution on a national scale. Jirgas and shuras are not normally on such a large scale, and normally focus on bread and butter issues of life for most Afghans. CPAU’s research based on its programmes indicate that the key conflict resolution issues are land (36%), water (14%), marriages / divorces (15%) and debt (15%), along with a range of personal disputes such as car accidents (20%).
Being local, councils respond to local concerns. CPAU’s research indicates that the levels of local conflict are closely linked with the agricultural cycle, with conflicts most frequent during the planting, irrigating and harvesting seasons. The responsiveness of the councils is something that Afghans appreciate, in contrast to their experiences with the formal system, where decisions may not be given for a number of years and often involve paying bribes.
Though it is the parties to the conflict who ask for a council to be convened, other non-governmental councils, religious leaders and neighbours have been known to press groups or families in conflict to go to a council. Even local government offices often understand that sometimes the best place to resolve a dispute, even criminal disputes such as robbery or assault, are sometimes in the informal system.
In one instance a Peace Council member heard that a man had lodged a complaint with the District Governor and local judge that his sister’s husband had been violent towards her. Fearing that the case would be handled inefficiently, the Peace Council member asked if the council could mediate a resolution between the brother and husband, and husband and wife. It took several meetings, but gradually the husband admitted his mistake, apologised and reconciled with his wife and brother-in-law.
It does not mean that the family will not need more support to ensure that domestic violence does not return, but the resolution was applied quickly and led to a confessed change of behaviour.
It seems clear that improvements to local conflict resolution, through training and awareness raising of council members, should be done through Afghan organisations or the government
Local conflicts are not immune from the changes happening in the rest of the country, and are affected by instability, armed conflict, the drugs trade, droughts and population movements. A case in Sayedabad district in Wardak province involved two commanders from jihadi parties who were both opposed to development activities in their areas because they thought it would benefit the other side. Through training, local people were able to bring the commanders together to go through the training themselves. The training days were tense, but by being able to sit in the same room together, the commanders began to understand one another better. After the training, they agreed to work together for the development of the district.
Local dispute resolution mechanisms are not a quick fix, and they are not always able to come to equitable decisions. Many of the groups which are involved in conflict resolution, the Jirgas and Shuras, have been changed over the course of the conflicts of the last 30 years so that they no longer serve the interests of the community, but of powerful individuals. Furthermore, the Jirgas and Shuras have not always taken in to consideration the views of women and marginalised groups, such as young people, in their decision making due to them operating in local and religious traditions.
It seems clear that improvements to local conflict resolution, through training and awareness raising of council members, should be done through Afghan organisations or the government, who are able to work alongside the councils to build their skills. Training a Peace Council of 25 members in a community costs very little, but empowers the communities with access to justice. This is vital as it will take the formal justice system, the courts, judges and police many years to be trained and practised in their roles.
What many in the international community may not realise is that development and aid can in themselves provoke renewed conflict. Experiences in both Wardak and Badakhshan have shown that Peace Councils were asked to help mediate in conflicts particularly about water and irrigation projects funded through programmes such as the National Solidarity Programme.
The role of the international community regarding conflict resolution and local councils is sensitive. The easiest and best path would be to ensure development and aid programmes uphold the principles of ‘Do No Harm’ and conflict mitigation. Direct intervention in councils may be difficult though as members of most councils would not want to feel that they are there because the international community is paying or wants them there – they are there often just because they want to serve their communities and uphold justice.
There is, however, a role in supporting core groups of trainers or organisations who can provide additional skills to councils. This indirect support has so far been insufficient and there is much scope for expanding conflict resolution at a grass-roots level to provide a basic demand of the Afghan people – justice.