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Bridging the Gap in Access to Justice: Lessons Learned from Afghanistan’s Paktika Province

Posted on the 20 December 2017 by Center For International Private Enterprise @CIPEglobal

Despite substantial efforts by coalition forces and international donors to strengthen Afghanistan's formal justice sector, many Afghans remain unaware or highly suspicious of the formal system. The system is considered highly corrupt, with decisions often made in the favor of the highest bidder. In contrast, public trust in informal justice mechanisms, primarily in traditional dispute resolution (TDR), remains high, according to a recent Asia Foundation report entitled "Afghanistan in 2017: A Survey of the Afghan People." Afghans continue to prefer that tribal elders and local shuras (Arabic for religious councils) settle local disputes. Without improving access to more formalized justice systems or addressing the fragile state of legal reform, stabilization initiatives aimed at reviving the country's economy will continue to have limited impact. Rather than create new parallel justice systems, often viewed as foreign and imposing, efforts to support and reform existing institutions have a far better chance of being locally accepted, effective, and sustainable.

Residents of Paktika Province are among those who continue to rely on traditional mechanisms to resolve disputes, primarily in the form of mediation shuras led by local tribal elders. Based on my experience in Afghanistan, Paktika provides an interesting case study regarding possible paths to strengthen the nation's formal justice system. Unlike in other areas of war-torn Afghanistan, Paktika's tribal system of governance has remained relatively intact, and ordinary citizens continue to resolve conflicts through locally accepted and readily available TDR. Understanding and regular use of the formal justice system by citizens of Paktika is likely, at least, a generation away. However, there is a way to begin closing the gap between the informal and formal systems. The key to improving the country's justice system is finding the middle ground between the informal and formal systems and to begin knitting together the two systems. The Department of Huquq, which falls under Afghanistan's Ministry of Justice, is the place to begin.

A huquq is a provincial government position similar to a notary public in the United States, but can also serve as a mediator and coordinator between the shura and government. For example, if a shura makes a decision in a land dispute case, the huquq would record the shura's decision and register it with the Afghanistan government's Provincial Directorate of Justice. After nearly 40 years of war, different ruling regimes have issued multiple deeds for the same property. As a result, most local disputes in Afghanistan concern property rights. Once the decision is registered, it is recognized by the state, and in property disputes, a new deed should be provided. Therefore, registering the shura decision with the Provincial Directorate of Justice should, in the case of property such as land and cattle, preclude future disputes.

Initially, hiring huquqs in Paktika, especially for district-level positions, was easier said than done. Paktika Province has less than five percent literacy, so most of Paktika's residents do not meet the requirements for the position. Meanwhile, qualified Afghans from Kabul and other urban areas typically viewed a posting in Paktika as punishment. Understanding that the qualifications for the position were nearly impossible for Paktikans to meet, the provincial government advocated and succeeded in convincing the national government to issue a waiver applicable to Paktika to lessen the qualification standards for huquqs. The waiver reduced the education requirement from a law degree to a high school education and added a few additional conditions, including that the applicant must be from Paktika and be approved by the local dispute resolution shura, district governor, district chief of police, and the Provincial Directorate of Justice.

The waiver brought Paktika's provincial governor, district governors, and tribal elders together to form relationships and work together to identify local people, who were trusted by the community, to serve as huquqs. This heightened citizen engagement with the local government is an important step toward improving stability. Increasing the number of huquqs in Paktika has increased the number of shura decisions registered with the government, providing not only much-needed local employment for Paktikans, but also enhanced coordination and interaction between tribal elders, ordinary citizens, and the government.

The huquq activities in Paktika may serve as a model for other communities. Recognizing the continued role that tribal elders and shura members play in reducing localized conflict and connecting citizens with government officials via the huquq can help improve stability, especially in rural areas of Afghanistan where government presence remains minimal. For Afghans to consider accessing the formal justice system, efforts to improve civic education and heighten public awareness of the formal justice system remain greatly needed. For now, tribal elders and shuras are the accepted and accessible institutions to resolve disputes, and they remain essential to local stability. These informal institutions should be brought into the government fold, bridged through the huquq, to provide alternatives to the, not necessarily preferred but readily available, Taliban courts.

Jennifer Anderson is CIPE's Senior Program Officer for South Asia. Related Material Afghanistan

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