Afghanistan’s Systems of Justice:
Formal, Traditional, and Customary
Feinstein International Famine Center,
Youth and Community Program,
Tufts University, USA
Table of Contents
Executive Findings 2
Executive Recommendations 4
Location of Field Work 5
Part 1: Formal Justice Systems in Afghanistan 6
The Interventions of Donors and NGOs 8
The Afghan Independent Human Rights Commission 11
Education of Judicial Personnel 12
Access to Legal Texts 13
Staff of the Formal Judiciary 14
The Judiciary: Political and Military Influences 16
Challenges Facing Legal Systems in Urban Centers 18
Family Courts, Female Judges, and Female Attorneys 19
The Absence of Defense Attorneys 21
Challenges Facing Legal Systems in Rural Settings 22
Abuse of the Rights of Rural Afghans 23
Insecurity and Rural Justice Systems 24
The Police of Afghanistan 26
Detention Centers 30
Part 2: Systems of Justice: Traditional and Customary 35
Traditional Social Institutions in Rural Afghanistan 36
The Roles and Political Manipulations of Jirgas (Councils) 37
The Long Road to Rebuilding Traditional Tribal Institutions:
Rebuilding Jirgas 40
The Border Tribes 43
Non-Tribal Communities and Changes in
Traditional and Community-Based Justice Systems 43
This paper is a part of a larger study titled Human Security and Livelihoods of Rural
Afghans, 2002-2003. The study was funded by the United States Agency for
International Development (USAID) and conducted by Feinstein International
Famine Center (FIFC), Youth and Community Program, Tufts University, USA.
The opinions expressed herein are those of the authors and do not necessarily reflect
the views of the U.S. Agency for International Development. Complete study can be
accessed on the FIFC website @: http://www.famine.tufts.edu/pdf/Mazurana2.pdf
On the formal judiciary:
1. The Afghan judiciary suffers from a severe lack of human capacity as well as
material resources. Many judges lack adequate legal training. Public legal
advocates and defense attorneys do not exist within the Afghan legal system. Of
those judges who are trained, the judicial leadership is divided between graduates
of the Sharia School and those of the Law School at Kabul University. These
groups are often at ideological loggerheads with each other. The three organs of
the judiciary, the Ministry of Justice, the Supreme Court, and the Office of the
Attorney General, lack effective coordination and communication and are often
2. The judiciary is highly susceptible to military and political influences at both the
urban and rural level. Formal courts, including family courts, are either non-
existent or barely functional in most rural areas. There are few women lawyers
and judges in the urban areas and none in the rural areas, and rural women have
great difficulty accessing the formal court system.
On police and detention centers in rural areas:
3. Very few police officers in rural areas of Badghis, Balkh, Herat, Kabul,
Kandahar, and Nangarhar provinces have had any official police training. Many
are still loyal to their former commanders, who often serve as the chief of police,
army officers or district or provincial authorities. Police stations are extremely
dilapidated and police officers lacked essential resources, including vehicles,
communication equipment, and uniforms. Most police stations lack secure
facilities for the storage of weapons. Most police officers use private weapons
and take their weapons home after work hours.
4. The detention centers visited by the Tufts team in Balkh, Badghis, Herat, Kabul,
Kandahar, and Nangarhar provinces were in very poor condition and lacked basic
necessities such as secure structures, sanitation facilities, and blankets for
detainees. Prisoners are occasionally held in metal shipping containers or in
private detention centers, and signs of mistreatment were common in the areas
visited. Juvenile offenders were mixed with adult offenders in a number of
centers visited by Tufts.
On traditional and customary justice systems:
5. Armed political groups, commanders, and warlords have strategically targeted
traditional and customary justice systems (Jirgas and shuras) throughout rural
Afghanistan in attempt to control local populations. In many instances, these
predatory forces have successfully positioned their loyalists within these groups,
thus undermining this avenue of justice for rural Afghans—which is often the
only avenue available in rural areas.
6. In regions where political armed groups are able to exert control over the district
government authorities, these groups often also have their members on the district
shura, thus ensuring greater control of the district.
7. The current shura system operating in much of the country is based on a
framework put in place by the Taliban regime that sought to replace the more
democratic (though only for adult Afghan men) Jirga systems. With the Taliban
regime now out of power, some communities are restructuring their shuras, but
fewer are returning to the Jirga system.
8. However, some groups of rural Afghans, particularly among the tribal groups, are
replacing the shuras with the more democratic (though only for adult males) Jirga
system. This is, in part, an attempt to limit the influence of the armed political
groups and commanders in control of the area, as well to minimize the
interference of government district authorities.
9. Rural Afghan women are largely denied a direct voice in any shura or Jirga
system and thus are denied justice within either traditional or customary systems.
Recommendation: Strengthen the Formal and Informal Justice Systems. Strengthen
the formal justice systems that exist throughout Afghanistan, in particular the courts, the
police, and detention centers. To this end:
Establish a network of accredited law schools under the Ministry of Higher
Establish within the accredited law schools programs to train defense attorneys.
Prioritize the expansion of legal clinics and workshop into the provincial levels
with the aim of building professional capacity within the judicial sector.
Establish and fund Special Family Courts, at least one in each province, to be
administered and overseen by female judges to enable enhanced access for
Afghan women to the formal legal system.
Establish and fund Special Property Courts, at least one in each province, to
handle extended property disputes throughout each province.
Increase the number of city district courts in major urban centers.
Enhance Afghan Citizens Knowledge and Protection of Their Rights. To this end:
Launch and support a public law awareness program using national radio and
television to inform Afghan citizens about their legal rights and responsibilities.
Nurture the democratic participation of rural Afghans within traditional systems
of justice, prioritizing the development of women’s councils and women’s real
and meaningful representation within shuras and Jirgas.
Enhance and strengthen the space for civil society to develop democratic
institutions that challenge fundamentalisms and armed political groups that rule
by fear, intimidation, and clientism.
Work to develop a police force that is strong, just, and independent from the military
and local and regional commanders and armed forces. To this end:
Strongly support administrative reform in the police with a focus on dismantling
the clientism among the current police forces.
Establish police academies in each major urban center.
Properly equip police stations and detention centers.
Strengthen human rights training and accountability within the police forces.
Location of Fieldwork
The Tufts team conducted fieldwork from July-December 2003, in Badghis, Balkh,
Herat, Kabul, Kandahar, and Nangarhar provinces. Districts were chosen as those most
representative (agro-ecologically, ethnic/tribes, conflict affected, and so on) of a group of
rural districts within the province.
Villages within districts were randomly selected. Within each village the team conducted
interviews with two to three women and two to three men. In Badghis, fieldwork was
conducted in twelve villages in the districts of Bala Murghab, Jawand, and Qal-i-Now
districts. In Balkh, fieldwork was conducted in Char Bulack, Marmul, and Mazar-i-
Sharif. In Herat the team worked in 16 villages in Farsi, Guzara, Koshan, and Pastun
Zargoon districts. In Kabul, the team worked in 16 villages in Mir Bacha Kot, Musayi,
Paghman, and Surobi districts. In Kandahar, the team worked in 16 villages in Daman,
Panj Wai, and Arghandab districts. In Nangarhar the team worked in 16 villages in
Kama, Mohmand Dara, Pashir Wa Agam, Shurk Rod, and Rodat. The team conducted
approximately 350 interviews with individual rural men and women, with total interview
time of over 700 hours (for the entire study). Within each province, our study population
provides an estimate of a proportion within +0.12 (95% confidence interval) for the
provinces’ rural population.1 In other words, when percentages are given for rural
populations within Badghis, Herat, Kabul, Kandahar, and Nangarhar, those percentages
are representative of the entire rural population of the province within +0.12 percent.
In addition, the team interviewed approximately 30 rural police chiefs or heads of
investigative units, 30 district judges and prosecutors, and approximately two dozen rural
heads of districts or district authorities. Over 50 judges and prosecutors were interviewed
in the urban centers of Balkh, Herat, Kabul, and Nangarhar. Over 40 interviews were
conducted with United Nations, government, and national and international NGOs
working in Afghanistan in fields related to human security or livelihoods. 2
Although we relied on many sources in conducting our research, the vast majority of
information in this report comes directly from in-depth interviews and conversations with
rural Afghan men and women. We spoke with rural Afghan villagers, village leaders,
members of shuras (local councils), rural police, police soldiers, and police chiefs, and
district authorities, judges, and prosecutors. We were extremely fortunate to be able to
conduct extensive, individual, interviews with rural Afghan women and girls in their own
homes. We make every effort to prioritize the voices of the rural men and women
interviewed for this study and to incorporate their perspectives, concerns, priorities, and
hopes for the future.
1 Rural populations for study provinces: Kabul (615,900), Balkh (688,300), Herat (910,700), Nangarhar
(1,004,000), Kandahar (324,800), and Badghis (297,300). Population figures provided by Central
Statistical Office of Transitional Islamic State of Afghanistan, Estimated population of Afghanistan 2003-
2004, Author: Kabul, 2003.
2 See footnote no. 2 for agencies, organizations, and government bodies interviewed (can be found in
Human Security and Livelihoods of Rural Afghans, 2002-2003).
Systems of Justice:
Formal, Traditional, and Customary3
This section examines data primarily collected by the Tufts team regarding formal,
traditional, and customary systems of justice. This section assesses the role of these
systems in contributing to the human security and livelihoods of rural Afghans over the
past two years in the provinces of Balkh, Badghis, Herat, Kabul, Kandahar, and
Nangarhar (see Methods). We document and assess the ability of formal, traditional, and
customary systems of justice to provide protection and a just means of redress for rural
Afghans. As part of our assessment, we take careful note of the dynamic social and
political conditions that have emerged since the removal of the Taliban regime in
December 2001 and the resulting impact on systems of justice.4
Part 1 presents our analysis of the formal justice system. Topics addressed include
international efforts to reform and rebuild the justice system, the Afghan court system,
the education of legal personnel, sources of legal texts, the staff of the judiciary, political
and military influences on the judicial systems, the challenges facing both urban and rural
courts, the civilian police, and detention centers. Part 2 provides data and analysis
regarding traditional or customary justice systems, know as shuras and Jirgas (councils).
Within this, we discuss the historical role and development of traditional judicial bodies
and mechanisms in both urban and rural locations and their relationship with the formal
legal system. Our analysis makes clear the negative effects of years of war and drought
on these local systems.
Part 1: Formal Justice Systems in Afghanistan:
The Courts, Police, and Detention Centers
The Court System
The Afghan judiciary suffers from a severe lack of human capacity and
material resources and judicial reform lags behind progress in other areas of
the Transitional Islamic State of Afghanistan. However, this sector has
received relatively little funding or attention from international donors.
Legal expertise and technical training of judicial personnel varies widely. Of
those that are trained, there is an ideological split between graduates of the
3 This Section was authored by Neamat Nojumi, Dyan Mazurana, and Elizabeth Stites.
4 To protect the identity of our informants we often give only the district or province and the month in
which the interview was conducted.
Sharia School (conservatives) and those who attended the Law School at
Kabul University (reformists).
The judiciary is highly susceptible to influence and interference of political
and military leaders, and many appointments are made and cases decided
based on personal, tribal, or ideological ties.
For the most part, the court system presently is functioning only in the urban
areas. The urban courts are overwhelmed by a high case load.
Rural courts are extremely under-resourced and subject to the will of local
commanders. Judges and prosecutors in rural areas face security threats
from commanders and militias.
Rural Afghans, especially women, have very limited access to the court
There are very few female judges or attorneys in the judicial system, which
further limits the ability of Afghan women to approach the courts.
Defense lawyers are largely unheard of in the Afghan legal system, but
training programs are starting.
In the past, the authority of the formal Afghan legal system was limited to the provincial
and district centers. The population in the rest of the country relied on informal legal
systems that were based on custom and traditions and functioned via local institutions.
When seeking redress, rural people would often first approach the traditional local forum.
If this forum failed to provide conflict resolution or to offer a suitable remedy, then
people might approach the official government courts in the nearest district or provincial
center. In some cases, the district government officials encouraged people to use local
mechanisms in order to provide greater services to the residents, foster community
harmony, and establish workable relations between the state and society.
Today, Afghanistan’s formal justice system outside of the capital is comprised of an
estimated 255 primary (district) courts and 32 Provincial Courts. Kabul is home to the
High Court of Appeal (Estinaf), which hears appeals made against decisions by the
Provincial Courts, and the Supreme Court, headed by the Chief Justice. The Court of
Cassation (Tamiz) acts as an administrative Court of Appeal within the Supreme Court.5
All of these courts adjudicate litigations based on the legal codes embodied in the 1964
constitution and the Hanafi jurisprudence of Islamic Sharia. Additionally, there are now
new provisions and special decrees issued by the Supreme Court and the President.
In theory, the police (falling under the jurisdiction of the Ministry of Interior) and the
autonomous Office of the Attorney General are to enforce the body of law created and
upheld by the formal court system. However, there exists a wide range of socio-political,
logistical, and resource related factors that have negatively influenced the ability of the
formal justice system to apply the laws accordingly and appropriately, and the ability of
the police to enforce these laws. The core paradox of the Afghan formal justice system is
5 Amnesty International, Afghanistan: Re-establishing the Rule of Law, (London: Amnesty International,
August 2003): 5. Afghanistan also has a separate system of specialized courts, which includes the Family
Court and the Juvenile Court
not, therefore, the absence of laws but, rather, the weakness of the central authority to
enforce these laws in a just way.
The Interventions of Donors and NGOs
Afghanistan’s delegates to the conference that produced the Bonn Agreement agreed to
use the country’s 1964 Constitution as a legal framework until a new Constitution was
ratified. This agreement conditioned the application of the 1964 Constitution “to the
extent that its provisions are not inconsistent” with the Bonn Agreement or any
international legal norms6 to which Afghanistan is a signatory. The Bonn Agreement
also allowed the Afghan Authority to amend or appeal provisions that contradicted the
agreed provisions or international norms.7 Although the newly formed Transitional
Islamic State of Afghanistan (TISA) promised strong adherence to these international
norms, the weakness of the judiciary and justice systems and the absence of resources has
made the fulfillment of such promises elusive.
To further complicate matters, few of Afghanistan’s national laws were codified or
collected in one location. The 23 years of war brought the destruction of judicial
institutions, and libraries and legal texts were burned and destroyed during the fighting.
As a result, international agencies such as the International Development Law
Organization (IDLO), based in Rome, and a numbers of US-based organizations
reproduced and distributed the Afghan legal codes (1976 civil and penal codes) among
the judiciary sectors.8 While IDLO has distributed a limited number of these texts, there
are many more new cases that neither the 1964 nor 1976 constitution can offer remedies
on. In addition, there are new legal provisions issued by President Karzai or passed by
the Ministry of Justice that are not available in text form for most of the courts in the
country. Many judges throughout the country are unaware of these new provisions, while
other may have heard about them only on the radio.
Two years after the signing of the Bonn Agreement and more than a year since the
establishment of TISA, the Afghan justice system is still struggling to put in place the
basic elements essential for establishing the rule of law. The Bonn Agreement called for
the establishment of three commissions: the Judicial Reform Commission (JRC), the
Constitutional Commission, and the Afghan Independent Human Rights Commission
(AIHRC). However, the Judicial Reform Commission remains under-resourced in
6 These norms includes all international legal provisions that were ratified by Afghanistan are as follow:
The Genocide Convention of 1948 (acceded 1956), the Geneva Convention of 1949, the Convention of on
Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968 (acceded
1983), the Convention on the Elimination of All Forms of Discrimination Against Women of 1979
(acceded 1980), The International Covenant on Civil and Political Rights of 1966 (acceded 1983), the
Convention on Elimination of All Forms of Racial Discrimination of 1966 (acceded 1983), the Convention
Against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment Rights of the Child of
1989 (ratified 1994)
7 Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent
Government Institutions (hereafter, “the Bonn Agreement”), II, 1, ii.
8 Interview, Minister of Justice, December 13, 2003. The 1964 and 1976 criminal and civil codes are the
comparison to the other committees and has made little tangible progress in the reform of
the judicial system. To date, a civil and criminal justice system is functioning in some
areas with international assistance, but courts are extremely poorly resourced, judges and
prosecutors are not trained and are paid poorly and intermittently, and there is no agreed
upon or codified system of law. The constitution was ratified in January 2004, but it will
be years before a complete set of laws is created.
On 17 December 2002, IDLO convened a two-day donor conference held in Rome, at
which Italy, the US, the UK, Germany, Austria, and Canada pledged a total of $30
million USD in support of justice sector reform in Afghanistan. The final statement of
this conference acknowledged the Afghan Judicial Reform Commission (JRC) as the
responsible body for reforming the Justice sectors.9 The JRC established four working
groups to focus on: a) law reform, b) the structure and organization of the judiciary
organs, i.e., the Supreme Court and the Attorney General’s Office, c) legal aid, access to
justice, and the activities of NGOs dealing with legal initiatives, and d) the physical and
human capacity of the judicial sector.
The Italian government is the lead donor to the judicial sector and sponsors the IDLO.
To date, however, international donors have paid relatively little attention to the reform
of the judicial system and re-establishing the rule of law outside of support to police
training and reform. A forthcoming report on re-establishing the rule of law in
Afghanistan states that the performance of Italy to date “is widely seen as lackluster and
focused mainly on implementation of its own, relatively small projects. As a
consequence, and despite the presence of some Afghan officials who are committed to
reform, since the fall of the Taliban little progress has been made toward building a
functioning justice system.”10 Italy is also the lead international actor in the justice
sector’s Consultative Group (CG), the system created under the auspices of Ashraf Ghani
at the Ministry of Finance to coordinate donors, UN agencies, and government ministries.
Unlike other Consultative Groups, the CG of the judicial sector has yet to develop a
strategy for judicial reform and does not function in a meaningful fashion.11
The lack of human capacity is one the central problems of the Afghan judicial system at
present. This problem of capacity has been recognized by donors, who have created two
training programs for judges and prosecutors, but these two programs do not work in a
coordinated fashion. The first program, run by the IDLO, is training approximately 400
judges and prosecutors. This course entails a three-month, part-time training program for
currently serving judicial personnel. The IDLO program has been the subject of criticism
because it attempts to train prosecutors and judges together, even though they do very
different jobs and serve different functions within the judicial system. Also, the IDLO
9 Final Statement, Conference of Rome on Justice in Afghanistan (19-20 December 2002), p. 2.
10 Laurel Miller and Robert Perito, Establishing the Rule of Law in Afghanistan, Draft, (Washington:
United States Institute of Peace, forthcoming. Permission to cite draft provided by the author.): 12. See also
International Crisis Group, Afghanistan: Judicial Reform and Transitional Justice, (Kabul/Brussels:
International Crisis Group, Asia Report #45, January 2003).
11 Laurel Miller and Robert Perito, Establishing the Rule of Law in Afghanistan, Draft, (Washington:
United States Institute of Peace, forthcoming. Permission to cite draft provided by the author ): 14.
program does not include training on the human rights of women or gender sensitivity,
which is considered a serious problem by some observers.12 The IDLO is also continuing
its work on the translation of existing legislation from the 1964 constitution.
The second training program is run by the Legal Education Center (LEC), a center set up
under the auspices of the JRC. This program is a one-year course for young lawyers and
began in May 2003. The first class includes 150 students, all of whom were employees of
the Ministry of Justice, Supreme Court, or Attorney General’s Office. Twenty of the 150
students are women. There are concerns regarding the long-term sustainability of this
training program.13 The Tufts team received contradicting reports about the quality of
these legal clinics. A long-standing judge criticized the IDLO for putting students with
very different qualifications into the same program. He compared it to putting
elementary, high school, and university students into one class. “The only thing that I
have learned was legal issues that dealt with international human rights laws, which I
could have learned by reading a book,” he stated.14 In contrast, the head of primary court
in Mohmand Darah district of Nangarhar, Judge Hashimi was optimistic about the
IDLO’s legal workshop and was encouraging other judges in Afghanistan to attend.15
Germany is the lead donor in the police sector and is working with the Ministry of
Interior on police training and reform. A new police academy has been established and,
as of November 2003, had 1,000 cadets and 500 non-commissioned officers in residence
in either a five-year or three-month (for officers) training program. Working through the
Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ), the German government
development corporation, Germany has provided facilities for this trained police force,
logistics for the human rights department of the police, training for a team of women
counselors, and a small amount of funding for projects regarding the enforcement of law
GTZ is also working to launch a major campaign for law awareness with a focus on
human rights. In addition, UNAMA, UNICEF, UNODC, UNHCR, Norwegian Refugee
Council, and the governments of the US and UK are supporting a number of different
projects aimed to improved access to justice. Italy, Germany, the US, and UK have all
allocated funds to assist TISA in building its capacity to enhance law and order, as well
as trying to provide greater access to justice for average Afghan citizens. These funds are
directed toward rebuilding infrastructure and training the existing government officials
within the Ministry of Interior and the bodies that collectively make up the justice
system. Despite the important assistance from these international agencies, the pace of
training is very slow. In addition, key aspects to ensure that women’s rights—rights
shown throughout this report to be under constant threat—are upheld by these judicial
systems are sorely missing. For example, neither the German nor the Italian programs for
12 Amnesty International, Afghanistan: Re-establishing the Rule of Law, (London: Amnesty International,
August 2003): 10.
13 Amnesty International, Afghanistan: Re-establishing the Rule of Law, (London: Amnesty International,
August 2003): 10.
14 Interview, Anonymous, Kabul, December 2003.
15 Interview, primary district court judges, Mohmand Dara, Nangarhar, November 2003.
judicial reform or police training contain substantial areas for training on women’s
human rights, violence against women, or rape response. Nor do the Germans or Italians
seem to have plans to incorporate these important aspects into their trainings. The
resources and efforts that have been injected into the formal system of justice during the
last two years is a positive development. However, for the system to work, it will require
a strategic needs assessment to find remedies for the shortfalls that have been raised in a
number of reports, including those we raise here.
The Afghan judicial system is suffering from a severe lack of human and material
resources. Many judicial personnel have little legal knowledge or experience. Shortages
of basic facilities, low salaries, and an increasing number of litigations have created a
nightmare for officials. 16
The Afghan Independent Human Rights Commission
A bright light in strengthening the rule of law is the Afghan Independent Human Rights
Commission (AIHRC). Established under the Bonn Agreement in June 2002, the AIHRC
monitors rights and investigates human rights abuses and violations in Afghanistan. The
AIHRC is the first independent organ in the history of Afghanistan tasked to ensure that
the Afghan legal codes are in harmony with the international conventions to which
Afghanistan is a signatory. In addition, the mandate of the AIHRC allows the
commission to play a consultative role in the preparation of a national mechanism that
will focus on transitional justice and also seek to account for past violations.17 The
AIHRC has expanded its work and presence through the establishment of satellite offices
in the provinces of Balkh, Bamiyan, Herat, Kandahar, Nangarhar, and Paktia.18 The
AIHRC is widely respected and has developed close working relations with UNAMA and
numerous international and national NGOs. The AIHRC has also established working
relations with number of government ministries, especially with the Ministry of Women
Affairs. However, albeit unsurprisingly, the AIHRC officers report great difficulties with
some provincial authorities, as well as commanders who control local armies.
Importantly, the establishment of the AIHRC as a powerful presence has helped to open
space for the possible creation of other civil society organizations.
The AIHRC is engaged in a number of significant justice projects around the country,
most notably joining UNAMA’s investigation of conditions in Shiberghan Prison in
November 2002. The AIHRC has also investigated the role of the Afghan police in the
killings of several students during a demonstration in Kabul; the land-grab scandal in
Kabul that involved several high-ranking government officials; and is working with the
16 None of the primary courts that the Tufts team visited in the winter months was properly heated. No
court had any means of transportation or communication. We found similar conditions in the High Court in
Kabul, where offices were without heat or telephones. In Herat, the local government provided a mini-bus
for transporting the officials from the two districts that were within a close distance to the city, but the
officials have to pay for fuel and any necessary repairs of the vehicle.
17 “Decree of the Presidency of the Interim Administration of Afghanistan on the Establishment of an
Afghan Independent Human Rights Commission”, June 2002, Annex One, Article 9.
18 Interviews, the Afghan Human Rights Commissioners and regional/provincial directors in Kabul,
Nangarhar, Herat, and Balkh, October-December 2003.
Return Commission for Pashtuns displaced from the north of the country in late 2002
refugees as well as with the Security Commission for the north.19 Working to strengthen
the AIHRC, UNAMA and OHCHR offered workshops to train the Afghan
commissioners and increase the Commission’s professional capacity. Since its
establishment, the AIHRC has received hundreds of complaints about human rights
violations and abuses, and today has the distinction of being the only source that average
Afghan people trust to file a complaint or grievance without intimidation and fear of
Education of Judicial Personnel
The staff of the judiciary have a wide range of educational and training backgrounds.
Most are graduates from local religious schools, with a small number from the Sharia
School or the Law School at Kabul University. This pattern is also found among the
leadership in the judiciary. For example, based on our interviews with officials,
including over two dozen judges and prosecutors in Kabul, over 50% of those working in
the judiciary and court system in the capital province have no official legal training.21
Indeed, the Tufts team found that in the provinces of Badghis, Balkh, Herat, Kabul,
Kandahar, and Nangarhar, the largest numbers of judiciary and court staff are theologians
rather than legalists. They lack proper training in both Islamic and statutory law. Many
judges, prosecutors, and faculty of training institutions insist that the lack of professional
legal education and training significantly contributes to the current problems with the
Afghan judicial system. For example, in Herat, educated and trained judges emphasized
in conversations with the Tufts team that it is inappropriate to have a clergyman without
any legal background as the head of the provincial court.22
The Law School and Sharia School differ significantly in the training they provide to
graduates who will work in the formal justice system. The Law School accepts only
those students who receive the highest scores on the entrance exam for social sciences.
In contrast, the Sharia School admits only those students who studied at official or
private religious schools. Students at both the Law and Sharia Schools become familiar
with statutory and Sharia law by following a four-year curriculum that combines both
doctrines. Those students who are interested in judgeship enroll in a one-year program
coordinated by the Ministry of Justice. Previously, all graduates of the Law and Sharia
Schools were required to enter the public sector, i.e., into the Ministry of Justice, the
court system, or the public prosecutor offices.23
Neither the Law School nor the Sharia School provides four years of training exclusively
in legal or judicial matters. To illustrate, the law school provides two years of general
19 Ibid. UNAMA and the AIHRC in Mazar have formed a regional forum comprised of representatives
from all armed factions, as well as the regional PRT, AIHRC and some government local officials to
coordinate security programs, prevent armed conflict between factions, and encourage dialogue.
21 Interviews, judges and prosecutors Kabul, October-December 2003.
22 Interviews, judges, Kabul, November 2003.
23 Defense attorneys are largely unknown in Afghanistan and defendants are almost never represented in
court, even in criminal proceedings.
education in social and political sciences and two years of training in law. In the Sharia
School, students spend the first two years on general theological issues and the second
two years studying Sharia law. These mixed curriculums provide a weak basis in legal
education for Afghan legal graduates, with only two years of direct studies in law. The
practice of law is extremely complicated in Afghanistan given the multiple sources of law
(i.e. statutory law, Sharia law—Hanafi, Jafari, and Ismaili--and the constitutional
provisions and amendments), but graduates of these legal training institutions are left
with a very limited understanding of legal standards and practices. In addition, there is
extremely limited professional knowledge regarding legal research, analysis, case studies,
and recorded observation. Perhaps most importantly, legal graduates, court officials, and
judges have little knowledge of customary law, which is the most widely followed form
of law in rural Afghanistan.
In addition, there is extremely limited professional knowledge and certification regarding
legal research, analysis, case studies, and recording observations. As Denis Gallagher,
director of Afghan Governance and Legal Reform Program, writes:
This inhibits execution of proper justice but also the ability of the country to relate
to commercial/trade/international relations issues in a manner that involves local
capacity. This problem must be rectified. Establishment of training programs for
lawyers and the establishment of a Bar Association or some such support capacity
for recognizing lawyers are important.24
The Afghan justice system cannot and will not be compatible with the international
norms and standards without establishing certified, independent law schools that train and
certify qualified candidates exclusively in law and related practices.
Access to Legal Texts
The dominant language at the Law Schools is Dari or Pashto, but very few documents
(including research texts, case studies, and comparative analysis) are available in either
language. The dominant language at the Sharia School is Arabic, but no statutory articles
or constitutional amendments specific to Afghanistan have been translated into Arabic to
date. As a result, legal analysis regarding cases in Afghanistan is rare or non-existent in
either Arabic or an Afghan language. This dearth of research and publications has led
many Afghan legal experts to rely exclusively on legal texts and analysis that are
published in other countries and are frequently not applicable to the legal system and
cases in Afghanistan.
Due to the absence of official training, comprehensive legal education, and relevant texts,
many judges are unfamiliar with the law and make decisions without any reference to
legal codes or standards.25 As of January, 2003, there was no complete set of the Afghan
24 Denis Gallagher, personal communication, February, 2004. Gallagher is Chief of Party of Afghanistan
Governance and Law Reform coordinated by Management System International (MSI) and funded by the
25 Laurel Miller and Robert Perito, Establishing the Rule of Law in Afghanistan, Draft, (Washington:
United States Institute of Peace, forthcoming. Permission to cite draft provided by the author.): 15.
Penal Codes available in the country.26 In many areas, particularly at the district level,
the Tufts team found that judges’ personal opinions were the primary or only source of
law. Many judges do not have access to any texts and do not use any written laws. On
occasion, the Tufts team found that judges are relying on their privately owned legal texts
interpreted by non-Afghan sources and printed outside of Afghanistan. These external
texts are beyond the sources permitted under the legal jurisdiction of Afghan courts.
There is a lack of cohesion between legal texts and sources of laws at the national level.
In turn, the lack of a standardized central system results in weak legal and official
relations between the urban center and the rural periphery, as discussed above. Legal
provisions ratified in Kabul have little effect on the local practice of judges and
prosecutors. In most cases, the primary and provincial courts rely heavily or solely on
the experience and knowledge of long-standing officials who have been working in the
judiciary for over a decade, and these officials operate largely beyond the influence of
Kabul. To illustrate, in Surkhroud, Nangarhar, all the primary court officials, including
the head judge, were relying on the knowledge of an assistant judge who had been in the
system for over 20 years.27 A similar pattern was noted in the provincial court in
Jalalabad, Nangarhar, where the leadership depended on the consultation of long-standing
staff, rather than on official legal codes and Kabul directives.28 In Gozara, Herat, the
head judge of the primary court often consults with more experienced judges, including
prominent legal experts at the provincial court, when finalizing his legal opinions In
such cases, the rulings of the court systems rely heavily on the expertise of local staff
rather than legal texts and legislated codes. 29
Staff of the Formal Judiciary
The current composition of staff, cadres, and leadership in the law enforcement agencies
and the judiciary (the Ministry of Justice, the Attorney General Office, Supreme Court,
Afghan court system, and the Ministry of Interior) forms an imbalanced and often
antagonistic system, wherein the rank and file personnel within different departments
appear to misunderstand their positions within the legal system and do not interact
appropriately. One of the underlying problems with the justice system is the
compartmentalization of the Supreme Court, the Attorney General’s Office, and the
Supreme Court. These three bodies have poor relations and limited communication with
each other and often seem to work at cross-purposes.30
Ministries and offices express frustration over their over-lapping and unclear mandate
and the lack of a due process of the rule of law. To illustrate, the Office of the Attorney
General believes that it is an independent entity within the formal justice system, while
the leadership of the Ministry of Justice believes that the Attorney General’s Office
26 International Crisis Group, Afghanistan: Judicial Reform and Transitional Justice, (Kabul/Brussels:
International Crisis Group, Asia Report #45, January 2003): 7.
27 Interview, primary court judges, Surkhroud, Nangarhar, November 13, 2003.
28 Interview, provincial court judges, Jalalabad, November 12, 2003.
29 Interview, provincial court judges, Herat, November 28, 2003.
30 See also, Amnesty International, Afghanistan: Re-establishing the Rule of Law, (London: Amnesty
International, August 2003): 5.
should fall under its directorate.31 In interviews with the Tufts team, officials within the
Supreme Court complained that their “independent” space had been repeatedly violated
by the officials from the Executive branch and that officials within the Executive branch
use budgetary restraints as a means of applying pressure on the Supreme Court.32
Additionally, judges and prosecutors in Kabul complained that Kabul police arrest and
release people without the involvement of the courts. The police contend that those they
arrest end up back on the streets due to the misconduct and inefficiency of the courts.
Judicial personnel suggested that the police act in this manner mainly because they do not
know the parameters of their jobs and, therefore, the police are attempting to take on the
combined duties of law enforcement officers, prosecutors, and judges. (As discussed
elsewhere in this paper, other observers would say that the unsanctioned activities of the
police are designed to intimidate, acquire personal power or wealth, or build allegiances
with certain populations or political groups.)
Appointment of judges, especially head judges of the primary and provincial courts, is
often based not on the merit of their legal education and expertise, but rather on their
personal, tribal, ethnic, or political affiliations with the district or provincial leadership.
For example, several judges and prosecutors in Nangarhar noted that significant numbers
of newly appointed judges in eastern Afghanistan are from the same sub-ethnic group as
the Chief Justice of the Supreme Court, who is responsible for judicial appointments.
Additionally, a number of judges still in power were appointed by the Taliban regime and
have strictly religious educations. The path to power of a given judge links closely to the
patronage relationship built within the system, and many respondents reported that
personal connections or political manipulation play a major role in judicial decisions. For
instance, an active judge of the provincial court in Kabul stated, “We, the experienced
staff, do the paperwork and rule on cases in a way that our bosses ask, not in a way that
the justice should be served.”33 In Char Bolak district of Balkh, the judge sets motions
when he and the head of the district meet in the livestock market and most cases are
solved out of the court.34
High ranking officials enjoy almost total impunity in the absence of law and order and a
working justice system in Afghanistan. For example, judicial motions against high
ranking officials are likely to be dismissed or overturned by more powerful officials.
There is presently no system for monitoring cases or of legal inquiry into the affairs of
the upper echelons of the government. Publicized and well-known cases against high
ranking officials, such as the recent land and property scandal in Kabul, are likely to be
addressed only if the President intervenes.35 The extent to which the country is now
governed by decree is also an important element to be considered in the legal reform
31 Observations, Kabul, October-December 2003.
33 Anonymous interview, Kabul, October 2003.
34 Anonymous interview and Tufts team observation, Char Bolak, Balkh, December 2003.
35 The scandal involved the forced expropriation of land from poor families in an up-scale district of Kabul
in September 2003. The plots were then given to Cabinet ministers and military commanders. The United
Nations and President Karzai intervened and two commanders were arrested and the chief of police in
Kabul lost his job. Karzai has since set up an independent commission to investigate the allegations.
Court decisions are often not enforced. This leads to frustration among many of the
actors involved in the judicial process, including prosecutors, police, district authorities,
plaintiffs, and defendants. Widespread reports exist of corruption within the court
system. Plaintiffs complain about the police demanding bribes for enforcing the court
orders; some victims of this extortion stated that they could barely survive financially
while paying off the courts.36 But little is done to bring corrupt officials to justice, even
after an arrest or when the situation is public knowledge. For instance, a judge in a rural
district of Kabul was recently arrested for taking bribes. Under the current law, taking
bribes is considered a serious crime against the state that is meant to be tried in a special
court. The head of the district sent the case to the authorities in Kabul, but, by late 2003,
no action had been taken against the judge and no replacement had been named for his
The Judiciary: Political and Military Influences
As discussed above, of the judicial personnel who have had legal training, the leadership
is divided between those who graduated from the Sharia School and those from the Law
School at Kabul University. 38 Traditionally, the Sharia graduates represent the
conservative camp in Afghan law and politics, while the Law School graduates represent
the more progressive camp. This division extends to the Cabinet and Ministerial level,
with the Ministry of the Interior considered to the reformists, and the judiciary/Supreme
Court known as the leading conservatives. This ideological split has led to wide rifts
throughout the government and contributes to the on-going failures in enforcing law and
order and in reaching agreement on proposed legal reforms. 39
Graduates from the Sharia School currently form a majority in the judicial leadership,
and appear to be taking pains to appoint as many of their political loyalists as possible to
positions in the judiciary and court system. Many of those affiliated with the Sharia
School also have ties to conservative political parties, such as the Islamic Unity led by
Mr. Sayyaf, Islamic Society led by Mr. Rabbani, Islamic Party led by Mr. Khaless, and
former members of the Islamic Party led by Mr. Hikmatyar. In turn, this link between the
judiciary and the conservative parties has had a tremendous impact on judicial reform and
the formation of the new constitution. The conservative majority’s grip on the Afghan
judiciary is likely to continue in the aftermath of the recent Constitutional Loya Jirga
(December 2003) and through the Presidential elections (September 2004).
Prior to the Constitutional Loya Jirga, the Afghan government was a political
battleground between reformists and conservatives, represented respectively by cabinet
36 Interviews with a dozen of plaintiffs in Kabul, October-December 2003.
38 In an interview, Puhand Azizi, the dean of the Sharia School, tried to convince the Tufts team that his
school is the true law school, and that it is more important than the Law School at Kabul University. When
asked for an explanation, he has based his statement on the fact that Afghanistan is a Muslim country, and
that all judicial personnel should be trained in Sharia law. .
39 International Crisis Group, Afghanistan: Judicial Reform and Transitional Justice, (Kabul/Brussels:
International Crisis Group, Asia Report #45, January 2003): 9-10.
members who had returned from exile and those affiliated with the local political parties,
including the Islamist groups. The Afghan judiciary (including the Judicial Reform and
Constitutional Commissions) became the frontline of this battleground, wherein each side
endeavored to influence the new constitution, the pace of reform, and the application of
laws. In this regard, returning members of the cabinet and a wide range of officials who
served in the local armed forces were aligned in supporting progressive reforms based on
a mixture of secular and Islamic law, while the Islamists and conservative camp
demanded that Islamic law be the basis of the constitution and, thus, the law of the land
These political camps underwent a transformation during and after the Constitutional
Loya Jirga, and shifted from conservative and reformists into more ethnically oriented
platforms. This post-constitution development has sharply divided the top leadership and
cabinet of TISA into Pashtun and non-Pashtun camps, a divide which is spreading
throughout the ministerial ranks and further undermining the pace of reform. The
politicization of the constitutional process, in particular regarding the process for
amending the constitution, has become the center of legal and political debate among the
former delegates to the Constitutional Loya Jirga.
The increased politicization of both the judiciary and the constitutional process has
complicated and, in a number of areas, undermined the development of an independent
justice system capable of serving the people of Afghanistan. According to several judges
in Kabul city, the decisions of judges are open to the influence of the political and
military leadership independently or via the Supreme Court. Such activities dangerously
blur the line between the executive and the judiciary branches of the Afghan government
in Kabul and throughout the country.
Compounding the politicization and blurring of the roles of government branches,
judicial leaders and staff in the provinces often have affiliations with political factions
and powerful military commanders. The influence of these factions and leaders on the
courts seriously undermines the independence of the judicial system in these areas. The
Tufts team found that in the rural districts of Badghis, Balkh, Herat, Kabul, Kandahar,
and Nangarhar provinces, the heads of the government districts (woleswal), are often
linked to military commanders or are commanders themselves and routinely overrule the
decisions of the district courts. In some rural districts in Nangarhar and Kandahar, the
district leaders do not even allow court officials to hear legal matters; instead, the district
authorities settle case through the local shuras or police who are loyal to district officials.
In the majority of cases encountered by the Tufts team, the police chief or the woleswal
was more powerful than the members of the primary courts. This imbalance of relations
between the judiciary and the political/military powers in the rural districts places
significant risk on the populations’ access to justice and ability to seek enforcement of
their rights. This imbalance also directly contributes to maintaining systems of injustice
and inhibiting meaningful and much needed reform.
Challenges Facing Legal Systems in Urban Centers
The major regional urban centers of Herat, Jalalabad, Kabul, Kandahar, and Mazar-i-
Sharif are growing rapidly as thousands of people migrate from rural areas in search of
employment, security, shelter, and access to services (such as schools and hospitals).
These cities have attracted large numbers of returning refugees who became urbanized
during their time outside of Afghanistan and do not wish to return to the villages. Rural
people also moved to the cities during the drought, as they were on longer able to support
their families on their land. Increasingly, rural people are also coming to urban areas to
visit formal courts.
Disputes over property are the single-largest form of litigation currently in the Afghan
court system. Presidential Executive Order Number 136 established the Special Property
Court to handle all property disputes, particularly those that related to returning refugees
and internally displaced persons. However, Supreme Court officials state that, due to
limited resources and funds, a property court could only be established in Kabul.40 As a
result, most primary courts are jammed with property related disputes, which are
reportedly more lucrative than family cases. Family cases are also being pushed aside in
favor of property disputes in city districts. Interviews with both male and female
plaintiffs of the family court in Kabul revealed that their cases were repeatedly postponed
or left pending because the main judge was busy with property-related disputes.41
A nation-wide imbalance exists in the Afghan court system, with the vast amount of court
facilities and resource concentrated in Kabul city. For example, there are no courts
specializing in property outside of Kabul city. Furthermore, Kabul city has many more
city district courts than the other major urban centers. Each of Kabul’s 16 city districts
has a district court, whereas Herat, Jalalabad, Kandahar, and Mazar-i-Sharif each have
only one city court (based within the provincial court), although their districts have
populations similar to those of the Kabul districts. The deputy chief of Herat’s provincial
court, Judge Aazam Karimi, argues that establishing property, family, and city district
primary courts is absolutely necessary for the provinces:
In addition to the existing discrepancy regarding the function of the court between
court leadership and the executive authority, trying to manage thousands of
complaints that are reaching our courts with very limited resources is extremely
According to Judge Abdul Manan Mawlvizada, the Provincial Chief Justice in Balkh, his
office has proposed the establishment of three additional primary courts in the city, but
the Supreme Court did not approve these courts, citing shortage of funds. Judge
Mawlvizada explained that they have the human resources but lack the budget and
facility to establish these much needed courts.43
40 Interviews with the head and judges of the Special Property Court in Kabul city, November 2003.
41 Anonymous interviews with clients of the High Court in Kabul, November 2003.
42 Interview, Judge Aazam Karimi, Herat, November 2003.
43 Interview, Judge Abdul Manan Mawlvizada, Balkh, December 2003.
There is also a serious imbalance in urban-rural court capacity. Very few district level
courts are fully operational. The rapid growth in urban populations means that many
cases dealing with rural issues are brought before city courts when rural residents re-
locate to the cities. In Balkh province, for example, a number of new migrants have
brought cases that originated in rural areas to the city courts. The urban provincial courts
cannot send the new urban residents back to the rural district to solve their disputes. The
Balkh city court, however, was designed to serve only the population within the boundary
of the city. The court is now attempting to use the same resources and structures to serve
a dramatically increased population.44
Provincial courts also serve as the appellate courts for the rural areas. The provincial
courts are responsible for handling cases that were not or could not be heard by the
primary courts that are meant to exist at the district level. Many of these primary district
courts, however, are severely in need of rehabilitation and capacity building. Due to the
lack of detention centers (especially for women), the provincial courts must also deal
with a detainees from rural areas that are transferred to the urban detention facilities.45
Establishing and funding additional courts in the major urban centers would assist the
justice system to improve its accountability towards the rural districts and populations.
The expansion of the primary court system would also give the rural Afghan population
more reliable access to the justice system.
Family Courts, Female Judges, and Female Attorneys
Afghanistan has a parallel court system for Family and Juvenile Courts.46 These courts
were meant to exist in every province, but to date are operational only in Kabul city. The
Special Family Court in Kabul is the only court in the country that is contains a small
number of female judges. 47 Two law associations have been recently created with large
number of female judges,48 and there are some female judges and attorneys in other urban
centers such as Herat and Mazar-i-Sharif. A very small number of these female judges
and attorneys are currently allowed to serve in judiciary positions to adjudicate family
cases on civil matters only. More are hired to serve in clerical duties and pushing
paperwork around, while qualified female judges are working for the NGOs in non-
related judicial services.
The employment of female judges within the court systems and their engagement in
adjudicating litigations, especially in the family courts, is crucial. However, a number of
45 Anonymous interviews, officials at the provincial courts in Herat and Mazar-e-Sharif, November-
46 The specialized parallel system is also meant to include commercial courts and security courts, but these
have yet to be established in Afghanistan.
47 According to the cultural norms and gender relations in Afghanistan, family relations are considered
highly private issues. It is hard—even impossible—for a married woman to discuss the details of her
marriage in front of a male judge. Women judges, however, are considered to belong to the female social
space, and women are able to be more open in front of female judges or prosecutors.
48 Interview, former Judge Marzia Bassel, UNICEF’s Juvenilia Protection Program, November 2, 2003.
cultural constraints and administrative restrictions continue to limit the role and
involvement of women in the current judicial system. Women with legal educations and
training often perform administrative duties or hold office positions, and do not hear legal
cases.49 According to a female judge in Kabul, the dominant theological culture within
the judiciary prevents male officials from considering women to be competent judges or
able to make sound legal judgments. She explained:
Since being a judge has leadership aspects, some of the leadership in the justice
system, especially in the Supreme Court, believes that women’s leadership in an
Islamic society is un-Islamic and it shouldn’t be allowed.50
Another women judge who worked outside of the family court in Kabul stated:
Having women in the family court is a cover-up for the dominant culture that is
based on gender prejudice and backward sentiments. It has nothing to do with the
genuineness of holy Islam and the justice of God. In addition, it appears that
having female judges in the court system, even at family courts, is a concept that
has yet to be accepted by some of the males sitting on the Supreme Court.51
In interviews with family court judges in Kabul, the Tufts team learned of inconsistencies
in the application of rule of law based on differing definitions of legal provisions. High
ranking male judges who derive their decisions from a more restricted interpretation of
Sharia law often deliver very different rulings than the female judges who combine the
constitutional legal provisions with a more moderate interpretation of Islamic law.52
According to female judges in Kabul city, greater participation of female judges and
attorneys in Afghanistan’s courts will help to strengthen the justice system by providing
more qualified and trained lawyers to adjudicate legal matters. A greater number of
female judicial personnel would also enhance access to justice for women plaintiffs and
defendants. The latter rationale is based on the segmented social structure and local
cultures, which separate the social and physical space for men and women throughout
Afghanistan. This culture of separation is rooted in the local interpretation of gender
relations based on religion (i.e., mahram and hijab) as well as the influence of customary
issues (i.e., nang and namus, which have to do with honor in respect to women’s social
position). Because of the segmented gender spheres, rural Afghan women are
discouraged from talking to or interacting with men who are not their relatives (see
Understanding Threats and Attacks to Rural Afghan Women’s Human Security, Section
I). These social codes prevent women‘s direct access to the male-dominated world of the
court system. However, because rural woman are able to interact with other women, they
might be more inclined to seek access to female judges and lawyers (see Women and
Legal System, Section I).
49 Amnesty International, Afghanistan: Re-establishing the rule of law, (London: Amnesty International,
August 2003): section 5.3.
50 Anonymous interview, former female judge working now for the UN, Kabul, October-December 2003.
51 Anonymous interview, female judge, Kabul, October-November 2003.
The Absence of Defense Attorneys
Another key legal dilemma facing the Afghan justice system at both the urban and rural
levels is the absence of defense attorneys. A system of legal advocacy or independent
defense has never existed within the Afghan judiciary. Under the previous legal system,
legal advocates operating outside of the official justice system were available for hire, but
were not provided by the courts. These legal advocates have varying levels of training
and few were trained to present a client in a court or to act as his/her defense attorney.53
In attempt to introduce a system of defense attorneys, a public advocacy office has
recently been established at the Supreme Court in Kabul. However, no judges or clients
interviewed by the Tufts team were aware of the existence of this office.
The Tufts team contends that the public advocacy office is presently little more than
window dressing within the Afghan justice system, as neither the Supreme Court nor the
Ministry of Justice has the space for a public defense mechanism included in their
organizational structure or budgetary system. This has caused both the Supreme Court
and the Ministry of Justice to shirk their responsibility for the development and
maintenance of a public defense system. There is little doubt that the formation of a
functioning public defense system is one of the most important initiatives of judicial
reform in today’s Afghanistan.
Professor Nassrullah Stankzai of the Kabul Law School believes that courses providing
specialized knowledge about legal advocacy and defense should be included in the
curriculum for law students. He argues that these additions are urgently needed, and
believes that the establishment of a legal defense system may reduce the existing
corruption in the justice system and help to expedite the slow process of bringing a case
to court. Professor Stankzai states:
The cost for hiring a defense attorney is a fraction of what it costs people as far as
their time and the time of the court, especially given all the extortion and
Recently, several NGOs have started concentrating on training a small number of Afghan
attorneys to defend clients, although this training is currently available only at legal
clinics within Kabul city.55
Some NGOs are specifically training Afghan women defense attorneys to represent
female defendants or inmates. These new trainees face formidable challenges in seeking
to represent their female clients. Public prosecutors and judges are reluctant to accept
53 N. Nojumi and C. Jones-Pauly, “Balancing Relations between Society and State: legal Steps toward
National Reconciliation and Reconstruction of Afghanistan,” draft copy, Harvard Law School’s Islamic
Legal Studies Program, October 2003.
54 Interview, Professor Stankzai, Director of the Civil Law Department at the Kabul Law School,
55 Interview, Dr. Anu Borrey, Legal Project Manager, Medica Mondiale, Kabul, 9 November 2003.
legal challenges on behalf of the female defendants, especially in cases where the woman
has already been convicted. On one occasion, a public prosecutor rejected the reopening
of a case, basing his argument on moral standards rather than on the merits of the case.
He accused the female defense attorney of defending “morally bad women.” In another
case, the court officials yelled at an Afghan female attorney, saying that her desire to
represent a female inmate was rooted in “western influences.” Both cases were
eventually heard, however, and—due to the legal knowledge of the female defense
attorneys—the female inmates were found not guilty and it was ruled that the court had
no grounds on which to hold them.56
Challenges Facing Legal Systems in Rural Settings
Challenges regarding the current formal justice systems in rural Afghanistan are
formidable. The formal justice system in rural Afghanistan faces two main dilemmas:
structural problems and conflicts over jurisdiction. Throughout rural districts in most of
Badghis, Balkh, Herat, Kabul, Kandahar, and Nangarhar, the relations between the
executive and the judiciary (i.e. among the positions of the primary court judge/s,
prosecutor, police chief, woleswal, and government head of district) are extremely
chaotic. The separation of responsibilities, duties, and even office space is not clearly
delineated. Officials from the executive routinely overrule the decisions or meddle in the
affairs of the primary courts. In most case, the primary court judges are not allowed, or
are afraid, to rule independently in their cases. The Tufts team found that most primary
court judges and prosecutors were reluctant or afraid to speak openly about their often
difficult relations with the head of the districts or the police chiefs.
For example, in one district in Nangarhar, the primary court judge complained that the
chief of the police and the head of the district were taking control of matters that
belonged under the court’s jurisdiction. The local officials were then resolving these
matters personally and outside of the local justice system.57 In several other rural
districts in Nangarhar, police chiefs reportedly detained people on false allegations,
forced their families to pay bribes, and then released them without ever referring the case
to the primary court. The district authority in one district in Nangarhar had his own
private detention center, which he did not allow the local court officials to enter. In a
rural district of Herat, the office of the prosecutor had detained a murder suspect, but was
receiving pressure from the deputy head of the district for the suspect’s release. A judge
in Herat stated that his life had been threatened by local commanders who were now part
of the provincial army because he had agreed to take on several controversial cases.58 In
Balkh, the provincial court had supervision over only a few primary courts—the rest were
under the control or influence of the local commanders.59 In a district in Kandahar, court
officials and the district authority were unable to access the detention centers and did not
know who was being held captive, as the detention center was under the control of the
police who would not allow access to the court officials. Compounding the situation,
57 Anonymous interview, Nangarhar, November 2003.
58 Anonymous interview, Herat, November 2003.
59 Anonymous interviews, Balkh, December 2003.
every primary court in rural Afghanistan visited by the Tufts team—without exception—
lacked basic facilities, including equipment, office supplies, and transportation, and faced
serious budgetary shortages.
Most judges in primary courts in rural Afghanistan are without judicial or legal training.
Like the judges in urban areas, many do not have access to approved legal texts. Rural
judges are largely unaware of recent changes to the formal system of justice and many
base their understanding of the legal order on basic training courses from before 1970.
For instance, the Tufts team interviewed judges in Nangarhar that were educated in Saudi
Arabia, but they had no knowledge of local precedents, Afghan legal issues, or the legal
provisions included in the Afghan constitution. At the time of our study, 400 judges were
enrolled in legal clinics that were set up by the Italian funded IDLO, but only one judge
from rural Afghanistan had been recruited into the program and his admission was based
upon his previous job at High Court in Kabul.
The low levels of education and training of judges negatively affects the public image of
the official justice systems in the rural areas and likely acts as a disincentive for people
who might otherwise access the courts. Poor salaries and the lack of other benefits for
judges and primary court staff have contributed to corruption and unlawful behavior,
which further decreases the ability of the justice system to provide legal services.
Reforming the organizational structure of the formal justice system in rural Afghanistan,
improving professional education, and enhancing the living standards and work place
environments for judicial staff in rural Afghanistan are important steps to help provide
sustainable and reliable access to justice for the rural population.
Abuse of the Rights of Rural Afghans
Most rural Afghans neither understand their legal rights and obligations nor do they know
the laws of Afghanistan. These factors allow those in positions of power to abuse the
rights of rural people. Punishments are arbitrary and not necessarily in line with the law.
Tufts interviews with several dozen inmates in a number of detention centers and jails
revealed that most prisoners are held past the legal time limit without being charged.
Most inmates claimed to be uncertain of why they were being held, unaware what the
evidence was against them, and unsure of the possible outcomes of their cases. For
instance, police in a rural district of Nangarhar were unlawfully holding more than a
dozen people for minor offences. The Tufts team requested to visit the jail, but the
deputy police chief arranged to have the prisoners removed from their cells and hidden in
another part of the building before the Tufts team arrived. In another instance, police
removed prisoners—covered in blood and unable to walk—from a metal shipping
container in an attempt to relocate the detainees before they were seen by the Tufts
60 In two instances, Tufts team members were informed by their drivers who saw the men being taken out
in order to avoid their being seen by the team. In one instance, the Tufts team saw the prisoners being
The Tufts team met more than a dozen individuals who had traveled to Kabul from rural
areas to appeal their cases before the High Court.61 Many of these people explained that
they had exhausted their family’s resources in the pending case and had come to Kabul in
a final attempt at resolution.62 In some instances, the Tufts teams witnessed clients
pleading with court officials to hear their cases. At other times, people approached
members of the Tufts team and asked for legal help and assistance in appearing before
the court officials.63
Insecurity and Rural Justice Systems
Top officials at the Supreme Court stated that there have been major budgetary and
planning flaws in the strategy of building the TISA government. These officials added
that problems within the National Development Framework had resulted in a lack of
attention to the restoration of the Supreme Court. 64 According to Mr. Manawi, the First
Deputy Chief of Justice, the court system is facing serious shortages of trained judges,
especially in the provinces. Experiences and skilled judges receive around $36 USD
(AF2100) per month with no housing, transportation, or per diem. Mr. Manawi went on
None of the skilled judges wants to leave Kabul or the center of other provinces to
serve in rural districts with this kind of funding… In addition, our judges are not
secure from [attack by] armed groups.65
Court and government officials who are not aligned with the major local and regional
commanders face insecurity and the threat of attack throughout rural Afghanistan. To
illustrate, the police and chief prosecutor of a rural district of Kabul told the Tufts team
that they had identified accused murderers and knew where they lived. However, armed
men aligned to local commanders have prevented the officials from making the arrests.
The police and chief prosecutors stated that they were very concerned for their own
physical safety, as well as the safety of their families, and expressed frustration at their
inability to enforce the law.66 In some rural districts of Kandahar, court officials were
unwilling to speak with the Tufts team unless we could take them out of the district to a
“safe place” for the interview.67 In another instance, a dstrict authority in Kandahar
spoke of the involvement of numerous government officials in the illegal drug trade:
When I was the district authority in [rural district in Kandahar] I captured 138
kilos of hashish and brought this to the provincial level. I was given a receipt
[produces official receipt with governor’s stamp] from the government saying that
61 Anonymous interviews, clients and court officials at Kabul High Court, October-December 2003.
64 Anonymous interviews, officials at the Supreme Court, Kabul, November- December 2003.
65 Interview, Manawi, Deputy Chief of Justice, Kabul, December 2003.
66 Anonymous interview, chief prosecutor, Kabul , November, 2003; Anonymous interview, Head of
Investigations Unit, Kabul province, November, 2003.
67 Because the Tufts team could not guarantee the safety of the respondents these interviews were not
I turned over this much hashish. Later, I found out that the hashish was resold in
the market in Kandahar. I also have this receipt for 52 kilos [produces official
receipt with governor’s stamp] that I captured using road checkpoints in [rural
district]. This time I did not give this to the provincial police since they just sold
it last time. Instead, I delivered it to the customs office of Kandahar to try to
ensure they did not resell it. Then I received a letter from the new district
authority of [another rural district] [produces letter that has the official stamp of
said district authority] asking me to release the 52 kilos of hashish to the owners
[of the drug] and not to bother them anymore.
This narrative demonstrates the high level involvement of officials in illegal activities and
points to the impunity of those in power. Local officials and police who attempt to
follow the rule of law are punished, risk attack, or are removed from their positions. The
continuation of the story from above illustrates that these problems were not limited to
the trafficking of narcotics:
The reason I am in this district is that I made a mistake in [rural district of
Kandahar] when I caught six trucks full of iron being smuggled into Pakistan and
I sent them back to the provincial center to the police. The assistant of the
governor and the head of customs were very unhappy with this. Shortly
thereafter, I was removed from [first district]…and sent here to [rural district of
In other rural districts in Nangarhar, court officials are at serious odds with the district
authorities. In two rural districts, district authorities have refused to allow certain cases
to come before the courts, and have instead sent the cases to the local shuras or Jirgas,
who are supporters of the district official, or to the police who are also loyal to the district
authority. One district court official explained:
People mostly use the Jirga system here… If the people of the Jirga are those
who are using justice to make their decisions then the Jirga can work. However,
for most of the cases, the Jirgas are heavily influenced by powerful people.69
Prosecutors also face direct threats and intimidation from more powerful district
authorities who may have an interest in a particular case, as illustrated by this rural
prosecutor from Nangarhar:
I have a serious problem with the district authority. When I want to use the
formal legal system as a prosecutor, the district authority will come to me and
warn me not to do that. Sometimes the district authority intervenes in my work,
he tells me to stop the official filing of the case and that he will solve the problem
through the Jirga. Sometimes the district authority discloses my name to the
people who have been accused of the crime. The district authority is telling them
68 Interview, District Authority, Kandahar, December, 2003.
69 Anonymous interview, district court official Nangarhar, December 2003.
to kidnap me or kill me if they want to stop me from doing my work. If this
situation continues then I am going to strongly consider leaving this job.70
The Police of Afghanistan
Few police officers in rural areas have professional training; most were
former mujahideen fighters or militia members who became police officers
when their commanders joined the official government or military structure.
Police operations are characterized by patron-client relationships. Police
forces continue to operate largely independently from a centralized
command structure under the Ministry of the Interior, and many remain
loyal to their former commander or to the commander in the area.
All of the police in our sample in Balkh, Badghis, Herat, Kabul, Kandahar,
and Nangarhar provinces lacked the basic resources needed to conduct their
jobs, including transportation, communications equipment, pens and paper,
adequate buildings, uniforms, weapon safes, and furniture for police offices.
All of the police in our sample Balkh, Badghis, Herat, Kabul, Kandahar, and
Nangarhar provinces had experienced delays of four to six months in
receiving their salaries from the central government. Rural Afghans
attributed, in part, the involvement of police in corruption to the delay in the
receipt of their salaries.
The Ministry of Interior is the main body responsible for enforcing laws throughout the
country and oversees the national police. As discussed earlier, a central police academy
is now training new recruits to be deployed countrywide. The presence of these police
forces in outlying provinces helps to establish the reach of the central government. The
establishment of a police academy seeking to promote professionalism within the police
force is a step towards building law and order in Afghanistan. At present, however, the
effects of this reform are negligible outside a few areas of Kabul province.
Afghan Police Linked With Militias and Military Commanders
Police chiefs at the district level often share close ties with the major regional
commanders, who themselves serve as heads of army garrisons or major military units.
The Tufts team observed these links between police and commanders in almost every
rural district in which we worked in Badghis, Balkh, Herat, Kabul, Kandahar, and
Nangarhar provinces. In many cases, police chiefs moved from the head of a militia unit
to the police system and brought their militia members with them. The militia members
are then re-appointed as police officers or police soldiers. For instance, the chief of
police in Paghman, Kabul, is a former unit commander under the chief commander of the
70 Anonymous interview, district prosecutor, Nangarhar, December 2003.
central Army division in Kabul. Likewise, the chief of police in Mir Bacha Kot, Kabul,
is a former unit commander of the current head of the Army 66th Battalion around Kabul.
Throughout the country, there are few trained and professional officers in leadership
positions within the police. Professional training of those at the district level is
practically non-existent. The Tufts team found that former fighters and militia forces
with no training as police officers form the majority of police forces at the district and
provincial levels in Badghis, Balkh, Herat, Kabul, Kandahar, and Nangarhar (Table 3.1).
In most cases, the few trained police officers in the system serve as clerks who mainly
push paperwork, write minutes of meetings, schedule appointments, and formalize the
informal (and sometimes unlawful) activities of the higher ranking officers. For instance,
when the Tufts team asked about the number of current prisoners in one district, the one
uniformed officer present stated “zero” and confirmed this by producing the record book.
However, a visit to the jail by the Tufts team found there to be 13 prisoners in custody.71
Trained and experienced police officers often approached the Tufts team to voice their
frustration over serving under high ranking officers who lack training and experience.
Indeed, the trained police have little power over police operations in most of the
provinces and districts. Such situations contribute to growing frustration among
professional police officers.
Percentage of District Police Forces in Uniform, With Uniforms Distinct From Military,
Proper Registration of Firearms, Secure Location of Stored Firearms, and Composition of
Police Force, by Province, 2003. Based on Tufts University study data.
Badghis Balkh Herat Kabul Kandahar Nangarhar
71 Observations, Nangarhar, November 2003.
Our study found that the majority of weapons in the hands of police at the district levels
in Balkh, Badghis, Herat, Kabul, Kandahar, and Nangarhar are personally owned by the
police chief or are the personal weapons of individual police officers and police
soldiers.72 In the majority of cases we studied, there was no official registry of weapons
and no secure location to store or issue weapons. In several locations, the Tufts Team
saw a number of automatic weapons, RPGs, rockets, and heavy weaponry lying on tables
or on the ground outside the police buildings. In some cases, police chiefs have
agreements with powerful commanders in the Afghan army to assist in proving weapons
for the military unit if necessary. In return, the police rely on the assistance of the major
military commanders in emergencies.
Police uniforms are visually distinct from military uniforms, but only some of the police
in our sample were wearing uniforms. In no instance were all on-duty officers in uniform
when the Tufts team arrived at the police station. The majority of police wore casual
(street) clothes instead of uniforms, and usually only the chief of police and his top
officers were in uniforms. Only one police chief reported having enough uniforms
(supplied by the Ministry of Interior) for his officers.
The Ministry of Interior provides salaries (theoretically) and a limited amount of office
supplies to the district police forces. Of our sample of police forces in Badghis, Balkh,
Herat, Kabul, Kandahar, and Nangarhar provinces, the vast majority lacked enough paper
and pencils to record incidents and arrests. No station we visited had standard forms for
recording incidents and arrests; all forms were handwritten. On several occasions the
Tufts team found that there were not enough chairs for the team (of two people) and the
police to sit during an interview. (The police would then stand for the discussion.) We
came across only one woman officer, in Bala Murghab district of Badghis province, and
she was in charge of female detainees. Although other district stations expressed the
need for women officers, most did not have any plans to recruit women.
We found that 100% of police in our sample lacked sufficient transport to enable them to
do their jobs. For example in Paghman, Kabul, the only car available was for the police
chief, thus making it very difficult for the police to patrol, respond to requests, or visit the
scene of a crime. The Paghman shura has mandated that local people with private cars
(e.g., those who drive transport routes to Kabul) must provide their car for the nighttime
use of the police for a rotating period of three to four months. The police can use this car
at night to respond to emergencies. Police try to reach the location in emergency
incidents; otherwise they send a message “asking the person to please come report to
us.”73 In Surobi, there is only one car for everyone, including the investigative unit. At
the time of the visit by the Tufts team, that car had been in the repair shop in Kabul for
several months. A murder case was reported two months ago, but the village where the
72 Interviews and observations, Kabul, Nangarhar, Herat, Kandahar, Badghis, and Balkh August-December
2003. Militia members transferring to police service were often allowed to bring their personal weapons or
weapons caches with them.
73 Interview, police officers, Paghman, Kabul, November 2003.
murder occurred is 40 kilometers from the district center and the police have not yet been
able to visit the scene due to the lack of transport.74
One hundred per cent of our sample police forces in Badghis, Balkh, Herat, Kabul,
Kandahar, and Nangarhar had not received their salaries from the Ministry of Interior on
time, with an average delay of 4-6 months. Rural police salaries are very low and
average roughly $17 USD (AF800) per month. In Mir Bacha Kot, for example, the
police soldiers at the checkpoints have not been paid, and the police chief bought them
carpets with his own small salary so they would have something warm to sit on in the
check-posts. The police chief said that he feared his men would otherwise have become
increasingly unhappy and would feel undervalued, and he worried that this would impact
their job performance. In Surobi, police soldiers manning check-posts on the highway to
Kabul were without carpets, bedding, or coats for warmth during the winter.75
Tufts research in Badghis, Balkh, Herat, Kabul, Kandahar, and Nangarhar provinces finds
that the local police chiefs often operate independently from the Ministry of Interior.
They receive a fixed salary from the Ministry of Interior, but largely function under the
auspicious of the major military commander in the area. As discussed earlier, many
police chiefs are former militia commanders who entered police work when their
commanders came under the government system. A government official in Jalalabad
stated that having police loyal to one powerful man in the area—even if this man is a
commander outside of the police system—is a positive development, as it encourages
accountability and makes work more efficient. However, the Tufts team argues that based
on this system, the administrators/commanders often engage in issues through a network
of patron-client relations, rather than through the police system, police regulations, and
professional structure. For example, a government head of a rural district in Nangarhar
complained that his police chief was not following official directives from local officials;
rather, he was arresting and releasing people upon the orders of the chief of the police in
Jalalabad, to whom he had greater loyalty.76
These patron-client relationships make it nearly impossible to enforce justice. To
illustrate, a former district authority from Kandahar spoke to the Tufts team of the
problems he faced in trying to establish rule of law within this system of patronage:
In [a rural district of Kandahar], the head of the police [name withheld], was
traveling to the main road and asking for 20,000 Afs per car for passing on the
road. If they would not give the money, then he would take their car. He had
power because the rest of the police supported him. Since he was from [rural
district] people in the district would cover for him, because he had tribal and
friendship support. The regular people were very unhappy and tired of this
situation and they would complain to me since I was the district authority there at
the time. But I could not stop him because he was powerful and well supported
by his tribe.
74 Interview, Head of Investigations, Kabul, November 5, 2003.
75 Interview, police officers, Mir Bacha Kot, Kabul, November 2003.
76 Anonymous interview, Nangarhar, November 2003.
The same pattern was also occurring when I was the district authority in [another
rural district], with a person … who was stealing cars and robbing houses. When
I caught him, he admitted in front of the shura that he stole the cars and robbed
the houses. I sent him to the provincial center to the police. The governor [now
the former governor] became involved in his case. After one month the suspect
was released and promoted as a commander. Now he has guards and cars and
power. Instead of being punished, he was promoted, in part, because he is of the
same tribe as the head of the military division of Kandahar.77
The police themselves expressed frustration at the poor conditions they work under, the
Ministry of Interior’s inability to pay them in a reasonable time period, and their lack of
training and resources, especially vehicles. In some cases, they also reported feeling
under threat from armed forces. In one instance, police forces in Kabul called upon ISAF
to assist in disarming local commanders and militias to enable them to carry out their
work without interference.
Many provinces and districts have no detention centers. District level
detention centers visited in Balkh, Badghis, Herat, Kabul, Kandahar, and
Nangarhar provinces are in an extremely poor condition and lack basic
necessities such as secure structures, sanitation facilities, and beds and
blankets for detainees.
Detainees are sometimes held in shipping containers or in private detention
facilities. Some prisoners showed signs of being beaten and others were
unable to walk or stand without assistance.
In the areas visited, there were no detention facilities for women at the
The Ministry of Justice has recently taken over responsibility of jails throughout the
country from the Ministry of the Interior. The media reported on this transfer of
responsibility and officials in the capital conveyed the change to the heads of provinces
and districts. In our interview with the Minister of Justice, Mr Karimi, he spoke of the
high level of cooperation between himself and Mr. Jalali, the Minister of Interior. 78
However, based on our interviews with police chiefs in rural districts, the transfer of
responsibility for the detention centers was not accompanied by an appropriate level of
preparation and attention to logistics, administration, or financing. Police were receiving
little to no support from the Ministry of Justice for running the detention centers. For
77 Anonymous interview, Kandahar, December 2003.
78 According to an anonymous high ranking official of the Supreme Court in Kabul, during shifting
responsibilities of jails, some 114 hardcore criminals were able to escape. Anonymous interview,
Afghanistan Supreme Court, Kabul city, December, 13, 2003.
example, in Mir Bacha Kot, Kabul, the police rely on the Ministry of Health to provide
glasses, water, pots, and other essentials for the detainees. The police chief stressed that
this relationship needed to continue because he had no budget for these services.79 In
other districts, the police chiefs are in debt to shopkeepers for the purchase of fuel, office
supplies, and food. In Guzara, Herat, the government head of district asked a local
merchant for financial assistance to (temporarily) prevent the collapse of his entire police
force due to lack of funds and low salaries.80
According to Minister Karimi, 18 provinces have no detention facilities while nine other
provincial detention centers need serious reconstruction. District detention centers are
presently still controlled by the police because the Ministry of Justice has no budget,
trained officers, or office supplies for maintaining detention centers and inmates. The
Tufts team visited rural detention centers throughout Balkh, Badghis, Herat, Kabul,
Kandahar, and Nangarhar provinces that were in extremely poor condition. To illustrate,
in Surobi, Kabul, the ceiling of the detention center was collapsing and infested with
snakes.81 In Rodat, Nangarhar, the only light in the detention center came from a crack in
the wood above the door frame; the room was infested with rats and mice; the bedding
consisted of shreds of fabric on a dirt floor; and chains for the legs and arms of inmates
hung from beams on the ceiling.82 In the detention center in Koshan, Herat, the only light
and ventilation came through a door that was often chained shut.83 In Bala Murghab,
Badghis, militias had destroyed the police station and detention center, but inmates were
still held in the partially destroyed building (a new detention center was under
construction using funds and labor from the community).84 In a district in Kandahar, the
district authority and court officials were not allowed into the detention center which was
privately controlled by the police, and they had no idea who was being held there or
why.85 According to the district authority in this district:
My administrative person plus the prosecutor wanted to visit the detention center,
because I told them I needed an update on who is there, who is not there, and so
on. But the police did not let them enter. The prosecutor has not visited the
detention center for the past four months. Still we have not gotten in there to see
what is happening and who is there.86
The police did grant the Tufts team entrance to the detention facility in this district,
although the district authority and prosecutor were not allowed to accompany us. The
team saw children (boys) and several other detainees being held in the detention center.
Within this prison, the Tufts team spoke to a 60-year-old man who said that his son had
been suspected of kidnapping another boy. The police could not catch the boy so they
arrested the father instead. The district chief of police said:
79 Interview, police chief , Mir Bacha Kot, Kabul, October-December 2003.
80 Anonymous interview, District Authority, Herat, November 2003.
81 Observation, Surobi, Kabul, November 5, 2003.
82 Observations, Rodat, Nangarhar, November 25, 2003.
83 Observations, Koshan, Herat, November 13, 2003.
84 Observations, Bala Murghab, Badghis, November 19, 2003.
85 Human rights groups report that there are numerous private detention centers in Afghanistan.
86 Anonymous interview, District Authority, Kandahar, December 11, 2003.
Yes, this is our method. If the person who has committed the crime is not present,
then we go and arrest their close relatives so that they will turn themselves over to
In the majority of our sample, detention centers were located in mud or cement buildings,
in the remaining cases they were iron shipping containers. 88 Juvenile male offenders
were held with adult males due to lack of knowledge of the laws by police and lack of
separate facilities. Half of these centers were crumbling and in very poor condition. In
the majority there was only a hole, window or door to provide light, and in 95% of cases
sanitation and hygiene facilities were poor. Importantly, these are often the same
facilities that the police themselves use, and they also find the conditions hardly bearable.
In Surobi, Kabul, for example, sanitation and hygiene facilities were so bad that the
police would not take the Tufts team to inspect them, “They are unseeable and we won’t
show you, but it is also what we use.”89 One hundred percent of our police sample cited
poor facilities, especially sanitation facilities, as a top concern. Half of the sample
considered lack of facilities to hold women and children separate from adult males to be a
In 25% of visits to police stations and detention centers, the Tufts team saw prisoners
who had been badly beaten or could not walk on their own. The Tufts team witnessed a
public execution in a rural district in Balkh of a bodyguard who had allegedly killed his
commander; there was no trial: the man was caught, dragged into the village center, and
killed by armed members of the former commander’s group. On several occasions the
Tufts team saw detainees performing labor for the police during their detention, such as
splitting wood or serving as a cook. A number of detainees came up and spoke to the
Tufts team of being held for long periods of time without charges being officially brought
against them and others were being held for the alleged crimes of relatives.
Wardens of jails (where they exist) are now under the control of the Ministry of Justice.
These men, however, continue to believe that they are part of the police, and are confused
by the lack of clarity regarding their status. These wardens typically have no legal
education, no training, and, in many cases, feel that they have been forgotten by the
Detention facilities for women were nonexistent in the districts visited by the Tufts team.
As stated above, we met only one woman serving on a district police force. The lack of
women officers to handle the arrest, detention, or transport of female detainees places any
woman arrested at heightened risk of abuse. According to local officials, female
detainees are usually held in a rented room in a private home until they can be transferred
87 Anonymous interview, 60-year-old detainee, Kandahar, December 11, 2003; Anonymous interview,
chief of police, Kandahar, December 11, 2003.
88 As mentioned earlier, there were no women’s detention centers in the rural districts within the Tufts
89 Interview, Head of Investigation Unit, Surobi, Kabul, November 5, 2003.
to a women’s detention center in an urban area. However, in at least one case, women
were taken not to the detention center but to the home of a police officer to await trial.90
Women are often incarcerated for zina crimes, such as “running away from home” (even
if this is to escape an abusive husband or violent domestic situation), presumed sex
before marriage, or disobeying a family’s wishes for marriage partner (see Women and
the Legal System, Section I).91 Women inmates pay a triple price for their offences: 1)
they endure punishment imposed by court; 2) they are often rejected by their families;
and 3) they are at times rejected by their community following their release.
Based on interpretations of the traditional notion of nang and namus, a woman who is
arrested for an offense, sentenced, and convicted is no longer considered a “good and
honorable woman.” Authorities are also likely to hold this perception of women who are
alleged to have committed a crime. These views may serve as justification for abuse or
sexual violence perpetrated by local law enforcement officers, who argue that “she is bad
anyway.”92 Few families will visit female relatives in prison due to the shame and stigma
attached to women (and their families) who are accused of breaking the law or of straying
from their expected roles.
In many cases, families (usually fathers or husbands) play a direct role in the conviction
and incarceration of the woman for going against the family’s will or violating zina
crimes (see Women and the Legal System, Section I).93 Female detainees are likely to
lose custodial rights to their children. In many cases, families do not allow released
inmates to return home; sometimes women inmates prefer to stay in jail because they
have no place to go and fear violence upon leaving.94 In addition, single women are
extremely unlikely to be able to find a husband once they are released from jail as a result
of the social stigma.
The development of rigorous systems of legal education, including the establishment of
an Afghan Bar Association and corresponding examinations, the creation of professional
legal societies based on qualifications and achievements, the continued training of the
90 Interview, chief of police, Bala Murghab, Badghis, November 19, 2003.
91 See, inter alia, Amnesty International, Afghanistan: “No one listens to us and no one treats us as human
beings”: Justice denied to women, (London: Amnesty International, October, 2003); Amnesty
International, Afghanistan: Re-establishing the rule of law, (London: Amnesty International, August 2003);
Human Rights Watch, Taking Cover: Women in Post-Taliban Afghanistan, (New York: Human Rights
Watch Briefing Paper, May 2002); International Crisis Group, Afghanistan: Women and Reconstruction,
ICG Asia Report #48, Kabul/Brussels, 14 March 2003.
92 Amnesty International, Afghanistan: “No one listens to us and no one treats us as human beings”:
Justice denied to women, (London: Amnesty International, October, 2003): 22.
93 Amnesty International, Afghanistan: “No one listens to us and no one treats us as human beings”:
Justice denied to women, (London: Amnesty International, October, 2003): 32.
94 Amnesty International, Afghanistan: “No one listens to us and no one treats us as human beings”:
Justice denied to women, (London: Amnesty International, October, 2003): 39; Valerie Reitman, “20
Female Afghan Prisoners go free under presidential amnesty,” (Los Angeles Times, November 11, 2002).
Amy Waldman, “The 15 women awaiting justice in Kabul prison,” (New York Times, March 16, 2003).
judiciary, and adequate funding for the judiciary and its counterparts (the police,
detention centers, etc) are absolutely necessary for meaningful legal reform in
Afghanistan. In order to ensure the development of a trained cadre of judicial staff, the
Afghan government and international donors must promote a standardized and
comprehensive legal curriculum within the higher education system, the establishment of
legal clinics, and the replacement of those staff within the judicial system that have no
formal legal education or qualifications. The qualifications for judges are laid out in
Afghan law—these standards must now be applied and enforced.
While the separation of the judiciary and executive powers has been addressed in the new
Afghan constitution, there is still a pressing need to assess this separation in light of the
amended constitution. In particular, there is a need to develop and find pragmatic ways
to clarify the distinctions and responsibilities among the Supreme Court, the Ministry of
Justice, and the Attorney General’s Office. Justice cannot be served and the formal legal
system cannot function without proper coordination in training and clear distinctions
regarding the legal responsibility of the various law enforcement agencies and the justice
sector; otherwise we will continue to see each of these branches negatively affect the
efforts of the other.
The Attorney General’s Office is one of the most under-funded organs of the judiciary: it
lacks materials for investigations, forensic labs, and a technical facility for evaluating
evidence and crime scenes. As a result, suspects are forced to cover some of the costs of
police investigations. To illustrate, suspects or their families are forced to pay for
transport cost from a detention center to a local hospital if the court wishes to have a
medical opinion regarding the mental health of the suspect.95
Currently, many former commanders and their militias hold positions within the police.
This status quo must be thoroughly and systematically dismembered if there is to be any
real reform within the police. To accomplish this goal, police training academies should
expand into the provinces, and the Afghan government and international donors should
set of goal of training all police within the next five years. By this time, all untrained
police should be replaced by those who have graduated from these academies with the
proper training and qualifications.
“Donors should avoid looking for quick fixes where there can be none—that will be
counterproductive.”96 The international community and donors should not seek
simplistic remedies or quick fixes, as lessons from East Timor and Bosnia show that
these “quick fix” solutions are often not replaced by more sustainable and longer-term
strategies.97 Rather, donors and TISA need to design programs that reflect a careful
95 Interview, district prosecutor, Guzara District, Herat, November 28, 2003.
96 Denis Gallagher, personal communication, February, 2004. Mr. Gallagher is Chief of Party of
Afghanistan Governance and Law Reform coordinated by Management System International (MSI) and
funded by USAID.
97 Denis Gallagher, personal communication, February, 2004. For instance, given their leadership in the
reform of the formal justice system, the Italians are pushing for adopting an interim criminal procedures
code to be used as the basis for immediate training of judicial personnel throughout the country. However,
the efforts to adopt this interim code are, in fact, preventing the formation of real legal codes and systems
assessment and continuing reassessment of their initiatives as they develop within the
changing nature of events within Afghanistan.
Part 2: Systems of Justice: Traditional and Customary
Traditional and Customary Systems of
Justice in Afghanistan: Jirgas and Shuras
Political armed groups, commanders, and militias have strategically targeted
traditional and customary justice systems in some parts of rural Afghanistan
in attempt to exert control over local populations. In many instances, these
predatory forces have successfully positioned their loyalists within these
groups, thus undermining this avenue of justice for rural Afghans.
In regions where political armed groups are able to exert control over the
district authorities they often also have their members on the district shura,
thus ensuring greater control of the district.
The current shura system operating in much of the country is based on a
framework that was put in place by the Taliban, which sought to replace the
more democratic (though only for adult males) Jirga systems. With the
Taliban now gone, some communities are restructuring their shuras but few
are returning to the Jirga system.
In other areas, particularly among the tribal groups, rural Afghans are
replacing the shuras with the more democratic (for adult males) Jirga system.
This is, in part, an attempt to limit the influence of the political armed
Rural women are largely denied a direct voice in any shura or Jirga system,
and thus are also denied justice within traditional or customary systems.
that can be upgraded within a more fully developed legal system. The advisability of this interim code and
its provisions, which have multiple problems from procedural and human rights perspectives, runs the risk
of making the judges who do know the law essentially “illiterate” and inhibits the process of the formation
of well-thought-out, permanent, criminal codes. Drawing on lessons learned from East Timor and Bosnia,
it is clear that there are no “easy, temporary fixes,” instead, there is a real risk that the quick temporary
fixes will become permanent. Nonetheless, the proposed interim criminal procedures code has been pushed
hard by some donors onto the Afghan judiciary. Yet, in our research, the Tufts team found no Afghan
justice agencies that supported the law as something that was needed, useful, or likely to be implemented.
However, Afghan officials and a number of foreign experts anticipated that this interim criminal law will
be recommended to the President because of the pressure being applied by key donors. To this end,
UNAMA is largely silent on the issue because Italy is the primary funding source of the judicial reform
component of the UN program. However, such short-term, “quick fix” developments are ill-advised and
counterproductive in the medium and long-term.
Traditional Social Institutions in Rural Afghanistan
In Afghanistan, tribal and non-tribal traditional social institutions have been deeply
affected by continuous regime change, political violence, massive migration and
displacement, great loss of lives, and the destruction of infrastructure, land, and the
national economy. Today, Afghan societies are segmented social organizations wherein
tribes and non-tribal communities govern their affairs—often autonomously via
traditional or community-based systems of justice—without the direct interference (or
engagement) of the central government or the formal justice system.98
Approximately 85% of the Afghan population lives in rural areas, with a significant kuchi
(nomad) population in the southern, southeastern, and northern regions of the country.99
The social structure of Afghan society is predominantly divided between tribal groups
and detribalized or non-tribal communities, each with their own set of local customs,
while also sharing popular traditions.100 However, the political violence experienced at
numerous levels over the past 30 years has resulted in the transformation of many Afghan
cultures and societies into more highly militarized social orders, in which the threat or
use of violent force has become the means for personal, familial, and community self-
defense and gain. These developments affect people’s personal attitudes and group
behavior toward the state and society, and resulted in crises in the social, cultural, and
political institutions among tribal and non-tribal communities.
The Roles and Political Manipulations of Jirgas (Councils)
The Afghan Tribal Belt
In the past, the Afghan tribal groups, like Ahmedzai, Waziri, Mohmand, and Mangal,
followed a traditional social system upon which they strove to gain greater autonomy
from the outside world; notably, this autonomy included the desire to avoid the
jurisdiction of the central government.101 In the past and today, individual members
within the tribal groups have used their tribal membership as a source of identity and a
means of security. The majority of marriages take place within the boundaries of a tribe,
with the exception of the practice of Bad or Badal—the exchange of girls or women
between tribes in order to solve a serious dispute between tribes (see Badal and the
Exchange of Women and Girls, Section I).102 Tribal groups also strengthened or formed
98 N. Nojumi, “Islam, Custom, and Customary law in Afghanistan,” Unpublished research paper for
Harvard Law School’s Islamic Legal Studies Program, August 2003.
99 For background information see Wardak, A., “The Tribal and Ethnic Composition of Afghan Society” in
Afghanistan: Essential Field Guides to Humanitarian and Conflict Zones (Second Edition), edited by
Edward Girardet & Jonathan Walter (Geneva: Crosslines Ltd., 2003).
100 For instance, traditional and customary perceptions toward hospitality, honor, and revenge are shared
among both tribal and non-tribal population without the importance of their origins.
101 For more details see Tapper, R., The Conflict of Tribe and State in Iran and Afghanistan (London;
Croom Helm, 1983).
102 For additional background see Louis Dupree, Afghanistan (Princeton: Princeton University Press, 1980)
alliances among themselves over a common predicament, such as resisting the
interference of the central government or warding off outsiders. Until the 1970s, the
Pashtun tribal groups in the southern and eastern regions of Afghanistan, in particular,
were largely successful in avoiding conscription into the state military. They also were
relatively successful in blocking the central government’s interference in their local
affairs. Instead, they managed their tribal affairs through a system of tribal and
customary commandments that were rooted in their local perspectives of law. They
applied their customary law through a highly flexible forum known as Jirga (council).103
The local Jirga served as the forum for community social and political organization,
where the adult male members of a village discussed issues of their interests, helped
needy neighbors, and supported solidarity via hashar (voluntary collective work), such as
building a bridge, cleaning a canal, harvesting, or building houses for other villagers.
Loya Jirga (Grand Assembly) was a political forum–comprised of the local male
delegates from all over the land— used for providing legitimacy to the political authority
and making vital national decisions.104
Jirgas were primarily used to voice concerns of community members, make decisions for
the community, and handle disputes.105 Historically, Jirgas were not held under any
predetermined schedule, nor did they have a fixed organizational structure or
membership. Instead, Jirga members were selected by various parties and the council
was formed when needed, thus making a Jirga more of a community process than a
standing local organization. In addition, the methods used to form a Jirga and the laws
that apply differ throughout of the country. For instance, while the Pashtun Jirga has
similarities with the non-Pashtun shura, its methods and social composition usually
All parties involved in a dispute that came before the Jirga were obligated to accept and
follow whatever decision came out of the Jirga.106 In certain areas, the Jirga was capable
of imposing sanctions and using tribal forces to enforce its decisions if necessary. In
other areas, those who did not agree with final decisions could ignore the decision and
hope that no further action would be taken, could bring the case to the government, or
could leave the village.107 The absence of formal justice systems in the rural areas during
much of the 23 years of war led people to rely increasingly upon the traditional fora of
Jirgas or shuras to solve disputes, settle grievances, and find remedies for local issues.
103 E.g., Hakim Ayoubi, “Da Paktia simy tamodi huquq (The Customary Law of the Paktia Province)”, in
Huquq VII (Afghan periodical on law in Afghanistan) (cited in Ghani, op. cit., 1978, p. 269). Also see
Noelle-Karimi, “The Loya Jirga – An Effective Political Instrument?” in Fundamentalism Reborn?
Afghanistan and the Taliban, edited by William Maley (New York: St. Martins, 1998).
104 For more details see Ali Wardak, “Jirga: Power and Traditional Conflict Resolution in Afghanistan,”
Law After Ground Zero, edited by John Strawson (Sydney: Glass House Press, 2002) 199.
105 While only men can sit at the Jirga, in theory, women are able to voice their concerns through the adult
males of their household at the Jirga.
106 N. Nojumi, “Islam, Custom, and Customary law in Afghanistan,” unpublished research paper for
Harvard Law School’s Islamic Legal Studies Program, August, 2003.
In the 1980s, the Afghan tribal belt, held mostly by Pashtuns, became a highly sensitive
political location in the war between the pro-Soviet regime and the mujahideen forces.
As a result, massive military build up took place within the tribal areas on both sides of
the Afghanistan-Pakistan border. Militarization of these areas radically changed the
nature of the local economy, social organizations, and local customs. Tribal groups and
their social, political, and cultural institutions were influenced by the rise of military
commanders and an increasingly war-based economy. 108
The relative independence of the process of Jirga was increasingly undermined in this
period by the military commanders who sought to manage populations through control of
the Jirgas. Additionally, the practice of customary law was overwhelmed by numerous
different interpretations of Sharia law, led by a new generation of clerics trained in
Pakistan. These trends accelerated during the Taliban regime with the increased
participation in the religious schools (madrasas) in Pakistan of large numbers of young
Afghans from the tribal areas. Upon coming to power, the Taliban sought to control the
Jirgas directly and, as a result, the Jirgas increasingly lost their political independence.
Taliban leaders attempted to use the local institution of Jirga as an arena to raise political
support for their cause. The Taliban banned all customary law and attempted to enforce
their version of Sharia. They interfered with the traditional way of forming village
Jirgas, whereby all adult male members of a community had previously been able to
freely express their opinion and participate in electing delegates to the Jirga. The
Taliban regime changed the Pashto word Jirga into the Arabic version shura (council),
and appointed the village Mullah as the head of the shura. The village Mullahs were
made government employees and were paid salaries by the Ministry of Pilgrimage and
Endowment (Wazarat-e-Haj wa Awqaf). The local Mullah was authorized to select four
to five adult male members of the village to work under him, who together formed the
village shura. Each village shura elected one adult male to the district level shura. In
most cases, the majority of members of the district shura were comprised of local
Mullahs, who also held the membership of the shura-e-ulama (council of clergies) at the
Currently, the word shura is used to describe local governing institutions throughout all
of Afghanistan. The Taliban-introduced dual system (village and district level) has
expanded to the provincial levels where selected/elected members from each district
shura form the provincial shura, similar to what was introduced during Rabbani’s
government (1992-1996). Today, this shura structure is retained by the district and
provincial authorities in most parts of the country as well as the tribal belt (see discussion
below). Jirgas are being reestablished in some of the tribal areas with a structure similar
to that of the past, which was based on customary law and local understanding of the
Islamic faith rather than centralization of one specific interpretation of Sharia imposed by
108 N. Nojumi, “New Constitution and its relevance to New Afghanistan,” Research Paper, Harvard Law
School’s Islamic Legal Studies Program (ILSP), September 2003.
Armed political groups are not the only ones involved in engaging with Jirgas and
shuras. During the 1990s, some NGOs and the UN supported, to a certain extent, the
formation of these local fora in urban centers and some rural areas. For example,
community development programs sponsored by UN Habitat resulted in the
establishment of a number of these local fora in Balkh province during the 1990s. This
process was challenged by the local power-holders and armed groups who began to
manipulate this process or build councils loyal to their cause.109
In the early 1990s, UNOPS began to support the formation of women’s councils in
Badakhshan, a province known for traditionally having greater gender equality and
freedom of movement for women than the rest of Afghanistan. The program to create
women’s councils was welcomed by significant numbers of women and community
activists. A local women activist describes the development of the initiative for women’s
councils in an interview with the UNDP’s Strategic Monitoring Unit:
Since five years there has been a women’s organization established, it is not a
political organization but a society, but no one has stopped us. Faizabad has 60
parts and in each we have one representative, chosen from a meeting of women.
Her role is to sort problems …And we have women’s council in six city districts.
We invited 100% of all of the women in the districts to take part in the election
[in 1997] and this was how the council was set up. During the meeting we
discussed the objectives of the council and candidates, we gave a biography and
activities of these candidates. In district two there are 13 mosques and 13
neighborhoods, and they each sent their representatives to participate—13
representatives… I personally have traveled to 21 villages and we have
established councils, and the village welcomes it. Traveling is no problem in
Badakhshan, even they [the authorities] co-operate with us.110
The UN Habitat and UNOPS programs set up in Balkh and Badakhshan in the early
1990s are notable. Of particular note, some of these initiatives nurtured democratic
participation of the local communities at the grassroots level that countered the rigid and
militaristic domination of the Islamist groups. These grassroots initiatives and their
sustainability, therefore, offer an important example of what might be achieved, as well
as the likely challenges one could expect to face from armed groups, through
international and local efforts to build a more sustainable peace.
The presence of female shuras to the degree that existed in Badakhshan has not been
confirmed in any other part of Afghanistan. Today, throughout Afghanistan, women do
not participate in the male dominated shuras and Jirgas. However, the success of the
women’s shuras and their partnership with international agencies in Badakhshan during
the 1990s is an important case study that may have lessons for the development of civil
society and women’s shuras in other parts of Afghanistan.
109 Interview, Najib Paykan, Director of Youth and Children Development Program, Mazar-e-Sharif, Balkh,
December 9, 2003.
110 “Badakhshan” SMU Area Report, the Strategic Monitoring Unit Afghanistan, UNDP, May 2001, p. 17.
The Long Road to Rebuilding Traditional Tribal Institutions: Rebuilding Jirgas
Research by the Tufts team indicates that a number of the tribal communities are moving
towards reestablishing their tribal organizations based on direct participation of local
leaders and the rule of customary law. For instance, the Mohmand tribe in Nangarhar has
increased participation from the male members of the local community for the Jirga, and
the local district authority has not interfered with the Jirga’s handling of legal cases.111
However, a shortage of local resources due to the legacy of militancy, warfare, drought,
and the existence of ideological political groups, means that some communities are
having a slow and difficult time remobilizing their tribal organizations, especially the
institution of Jirga. Currently, the reestablishment of tribal systems is occurring at
different rates and in different forms in the different regions of the country, as illustrated
Tribal groups in the north, particularly the Kuchi, have suffered a series of disastrous
social, political, and economic developments. Continuing hardship and displacement
have made it nearly impossible for these groups to reestablish traditional systems of
governance. In the past, tribal organizations, and local conflict management forums have
helped the Kuchi to establish their leadership in order to represent them to the central
authority, as well as offer remedies at the time of internal and external conflicts and
hardships. In the late 1990s, Taliban leaders mobilized the Pashtun Kuchis to help the
Taliban accomplish their military and political objectives of defeating their (mostly) non-
Pashtun armed rivals. However, the fall of the Taliban in 2001 resulted in costly political
consequences for the Kuchi.112 The politically motivated ethnic tensions that arose in the
north affected the lives of Pashtun Kuchi communities, and many fled or were driven
from their homes and became internally displaced within Afghanistan.113 Years of severe
drought also caused Kuchi populations to lose most of the livestock herds which underpin
their livelihoods (see section on Livestock). Some Kuchi groups reached such levels of
desperation that they sold their tents (their only form of shelter) in order to pay for travel
to refugee or internal displacement camps.114
Under TISA, the government’s Ministry of Tribal Affairs was formed to handle matters
relating to the tribes and to assist these communities. UNHCR is the lead UN agency
working to assist the return of tribal populations—as internally displaced persons or
refugees—to their places of origin.115 In areas with ethnically heterogenous populations,
especially the North, several Afghan ministries are working with UNHCR and UNAMA
to attempt to convince the local commanders to cooperate with populations returns. This
111 Interviews with members of the tribal Jirga, Mohmand Dara, Nangarhar, November 2003.
112 For more details see Human Rights Watch - Report April 2002, Paying for the Taliban's Crimes: Abuses
Against Ethnic Pashtuns in Northern Afghanistan, Vol. 14, No. 2 (C); ”Is Afghanistan on the Brink of
Ethnic and Tribal Disintegration?” in Fundamentalism Reborn? Afghanistan and the Taliban, edited by
William Maley, New York: St. Martins Press 2001.
113 For more information see Liz Alden Wily, Land Rights in Crisis, Afghanistan Research and Evaluation
Unit, Kabul, 2002.
114 For additional information see Sue Lautze et al., Qaht-E-Pool “A Cash Famine”: Food Insecurity in
Afghanistan 1999-2002, (Medford: Tufts University, 2002).
115 Interview, Philip Leclerc, UNHCR Assistant Chief of Mission (Protection), Kabul, December 2003.
is being done through the mechanism of the Return Commission, which was established
to promote the voluntary and safe return of Afghans to the Northern provinces.116 In the
absence of legal systems to resolve the property disputes that lie at the heart of the
dispossession of the Pashtuns, the commission has made limited progress by touring the
country to facilitate discussions about the conditions in the north and possible problems
faced by local communities.117
Nevertheless, due to the highly militarized environment in the north and the level of
violence against members of the Pashtun tribal groups in the region, most of the
internally displaced persons are afraid to return.118 In other cases, the displaced lack the
financial means to return and the resources to rebuild their destroyed or damaged homes
or to prepare their lands for farming.119 The poor economic conditions have negatively
affected people’s ability to reestablish social institutions and improve their living
conditions. As a result, they remain largely dependent on foreign assistance while living
in the internally displaced persons and refugee camps. Since the local institutions are too
weak to overcome the power of the local commanders, the Afghan internally displaced
populations and refugees that want to go back to their places of origin have high
expectations regarding the central government’s interventions to ensure their safe return.
The current lack of effective intervention and continued security threats, however, lead
the displaced to doubt the credibility of the current government in Kabul.120
For the most part, tribal groups in the southern part of the country have been unable to
demobilize their communities and reinstate the institution of Jirga in its more
representative state with limited control and influence by outsiders, such as powerful
commanders and armed political groups. This demobilization has been made more
difficult due to the tension in communities caused by the resurgence and recent
expansions of the Taliban forces in the region. The tribal groups living on the southern
border with Pakistan continued to be influenced by the militant groups in the area who
are opposed to both the central government and Coalition presence. The militarized
atmosphere in the border area has caused increased insecurity for the tribal groups, and
the militant groups have depleted local resources. This insecurity and associated
developments have hampered the ability of the Afghan tribes to reestablish their
traditional institutions and effectively manage their affairs. As a result, the border tribal
groups are uprooted, and are now spread between Afghanistan, Pakistan, and in safer
zones near to urban centers.121
116 The Return Commission has achieved mixed results in returning people to their land, largely because
there are no legal mechanisms to resolve property disputes. See International Crisis Group, Afghanistan:
The Problem with Pashtun Alienation, (Kabul/Brussels: ICG Asia Report No. 65, August 2003): 13-14.
117 International Crisis Group (ICG), Peacebuilding in Afghanistan, (Kabul/Brussels: ICG Asia Report
#64, September 2003): 19.
118 “Report of Return Commission’s Working Group on Mission to Jawzjan, Saripul, and Faryab
Provinces,” 5-21 May 2003.
119 Interview, Alexander Tyler, UNHCR Protection Officer, Kabul, December 2003.
120 Interviews with internally displaced persons in Maslakh camp, Herat, November 2003.
121 Interviews with members of the Mohmand tribal groups, Nangarhar, November 2003.
Additionally, the southern region of Afghanistan continues to be seriously affected by
drought. The humanitarian impact of the continued drought has been exacerbated by the
recent withdrawal or cessation of UN and NGO programs in the region, which has been
declared a High Risk Zone. As a result, local communities have lost their access to
badly-needed relief supplies and other humanitarian assistance.
There are more positive developments in the east and southeast which suggest that
traditional forms of conflict management and community stabilization such as the Jirga
are being reestablished. In the eastern region, and particularly Nangarhar, tribal groups
such as the Mohmands and Khogianis are reestablishing their tribal Jirgas. Increasingly,
even the government district officials in these areas refer legal disputes to the local Jirga.
According to Gul Mohammed, a malik from Dakah who represents six villages in the
district Jirga, people are tired of war and group conflicts and are struggling to have a
peaceful life.122 The activity of multiple armed groups continues, but, as explained by
local Nangarhar residents, “with the establishment of TISA in Kabul the domination of
the previous political parties [based in Pakistan] over the local affairs has been
reduced.”123 Refugees have been able to return to the area, people are engaged in
farming, and neighborhoods and villages are being reinvigorated. People are gathering in
the local mosque for Friday prayer; they meet without weapons in a peaceful
environment and engage in discussions about distributing water, cleaning irrigation
ditches, and forming neighborhood security watch systems. Such developments give
people hope and the ability to begin to reestablish local institutions and move towards
greater self-reliance outside of the control of the various armed political groups and
Tribal groups in the southeast provinces such as in Paktia are moving more rapidly than
elsewhere in the country to rebuild their damaged local institutions.124 Educated
community members, offered two reasons for the accelerated revitalization of the
traditional institutions, in particular the Jirga. First, the local communities do not want to
lose more of their men to factional fighting or risk the continued destruction of their
lands, homes, and communities. The community leaders are therefore pushing for the
institution of Jirga as a superior form for making decisions, managing conflict, and
maintaining group identity over those forms offered by local armed groups. Indeed,
community leaders are seeking to bring the local commanders under the scrutiny of the
Jirga as a means of reducing factional fighting and violence. Second, local leaders are
moving to reestablish their traditional mechanisms for addressing conflict and seeking
justice because they are suspicious of the presence of Coalitions and the Afghan National
Army forces and the expansion of a central Afghan government, with its reestablishment
of formal courts, training of judges and prosecutors, and deployment of newly trained
police forces. As the residents explained, this local reaction does not mean that people
are planning to fight against the central government, but it does reveal that they are
cautious about these political developments.125
122 Interviews with Jirga members in Surkhroud, Nangarhar, November 2003.
123 Anonymous interviews, Nangarhar, November 2003.
124 Anonymous interviews with persons from Paktia province, Kabul city, November-December 2003.
125 Anonymous interviews, Kabul, December, 2003.
The Border Tribes
In recent history, tribal communities, especially those along Afghanistan borders, have
relied extensively on their local institutions to manage their internal affairs and balance
their relations with the central government in Kabul. The system of tribal leadership
include a network of delegates who liaised with the the central government, while the
tribal leaders received a degree of autonomy over their tribal areas. Internally, members
of a tribe enjoyed individual rights and protection within the framework of the tribe. The
autonomy of the tribe was protected in part by avoiding external disruptions. The central
government was willing to recognize the limited tribal autonomy as long as the tribal
powers did not jeopardize the integrity of the state. In return, the central government
provided material benefits through the tribal leadership system to those who cooperated
and held to their agreements with the state.
In this manner, border security was deeply rooted in maintaining the stability of the tribal
groups who live in the vast regions that have always been beyond the control of any
central government in the region. Currently, higher levels of border insecurity, especially
between Afghanistan and Pakistan, prevent the tribal groups from crossing the borders
easily, a migratory pattern that is often necessary to access fresh grazing land. The
Afghan Kuchi have been pushed out of many other parts of the country and now
conglomerate in the border areas, and this population is now facing increased threats to
the livelihoods that they have maintained for centuries. Assisting the tribal communities
along the border to regain their social institutions and move toward a greater self-reliance
will help them to reorganize their livelihoods and could potentially improve border
security. In an interview with the Tufts team, Darya Khan, a member of the Mohmand
tribal Jirga, was critical of what he termed NGOs ”empty promises” of assistance. He
suggested that “the only way to get back to normal is reliance on our own people to
reestablish their local organizations and restore peace and security in our land.”126
Non-Tribal Communities and Changes in
Traditional and Community-Based Justice Systems
The non-tribal communities in the urban centers and surrounding towns and villages were
also affected by war, drought, internal and external migration, and the devastation of the
country’s economy and agricultural systems. While rural areas continuously served as
the frontlines between the Soviets and the mujahideen forces, urban centers, especially
Kabul, bore the brunt of the devastation of the war.
In the past, large non-tribal communities resided in the major urban centers where people
had a fair amount of direct contact with the rules and regulations put of the central
government. This contact became weaker farther away from the urban centers, and the
influence of government regulations was imperceptible in the Afghan tribal belt. The
relations between urban centers and rural areas occurred at two levels: from the capital to
the provinces and from the provincial centers to the districts. Economically, the urban
126 Interviews with members of Mohmand Jirga, Nangarhar, November 2003.
centers were heavily dependent on the largely agricultural production of the rural
communities. In turn, the urban centers provided the rural populations with hubs for
trade, commerce, and modern services, and served as meeting points with provincial and
central authorities.127 Some rural people brought their legal cases before the official court
system, conveyed complaints to the police, registered for conscription, sent their children
to government run schools and institutions, and used state administered health centers in
the major urban centers. However, the majority of people used non-governmental, local
networks for handling their daily affairs.
The use of non-government, local networks becomes more pronounced as one moves
from the urban centers to the rural peripheries, and this reliance is even more pronounced
in the tribal areas. The local networks were based on local traditional practices rooted in
each community and upon which people established relations, signed contracts, and
formed social organizations. In most cases, the popular law of the land was customary
law that was deeply rooted in historical traditions, local understandings of Islam and
Sharia, and the spiritual role of the Sufi leaders.128 Again, the social and political forum
of social organization was the practice of local Jirga.129
In the rural non-tribal areas, trade, financial contracts, marriages, conflict management,
and cases involving disputes over land and water occurred beyond the domain of the
institutions of the central government. A powerful class of leaders within local
communities acted as mediators between the central authority and local communities.
Often, these leaders were selected based on years of service to their community and
extended that role to the space where the central state, local governance institutions, and
society intersected. Such influential community leaders also existed in the urban centers
and governors and other high ranking officials would at times seek the assistance of these
community leaders to help secure support for a specific government initiated policy or to
solve a dispute.130
The emergence of armed political groups with open access to financial resources and the
existence of powerful commanders significantly realigned local systems of governance.
In the 1960s, social composition of a village consisted of the malik (landlord), arbab
(head of the village), and different wealth groups (large and middle landowners, small
land owners, and landless peasants).131 Beginning in the 1970s, however, the population
of a village began to divide into two groups: the rich and powerful and the rest of
community who are relatively powerless and poor. The ranks of the rich and powerful
have increasingly been filled with members of armed political groups (known as jihadi)
and the local commanders. Many connected to the Afghan Mujahideen political groups in
127 Nojumi N., “New Afghanistan and the Prospect of the New Constitution,” Research Paper written for
Harvard Law School’s Islamic Legal Study Program, Fall 2003.
128 Nojumi N., “Islam, Custom, and Customary Law,” Research Paper written for Harvard Law School’s
Islamic Legal Study Program, Summer 2003.
129 For more details see Ali Wardak, “Jirga: Power and Traditional Conflict Resolution in Afghanistan,”
Law After Ground Zero, edited by John Strawson (Sydney: Glass House Press, 2002) 199.
130 Interview, Abdul Wassea, member of the Jirga at Surkhroud, Nangarhar, November 2003.
131 N. Nojumi, The Rise of the Taliban in Afghanistan: Mass Mobilization, Civil War, and Future of the
Region (New York, Palgrave/St. Martin’s Press, 2002). pp 14-35.
Pakistan and Iran that had accumulated extensive external financial resources for the
maintenance of their fighters. These more recent additions to the wealth groups have
access to weapons and, through the use or threat of violence, are able to manipulate the
weakness of the central government, capitalize on the absence of law and order, and
maintain extensive influence over the distribution of local resources, including
international relief. In addition, the majority of lucrative poppy farms are either owned or
controlled by these rich and powerful commanders.132 In some cases, members of this
powerful class collect up to a 20% tax from the growers of all agricultural goods,
including poppy. 133 They may also run businesses through vast family network. Many
have been able to establish substantial investments in trade and local industries in
neighboring countries and Persian Gulf states.134
At the same time, the shortage of domestic agricultural production due to scarcity of
water for irrigation and the lack of rural reconstruction projects after 30 years of war
resulted in the increased dependence of local communities on external resources, such as
relief and cash. Scarcity of local resources makes local communities more vulnerable to
the power of commanders and political armed groups.
As a result of this vulnerability, non-tribal Afghan communities are finding it
increasingly difficult to rebuild and maintain their social safety networks. One of the key
safety networks that most have been unable to reclaim and rebuild are the village Jirgas,
which countrywide have retained much of the structural characteristics of the Taliban-
introduced shuras and are under the influence of commanders and armed political
groups.135 In addition, the central authority’s failure to protect rural populations has
contributed to the difficulties faced by local communities in taking control back from
these predatory groups and rebuilding their societal institutions.136 For instance, in a
rural district of Balkh, a local police chief explained that while local commanders take on
the role of solving disputes and managing conflicts, they themselves are the source of
many of the problems in the area and have impunity to act as they wish. Such systems do
little to improve rule of law, increase communities’ access to justice, or build a
Like their tribal counterparts, non-tribal rural populations faced a similar pattern of
political take-over of their social institutions by commanders, the Taliban, and now
commanders and jihadi groups. Unlike their tribal counterparts, the non-tribal rural
communities have largely remained with the less democratic structure of the shura.
Currently, here are several different patterns apparent in local shuras around the country.
First, in nearly all cases, the institution of shura is strongly influenced by the powerful
commanders and jihadi groups, as well as the local authorities at the village, district, and
132 Interviews, members of the Afghan Independent Human Rights Commission, Kabul, October 2003.
133 Interviews, UNHCR officials, Kabul, December 2003.
134 Anonymous interview, Nangarhar, November 2003.
135 Interview, Neamatullah Ebrahim, ICG, Kabul office, November 2003.
provincial levels. This pattern was seen repeatedly by the Tufts team, regardless of the
shuras local, tribal, non-tribal, or regional orientation. For instance, in the Surkhroud
District, Nangarhar, Akbar Khan and Mohammed Mir Kuchi, two powerful local
commanders, each have one representative in the district shura who represent no villages
but whose votes carry equal weight as those members of the shura that are elected by
A second pattern that was observed in the rural districts of Balkh, Kabul, and Nangarhar,
is the lessening of the power of the village Mullah within the shura, largely because
people are suspicious of the political affiliations of the Mullahs. While the village
Mullah may or not become a member of shura, if he is involved he is usually no longer
the shura leader.139
The third pattern involves the selection and political alignment of the malik or
representative of the village. Members of the village shura elect one person and
introduce him to the district authority. The district head then signs legal documents
appointing the person as malik and sends those documents to the primary district court.
After a series of additional legal processes, the court issues an entitlement seal that
recognizes him as the malik of that particular village.140 This recognition is then used by
the district government or any other source, such as the UN, NGOs, or any outsider
coming to the village to designate the malik as the person who gives permission to those
that would like to work with the village community.
Since maliks are neither paid by government nor by local people, people tend to elect
individuals who are more financially secure than the rest of the community. According
to Haji Maqboul, (a malik of Zirani area), a representative who is economically
independent is less likely to sell out his people to the central government or become
corrupted by armed political groups, commanders, or NGOs.141 Malik Essmatullah (who
represents 890 families in Amr Khil area) explains that people such as himself are willing
to work without pay because:
By serving our people we are serving Allah, and when our people are happy and
their problems are solved we are happy and our family are going to be happy and
live in peace. We are free spirited people, the government is weak, there is too
much corruption, and too many riflemen around. We believe what we do is for
peace in our community.142
However, the Tufts team received information from local residents in the rural districts
that many of the maliks and members of the district shura are under the direct influence
138 Observations and anonymous interviews, Nangarhar, November 2003.
139 Observations, Kabul districts of Sorubi, Mir Bacha Kot, Paghman, Masyie, and Nanngarhar districts of
Mohmand Dara, Surkhrod, Kama, Rodat, Pachir wa Agem, November-December 2003.
140 It is not uncommon for a Malik to represent several villages.
141 Interview with members of the district shura, Surkhroad District, Nangarhar, November 2003.
142 Interview, Essmatullah, Surkhroad, Nangarhar, November 2003.
of the local commanders or jihadi political leaders.143 A common report was that the
work of shura is under the scrutiny—sometimes control—of the government authority.
At times, the director, his deputies, and the book-keeping clerk of the shura are
handpicked by the government head of the district.144 In some cases, such as occurs in
most rural districts in Kabul, the Tufts team observed that a significant number of those
who became maliks were affiliated with the dominant political party or powerful local
A fourth pattern is the evolving composition of the district and provincial shuras, which
are now a mix of political loyalists and independent individuals. In some of these cases,
a 50/50 division exists between the loyalists to the dominant political party/commanders
and independent members within a district shura. Given that the loyalists usually vote in
a block, the independent members have much less collective influence. For instance, the
head of Paghman’s district shura in Kabul is Ustad Sayyaf, a powerful commander, and a
significant numbers of the shura members, as well as the deputies of the shura, are his
political followers. Throughout Kabul’s rural provinces, independent shura members
told the Tufts team that they are cautious in their participation on the shuras because they
fear for their personal and family security. Other independent members said that they
cannot devote enough time to push for the changes they would really like to see because
they have to struggle economically to support their extended families.145
The fifth pattern is the differences in responsibilities of district shuras from one region to
the next. In Kabul, for example, none of the village and district shuras are allowed to
adjudicate criminal cases; they are restricted solely to the civil/family cases. In contrast,
some of the Nangarhar district shuras handle criminal cases. For instance, the district
authority allows the district shura in Mohmand Dara to adjudicate murder cases, convict
defendants, and award compensation to plaintiffs, on the condition of total sanction of
any further violence from those involved (i.e., to prevent future revenge killings).146
Prior to the Soviet invasion, the relation between the formal and traditional legal systems
was – to a certain degree – able to mediate the interests of the state and society towards
fostering human security and enabling local livelihoods to be maintained. Whether or not
such a relation was ideal for the state and its citizens is open to debate, but what is
important here is that both systems were, in part, helping Afghans to pursue nonviolent,
social and political interactions. These systems gave people an option to bring their
143 Anonymous interviews with local shopkeepers and members of the district shura in Paghman and Mir
Bacha Kot, Kabul, October 2003.
144 Observations and anonymous interviews, Kabul districts of Sorubi, Mir Bacha Kot, Paghman, Masyie,
and Nanngarhar districts of Mohmand Dara, Surkhrod, Kama, Rodat, Pachir wa Agem, November-
145 Anonymous interviews, rural districts throughout Kabul, November and rural districts throughout Herat,
146 Anonymous interviews, Mohmand Dara, Nanagarhar, November 2003.
disputes either in front of the legislated courts or to use the local remedies offered by
traditional systems of justice.
Within the traditional systems, local interpretations of Sharia and customary law are
dominant means used to handle legal disputes, however, such interpretations are often not
in keeping with the Bonn Agreement or international standards. Section I, “Human
Security and Rural Afghans,” and Section III of this report illuminate many problems
within this traditional system, particularly when considered from human rights and
gender perspectives. Many proponents of implementing a more modern legal system
argue that justice cannot be served in these traditional systems that are so fraught with
inequality and rights abuses. At the same time, Section I and Section III of this study also
demonstrate that the current formal justice and governance systems are also fraught with
injustice, clientism, fraud, and corruption and enjoy little if any standing with the local
population. Is it possible, therefore, to reform and strengthen both the traditional and
formal systems of justice? And if so, what are the best means to approach this reform?
And how can these reforms be carried out without validating practices and judgments that
are in clear violation of international standards and human rights, especially women’s
Recommendation: Strengthen the formal and informal justice systems that exist
throughout Afghanistan, in particular the court systems, the police, and detention
The Formal Court System
Strengthen the Cadre of Legal Personnel:
Establish a network of accredited law schools under the Ministry of Higher Education.
This network of law schools should be separately established and accredited law schools
with their own faculties, independent from the School of Sharia and Political Science.
Establish within the accredited law schools programs to train defense attorneys.
Establish a system of defense and legal advocacy within the Afghan court system. Work
to ensure that the courts are obligated to inform litigants about their rights in choosing
defense attorneys and advocates before any court proceedings.
Prioritize the expansion of legal clinics and workshop into the provincial levels with the
aim of building professional capacity within the judicial sector.
Within legal clinics and workshops, include specific guidelines for judges, prosecutors,
defense attorneys, and legal advocates regarding their need to enforce Article 517 of the
Penal Law in response to eradicating customary practices, which include Badal, that are
contrary to Islamic law and in violation of the civil and human rights of Afghan citizens,
especially girls and women.147
Expand and Strengthen Special and District Courts:
Establish and fund Special Family Courts, at least one in each province, to be
administered and overseen by female judges to enable enhanced access for Afghan
women to the formal legal system.
Establish and fund Special Property Courts, at least one in each province, to handle
extended property disputes throughout each province.
Increase the number of city district courts in major urban centers.
Establish legal advisory and support centers, at least one in each province, to provide
legal information for Afghan women, working in close coordination and cooperation with
the Afghan Independent Human Rights Commission, Ministry of Women Affairs, and
Ministry of Justice, and UNAMA.
Reform the Judicial Sector:
Support efforts to reshape the judicial sector--the Supreme Court, Attorney General’s
Office, and Ministry of Justice--by supporting the appointment of qualified, trained
officials in the leadership of this sector and providing their offices with adequate funding.
One cannot expect that provincial and district judicial and justice sectors will have
meaningful reform unless these core aspects of TISA undergo much needed reform where
the previous systems of clientism and power consolidation are replaced with
appointments of individuals based on qualifications, training, and results.
Enhance Afghan Citizens Knowledge and Protection of Their Rights:
Launch and support a public law awareness program using national radio and television
to inform Afghan citizens about their legal rights and responsibilities. Within this,
highlight the right to legal advocates and the rights of women under the new constitution.
Nurture the democratic participation of rural Afghans within traditional systems of
justice, prioritizing the development of women’s councils and women’s real and
meaningful representation within shuras and Jirgas.
Enhance and strengthen the space for civil society to develop democratic institutions that
challenge fundamentalisms and armed political groups that rule by fear, intimidation, and
147 First part: The people who marry a widow or a girl over 18 against her agreement will be punished.
Second Part: if the crime mentioned in above part is committed due to compensation of (Bad) the person
should be punished, but not more than 2 years. (Punishment law of Afghanistan/ provision 517)
clientism. Here, the development and programs of the Afghan Independent Human
Rights Commission could serve as a model.
Work to develop a police force that is strong, just, and independent from the military
and local and regional commanders and armed forces. Administrative reform in the
police is a must and should be focused dismantling the clientism among the current police
forces. “Why is it that the majority of current police forces in Afghanistan have no
training as professional police?” The answer to this question, as detailed in this report, is
that professionalism and professional qualifications have nothing to do with why most
police chiefs, police officers, and police soldiers currently hold their positions, or why
they will continue to hold these positions in the future if these systems remain in place.
What matters is that these persons were loyal fighters under a more senior commander
who, in turn, is part of an armed political group and who may now hold the position of
minister, deputy minister, governor, or senior commander within the new Afghan army.
And what matters for these leaders is that those who serve under them were loyal
fighters, then and now—not whether or not they are professional police. Some Afghans
do have professional police training acquired under previous regimes; most of whom
were trained by the Soviets during the Soviet occupation. The association of these police
officers with the Soviet system means that they are not deemed loyal by the former
jihadis and other armed groups now in control of the provincial and district government
structures. The few trained police who have been able to maintain their jobs as police
have little to no opportunity to use their skills; instead they push paper and perform
routine administration tasks.
In Badghis, Balkh, Herat, Kabul, Kandahar, and Nangarhar provinces where we worked,
almost no rural people rely on the police to provide protection or as a means through
which to access justice or seek redress if they are victims of a crime. Many rural men
and women we spoke with said the current police forces were ineffective in upholding
law and order and were corrupted, were thieves, and violated human rights. This is not
surprising given the fact that the police have no loyalty to the rural populations or even,
in many cases, to TISA. Rather, the police forces are beholden to the powerful
commanders and armed political groups that control the areas in which they live and
work. Based on this reality, we see that a lack of “professional” is not the central
problem in the police forces. And it is highly questionable as to whether or not two
weeks of training and a new uniform will even begin to scratch the surface of what is at
the roots of the current crises facing the police and larger security sector reform in
Establish police academies in each major urban center. A police force that is strong,
just, and independent from the military and local and regional commanders and armed
forces is essential to promote and provide a safe and secure environment for
Afghanistan’s people. Administrative reform in the police is a must and should be
focused dismantling the clientism among the current police forces. Emphasis should be
placed on enabling the educated and trained police officer a chance to serve the nation.
Increasing the number of recruits in the Kabul Police Academy is a necessity for
rebuilding the police cadres. However, a single police academy in Kabul is not enough to
meet the urgent need of a strong, well trained, civilian police force in Afghanistan. The
Ministry of Interior needs support to take steps toward establishing additional police
academies, at least one in each major urban center in order to provide adequate forces
around the country.
Reestablishing the central command and control of the police force can take place only if
there are a significant number of cadres in the police force who form the organizational
backbone of the ministry beyond Kabul. An educated, well trained, equipped, and
properly paid police force that is not tied to any particular commander, warlord, or armed
political group will enhance the public image of the central government, and also protect
the Afghan citizen from abuses by those who breaking the law. This also reduces the
nightmare of average citizens who fear abuse at the hands of those responsible for
enforcing law, order, and justice.
Properly equip police stations and detention centers. Equip district police stations with
basic supplies, such as paper, pens, standardized forms, furniture, communication
equipment, transportation facilities, and supplies for detention centers (mattresses, secure
facilities, bedding, etc). Invest in basic infrastructure (eg., buildings, detention centers
with sections for different prisoners, secure facilities) for the district police stations.
Strengthen human rights with the police force. Human rights units within the divisions
of the civilian police are ineffective and should be incorporated into the Ministry of the
Interior. Within the police, human rights should not be kept as a separate department but
should be mainstreamed into every aspect of education and training, and knowledge of
human rights issues should be a professional requirement for all those who wish to be
considered for employment in the police force.
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