Justice in the kingdom of Kandahar

An Afghan man drinks tea as he listens to conversation between U.S. Army soldiers of 2nd Platoon, Charlie Company, 1st Battalion, 17th Infantry Regiment of the 5th Stryker Brigade, and other villagers, Tuesday, May 18, 2010, in Afghanistan's Kandahar province. (Photo: AP)

As you read this post, over 12,000 NATO troops are fighting pitched battles with hardened Taliban fighters for control over Kandahar province. The New York Times is reporting that Western forces have “seized the initiative from the insurgents” and are assuming the commanding heights of the province. The overarching goal is to use every instrument of NATO power – military, economic, and political – to clear away insurgents, hold the population center, and build institutions and infrastructure. But I want to step away from all of that for a moment. Though this part of the conflict is significant, it’s also all-too-distant from everyday life. It’s really in the everyday struggles that this war will be won or lost.

Let’s pretend that you are a farmer near Kandahar. You own a relatively valuable plot of land that you’ve farmed for some time now. After decades of fighting in Afghanistan, it’s hard to say who originally owned what part of your land. More than likely the original deed is long gone, if it ever existed. What you do know is that for all intents and purposes the land is yours and its value is leading others to eye it with envy. Those others include your cousin, who has decided to claim that the land is actually his by right. After a few arguments turn violent, you decide to have your case settled in court. In most Western countries, this would be a pretty straightforward, if painstaking, process. This process is not so simple in Afghanistan.

In Afghanistan, justice can come through two routes: formal and informal. In the formal justice system, official courts should administer written laws within a framework of precedence and review. Backed by the authority and legitimacy of the state, it ought to resolve disputes fairly and effectively. Informal justice refers to any authority outside of the state’s judicial structure, which in Afghanistan can mean everybody from your family’s patriarch to the local strongman who fashions himself in the style of the old feudal lords.

Most criminal and civil disputes are adjudicated outside of Afghanistan’s formal legal structure in a system of customary law developed over centuries among its 55 different ethnic groups. More often than not, tribal law specifically carries the most clout, “where councils called ‘jirgas’ or ‘shuras’ make decisions based on local traditions and mores.”

The informal tribal route hasn’t worked out for you though. While tribal justice traditionally has offered rulings both legitimate and readily enforceable, years of internecine warfare have undermined Afghani tribes. Part of what brings the clout to tribal justice is that it tends to promote consensus and reconciliation between parties. Needless to say, divided tribes and communities have a hard time achieving this. While some see in customary, informal law as a route toward bottom-up institution-building, such an approach is still reliant on a degree of social order that is often lacking in today’s Afghanistan.

You turn then to the formal legal system. The Kandahar district court officiates over a city of roughly 450,000 people with just six judges housed within the provincial court building. Aside from the judges, most of the court’s staff members are more akin to theologians than clerks with formal legal training. With high demand for justice and little in supply, combined with low public wages, it’s not too surprising to find rampant corruption. Transparency International found Afghanistan to be the third most corrupt country in the world, next to Somalia and Burma.

So when you turn to the courts you find yourself paying over $1,000 in bribes to a clerk so that he can speed up your case (more often than not, your cousin is encountering the same demands). Considering that the average annual income in Afghanistan is roughly $426, this is no small sum. Even after paying your bribe, months go by without a resolution to your case. You’re losing both time and money.

Now is when you turn to the Taliban. More precisely, the Taliban reach out to you. Promising a fair trial and a speedy resolution, you accept their offer and soon find yourself in a dilapidated farmhouse reviewing the details of your case. A panel of five mullahs, all trained in Islamic tradition and law, delve into the documents from your case, almost symbolically weighing them against the stacks of Islamic law books lying at their elbows. Within the hour they decide the case in your favor. Turning to your cousin, they tell him that taking your land is a sin punishable by eternal condemnation. Though that judgment appears to satisfy your cousin, it’s unclear whether it’s the religious mandate or frequent assassinations in Kandahar’s local bazaar that ultimately quells his anger. Nevertheless, in short order your case is resolved with a minimum of procedure and expense.

This farmer could be you. But he is not. His name is Rahmatullah and for the past 6 years he has lived in Kandahar managing a construction project on the very site where al Qaeda once trained its followers. For Rahmatullah, living in Kandahar meant returning to the land he once called home. It was also a pledge of support to the government of Hamid Karzai, a move he is now is coming to doubt:

I don’t like our current government at all, and I don’t really like the Taliban, either. But I can either spend months in the government court and pay bribes, or I can go to the Taliban and have the matter settled in one day. It’s an easy choice to make.

The problems with Afghanistan’s legal system are innumerable. As one report by the US Institute of Peace found, “the formal justice system has limited reach and legitimacy and struggles to function in an environment with depleted human resources and infrastructure, a legal system in tatters, and where local power largely continues to supersede central authority.” Into this breach rushes the Taliban, claiming the rule of law with its informal judicial system, backed by the force of arms and grounded in formal sharia law.

Peace and stability is built upon the rule of law and a formalized judicial system sufficiently lacking in corruption. With every bribe and breach of faith, another crack appears in the foundation of Afghanistan’s future. It matters to Rahmatullah, and it should matter to you.