12.01.2021

Why Do Afghans Prefer Traditional-Based Dispute Resolution Mechanisms to Solve Their Conflicts?

In a new series of policy briefs, our YLFees discuss current political challenges and recommendations

There are formal and informal legal systems in Afghanistan that people can refer to solve their civil and criminal disputes. Due to insecurity, corruption, and dissatisfaction, people who approached the formal legal system refer to community-based conflict resolution mechanisms (CCRM) to solve their conflicts. In CCRM, tribal and religious elders and powerful groups solve people's problems through Shuras and Jirgas. Through this method, the community's harmony is prioritized over individual rights. As a result, it sometimes does violate the rights of women and children. It is the most accessible and responsive system to prevent the situation from getting worse for people currently. Research suggests improving the legal system. They should provide training and public awareness campaigns to resolve conflicts in peaceful and just ways and establish more Jirgas with diverse decision-makers in Afghanistan's remote areas. People have no access to other approaches to solve their disputes.

A group of elders decides the fate of one's life to end a conflict between two tribes, groups, or families and must accept this decision without asking a single question. A big question will always remain; how can they end a conflict by sacrificing an individual's right? This process may prevent a conflict from getting worse, but it cannot end it in a just way.

Afghanistan has had a rich legal history. Barfield et al. (2019) write that in the late 19th century, the formal legal system arose under the Amir to manage commercial and government conflicts in urban areas. While the legal system's focus was to provide justice and create rules across the country, the informal legal system is still solving disputes according to local methods. Islam influences both systems, and religious clerics are part of decision-making in both systems. 

Barfield et al. add that after 2001, the legal system had weakened. It hardly solves people's conflicts in areas where the government has full authority. 75% of the rural areas have less or no access to the formal legal system. Tribal elders, village elders, and other influential individuals consider tribal traditions, religious norms, and different consensuses (decided by the groups in power) to solve their conflicts. Research suggests that 80 to 90 per cent of civil and criminal disputes have been solved in the informal legal system. Though it is the most used system in Afghanistan, it has flaws such as sacrificing individuals and minorities' rights, misuse of power by the decision-makers, and violating Afghan and international laws, especially regarding women's rights.

This brief explains that community-based conflict resolution systems cannot be eradicated or substituted with a perfect system. This brief suggests training the decision-makers at the community level to learn accepted community conflict resolution mechanisms, recognize and analyze how both legal systems together can solve conflicts in peaceful ways. It also suggests establishing more Jirgas with diverse decision-makers in rural villages of Afghanistan.

Advantages and Limitations of Community-Based Conflict Resolution Mechanisms

The formal legal system is considered corrupt, weak, and inaccessible to most Afghans looking to solve their conflicts. Coburn (2011) states that there are claims regarding Afghanistan's court system as slow, corrupt, and non-binding. The poor governance and corrupt officials contribute to the ineffectiveness of the legal system. For instance, in North Kabul, the municipality officials took land from an individual six years ago. The individual went to the Legal Department Office and the court to ask for his rights to be upheld. Though he was successful, the officials refused to return the land. As a result, the court could not enforce the decision. In such a situation, the community-based conflict mechanisms are considered a good alternative to solve people's conflicts. Furthermore, Barfield et al. (2019) add that people and executive officials such as police officers, governors, provincials, and even local courts refer to community-based conflict resolution mechanisms to solve conflicts.            

Christian (2009) states that community-based conflict resolution mechanisms exist all across Afghanistan. People approach Jirgas or Shuras (Shura means "council") where conflicts are solved by tribal elders, religious leaders, and property owners through their norms such as Pashtunwali, mostly used in Pashtun areas. Its name might be different in various regions, but the mechanisms are mostly the same. There are examples of conflicts resolved by such mechanisms. For instance, the Emergency and Constitutional Loya Jirgas (or Grand Jirga) held in 2002 and 2003 were forms of dispute resolution on a national level. However, Shuras are not usually practicing on that large level; it usually focuses on Afghan people's daily issues. Research shows that the critical conflict resolution issues are land (36%), water (14%), marriages/divorces (15%), and debt (15%), along with a range of personal disputes such as car accidents (20%).

Despite all of its purported advantages, it needs to be reformed to solve conflicts peacefully and in a just way. Gaston et al. (2013) add that though most of Afghanistan's conflicts are solved through this mechanism, solutions are not durable and violate women, children, and minorities' rights. Furthermore, this method may lack formal and universal laws, and it is influenced by the traditional actors' power and cultural ties to the area. Jawed & Fleur (2018) explain Baad's practice, a custom where a girl is forced to marry a member of the victim's family as compensation for her family member's wrongdoing. Girls might also be given as servants. They also add that Jirgas and Shuras mostly focus on the harmony of the conflicting parties and the community rather than individual rights.

However, Gang (2011) claims that CBCR is the most responsive method to solve conflicts since the formal legal system is corrupt, weak, and overly bureaucratic. Social aspects, such as demographics and normative values, influence CBCR. It might not end a conflict immediately, but it does prevent the disputes from getting worse. On the other hand, this method might violate human rights while solving a conflict because of the cultural aspects under consideration than the method itself.

Conclusion

Afghanistan has had a strong legal history weakened by the Taliban, civil wars, and insecurity. Currently, 75 % of Afghan people living in rural areas prefer community-based conflict resolution mechanisms such as Shuras and Jirgas to solve their civil and criminal matters. Based on the research, even people in urban areas are not satisfied with the formal legal system's process and results. Though community-based conflict resolution mechanisms are not flawless, they violate the rights of minorities and do not solve conflicts. Instead, they manage the situation by prioritizing the community's harmony rather than considering the rights of individuals. It is still the most efficient, accessible, and least costly form of justice for most people in Afghanistan.

In remote areas of Afghanistan, there is a severe need for Shuras that people can easily access to resolve their problems and address these challenges. The decision-makers of Shuras, youth, and community members should be trained in community-based conflict resolution skills. It helps youth and women become aware of their rights so that resolution happens through just and peaceful methods. Besides, both formal and informal legal systems must be analyzed to see how both can work together to solve conflicts peacefully. 

Recommendations

  • Jawed & Fleur (2018) write that besides strengthening the current Shuras and Jirgas, it is recommended to establish more peace councils in each village that people can easily access. The decision-makers must be diverse to increase the chance of a better outcome. The selection can happen through meetings with community members to consider mature, educated, and well-known people among the area's residents. In some cases, involving Ulema in decision-making has helped increase inclusivity, especially for women. This process has been helpful in terms of women's engagement in social participation. It becomes easier to convince other community leaders such as Maliks, Khans, and proprietors to accept women's increased community conflict resolution role.
  • According to Christian (2009), informal conflict resolution methods are affected by the changes happening in the rest of the country, such as instability, armed conflicts, droughts, and trade. Also, informal dispute resolution methods do not solve issues peacefully, and the actors engaged in the Jirgas change over time. They no longer consider the individual rights of the conflicting parties. Capacity-building and awareness-raising are required for the decision-makers at Jirgas and should be carried out by the Afghan government and other organizations. Training will empower the actors to solve the conflicts in just and peaceful ways.
  • Barfield et al. (2019) state that formal and informal legal systems need development and recognition through dialogues, mutual recognition, and small-scale practical practices. Both systems should be analyzed and work with people to achieve two main objectives: protecting people's rights and improving access to justice for everyone. For civil cases, community-based mechanisms should be encouraged because they reduce pressure on the courts and are less costly. They also add that public education programs must raise awareness among community members regarding their rights and obligations. It can contribute to reducing the mistreatment of individuals in society.

Bahara Hussaini is a member of the 2020/21 Young Leaders Forum.

This article has also been published in Dari by Afghanistan Today. The views expressed in this publication are those of the author and not necessarily those of Friedrich-Ebert-Stiftung.

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