Friday, September 28

Fixing the Augean Stables of Afghan Judicial System

The whole edifice of civilisation rests on many pillars. One of the most important is the judicial system. There is nothing more uncivilized than having a judicial system which is delayed, wrong, biased or inconsistent in various shapes and sizes.

While in the short run, defeating the Taliban is important, in the long run, a functioning government owned and run judicial system will be the key in measuring if our true war has been successful.

Looking at the progress so far and the current situation, I am not very hopeful. I saw this research paper which goes into more detail on this issue. Matteo Tondini talks about the Rebuilding the System of Justice in Afghanistan: A Preliminary Assessment in the Journal of Intervention and Statebuilding, Volume 1, Issue 3 November 2007 , pages 333 - 354.

Abstract
This preliminary evaluation describes the role of international assistance in the reconstruction of the Afghan judicial system. It focuses on how international policy has both sought to develop and impose externally designed central administrative models and legal codes and also to pragmatically adapt to existing, highly decentralized, practices shaped by the Islamic tradition. The research conducted suggests that international policy in this area has done little to reinforce the central administrative control of the centre. First, regional power structures have been pragmatically accepted, as highlighted in the bypassing of a transitional justice phase, in an attempt to maintain a fragile political stability. Second, the fragmented nature of the Afghan justice system has been reinforced by the lack of coordination between the relevant international actors, which have generated a bundle of projects in the area, each advancing independently.

Some extracts from the paper:

I hear from a lot of people that if a case goes to the (government) court, then the person with the most money will win that case. We trust our system because sharia law is more respectable for us than government law.
Afghan Tribal Group Leader Kabul Province, April 2006 (Martin 2006)

First, that these international initiatives, viewed over the sphere of judicial reform as a whole, highlight that there has been a substantial departure from the logic of merely reproducing Western administrative organizational models and trusting in their worldwide efficacy.
Second, the paper stresses that the diverse range of approaches are treading an uneasy balance between Western international legal norms, seen as crucial to building institutional capacity at both the national and provincial levels, and ensuring Afghan 'ownership' of the reconstruction process, through respect for local expectations in terms of the legitimization and operation of legal norms. The complex balance of the 'light footprint' approach to international institutional assistance to post-conflict statebuilding (Chesterman 2002) makes it particularly important for international actors to develop a clear and coherent reconstruction strategy for the justice sector.

the legal system still admits both Islamic and secular offences and penalties, together with an Islamic family law which can be easily considered to contradict the international human rights treaties signed by Afghanistan and the 2004 Constitution. There remains a clear contradiction in the founding principles of the justice system, which is the result of two complementary efforts: strengthening domestic institutional capacity through the introduction of Western legal norms and international human rights protections and the need to restore legitimacy to the central authorities by adapting the justice system to Afghan rural and Islamic traditions and conventions. These compromises are partly a reflection of the short-term approach taken to the development of the sector. This evaluation has highlighted limits from the external side of the international actors, shaped by the lack of funds, a lack of coordination and, a fortiori, the lack of the establishment of clear priorities.
In the long term, legal reform will depend on political transformation and the emergence of an Afghan political leadership capable of establishing an unambiguous legal framework, harmonizing the system and overcoming the problem of conflicting legal principles and rules. In this regard, a modernization process implies the drawing-up up of a 'social compact' (Mani 2005: 33) between all the relevant stakeholders, to avoid the creation of a 'political enclave' in Kabul, more responsive to international authorities than to society as a whole (Goodhand 2004: 76). Nevertheless such a transition often requires time, because it cannot bypass or set aside people's knowledge of and support for new rules and the new legal order introduced. International institutions can merely contribute to this process, assisting local actors by more forcefully introducing international accountability and human rights standards. This does not mean that such standards will apply immediately to Afghan society, anymore than they would do in any transitional society. They will represent 'one among a number of factors that are balanced but which are not necessarily complementary' (Newman 2002: 47).

Perhaps primarily as a result of external exigencies, international statebuilders' attempts to stabilize the Afghan judicial system have resulted in international policy frameworks which have shifted from an orientation focused on pre-established organizational models (as seen in the Balkans and East Timor) towards a mixed operational concept based on pragmatic political compromises and the formal involvement of national authorities in the reconstruction process. This could be seen as a valuable step forward in learning lessons in justice sector reform and makes further evaluative work essential. In the end, it does not seem really important whether this change of approach represents a learning experience from the limitation of previous experiences of statebuilding in the justice sector or is merely a practical response to the uncertainties over international policy goals and a lack of international political commitment in a still war-torn country. What, however, is necessary to note is that this pragmatic strategy can only succeed if it does not fall into a political vacuum. In this respect, the international community must ensure that the 'light footprint approach' used in the Afghan statebuilding process is not an ineffectual one.

Basically, what it tells me that there is huge amount of typical international bumbling going on, corruption and insecurity are sky-high, and the international community are being more compromising than what is good.

Let me remind you how Mullah Omar, the leader of the Taliban started his journey. He rose to power not because he wanted to rule, or against foreign ownership, or because of some ideology. He rose up because justice was not available. If the international community is unable to provide this basic need, we will soon see the return of the Taliban along with their brutal legal code. And we then cannot complain because we had a chance (right now) and we blew it.

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