Can Afghan courts provide the justice many people want?

The following is part of Global Geneva’s ongoing FOCUS series on Afghanistan.

On this, the final hour of the final day, the most bearded and revered man in the room who had always occupied the same front row seat, arose.  He thanked the instructors for travelling so far and for explaining humanitarian law so clearly.  What they learned during these days, he said, was the subject of discussion among the group late into the night. He then posed a question on behalf of the group: How are we to treat non-Muslims?

Dr. James Busuttil my teaching colleague who bore an uncanny resemblance to the then young Abdul Haq (See article by Donatella Lorch), looked exasperated and more than a little worried.

The elder, and the group, were clearly interested in the law —the Geneva Convention codes – that we presented. But the question he posed was from the standpoint of their law. Their law was how they did things, by long evolved custom. Their decisions, reached in jirgahs, shuras or councils, were accepted as authoritative by the community. They were also backed by force (power) – and were thus law, or Pushtunwali, or ‘Law of the Pathan’ as their form of code is known in the tribal areas. Whereas the law we presented was a text from the West.

Don’t rely on formal agreements; observe habitual behavior.

During that time the great American anthropologist Louis Dupree held forth at Dean’s Hotel to a new generation of Afghan hands including journalists, do-gooders, consultants and spies. On one of those occasions in the eccentric professor‘s room surrounded by bottles of  Murree beer, he explained with characteristic salty language, how Pushtunwali would trump written rules, especially if those rules were promulgated from Kabul or abroad—which for many rural communities meant the same thing. To know the law in Afghanistan, don‘t rely on formal agreements and textual statements.  Observe habitual behavior.

Under King Amanullah I, Afghanistan received its first constitution in 1923. Secular codes followed with the first system of courts. In the image of Turkey’s Ataturk and Iran’s Reza Shah, Amanullah attempted to modernize traditional customs including the wearing of the veil. The response was tribal uprisings and Kabul was occupied by a Tadzhik bandit who proclaimed himself Habibullah II. Amanullah fled to India and ultimately reaching Switzerland where he died. His successor, Nadir Shah, was assassinated in 1933.  The path from custom to code, veered.

A straight path from custom to code…

In March 1963 King Zahir Shah appointed a committee to draft a new constitution. After a year of meetings with advice from international experts the text was presented to a Loya Jirgah in September 1964. At the time, it was considered to be among the most advanced constitutions of the Islamic world. Articles 1 and 2 stated that “Afghanistan is a constitutional monarchy, an independent, unitary and indivisible state, and that “Islam is the sacred religion of Afghanistan.”

It prescribed that the state would conduct its religious rituals according the Hanafi School and that freedom of worship would be guaranteed to non-Muslims.  The Loya Jirgah approved the constitution and ushered in a period of stability to which many Afghans in later years would look to with nostalgia. The path from custom to code was straight.

With the Soviet invasion, the country plunged into its never-ending war. Yet as the State failed, people thrived.  Through years of chaos they did so in traditional communities.  There were no effective state institutions.  Law – dividing up the weal and woe of life – did not unfold with reference to formal codes.  Law emerged from operational codes embedded in culture and custom.

A notable development program built on the insight of Afghan custom as law. It was called the National Solidarity Program (NSP), implemented by the government of Afghanistan’s Ministry of Rural Rehabilitation and Development (MRRD) with funding from the International Development Association (IDA) of the World Bank Group. The program’s goal was to facilitate inclusive community decision-making whereby villages would elect development councils (CDCs) in the tradition of jirgahs.

But still no formal system with national reach.

The goal was the creation of community institutions that would become the expression of the community’s ability to mobilize, consult, plan, finance, implement, and evaluate its own development. From December 2003 to August 2005, I had the opportunity to study NSP in rural Afghanistan. By 2006 NSP covered 20,000 villages. The successor program is the Citizen’s Charter (CC) which builds on NSPs work and the engagement with Community Development Councils.

With the fall of the Taliban regime, Afghanistan would have another Constitution. The country would also receive law codes for nearly every aspect of life from commerce to crime. Under the terms of the December 2001 Bonn Agreement, the 1964 Constitution operated for the Afghan transitional government until the adoption of the ill-fated 2004 Constitution. The drafting and ratification of the Afghan Constitution was an important milestone, and could become significant if communities from the center to the periphery engage.  But there is still no formal legal system with national reach and application. At present the Constitution is very much myth. But reconstructing states require new myths.

The Constitution today has little relevance beyond Kabul and a few urban centers, especially across the vast rural canvass where most Afghan life unfolds.  In time, the text will occupy more space in the country’s constitutive process and as it is perceived to be in the community interest and displace some customary practices. And a critical pathology of the current Constitution is that the centralized system it creates is foreign to the Afghan experience. Hence the path from custom to code remains crooked.

The Roman jurist Papinian said “Communis rei publicae sponsio.”  (Lex is a common engagement of the Republic). In Afghanistan that engagement must unfold in shuras, councils, chaikanas and mosques.  Absent that process there can be no relevant text and hence no law properly understood. The same attention devoted to drafting must be devoted to the process of grounding the document with the population  over a long period, what French historian Henry Braudel termed the“longue durèe.  That is the path from custom to code in Afghanistan.

Charles Norchi, a Global Geneva contributing editor, is the Benjamin Thompson Professor of Law in the University of Maine School of Law, USA.

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