Problem Identified

In many communities across Afghanistan, the formal justice system has proven weak, corrupt, and ineffective. The vast majority of disputes are resolved outside of the formal state system, often by tribal elders, shuras, or other traditional community forums. Where such informal mechanisms are functioning well, they may help prevent and mitigate conflicts by offering means of peaceful dispute resolution, and reduce opportunities for armed opposition groups (including but not limited to the Taliban) to exploit local disputes or grievances against the government. However, these “informal justice” mechanisms also have their weaknesses. The lack of universal or institutionalized processes, along with the variability in traditional actors’ relative influence and enforcement power means that resolution of disputes may not be sustainable. Decisions may not be based on Afghan law, or may reinforce community inequities or power imbalances. In some cases, informal justice mechanisms have resulted in severe rights violations, particularly against vulnerable or marginalized groups including women, children, and minorities.

Action Taken

Following several years of research on the informal sector, USIP funded a series of one-year pilot projects in 11 districts of Afghanistan1 that attempted to address some of these weaknesses while also recognizing the important role that informal justice mechanisms can play in making up for challenges in the formal justice and governance system and increasing stability in a community. The pilot projects attempted to do this by strengthening linkages between local Afghan government actors and informal justice providers. These linkages included facilitating a stronger relationship between select elders involved in traditional dispute resolution and local formal governance and justice actors through structured meetings; encouraging certain patterns of referral based on the nature of the case (family law, criminal law, land disputes, etc); and encouraging the community elders to register and record the resolution of disputes with local officials. USIP then conducted an assessment of three of the projects, spanning five districts in three Afghan provinces: Kunduz, Uruzgan, and Nangarhar. The assessment evaluated whether the linkages projects had contributed to any of the following key areas, or seemed likely to if continued in the longer term (since some benefits might not be fully realizable in one year):

• Did linkages projects improve access to justice in the target communities?
• Did they contribute toward reduced violations of Afghan law or human rights?
• Did they strengthen the role of local government actors (from either the judicial or executive branches) in dispute resolution in their areas?
• Did linkages projects contribute toward either short-term stability or make it more likely that dispute resolution decisions would be more sustainable, thus reducing long-term potential for conflict in the target areas?

Lessons Learned

• Official referral and registration of decisions was often resisted by communities except in small civil cases because formal government participation or records were perceived to offer few tangible enforcement benefits and relatively high social, economic and security consequences. This was particularly true for family disputes (which were considered too private), criminal disputes (because they feared unwanted penal consequences for the criminal), and land cases (where they feared it might lead to land grabbing, bribes or taxes).
• Recording decisions independent of the local government– keeping a copy of how and what was decided with the disputants or the community – was less controversial for civil and land cases, although still resisted for family and criminal cases.
• The presumed benefits of linking formal and informal justice depended highly on broader political, institutional, and social dynamics within each community. The great variance in these community dynamics challenges the notion that any single theory or model of intervention can be universally applied throughout the country.
• For that reason, where future programming is envisaged, it must be based on first conducting a rigorous analysis of the local political dynamics. This community analysis should not only assess whether a linkages project is likely to be beneficial but also, based on the local customs and political situation, which particular mechanisms are appropriate. Interim mechanisms should be established to continue this monitoring and assessment throughout, so that programming is iterative and responsive to shifting demands with a clear definition and maintenance of objectives.
• Where engagement with the informal sector is envisaged, the programming should be clearer at the outset about the primary motivation. The pilot projects, as well as others that engage on informal justice, pursue multiple goals including expanding governance and stabilization, improving access and quality of justice, reducing rights violations, reducing local conflict drivers. Without a clear prioritization of these goals, these programs ran the risk of sacrificing core objectives unintentionally as local conditions forced ground staff to make trade-offs. The lack of a clear designation of goals also made it difficult to judge the success of projects.
• The current political trends in Afghanistan seem to make it more likely than not that the local context in many communities will not be receptive to externally-driven linkages projects in the near future. In the near-term pressures due to transition and the upcoming 2014 elections make efforts to engage in local sub-governance structures (including dispute resolution) highly sensitive. In addition, these mechanisms may be even more subject to capture by local powerbrokers than before. A longer term challenge for linkages projects is the lack of clarity over the relationship between the formal and informal system. The dominant but still legally undefined role of the informal justice sector makes it difficult for linkages projects to gain traction.