2 Local forms of democratic institutions in Afghanistan With the formal justice system fragmented, ineffective and lacking in resources, reach and

Box 8.2 Local forms of democratic institutions in Afghanistan With the formal justice system fragmented, ineffective and lacking in resources, reach and

legitimacy, informal justice institutions serve as important alternative mechanisms of dispute resolution in Afghanistan. These informal systems of justice are, by and large, based on indigenous tribal practices and local religious traditions. One of the most important institutions of informal justice in Afghanistan is the jirga (or its approximate equivalent shura). In the cultural and political context of Afghanistan, jirga is most closely associated with the rituals and processes of traditional Pashtun dispute settlement, where people sit in a large circle in order to resolve a dispute, and/or make collective decisions about important communal issues and problems.

In the context of the resolution of disputes and crimes, jirga are much more often an

ad hoc body rather than a standing institution with a fixed membership or, in some cases,

a combination of these two forms – a standing body with additional members chosen according to the issue at hand. In the south and east of Afghanistan, the traditional jirga is more strongly institutionalized and structured. In this context, the jirga at the local community level is a tribal institution of dispute settlement that incorporates the prevailing unwritten, centuries-old body of customary laws and the views of tribal elders who are respected for their expertise and social influence in the community. Their prikra (judgment) is binding (morally and socially) on the parties involved.

Jirgas deal with issues ranging from relatively minor problems, such as disputes over the boundaries of farms and minor bodily harm, to more serious offences, including murder and disputes over personal property and inheritance. The survey commissioned for this study [i.e. the National Human Development Report] reveals that Afghans tend to take non-public land and other property disputes to jirga for settlement. An important feature of the jirga is that its outcome commands a morally- and socially-binding effect only when it is arrived at fairly, and is so perceived by the accused offender, the victim and the village. Should any of these stakeholders, especially the immediate protagonists, see

a prikra as unfair, the affected party is entitled to appeal. This often happens when customary laws are wrongly applied and/or misinterpreted, or when corruption and favouritism by the mediators are noticed. Unlike state courts, the outcome of which usually result in finding losers and winners (the guilty and the non-guilty), jirga brings disputants and the village together to find collective solutions to problems.

Despite their appeal, jirgas have nonetheless very negative features. Among the most serious of these are the lack of participation by, and the treatment of, women in the process of dispute settlement. Normally all-male or male-dominated local councils, jirgas exclude women and young people from participation and decision-making. Like other rule of law institutions, jirgas need to be held accountable on various fronts. The Afghan Independent Human Rights Commission, as an independent government institution funded primarily by external donors, monitors the compliance of jirgas to human rights principles. Reforming and monitoring jirgas and creating a framework in which they can act as complementary dispute resolution mechanisms, will give them an even wider appeal and will make justice in Afghanistan more accessible.

Edited excerpts from the 2007 National Human Development Report of Afghanistan, on ‘The Rule of Law: Bridging Modernity and Tradition’, pp90–94, with comments by Khwaga Kakar.

DEMOCRACY AND POLITICAL PARTICIPATION