Informal Justice System Mechanisms in Afghanistan

• What is informal Justice?• Relevant Elements of Informal Justice• Non State Disputes Resolution Organizations• Traditional Procedural Steps for Disputes Resolutions• Branches of Traditional or Customary Law

Informal Justice System Mechanisms

• What Is “Informal Justice” in Afghanistan?• The informal justice system in Afghanistan is less a system than an

array of local mechanisms for resolving disputes. The term informal justice generally includes Shuras, a Dari word referring to permanent and quasi-permanent local councils, and Jirgas, a Pashto term usually used for more ad hoc meetings gathered to address a specific dispute. Both involve groups of community leaders, generally but not always men, who discuss disputes and other political issues within the community. At times these processes are referred to as traditional or community-based dispute resolution mechanisms. What is significant is that the authority of those involved exists, at least in part, outside the State. The actual divide between formal and informal justice in Afghanistan, however, is rarely defined, and cases often pass back and forth between the district governor, local courts, other government offices, and local elders.

What Is “Informal Justice” in Afghanistan?

Across Afghanistan, informal mechanisms tend to be restorative rather than retributive seeking to promote community harmony through islahi (reconciliation) rather than focusing on individual rights or personal punishments. Informal mechanisms frequently assign both parties with the responsibility to compensate for the wrong done and restore communal harmony rather than assigning a winner and a loser. These mechanisms tend to be voluntary, allowing members of both parties to walk away if they cannot resolve the dispute. Ranging from small village-level gatherings to National level Loya Jirgas.

Informal mechanisms focus on political, economic, criminal, and social issues of the community. In many communities disputes over land and water are the most vital, though often the informal justice sector also addresses both minor and major crimes, and restitution from criminal acts, particularly in areas where the State has a limited presence. Civil disputes from commercial and contract matters to land and inheritance claims are also resolved through traditional forums.

Elements of Informal Justice System in Afghanistan

The Informal Justice System in Afghanistan is mainly based on the following three elements

1. Native Traditions 2. Religious Traditions 3. Local Customs

Non State Disputes Resolution Organizations

Non State Disputes

Resolution Organizational

Chart

Relatives Maraka Jirga/ Shura

Sharia Law Mosleheen

Traditional Procedural Steps for Disputes Resolutions

Step 1: Role of relatives of both parties as mediators. While there is a dispute whether legal or criminal with in a family or

a village members, the first step to assess or investigate the relevant matter usually involves relatives of both parties.

Relatives such as father(s), brother(s), uncles, cousins, brother in laws and some other close relatives.( Blood relatives)

Small level disputes such as family or personal matters are settled by the relatives. If the relatives are not able to settle the dispute, then they establish or select some limitations for the claim parties such as a cease fire, put on( Installation of) the stone etc. between the claim parties . Then they refer the required case file to the Maraka, which is in the village level.

Role of Maraka in settling the disputesStep 2: MarakaMaraka is a small group of people, consisting of village elders, village Maliks (Chief of

Village) and Village Mullah Emam,. Maraka is a traditional legal and judicial organization that settles special level cases such as land or water disputes as well as family matters.

How does the Maraka work? • Tries hard to get written approval of both parties for settling the case file. • The Maraka asks from the claiming parties whether their case file should be settled

through Wak or Nerkh? Wak means what the Maraka makes a decision which must be acceptable for both parties. There is no appeal. Nerkh means the decision should be made by the customary law experts and there is a chance for appeal.

• Investigates matters relevant to the case file. • Tries hard to find the real source, roots and causes of the conflict or matter.• After completion of the investigation, Maraka negotiates with both parties.• Negotiation of Maraka with each party • Negotiation of Maraka directly with both parties. • Document should be signed by both parties indicating their choice of Wak or Nerkh

before hearing the decision.

How the Maraka Looks Like?

Role of Jirga in Settling the Disputes

Step 3: JirgaJirga word is used in the Pashtunwali but it is also used in the Dari and

Turkish languages.Jirga is a big gathering or circle consisting of village, clan, tribal or

national level members. Jirga is established for settling high level cases in the tribal, regional or national level. Sometimes the Jirgas are established for insuring the Public or National level interests.

• If the Maraka cannot settle the dispute, or the dispute is between two clans or tribes or in the regional level, then the case file is referred to the Jirga.

• Jirga is predicted in the Afghan Constitution in chapter 6 Article 110 under the name of Loya Jirga.

How the Jirga looks like?

Role of Shura in settling the disputes Shura and Jirga are the equal words with same meaning with a little

difference. Shura is an Arabic word, used in the Holy Koran too.Tajik, Hazaras and Uzbaks tribes or community people use the word of

Shura instead of Jirga. The word “Shura-e-Eslahee” is used in Badakhshan Province instead of Jirga and Shura. In some parts of Hazara tribes Majlas is used instead of Jirga and Shura. In some parts of Nuristan the word Jalsa (the Dari word for “meeting”) is used instead of Jirga and Shura.

• Shura settles all type of disputes whether legal, commercial or criminal among Tajiks, Hazaras and Uzbaks, but in Pashtun areas Shuras are the community representatives for the government.

• There are Shuras in the Government level such as provincial and district level shuras.

• In some Provinces with a Pashtun community, some tribes have shuras for settling disputes and for making the political decisions.

How the Shura Looks like?

Role of Sharia Law in settling the disputes. Step 4: Sharia LawIf relatives, Maraka, Jirga or Shura cannot settle the dispute, the case file is

transferred to Sharia Law by the relevant Jirga or shura.Why?• Most of the Afghan community respects Sharia law decision. • People think that when someone loses his or her rights through Sharia law

decision, it is not a shame for them. • They believe that it is a worship (Ebadat) to settle a dispute through Sharia law as

well as it takes much less time than the formal justice system. Sources of Sharia Law for settling a dispute in order are:1. Holy Koran2. Verses of Hazrat Mohammad (PBUH) Ahadees.3. Ajma-e- Omat (juristic opinions) 4. Qias (analogy) • There are a few Mullahs or Sharia Law experts to hear the cases and most of the

Sharia Law experts do not want play a role as a Judge. They think that it is difficult to know or prove someone right and insure justice.

Role of Mosleheen in settling the disputes Step 5: Mosleheen (Conciliators) Mosleheen is an Arabic word. Mosleheen are selected by the Huquq

Department or by the Court for settling civil or commercial disputes not criminal.

Article 230 of the Civil Procedure Code, O.G.722, year 1990 indicates below:

The court shall recommend the assignment of conciliators in cases where the court senses willingness on the part of the parties for settlement.

• If the case file is formerly received by the Huquq Department and Mosleheen are selected by the Huquq, then the case file should be registered in the Huquq. If the case file is settled with a Jirga or Shura before registering with the Huquq and later is brought for the registration, the Huquq does not want to register that.

• If the case file is settled through Mosleheen selected by the court, the case file should be registered in the court.

Branches of Traditional or Customary Law There are two general branches for Customary law that regulate and

protect the rights of the community:1. Rules or procedures relevant to general transactions.2. Rules and procedures relating to crimes and punishments.Example for the first category are: • A Barber orally contracts with a village or tribe members for

shaving, cooking, carrying wedding and death messages to the community. He or she is always treated by the community member lower or poorer than any other clan or tribe member.

• A shepherd orally contracts to feed all of animals in the village or a tribe in exchange for payment in money or grain.

• A Mullah Emam prays for the whole village or tribe members for getting Zakat, Sadaqa(charities) or maybe cash.

• Chegha, Arbakai (Tribal Force) to protect or defend from the tribe against any type of aggression.

Rules and procedures relating to crimes and punishments

Area of crimes and punishments are the basic parts of customary or tribal law where it has its own terminology. For example,

• Revenge or Exchange: The murdered or victim family must take the revenge due to the following reasons.

1. If not it is a shame for the victim family.2. Due to taking revenge from the killer other alternative aggression from other community

members will be stopped.3. After taking the revenge, security will be insured between the opposing families.

• Peace: If it is a small aggression, not a murder crime, disabled or offensive to the honor, a few respected people go to the victim’s family with a sheep for forgiveness. If it is a big crime mentioned above, slaughtering of sheep and forgiveness through the well respected people will not be enough and it is required for resorting peace between the warring families to marry from one to four girls of the killer’s family to the victim's family.

So here in the Afghan community, for restoring the peace women are required to incur large sacrifice. In such incidents they are forced for violation of human expectations.

Rules and procedures relating to crimes and punishments

• Stone: It has two different meanings: 1. Stone means cease fire. Customary law experts want to

stop temporary violation or conflict between the two warring families by stone installation. The stone installation will provide an opportunity for the warring families to look for ways settle their disputes and conflict.

2. Stone is used for delimitation for the land and water disputes or consolidation of land between the claim parties. The customary law judges such as Marakchian and Narkheian want to implement their decision by putting stones.

Rules and procedures relating to crimes and punishments• Ornai, Speen Baikhee and Gota Laka:Some of the murder cases to prevent from the revenge may be settled

through peace or reconciliation, some of them through customary rules called “nerkh” and some of them need to be settled through marrying up to 4 girls to the victim’s family. It is not necessary that all the girls must be adult, but based on the customary laws experts, called nerkhian, one girl should be exchanged with money and the three rest of the will be blood cost of the victim.

1. Orani is a small girl where the victim family needs to wait for years to get married with her. Such type of marriage is allowed by Islam. Amir Amanullakhan wanted to prevent such types of marriage but could not get the approval of the Loya Jirga.

2. Speen Baikhee is an adult girl who is going to be married to the victim’s family without the wedding ceremony.

3. Gota Laka is a girl where the victim’s family has the right to select her from among the girls of the other family.

Rules and procedures relating to crimes and punishments

• Toor/Eth,ham(Accusation): As in the formal justice system there are some procedures for accusation where the prosecutor has the right to accuse some one and prepares an indictment, also there a defense lawyer is required, but according to customary laws, everybody can accuse someone but if that person cannot prove the accusation to the customary judges, he or she must be obligated for material and spiritual compensation to the accuser.

• Toor wa Speen (Black and white). According to customary law, the body of a Human is divided into two parts -- black and white. The black part of a body is covered and can’t be seen by the people, but the white part is bear and can be seen by everybody. If someone harms another one in the white part, seen by everyone, it is a big shame for him and results in more compensation than harming a black part which not seen by the people.

• Baramta /Machelga (Guarantee): The Maraka or Jirga takes cash, weapons or other expensive items from both sides of the claiming parties as a type of “bond” or guarantee. After hearing the decision by the jirga, if one of the claiming parties does not accept the Jirga decision, Baramta will be given to the other party of the claim.

Questions?Nasir Ahmad

Afghan Attorney Senior Advisor NATO Rule of Law Field Force Afghanistan

Nasir.ahmad.afg@afghan.swa.army.mil