Afghan women and the Rule of Law conundrum

In December 2001, the US-led offensive forced the Taliban to scatter over the mountains into Pakistan and the international community rushed into Kabul with the best of intentions.

One of their primary goals was to reform the Afghan justice sector. And they waded in with a confidence bordering on arrogance, combined with a troubling disregard for the legal structures, however precarious, that were already in place.

In just a little over two years, Afghanistan had a new Constitution; there were training programs for judges and lawyers, and international organizations were making millions providing services to the US government in its quest to make sense of the muddle.

Ten years later, these efforts have become a nearly $1 billion “Rule of Law industry,” as one international legal specialist, who has spent several years in Afghanistan, dubbed the enterprise.

Exact figures are difficult to come by since there are multiple actors and programs involved in the “industry.” But a report by the US Congressional Research Service in November 2010 stated that total funding for “Rule of Law” from fiscal year 2002 through fiscal year 2010 was $904 million. That would mean more than $110 million per year on average has been spent in the last eight years on attempts to improve the justice system.

And it has largely been a failed effort, according to legal experts and human rights advocates in Afghanistan. The US did its best to prop up a justice system from the central government in Kabul but has more recently realized that the levels of corruption and incompetence in this national criminal justice system have made it nearly impossible to reform. And so the US has shifted its sights to the local tribal courts where the vast majority of criminal and civil cases are heard. This fiscal year about $15 million will go into efforts to work with these local structures.

But the effort is not without its problems: these tribal courts are all too often stacked against women, and persist in using traditional practices such as ba’ad, the bartering of women and girls as a way to resolve disputes among families.

Some of the beneficiaries of the “Rule of Law” industry largesse were Tetra Tech DPK Consulting and Checchi and Company Consulting, two companies that specialize in providing legal education services in the developing world. Both companies were contacted for this series, but declined to comment saying USAID discourages contractors from speaking with the media.

These companies have a great deal of expertise in working with developing societies, and both have sought to put the best face on what is, undoubtedly, a very difficult assignment.

Tetra Tech DPK Consulting, a company based in San Francisco, works with the formal (state) sector. According to its website, Tetra Tech DPK “furthers the rule of law in Afghanistan … by raising the legal awareness of citizens through its public outreach activities. Through carefully designed programs that promote human rights and access to justice, outdated attitudes and perceptions that in the past have hindered the development of a more open and just society are now slowly changing.”

Checchi, which is based in Washington, D.C., was given the task of working with the informal sector. It is similarly upbeat in its official materials. Its website proudly proclaims:

A woman in a burka walks through a market in a heavily populated Pashtun neighborhood on the outskirts of Kabul, Afghanistan, Dec. 19, 2011. (Erin Trieb/VII)

“As implementing partner for this key component of USAID/Afghanistan’s new Rule of Law Stabilization Program, Checchi is working with the Afghan Government and Afghan NGOs to enable immediate access to justice through community-based dispute resolution mechanisms in districts in the southern and eastern parts of the country. Among other activities, Checchi advisors are working with community elders and relevant state actors to strengthen or re-establish the jirga and shura system for dispute resolution, as well as assisting with providing access to formal justice systems when appropriate.”

Despite the millions that have been disbursed, critics say corruption has persisted, and there is little hard evidence that substantive improvement is taking place. But with so many contractors making a profit, it seems to these critics that there is little incentive to measure what, if any, real advancement is being made.

“It has been a tremendously embarrassing waste of money,” said Rebecca Gang, who worked for two years as a consultant on Justice and Rule of Law at the Afghanistan Research and Evaluation Unit (AREU), an independent research institute based in Kabul. “Rule of law issues have been captured by the industry. The way the system has been designed, there is a negative incentive to improvement.”

As the years passed, and corruption became an ever more prevalent factor in any evaluation of the Afghan government, it became apparent to many that the reform of the justice system had failed.

Transparency International ranks Afghanistan as one of the most corrupt countries on earth, tied with Burma for second to last place. Only Somalia and North Korea place lower. 

The courts are widely seen by the Afghan people as the embodiment of this corruption.

“There is a perception that justice is available to the highest bidder,” acknowledged one Western official, speaking on condition of anonymity.

The Afghan populace has responded by boycotting the state system almost entirely, falling back on centuries-old traditions. They settle disputes by turning to tribal elders, the “white beards” who are still widely respected in the country. They may be illiterate, and have very little understanding of the law, but their word is final.

The Liaison Office (TLO), a non-governmental research organization based in Kabul, maintains that the vast majority of cases still bypass the state system.

“According to our research, non-state justice systems predominate throughout the country,” said Peyton Cooke, a Program officer for TLO’s Justice Program. “Upwards of 90 percent of cases go through the informal system.”

The State Department has long been aware of this fact; in 2008 it issued a report on Rule of Law programs in Afghanistan citing similar statistics. 

TLO’s research shows that little has changed.

http://www.globalpost.com/dispatch/news/regions/asia-pacific/afghanistan/120306/afghan-women-and-the-rule-law-conundrum