By: Carolyn Dubay, Associate Editor, International Judicial Monitor

Nearly every day in the news, reports of problems in Afghanistan seem to surface.  Rising doubts about President Hamid Karzai’s commitment to the rule of law and democratic governance are dimming hopes for sustainable legal development.  The Taliban continues to inflict pain and suffering on the Afghan people and regularly engages in attacks on American and other allied forces.  Although all Afghans share in the misery, for Afghan women, the promises of a path towards gender equality after the American ouster of the Taliban and a constitution guaranteeing equal rights are seemingly more distant now.  As Secretary of State Hillary Clinton recently remarked in commemorating International Women’s Day, women “rarely cause violent conflicts but too often bear their consequences.” 

As in any society, the promise of rights enforced through a judicial system depends on many factors, not the least of which is the competence, integrity and quality of the judiciary.  A respected justice sector, however, depends not only on the education and experiences of the people served by it, but on the respect and attention it is given by the government.  There is much discussion in the development world of efforts to create a “culture of lawfulness” to bring about respect for the rule of law among any given populace receiving foreign assistance.  From the top down, this is referred to as “good governance.” Either from the bottom up or the top down, however, long-term commitment to the rule of law seems strikingly remote in a country such as Afghanistan, where media reports suggest that 80% of its stability and reconstruction support comes from the United States, which is set to begin withdrawing forces in 2011.  Plunging further into a rule of law black hole, the Afghan economy continues to exist through reliance on its drug trade, and its political systems are not surprisingly rife with corruption and a disdain for foreign assistance.  Newspaper reports have indicated growing concerns that President Hamid Karzai has shut down numbers of international and national NGOs in Afghanistan.

For Afghan women, while there have been many significant efforts to increase awareness of women’s rights and improve access to justice, the battle continues to be an uphill one in the current political climate.  Despite enormous pressure from the international community to improve women’s rights after the fall of the Taliban, President Karzai has been accused of virtually shutting women out of all positions in his government.  And despite constitutional gender quotas for parliamentary positions, women continue to be disadvantaged by educational and cultural barriers to participation in Afghanistan’s justice sector institutions.  

From the outset, the Karzai administration did not seem poised to make decisions relating to judicial reforms that would embrace equality for women.  His first appointee as Chief Justice of Afghanistan’s new Supreme Court was Mawlavi Fazl Hadi Shinwari, an extreme religious conservative who routinely disregarded constitutional provisions not only on gender equality, but structural limitations on the power of the judiciary itself.  Shinwari created the Religious Edict Council in the Supreme Court to enforce the constitution’s Islamic supremacy provision and oversaw the appointment of 137 judges to the Supreme Court, which according to the constitution is to consist of only nine members. Moreover, although the President has the judicial appointment power under Afghan law, President Karzai reportedly failed to reject any of Chief Justice Shinwari's judicial nominees, many of whom did not meet the education and experience requirements of Afghan law.  

Fortunately, Shinwari’s term as Chief Justice was relatively short-lived.  In 2006, President Karzai’s Supreme Court nominations were subjected to parliamentary scrutiny for the first time, and the parliament rejected Karzai’s nomination of Shinwari for a renewed tenure as Chief Justice. Instead, the parliament approved the President's second nominee, Abdul Salam Hazimi, in July 2006. Hazimi, a moderate, has distinguished credentials amongst Islamic jurists as a graduate of Al-Azhar University in Egypt and has also studied in the United States. Hazimi and the other recent appointments to the Supreme Court also have no known ties to political Islamists.

Even with these changes, the reality of the Afghan judicial system is that most issues will have to be addressed either in the lower courts or through customary religious or sharia law applied in the provinces in community-based dispute resolution institutions.  In the lower formal courts, hopes for progressive constitutional interpretation to reconcile women’s rights with Islam seem dim.  Part of the problem stems from the virtual exclusion of women from the development of the law, especially sharia law.  Shortly after coming to power, the Taliban almost completely banned women from working outside the home and dismissed all female judges.  The Afghan Women Judges Association has estimated that women constitute only three and a half percent of the judiciary and generally are found in the lower courts, and there they remained confined primarily to family courts.  A 2003 Amnesty International report suggests that biases among male judges also remain a significant obstacle to increasing women's representation on the bench.  Other reports suggest that a number of Afghan judges are Mullahs with Taliban ties, and many more are not educated at the university level.  

At the local informal court system level, which is critically important in the lives of rural Afghans, gender biases and problems with education and access to justice persist.  Approximately seventy-five percent of the Afghan population lives in rural areas.  Many of these residents depend on the informal justice sector for the resolution of local disputes.  In December 2009, Deborah J. Smith, Senior Research Manager at the Afghanistan Research and Evaluation Unit (AREU) prepared a report on community-based dispute resolution processes in Nangarhar Province and described the critical role these “courts” play in land disputes arising from the large-scale migration out of the villages during the Soviet-Mujahiddin War, followed by the return of these refugees.  Other disputes often resolved through informal local systems include murder and other violent crimes and domestic issues, including marriage disputes and sexual abuse.   Smith argues that great potential for the evolution of these community-based systems exists because they tend to adapt to changing social relationships, political structures and new problems.  This is important for many reasons, including the fact that Afghan community-based dispute resolution processes frequently work in collaboration with state judicial institutions.  Consequently, they offer a functioning alternative to the weak state justice system.  With respect to gender rights, Smith recognizes that while women’s roles as decision-makers in dispute resolution processes are severely limited, women do play a key role as decision-makers in domestic disputes.  Unfortunately, however, Smith concludes that because of the prevailing social and cultural attitudes toward women that pervade Afghanistan, women’s access to justice in the informal system is ultimately very constrained and decisions are often made that are counterproductive to women’s human rights. 

Despite the grim reality of the obstacles posed to women’s rights in Afghanistan, the international development community has continued to invest heavily in programs to improve the education not only of women, but men as well.  In the justice sector, this means adapting rule of law programs to increase awareness of women’s rights and to bring women into the sphere of government and judicial service.  The U.S. Agency for International Development (USAID)’s Afghanistan Rule of Law Project (ARoLP) began in 2004  to assist in (1) strengthening court systems and the education of legal personnel; (2) law reform and legislative drafting; (3) access to justice/informal sector; (4) support for commercial court reform; and (5) human rights and women’s rights under Islam.  On this last issue, women’s rights, ARoLP has focused on public outreach and education to at least open the dialogue on women’s equality, starting with forums on issues of particular importance to women, such as rights within the family structure.   

In its most recent report, the ARoLP detailed its significant improvements to the judicial sector, which will provide an overall benefit to Afghans and Afghan women.  As the competence of the judiciary grows, so too (hopefully) will the ability of women to access the system to protect their newly granted legal rights.  Since October 2004, USAID’s Afghanistan Rule of Law Project has trained more than 1,161 of Afghanistan’s 1,371 sitting judges; supported the Afghan Supreme Court in establishing a judicial education and training committee and developing its financial and human resources management capacity; developed and populated a personnel database for the Supreme Court and produced 3,577 judicial ID cards for 1,380 judges and 2,197 administrative staff; trained Ministry of Justice employees in legislative drafting; created the first online database of Afghanistan’s laws; implemented a case file and tracking system in courts throughout Afghanistan; conducted 2 National Conferences on Core Curriculum for 230 university vice chancellors, Law and Sharia Faculty deans and professors from across Afghanistan; trained 60 Law and Sharia professors from 7 universities on modern teaching methodology; and trained 100 university vice chancellors, Law and Sharia Faculty deans and professors from 7 universities on the credit-hour system and on producing objective based syllabi.

Because access to legal information has severely impaired education on legal rights and effective advocacy, much of the rule of law work has focused on projects to collect and publish existing and revised laws and legal resources.  The ARoLP has now published and distributed 151,300 volumes of legal references, 41,020 basic legal texts and supplement, 30,000 volumes of judicial bench books, 18,500 law textbooks for university students, 19,580 sets of the Official Gazette 1 and 2, 4,000 Dari-Pashto Legal Dictionaries, 4,000 volumes of the Legal Research Manual.  USAID programs have also established the first modern law library in Afghanistan and have focused on public outreach about the legal system by printing and disseminating 22,037 copies of the Afghan Constitution, 458,637 comic book sets for children’s education on the legal system,  140,119 Dari and Pashto pamphlets, and 82,834 bumper stickers bearing legal awareness messages.  

The rule of law effort on women’s rights has also made significant contributions to public education and awareness.  The ARoLP program has conducted two province-wide women’s access to justice campaigns in Nangarhar and Baghlan provinces;  held 120 public discussions, roundtables, and seminars on women’s rights under Islam in 23 provinces across Afghanistan; distributed 227,500 items (including school bags, canvas bags, posters, stickers, pens, brochures, calendars, pamphlets, training manuals) promoting women’s rights; and sponsored Academic Legal English programs at 5 Afghan universities for more than 1,500 Law and Sharia students and faculty every year.

Perhaps most importantly, the ARoLP has made strides to improve the education of women, especially in the legal field.  ARoLP presented workshops to support judicial candidates, including 29 women, and completed English language and computer trainings for 19 women judges in Kabul.   Eleven female members of Afghanistan’s National Assembly also completed an ARoLP intensive training workshop on “Reviewing and Responding to Legislation from a Gender-Sensitive Perspective.” Education of women also helps with the significant access to justice barriers.  ARoLP’s Access to Justice/Informal Sector Component has developed national and provincial public outreach campaigns to educate Afghans on their legal rights and responsibilities under the Constitution of Afghanistan.  Finally, ARoLP’s Women’s Rights under Islam program has held more than 120 public discussions, roundtables, and seminars in 23 provinces across Afghanistan on gender issues, including public discussions; high school teachers’ seminars; district-level public discourses; seminars for graduate students of Law, Sharia, and Journalism; public discussions on domestic violence and children’s rights; and  interactive sessions at village levels with government officials, religious and legal experts, civil society representatives, and other local opinion leaders.

The international development community’s rule of law programs in Afghanistan mark an earnest and good start in improving the quality of the Afghan judiciary and legal community.  It is easy to be skeptical of these efforts, however, in the face of constant news of concerns about the ability of Afghanistan’s government to sustain peace and deliver a functioning government.  But educating lawyers and judges and producing qualified and respected judicial leaders can have a significant impact in empowering not only women, but broader parts of the population that may ultimately be able to exert political pressure on national leaders, even in countries where democracy can sometimes seem to falter.  For Afghans, they need look no further than their neighbor Pakistan for an example.  When General Pervez Mushafraf removed respected Supreme Court Chief Justice Iftikhar Muhammad Chaudhry from office and placed him under house arrest in 2007, the widespread demonstrations by the Pakistani legal community and the international legal community’s embrace of the Chief Justice were a significant factor in Musharraf’s ultimate political misfortunes.  For Musharraf’s successors, continued protests led to Chaudhry’s reinstatement as Chief Justice in 2009.   Turning back to Afghanistan, even in the face of President Karzai’s questionable commitment to women’s rights and the rule of law, a well educated and empowered legal community may be a good start towards making such a commitment a political necessity.

 

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