Part I: Justice Systems in Afghanistan
Note: this is an excerpt from the full report “Assessing Women’s Access to Justice in Afghanistan.” To request access to the full report, please contact the authors at email@example.com.
A justice system that upholds and enforces the law and is accessible to all citizens is an integral component of development progress. Not only is access to justice necessary in overall development outcomes, but it is also crucial to the status of women and girls, especially with regards to efforts in increasing participation, security, and empowerment. Access to justice refers to “the ability to obtain effective, responsive, and fair resolution of a conflict, dispute, or grievance.”
In Afghanistan, the definition of access to justice extends to both the formal and informal justice systems. Justice reform has gained momentum as a means of improving the conditions of women worldwide, but questions remain as to how to improve women’s access to justice within discriminatory institutions.
An important discussion surrounding justice reform centers on the role of informal, or customary, justice systems (IJS) relative to formal systems (FJS). While undeniably important in providing culturally appropriate, accessible services, IJS sometimes conflicts with FJS and violates “international standards of rule of law and human rights,” particularly regarding women’s rights and access to justice.
However, approaching justice reform without acknowledging all justice providers risks merely changing procedures without addressing deeply entrenched sociocultural patterns, and may therefore subject women to a dysfunctional system. Strategies that approach processes of change from the formal or informal system negate the importance of culture and ethnicity in perceptions of justice and may negatively impact women.
Afghanistan provides an illustrative case of the complexities of legal pluralism and women’s access to justice within such a system. The country’s history of conflict, religious and ethnic diversity, and underlying social structures contribute both to the persistence of legal pluralism and restricted opportunities for women. Afghanistan is also a unique case in that despite having seen a profusion of justice reform projects since the fall of the Taliban in 2001, serious challenges persist with the functioning and quality of its justice systems - especially in terms of women’s access to justice.
A Background of Formal and Informal Justice
Formal justice systems are described as “positive law that functions through legal codes and state institutions such as courts, prosecutors, police [and] prison service.” They are the building blocks of the rule of law but are heavily limited in post-conflict situations with weak government capacity, where costs, location, and cultural divergence with the population render them inaccessible.
Within fragile states, citizens often perceive FJS as illegitimate. Furthermore, FJS remain greatly constrained by inadequate material and human resources as well as enforcement mechanisms.4 In reality, FJS co-exist with informal institutions, regardless of statehood strength.
Informal justice systems refer to a “multitude of arrangements that relate to a social practice distinct from official state policy and serve a wide spectrum of justice functions, from arbitration to court-like decision-making, to resolve disputes or to achieve collective decisions.” Despite worldwide variations, most IJS are rooted in religious, communal or indigenous communities.
Informal courts are inexpensive relative to formal courts and are closer to the population, both in location and cultural familiarity. In war-torn societies, IJS usually survive and are the first providers of justice. Procedures focus on consensus-building, reconciliation, and social harmony within the community, which enhances trust, legitimacy, and enforcement capacity. IJS are not merely alternatives to inefficient formal judicial procedures but may be, from a user perspective, the de facto dominant judicial system.
There are several key issues with IJS: first, power is problematic as IJS are embedded in politicized societal structures that dictate outcomes and appoint judicial actors who will likely promote status quo. Also problematic are the inequalities IJS tend to reinforce through patriarchal norms and patterns of exclusion reflected in their procedures. A third issue is the lack of legal awareness and consistency in informal justice delivery due to the absence of codified decision-making procedures and outcomes.
Afghanistan’s Justice Systems
In Afghanistan after the collapse of the Taliban in 2001, the Bonn Agreement introduced formal justice institutions based on Islamic principles, international standards, rule of law and Afghan traditions through the appointment of the Afghanistan Judicial Commission. Today, legal pluralism remains prevalent, with both the formal and informal justice systems operating in parallel, and sometimes in opposition.
Afghanistan’s FJS comprises of the Supreme Court in Kabul, the Court of Appeals at the provincial level, and district-level primary courts.
Numerous problems in the Afghan FJS hinder citizens’ access to justice. The primary concern is corruption; Integrity Watch Afghanistan (IWA) reports that, in 2018, the public perceived courts and judges as the most corrupt state institutions. A full 22% of reported bribes were paid to courts, followed by 16% to the Attorney General’s Office. The World Justice Project reveals that perceived corruption of judicial actors increased from 55% of the public in 2013 to 62% in 2017.
The causes of corruption include low salaries, weak institutional control and oversight, and an endemic network of corrupt warlords and political elite inherited from the Taliban insurgency. Beyond the negative impact on judicial quality, FJS corruption also fuels insecurity and Taliban expansion.16
The FJS is also constrained by low quality, lack of trust from the Afghan people, and weak accountability mechanisms.
The IJS in Afghanistan is composed of jirgas – traditional Pashtun village circles – and shuras – ad hoc councils at the village and inter-village levels. Their procedures vary given dispute type and location, but all consist of “a body of respected marakachian or rishsafidan (local elders or leaders) who refer to customary laws in order to reach settlements acceptable to disputants and to the community.”
Afghan informal justice providers share a focus on ad hoc, restorative justice15 and while most institutionalized rituals derive from Pashtun traditions, they vary across regions and ethnic groups.5 Overall, Afghans perceive jirgas and shuras as more accessible, less corrupt, and more trusted than FJS, as well as more efficient, with 71% of Afghans surveyed believing in their ability to deliver justice.24
However, there are two main issues with IJS in Afghanistan: first, the IJS is subject to capture by strongmen and warlords, which tends to impede on the principle of impartiality, foster unfair outcomes, and perpetuate power inequalities in society. Secondly, women tend to be under-represented and outcomes of tribal law often violate their rights.13
Please see Part II for more on women’s Access to Justice in Afghanistan.
 OECD, “Enhancing the Delivery of Justice and Security,” OECD Journal on Development 8, no.3 (2008)
 Tanja Chopra and and Deborah Isser, “Access to Justice and Legal Pluralism in Fragile States: The Case of Women’s Rights,” Hague Journal on the Rule of Law (September 2012): 337.
 Ali Wardak, “State and Non-State Justice Systems in Afghanistan: The Need for Synergy,” University of Pennsylvania Journal of Law & Social Change 32, no. 5 (2014): 1307.
 Matthias Kötter, “Non-State Justice Institutions: A Matter of Fact and a Matter of Legislation,” Non-State Justice Institutions and the Law: Decision-Making at the Interface of Tradition, Religion and the State, ed. Matthias Kötter et al. (London: Palgrave Macmillan, 2015), 155–84.
 Matthias Kötter, “Non-State Justice Institutions: A Matter of Fact and a Matter of Legislation,” Non-State Justice Institutions and the Law: Decision-Making at the Interface of Tradition, Religion and the State, ed. Matthias Kötter et al. (London: Palgrave Macmillan, 2015), 156.
 Tanja Chopra and and Deborah Isser, “Access to Justice and Legal Pluralism in Fragile States: The Case of Women’s Rights,” Hague Journal on the Rule of Law (September 2012).
 Ewa Wojkowska, “Doing Justice: How Informal Justice Systems Can Contribute,” Oslo Governance Centre: The Democratic Governance Fellowship Programme (Oslo: United Nations Development Program, 2006).
 Ali Wardak, “State and Non-State Justice Systems in Afghanistan: The Need for Synergy,” University of Pennsylvania Journal of Law & Social Change 32, no. 5 (2014): 1305-1324.
 Integrity Watch Afghanistan, “NATIONAL CORRUPTION SURVEY 2018 - Afghans’ Perceptions and Experiences of Corruption” (Kabul: Integrity Watch Afghanistan, 2018).
 Integrity Watch Afghanistan, “NATIONAL CORRUPTION SURVEY 2018 - Afghans’ Perceptions and Experiences of Corruption” (Kabul: Integrity Watch Afghanistan, 2018): 39.
 The Rule of Law in Afghanistan” (Washington, DC: World Justice Project, 2017): 10,
 Ali Wardak, “A Decade and a Half of Rebuilding Afghanistan’s Justice System: An Overview” (Leiden: Van Vollenhoven Institute, 2016).
 Ali Wardak, “State and Non-State Justice Systems in Afghanistan: The Need for Synergy,” University of Pennsylvania Journal of Law & Social Change 32, no. 5 (2014): 1315.