Part II: Ethnicity and Gender in Afghan Justice
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 firstname.lastname@example.org.
Tribal Complexity and its Impact on Afghanistan’s Justice System
Within the complexity of legal pluralism of Afghanistan, the pillars of legitimate legal order are religion, cultural norms, and the provision of public services. In order to understand access to justice in Afghanistan, it is necessary to understand the country’s tribal diversity, gender norms, and religious values.
Due to ethnic diversity, IJS practices and usages vary across Afghanistan, with tribal and religious leaders wielding significant authority on issues of law and morality. Afghanistan’s ethnic complexity derives from its diversity of tribally-organized groups, with 14 main ethnicities organized into tribes, and numerous clans existing within each tribe. The dominant ethnic groups are Pashtuns, Tajiks, Uzbeks, and Hazaras.
Tribal religion, values, and status can create collective barriers to the functioning of FJS. For example, where local governments are perceived to be dominated by other ethnicities, Pashtun groups tend to mistrust all state actors. Furthermore, the relative status of each tribe influences their representation within FJS. Tajiks and Pashtuns are over-represented: 49% of the Afghan National Police are Tajiks, while Pashtuns dominate the government.39 Conversely, Hazaras and Baluchis account for only 16% and 3%, respectively, of legislative body members.
Tribal complexity also influences the functioning of IJS mechanisms. Whereas Pashtuns often use jirgas39, non-Pashtun communities use shuras or family- and clan-based structures as dispute settlement mechanisms. Women’s inheritance rights vary across tribes, and are granted more frequently in Tajik than Pashtun or Uzbek communities.
Despite their distinctiveness, Afghan tribes share certain norms which consequently affect IJS outcomes. The most prominent norm is Islam’s emphasis on women’s honor. Afghan women represent the honor of their family and nation, which results in limited rights41 such as being secluded from public space to “preserve” their honor. This norm reinforces patriarchal power structures that influence IJS, such that male elders control local justice fora and women’s access to justice is limited. Afghanistan’s history of armed conflict has only reinforced the marginalization of women, through increased incidents of rape, forced marriage, and sexual assault by combatants, especially in rural areas.
Another common value among Afghan tribes is the restorative principle, which emphasizes apology and forgiveness. IJS judges express the view that execution will only result in unending cycles of revenge, and thus forgiveness must be sought. In Pashtun communities, restorative justice means that the perpetrator will pay poar (compensation) to the victim or their family rather than serve prison time.
Lastly, the tribes share the self-perception of being democratic and self-governing, which explains their confidence in binding justice outcomes. As the tribes, especially Pashtun, maintain an anti-statehood stance and resistance to uniform rule of law, when these outcomes are contested, the tribes prefer resolving the contestation internally rather than involving the FJS.
Women’s judicial experiences in Afghanistan
Afghan women are caught between tradition and modernizing forces due to the persistence of tribal norms despite Afghanistan’s transition to modern democracy. Although granted equal rights in the Afghan Constitution, women are neither protected by the FJS, nor adequately served within the IJS. Often, justice outcomes fall short of international standards in cases of domestic abuses, inheritance, divorce and sexual assault.
An Afghan proverb states: “for the woman, only the house or the grave,” depicting the reality of women’s restricted freedoms. Limited social mobility hinders women’s access to justice not only as users, but also as decision-makers within the system. Although the number of female judges has increased, women’s representation within the FJS remains low.
In the FJS, discriminatory norms against women still frequently appear in justice processes and outcomes. Specifically, women are often incarcerated for zina (moral crimes) – including “running away from home” to escape domestic violence. Other convictions under zina include premarital sex and disobeying family wishes regarding choice of marriage partners. When convicted, women face a triple price for their offences compared to male counterparts: the court sentence along with familial and community rejection. Even when rulings favor women, they may subsequently face threats of violence, beatings, and murder in their communities.
Women also face difficulties accessing fair processes and outcomes in IJS. When reporting a case to the community forum, women typically must be represented by a male family member. Certain processes of dispute resolution that result from the restorative principle are also inherently discriminatory towards women, such as baad – the exchange of girls or women between tribes as a dispute resolution mechanism. This practice demonstrates how IJS conflict with international standards as well as FJS.
IJS throughout Afghanistan tend to grant fewer rights to women than Afghan law and Sharia in matters relating to inheritance, property and marriage. Islamic law dictates that women retain half the inheritance rights of men but are not required to spend their inheritance on their families in the way that men are. In reality, though, women are often denied their share of inheritance and struggle to claim it in informal councils.
Within the domestic context, there is a disparity between reality and the expectations of how women’s compliance with the patriarchal contract should play out. Afghan women might accept oppressive norms as a way of life due to fear of weakened kinship ties and therefore social and economic dependencies. At the same time, they expect to receive protection in times of crisis and representation in the public domain. In practice, though, men are found to abuse their power over women.
Women as change-makers
While Afghan women suffer significantly from patriarchal norms which restrict their rights, women can also perpetuate such norms and hinder changes. This occurs because conformity to social norms stems from positive and negative reinforcement and internalization. Promoted by influential religious and tribal leaders and perpetuated by women, these norms carry a great deal of weight.
Women who have internalized these norms can hinder other women’s access to justice. Interviews with Afghan girls have demonstrated that in cases of rape and sexual assault, older and more powerful women in their families often dissuade them from going to the police, fearing the stigmatization that such cases bring. Apart from fear of male disapproval and violence, the pressure to sustain family honor makes women reluctant to seek justice for their grievances.
On the other hand, women represent latent potential as change-makers, and their representation in both FJS and IJS is increasing. In 2018, the Afghan Women Judges Association (AWJA) appointed its first female judge to sit on the Supreme Court. Female presence at the appellate level has also improved, and outside Kabul, the number of female prosecutors has increased. In the IJS, the National Solidarity Program has established all-female local shuras, which are identified as women’s first choice for dispute resolution outside the family.
Afghan women’s potential also lies in their ability to navigate justice options and lobby for change. Notably, Afghan women have negotiated with local Taliban leaders on issues such as education, the release of hostages, and resolving blood feuds.
Please see Part III of Assessing Women’s Access to Justice to read about specific recommendations, or contact us to request full access to the report.
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