Frontlines Online Edition
Democracy, Human Rights & Governance
January/February 2012

When Love Meets Tradition

Afghan elders, under a USAID program, meet to share challenges and best practices in traditional dispute resolution and to colla Afghan elders, under a USAID program, meet to share challenges and best practices in traditional dispute resolution and to collaborate on serious or long-term disputes. Checchi and Co.
In Afghanistan, USAID-sponsored activities seek to strengthen the linkages between the tribal and formal justice systems, while also serving to educate on and promote basic human rights.
Afghan elders and district-level government justice representatives meet to develop alternatives to harmful practices such as ba
Afghan elders and district-level government justice representatives meet to develop alternatives to harmful practices such as baad.
CREDIT: CHECCHI AND CO.

When Soraya and Idrees* fell in love and eloped, they violated a cultural taboo so strong among the Pashtun people of Afghanistan they could have paid for it with their lives.

The groom’s family also could have been forced to give daughters or other girls in their household to the bride’s family to compensate for their lost daughter and to restore their honor. Baad, the practice of gifting girls to repay debts or pay for serious crimes of male family members, has ruined the lives of young women in Afghanistan for centuries.

Although the girls usually become wives in their new homes, they often are treated like slaves and living symbols of the misdeeds of their family members.

Thanks to a culturally sensitive USAID-funded project that addresses issues arising from such practices, Soraya and Idrees were not only spared their lives and allowed to remain together, but no girls from the groom’s family were given in baad.

Afghan women meet to discuss their access to informal and formal justice institutions.
Afghan women meet to discuss their access to informal and formal justice institutions.
CREDIT: CHECCHI AND CO

The project, implemented by Checchi and Co. Consulting Inc., a U.S.-based company with a strong local presence, strengthens the linkages between the traditional and formal justice systems by conducting legal education workshops for community-based dispute resolution practitioners.

Checchi Chief of Party Kelly Gavagan reported: “The workshops focus on the respective district’s most common disputes in a manner that promotes human rights and conformity with the legal system. Since the project’s inception in April 2010, approximately 350 one-day workshops and solutions-based discussion sessions have been conducted for more than 6,000 male and female elders in southern and eastern Afghanistan using Afghan law and Sharia scholars from the national universities. These beneficiaries have attended an average of 2.4 events each, and the number is growing.”

Afghans discuss the establishment of a women’s dispute-resolution group, or spinsary.
Afghans discuss the establishment of a women’s dispute-resolution group, or spinsary.
CREDIT: CHECCHI AND CO.

In Afghanistan, violent crimes are increasingly handled by the formal justice system, while civil disputes (inheritance, family, land disputes, etc.) are often resolved through the informal system. Choosing the formal or informal system varies according to the type of dispute or crime, and the options available in a community.

Justice Outside the Lines

After 30 years of conflict, Afghanistan’s formal justice system is in disarray. Most of the 431 existing Afghan laws are several decades old, and many contradict each other. Legislative revision to a single law can take three years or more.

According to Afghan Government statistics, half of the country has no public defenders or prosecutors, and 70 percent of those who exist have only a high school education. The formal justice system in Afghanistan is concentrated in the capital, while most of the country is poorly covered. Judges and lawyers willing to serve outside Kabul operate without adequate financial and structural support and in frequent physical danger from local strongmen and insurgents.

For these reasons, and because of a long tradition of tribal justice, roughly 80 percent of disputes in Afghanistan are resolved through the informal system run by village elders in ad-hoc dispute-resolution groups called jirgas, or through standing councils called shuras.

“Because of the prevalence of the traditional tribal justice system outside of urban areas and because of high levels of mistrust of the formal justice system in the countryside, we chose to work with traditional dispute-resolution mechanisms. We encourage linkages with the formal system rather than promote the formal system in areas where Afghans are too skeptical of it,” said Don Chisholm, a USAID Foreign Service Officer involved in the design work.

In addition to using judges and law professors from the formal sector as trainers for the informal program, USAID funds complementary activity in the formal justice sector through its Rule of Law Stabilization Program–Formal Component. That project works to develop the capacity of Afghanistan’s courts (including judges and court administrators) and law schools, and provides public outreach to inform Afghan citizens about how the legal system should operate.

Star-Crossed Lovers

After eloping, Soraya’s and Idrees’s story had a predictable start. Idrees’s older brother immediately tried to return Soraya to avoid bloodshed between their families. Soraya’s brothers were furious and threatened to kill the couple. In an unusual turn of events, the older brother took them to the district governor’s office, instead of the local shura. With the assistance of the Human Rights Commission, the district court heard their case and, in the presence of both families, officially recognized their marriage.

At this point, the fluid partnership between the formal and informal system began. Dissatisfied with the formal court’s decision, the bride’s father approached the local shura and demanded two girls in baad to prevent a blood feud.

Fortunately for the young couple, all but one of the mediators from the shura had taken part in USAID’s family law workshop, which helped them to explore the differences among tribal, religious, Afghan, and international law. Several also participated in government informal justice coordination meetings, which helped them document and register their decisions with the formal justice system.

Although most tribal law does not take the bride’s choice into consideration, under Islamic law, a woman has the right to choose her own husband. In recognition of the cultural crime the couple committed by marrying without their families’ agreement, the shura ordered the groom’s family to apologize and give one ram and 300,000 Pakistani Rupees, or roughly $3,500, to the bride’s family as an alternative to baad, which is forbidden under Islamic law. The shura also recognized the formal court’s decision regarding the legality of the marriage.

“One of the true novelties of these family law workshops is their ability to bring discrepancies or inconsistencies between official custom and Islamic law to the attention of traditional mediators,” said Jean Garland, senior rule of law adviser for USAID/Afghanistan.

In the words of one shura elder after the decision: “The Family Law Seminar helped us a lot because we learned that a girl can marry the one whom she wants [under Islamic law]. She can choose her life partner by herself. Of course, it is not Pashtun culture, but we convinced [the families] from the Islamic point of view.”

*Names in this article have been changed or withheld for security reasons.

Last updated: July 09, 2014