Linkages between state and non-state justice systems in eastern Afghanistan , evidence from Jalalabad, Nangarhar and Ahmad Aba, Paktia

Historically the Afghan state administration, including the court system, has never had full control over the entire country. For the vast majority of rural Afghans, local governance, security and justice administration was and is provided through non-state, religious and informal community bodies. The relationship between state and non-state institutions has often been conflictual, and attempts at effectively expanding the jurisdiction of the state have frequently sparked rebellion. At the same time, the relationship between the two systems is often characterised by degrees of recognition, coordination and cooperation.

Today as throughout the last century, the state justice sector suffers from a severe lack of capacity and is mistrusted as corrupt and ineffective by the majority of the population. As a result between 80-90 percent of all civil disputes and criminal offenses in the country are dealt with through informal institutions. This report maps the formal and informal justice institutions as well as the interactions and linkages between them in two districts in the majority Pashtun East and Southeast of Afghanistan, one urban (a nahia of Jalalabad) and one rural (Ahmad Aba in Paktia).

Non-state justice systems play a significant role in both areas, but there are substantial differences as well. The state system is much stronger in Jalalabad. The vast majority of serious criminal cases there is dealt with by state courts. In rural Ahmad Aba, in contrast, the majority of criminal cases is resolved through jirgas, often with the tacit knowledge of local government officials. The differences are less extreme for civil disputes. In Jalalabad, the majority of civil cases is solved through non-state mechanisms, but a significant number of cases goes to the courts. This is different in Ahmad Aba, where almost all civil disputes are resolved by jirgas at the village level.

In practice, key actors from the formal and the informal justice systems cooperate closely in both research sites. The institutions central to the informal justice system, i.e. local shuras as well as district/ nahia shuras have become increasingly formalised over the last years, in the sense that they and their members are registered with the district government and in the case of the district shura with the provincial government as well. Particularly civil cases are frequently referred to jirgas by justice departments and courts, and the arbitration results formally registered. This both reduces the burden on an overstretched state justice system and strengthens the implementing power of jirga-decisions.

Some linkages, less between the two justice systems as such but between informal justice actors and state agencies in general, have the effect of reducing the accountability of informal justice mechanisms. This is particularly the case when shuras from which mediators for jirgas are frequently drawn also serve to distribute government and aid resources. This configuration enables elders to disadvantage individuals who opt out of the informal system.

The cooperation between formal and informal justice institutions is already extensive and highly formalised in the case of civil disputes. As in addition some of those linkages serve to reduce accountability in urban areas, this report recommends to focus efforts at strengthening linkages on the cooperation between prosecutors, courts and jirgas in Jalalabad. The same recommendation is also given for rural Ahmad Aba. An additional recommendation for Ahmad Aba is to strengthen and formalise the cooperation between tribal shura and district governor on inter-tribal land conflicts.