Ask people in Afghanistan about justice and they'll most likely tell you there isn't any.
Laws in Afghanistan are often not enforced, especially if the offender is rich or powerful. The courts are a confusing maze in which justice is dispensed at a glacial pace. Often, the outcomes are determined by bribes.
The U.S. and its allies have pledged to rebuild Afghanistan. But the coalition has lagged in its efforts to develop the rule of law — and ignoring the lack of justice is proving a costly mistake.
Aqiqullah's Story
In an industrial district northeast of Kabul, a fuel tanker rolls past a dusty, trash-strewn lot that used to be Aqiqullah's two-acre garden.
The math teacher says that four years ago, his neighbor confiscated the garden, tearing down the grapevines and lotus trees. Aqiqullah says the neighbor, who owns a raisin factory, wanted the property to expand his business.
The court has refused to do anything about the theft, even though Aqiqullah holds a deed to the parcel he inherited from his father. The neighbor claims the teacher's cousin sold him the land. Aqiqullah's lawyer says the neighbor has no documents to prove it.
The authorities also did nothing when the factory's guards beat Aqiqullah into a coma at the site — a beating that he says has left him with chronic headaches and memory loss.
"It's the rule of power, not the rule of law, that's in charge here. My hope is our government will do something to change that," Aqiqullah says.
A Growing Number Of Property Disputes
So far, the government has done very little — especially when it comes to property disputes, which dominate Afghanistan's judicial caseload.
"Literally millions of Afghans have poured back into this country looking to get land back or their homes back that they had left behind years earlier," says John Dempsey. He heads the Kabul office of the U.S. Institute of Peace, which runs a number of judicial reform projects in the eastern part of the country.
Dempsey says population growth and migration to cities because of insecurity and unemployment also add to the growing number of property squabbles.
Afghan judges appear ill-equipped to handle these cases. "They are looking through paper records that have existed for decades, issued by successive governments. So you may have four or five deeds to the same piece of property," Dempsey says.
"You also see the corruption that's endemic in the judiciary. And often people who have a claim to property will go before a judge and try to get that claim validated, but they won't have it validated unless they pay a bribe."
'No One To Listen To You'
Complaints that the process is run by whim rather than rules are rampant here in front of the Fourth District Property Courthouse in Kabul. Homeowners happily share their frustrations as dozens of them wait outside.
Mohammad Hanif, 72, complains court employees treat him like an ATM, demanding bribes in exchange for any work they do on his deed.
United Nations journalist Akmal Dawi says he was forced to pay a $3,000 bribe several months ago to a judge named Haji Yaqoub. Without it, Dawi says, the judge wouldn't approve the sale of his $39,000 apartment in northern Kabul.
Dawi lived for nearly two decades in the modest, three-room apartment that he inherited from his father. It was one of hundreds given to families of Afghan men who died fighting the Soviets.
"So it's mostly for orphans and widows who live here," he says. "And of course their economic situation is weaker than the rest of Kabul city."
Dawi says he was lucky. The paperwork he had on the apartment appeared to be in order. So at first when the judge asked for the bribe, Dawi balked.
"I thought it may be easy. I am a citizen of this country. I have my property and I want to sell it. And I went. I knocked [on] every door in the government for two weeks," he says.
He says he complained to friends in President Hamid Karzai's office and even to the Afghan intelligence agency. They told him they couldn't help him.
"Eventually, I met a very senior official in the Supreme Court. And I told him, 'I'm going to sell my apartment.' And he said, 'Son, if you want to sell your apartment, you have to pay these guys.' "
Dawi says the experience left him disillusioned — with little hope that the Afghan government will change, despite promises from Karzai and the West.
"You have to defend your right," he says. "But when you actually face the real situation, it is extremely difficult. There will be no one to listen to you. No one."
A Taliban Inroad
Afghan Supreme Court Justice Abdul Malik Kamawi is not surprised by such allegations. He says his government and its Western allies need to work a lot harder on tackling corruption in the justice sector, training court officers and paying judges livable wages.
"If we don't improve justice, especially when it comes to property issues, the result will be chaos and insecurity that could ultimately lead to anarchy," he says.
The Taliban has certainly used the lack of rule of law to strengthen its standing with Afghans in a growing number of districts. Militants who are trained in Islamic law hold mobile courts in homes, mosques and gardens.
Reached by phone, a Taliban spokesman who goes by the name Qari Yousef Ahmadi says Afghans prefer his group's brand of Islamic justice because they don't trust the Karzai government to do anything but fill its pockets.
Alternative Justice
Taliban courts are not the only alternative Afghans are seeking out.
Noah Coburn, an anthropologist with the U.S. Institute of Peace, says it's far more common for people — especially in rural areas — to use traditional shuras, or councils, where elders and family representatives gather to hash out disputes.
Coburn estimates that in remote districts — like one he visited earlier this month in Paktia province, a 90-minute drive south of the Afghan capital — some 95 percent of legal disputes are resolved by shuras.
"There's no courthouse that's been set up there. There's one judge that's assigned to the area. For security reasons, he can't go there very often. And instead what's happened is the communities, the villages there, continue to resolve their disputes the way they have for centuries," Coburn says.
Coburn says that in the past year, the United States and other key international players have begun to talk about incorporating shuras more formally into the Afghan justice system. He's involved in four pilot projects to see how that might be accomplished.
Coburn and others say the international coalition now realizes that without rule of law, there can't be lasting stability in Afghanistan no matter how much you train and build up Afghan security forces.
"Oftentimes these jirgas and shuras are much more legitimate in the eyes of the local community," Coburn says. "So working with them to ... create a relationship with the formal system, you can actually resolve many more disputes and create much more community harmony than you would simply by relying on building courts and training judges, which is a long, slow process which has shown to be very difficult in this country."
Still, he and others cautioned against treating the councils as a quick fix to what ails Afghan justice. Shuras, like Afghanistan's formal courts, are subject to bias and corruption, especially in areas where warlords wield influence.
"They're not as good at preserving individual rights. And this is why we need to make sure that any approach we have targets both the informal and formal systems simultaneously," Coburn says.
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