A tribal elder from Ahmadabad district in Paktia province reading a manual on the "Basics of Afghan Law and Criminal Justice"
There is so much more to
Today I sat again, as I have done so many times here in the Southeast, on toshaks in a room filled with spin giri (white beards) and once again felt as though I had stepped back in time some two thousand years. A small wood stove hissed and crackled away in the centre of a long narrow room as snow fell quietly outside, covering this tribal land in a blanket of white.
As discussions began, a young man wearing an all-black shalwar kameez poured sweet cardamom milk tea from an old pewter tea pot into glass cups and set down plates of Pakistani biscuits in front of us.
The tribal elders talked about how decisions taken amongst their tribal councils might be legitimized in the eyes of the state. What we foreigners have come to term the ‘informal justice system’ is the tribes’ own way of dealing with problems and crimes which take place in their communities.
Most cases in this tribal region are brought before a jirga (a tribal decision-making body composed of elected tribal elders) and solutions to problems are found according to tried and tested tribal traditions, which do not always conform with our western concepts of justice (such as the practice of baad, which is the giving of girls in marriage by the family of the perpetrator to the family of the victim in compensation for murder).
Any issue which might potentially disrupt the peace within a community is generally resolved by a tribal council from that community (or district if the case is big enough) – whereas criminal cases are more often referred to the formal justice sector and relayed to an under qualified and probably illiterate district prosecutor, who may or may not (but let’s face it, he generally does) take a bribe to resolve a dispute one way or the other.
A lot of the work I do involves trying to get the Governor and Deputy Governor to lend weight to land dispute settlements by appointing a commission of elders acceptable to both sides in order to reach an agreement.
[A word about our provincial authorities: both of these men are pretty shady characters. Whilst I have no love for the Governor himself (who is a Pashtun warlord from the North and hates working in this Southeastern province; he also has inordinately hairy hands), I am very fond of Deputy Governor Mangal, who looks almost exactly like Pluto from the cartoon Popeye. I sometimes imagine him grabbing the scrawny provincial deputy head of the intelligence services by the neck and holding him in the air as he prepares to sock him over the barbed compound walls of the Governor’s office.]
But I digress. The relationship between state and non-state institutions has often been tense, and attempts at expanding the jurisdiction of what is widely seen as a corrupt state have not gone well. However there are degrees of cooperation between the two, and a draft law by the Ministry of Justice in
Here are some ad hoc snippits from the discussion among these spin giri this morning:
“The draft policy from the Ministry of Justice talks about the Law, but the old people don’t know about the Law.”
“We have solved many cases where we have had witnesses according to our own law (pashtunwali) and the people have agreed. Then we give this decision to the prosecutor. Why does he not accept our decision?”
[I notice a tribal elder dipping a biscuit into his milk tea as he listens. Another fiddles with his yellow turban as it becomes unraveled, and starts to wrap and unwrap it around his wrist. Another clasps his toes to warm them, as I do mine, as we are far away enough from the stove to feel the chill in the room. I see another trying to stuff his feet under a toshak.]
“Criminal cases should not go through the tribes, they should go through the government, because in this way they can be punished”.
“There should be workshops to build the capacity of our tribal councils, so we can better deal with these things”.
“This draft law is good. We didn’t have a framework before, now we have one.”
“Most of the letters written by the district commissioners to the prosecutor begin with “In the Name of God”. This is a very big and important sentence for us. This paper should be respected.”
“One person cannot claim he is a tribal elder. Tribal elders must be nominated.”
The oldest tribal elder in the group speaks up in a wheezy voice: “I am the oldest person here and forgive me, I can’t hear well as one of my ears is not working. We respect human rights (loosely understand it appears), we aren’t against them, but we don’t accept that some people say that women shouldn’t wear the hijab (head scarf).”
Another wrinkly faced elder pipes up: “We will make the law according to human rights of our choosing.”
The oldest tribal elder responds: “Slowly we will reach the point; but by taking the stairs, not by jumping.”