10.08.2011

Kabul City Using Community- Based Dispute Resolutions as a Restorative Justice Measure



Dear Friends, here is a very good read on what is happening in other parts of the world to deal with disputes and conflicts. This was written by Rebecca Gang

 Community-Based Dispute Resolution Processes in Kabul City 




Dr Brian Steels
Consultant
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Map of Kabul, AfghanistanImage via Wikipedia





March 2011
Afghanistan Research and Evaluation Unit
Case Study Series
Community-Based Dispute Resolution Processes in Kabul City
Rebecca Gang
Funding for this research was provided by the United Kingdom Department for International Development (DFID)
Afghanistan Research and Evaluation Unit
Case Study Series
Afghanistan Research and Evaluation Unit

© 2011 Afghanistan Research and Evaluation Unit. Some rights reserved. This publication may be reproduced, stored in a retrieval system or transmitted only for non-commercial purposes and with written credit to AREU and the author. Where this publication is reproduced, stored or transmitted electronically, a link to AREU’s website (www.areu.org.af) should be provided. Any use of this publication falling outside of these permissions requires prior written permission of the publisher, the Afghanistan Research and Evaluation Unit. Permission can be sought by emailing areu@areu.org.af or by calling (+93) 799 608 548.
Editing and Layout: Oliver Lough
AREU Publication Code: 1107E
Community-Based Dispute Resolution Processes in Kabul City
About the Author
Rebecca Gang joined the Afghanistan Research and Evaluation Unit in June 2010 to complete the Community-Based Dispute Resolution series. She has been working on programs related to rule of law, legal aid/legal access, and legal development in Afghanistan since 2006. Between 2006 and 2008, Rebecca served as Project Coordinator for the Norwegian Refugee Council’s Information Counseling and Legal Assistance Program in Herat, Pul-i-Khumri and Kunduz, focusing on resolution of displacement-related land conflict through state and non-state legal mechanisms. She subsequently worked as Advisor to the Afghan Independent Bar Association during its inaugural year (2008-2009). Rebecca received her J.D. from Northeastern University School of Law and her LL.M. from Harvard Law School, where she wrote a thesis entitled Seeing Like a Law Reformer: A Case Study of the Afghan Independent Bar Association.
About the Afghanistan Research and Evaluation Unit
The Afghanistan Research and Evaluation Unit (AREU) is an independent research institute based in Kabul. AREU’s mission is to inform and influence policy and practice through conducting high-quality, policy-relevant research and actively disseminating the results, and to promote a culture of research and learning. To achieve its mission AREU engages with policymakers, civil society, researchers and students to promote their use of AREU’s research and its library, to strengthen their research capacity, and to create opportunities for analysis, reflection and debate.
AREU was established in 2002 by the assistance community working in Afghanistan and has a board of directors with representation from donors, the United Nations and other multilateral agencies, and non-governmental organisations. AREU currently receives core funds from the governments of Denmark, Finland, Norway, Sweden, Switzerland and the United Kingdom. Specific projects have been funded by the Foundation of the Open Society Institute Afghanistan (FOSIA), the Asia Foundation (TAF), the European Commission (EC) and the International Development Research Centre (IDRC).
Afghanistan Research and Evaluation Unit
Acknowledgements
Above all, this paper would not have been possible without the efforts of Deborah J. Smith and Shelly Manalan in designing and managing the data collection process during the research phase. I thus layer my gratitude on top of theirs for the hospitality and cooperation of the people of Afshar where this research was conducted, who willingly gave up their time to talk to the research team. Without these people’s knowledge, understanding and insights into their own lives and the way in which they experience and negotiate dispute resolution, this research would not have been possible.
This paper could not have been written without the efforts of Fauzia Rahimi, who was essential to the collection and analysis of the Kabul data. Fauzia spent countless hours talking me through the data, painting a picture of interviews as they took place, and helping me to sort and analyze. She has been a resource throughout the writing process, her feedback and insight has been invaluable, and she is above all a pleasure to work with. Thanks also to the other researchers responsible for data collection, translation and analysis, namely Nasreen Quraishi, Zia Hussain and Abdul Hadi Sadat.
Special thanks to Pierre Fallavier, Alice Burt, Chona Echavez, Sarah Han and particularly to Alessandro Monsutti for excellent feedback during the revision process and to Oliver Lough for editorial support. And to Genevieve, for being you.
Rebecca Gang
February 2011
Community-Based Dispute Resolution Processes in Kabul City
Table of Contents
Acronyms � vi
Glossary � vi
1. Introduction � � 1
2. Key Research Objectives and Findings � 4
3. Research Methodology � 7
3.1 Selection of informants and analytical methods......................................7
3.2 Site selection, ethical considerations and important demographic factors.......8
4. Afshar—Setting the Scene � 13
4.1 The instrumentalistaion of ethnicity and its impact on local demographics.....13
5. Afshar’s Multi-Tiered CBDR Structure—Processes, Actors, Principles and Choices � 21
5.1 Small-scale and family mediation.......................................................21
5.2 Shuras: Qawm and community..........................................................23
5.3 CBDR: Sources of authority and enforcement in the absence of force............31
5.4 Women’s access to CBDR, decision-making authority and social change.........36
5.5 When all else fails, the district.........................................................39
5.6 District bodies: Sources of law and enforcement in the presence of force?.....40
5.7 Splitting criminal jurisdiction: The rights of God versus the rights of man......43
5.8 High stakes cases: A category of their own............................................44
5.9 Concluding remarks.......................................................................46
6. Conceptual Divisions � 48
6.1 Notions of justice and legitimacy versus legality.....................................48
6.2 Effects on documentation practices....................................................50
7. Conclusions � 53
Annex 1: Case Summaries � 54
Annex 2: Social Demography Charts.............................................................76
Bibliography and Bibliographic Appendix � 81
Request for Feedback..............................................................................85
Recent Publications from AREU � 86
List of Boxes and Tables
Box 1: Perspectives on ethnic tensions in Afshar � 16
Box 2: Debating the state’s role in dispute resolution � � 18
Box 3: Afshar’s shuras—combining tradition and innovation.................................25
Box 4: Displacement and social change.........................................................32
Box 5: .Self-enforcement as the product of legitimacy.......................................34
Box 6: .CBDR uses of the state as a threat......................................................35
Afghanistan Research and Evaluation Unit
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Box 7: If there was no corruption?............................................................... 36
Box 8: Reproductive versus productive decision-making..................................... 37
Box 9: Women’s access to the state............................................................. 38
Table 1: Informant demography.................................................................. 76
Table 2: FGD demography......................................................................... 78
Acronyms
AREU Afghanistan Research and Evaluation Unit
CBDR community-based dispute resolution
FGD focus group discussion
NGO nongovernmental organisation
Glossary
ekhtyar grant of decision-making authority
hawza district police department
huqooq civil cases department, arm of the Ministry of Justice
islah restorative dispute resolution principle, meaning the promotion of
peace and social cohesion through mediation and reconciliation
jalasa meeting set up for the mediation of disputes (Dari)
jirga meeting set up for the mediation of disputes (Pashto)
mahr Sharia rule of financial compensation to wife in a divorce initiated by
the husband; also described as a dowry
mullah spiritual leader, also known as a sheikh among Shiites
qawm form of solidarity group that is flexible in scope; defined by tribe, clan,
ethnicity, locality or other characteristics as determined by the group
qawmi of the qawm; qawmi shura is a shura of the qawm
urf, urfi custom, customary
shura community-level governance body
shura-i-mahal literally, “shura of the location”; community-wide shura
wakil literally, “representative”; official community representative to the
district
wasita middleman
wasita bazi literally, “to play middleman”; to use one’s connections to facilitate
dispute resolution at the district level
Community-Based Dispute Resolution Processes in Kabul City
1
1. Introduction
Over the course of the last three decades, Afghanistan has gained an international
reputation for being unbound by the rule of law. Yet, at no point in its tumultuous history
has Afghan society descended into anarchy; across the country communities have been able
to maintain stability and social order despite the chaos surrounding them.1 Depending on
the particular conditions in a given community—its location, demographic characteristics,
tribal, religious, or ethnic traditions, or the dynamism of its leaders—traditions of local
autonomy were catalysed by the absence of state government, or in others, by a rejection
of or opposition to the state itself.2 Central to the efficacy and sustainability of this system
has been the element of dispute resolution—of ensuring local stability through the provision
of an artful balance between locally rooted understandings of justice and peace.
It is commonly estimated that 80 to 90 percent of dispute resolution in Afghanistan is
currently conducted through community-based processes. Previous research has shown
broad trends in the way dispute resolution is practiced at the community level and why
it is prioritised, including an emphasis on peace-building and community stability, and
factors such as speed, efficiency, minimal expense, and a preference for local autonomy.
This research has also shown a great diversity of customary practices between regions
and by social groups.3 Recognising the substantial role that non-state justice plays in the
Afghan context, national and international stakeholders involved in justice sector reform
and rehabilitation are increasingly seeking ways to support community-based dispute
resolution practices. A significant part of this approach has focused on examining the value
and possible mechanisms for linking state and non-state justice systems. This heightened
interest from policymakers led stakeholders in the research community to engage more
deeply with questions pertaining to how Afghanistan’s plural legal systems function in
practice, the principles that underscore legal decision-making, how these might differ
across regions and populations, and how such practices and values might affect broader
issues of governance in Afghanistan today.
The Afghanistan Research and Evaluation Unit (AREU)’s Community-Based Dispute
Resolution (CBDR) series4 was therefore launched in 2006 to support policy and programming
in the field of justice sector reform and rehabilitation. It aimed to do this by providing
in-depth, qualitative knowledge on common dispute types and processes used in dispute
resolution at the community level, principles and sources of legal authority deployed in
these processes, and existing links between state and non-state actors in the management
of disputes. Additionally, the series sought to shed light on issues of gender equity and
human rights protection within CBDR. The series focused its research on rural communities
in eastern, central and northern provinces of Afghanistan to get a sense of the similarities
and differences in community-based resolution practices across the country.5
1 Thomas Barfield, “Afghan Customary Law and Its Relationship to Formal Judicial Institutions” (Washington,
DC: United States Institute of Peace, 2003), 4.
2 Barfield, “Afghan Customary Law,” 3-4.
3 Please see the bibliography for a list of studies on state and non-state dispute resolution in Afghanistan.
4 Studies of non-state dispute resolution in Afghanistan commonly use terms such as “customary law,”
“informal justice” and “traditional dispute resolution.” Designers of this research series felt that the term
“community-based dispute resolution” was more reflective of the multiple legal authorities deployed in
non-state resolution, as well as its adaptive yet somewhat regularised nature. In this study, “community”
is used to describe a “unit of residence to which households belong” (see Adam Pain and Paula Kantor,
“Understanding and Addressing Context in Rural Afghanistan: How Villages Differ and Why” (Kabul:
Afghanistan Research and Evaluation Unit, 2010), 17). As this study is situated in an urban environment, the
terms “neighbourhood” and “community” will be used interchangeably.
5 Research sites included Balkh, Bamyan, and Nangarhar. See Rebecca Gang, “Community-Based Dispute
Afghanistan Research and Evaluation Unit
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This, the final case study of the series, examines CBDR in one neighbourhood of Kabul
City to determine the effects of the urban environment on dispute resolution practices.
Specifically, this study analyses the impact of demographic diversity, exposure to warrelated
violence, patterns of long-term displacement, proximity to state services, and
ongoing social change on the practice, efficacy and legitimacy of CBDR and its links to
state processes and actors. The study analyses how factors unique to the capital and its
urban environment affect the practice of dispute resolution at the local level. By doing so,
it seeks to provide a meaningful basis for comparison with similar studies in more isolated
and homogeneous rural areas.6
This study primarily sought to describe CBDR processes as they function, the principles
that inform them, and why people choose to use them in one neighbourhood of Kabul
City. However, the articulate responses of those interviewed inspired a more nuanced
examination of what justice means, what makes dispute resolution legitimate and how
this relates to community members’ relationships to the state. Specifically, informants
made a point of emphasising the delicate balance between justice and peace and how
this is managed through the strategic deployment of customary, state and Sharia law.
They discussed how local mechanisms for self-governance were modelled after traditional
customary practices in some ways, yet in others were responsive to internal social changes
as well as governmental and nongovernmental pressures toward institutionalisation.
Their descriptions regarding the extent of cooperation between state and non-state
dispute resolution actors created an image of points on a continuum as opposed to distinct
systems within which, essentially, mutual collaboration amplified the authority of both
sets of actors in their own spheres. Finally, community members aggressively rejected the
characterisation that their lives and their disputes are bound primarily by ethnic divisions.
Although they acknowledge that the instrumentalisation of ethnicity remains a troubling
legacy of the country’s civil war, they insisted that other factors such as changes in the
distribution of wealth and power, the devastating impact of chronic poverty, and extralegal
decision-making by political leaders tend to be much more significant in fomenting and
perpetuating disputes.
Other important findings were gleaned from the implicit lessons underlying the statements
of those interviewed. These included insights on the threat of state action, an enforcement
tool almost universally favoured by state and non-state actors alike. While certainly the
most effective means available to those responsible for keeping the peace, this tactic is
generating increasing levels of alienation from and fear of the state—a pattern which may
have negative consequences in the long-term. While state and community-based resolution
practices were consistently described as being intimately connected and mutually
dependent, practitioners from both systems adamantly stressed their distinctiveness
when questioned directly. Whether due to statutory or ideological pressures, the assertion
of divisions according to legitimacy, legality, formality and informality were striking and
could be undermining joint administration of dispute resolution in the long-term. Further,
informants’ pained descriptions of disputes that could not be resolved by either the state
or community-based resolution mechanisms highlighted the precarious and gap-ridden
nature of rule of law as a whole in Afghanistan, and the frustration this elicits from its
citizens.
It may be that the most important finding is with regard to the plural nature of the
Resolution in Balkh Province” (Kabul: Afghanistan Research and Evaluation Unit, 2010); Deborah Smith with
Shelly Manalan, “Community-Based Dispute Resolution in Bamiyan Province” (Kabul: Afghanistan Research
and Evaluation Unit, 2009); and Deborah Smith “Community-Based Dispute Resolution in Nangarhar Province”
(Kabul: Afghanistan Research and Evaluation Unit, 2009).
6 A synthesis of the CBDR series is forthcoming.
Community-Based Dispute Resolution Processes in Kabul City
3
legal system itself. For those interviewed, the greatest strength of dispute resolution in
Afghanistan today is the freedom to choose which resolution mechanism is appropriate in
the circumstances. Rather than hoping for a unified, uniform legal system, the majority of
those interviewed place priority on strengthening state and non-state justice within their
own spheres. Disputants’ attach great importance to being able to turn to one where the
other has not succeeded—not to compel enforcement of an existing decision, but to seek
other avenues that will build upon the legal decision-making that preceded it. Dispute
resolution actors in the state and the community already hold a shared idea of how
they can and should work together—they are only hindered by the state’s incapacity to
administer state law and to protect citizens from the abuse of power by state and local
actors free to act with impunity.
The remainder of this case study is organised as follows: section two outlines key
research objectives and findings; section three discusses research methodology, ethical
considerations and important demographic factors; section four examines the social and
political conditions that have shaped CBDR practices in the research site; section five
describes the dispute resolution processes operating within the research site, the actors
involved, and the factors disputants consider in choosing between state and non-state
resolution forums; section six investigates key conceptual points at work among district
and community-based resolution practitioners; and section seven offers some concluding
observations. These are followed by an appendix of selected case summaries, a social
demography chart and bibliographic materials.
Afghanistan Research and Evaluation Unit
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2. Key Research Objectives and Findings
The Afghanistan Research and Evaluation Unit’s Community-Based Dispute Resolution
research series focuses on examining four central research themes:
1. The processes used in resolving or regulating disputes at the community level
2. The legal and normative principles used by community and district-level actors in
dispute resolution decision-making and enforcement
3. The degree of cooperation, competition and procedural linkage between community
and district-level dispute resolution bodies and actors
4. Equity within these processes, with a particular focus on gender. Gender equity
itself was analysed with regard to women’s ability to: access dispute resolution
processes at the community and district levels; contribute to and influence these
processes; serve as decision-makers in resolving or managing disputes; and secure
decisions that meaningfully protect their rights and interests.
Principle findings in relation to these four themes as examined in the Afshar
neighbourhood of Kabul City are as follows:
Process, adaptability and pragmatism
• Family- and community-based mediation is the most widely used form of dispute
resolution in the research site. State processes are generally used as a last resort
and in this sense can be seen as an alternative to the primary tools of CBDR.
• CBDR processes are not static and do not rest on an unchanging version of tradition
and custom. While traditional practices provide a model for some CBDR processes
in the research site, Afshar’s multi-tiered resolution structure is an adaptive
response to government incapacity, desire for local autonomy, demographic shifts
and ongoing social change in the community.
• CBDR processes in the research site were heavily influenced by social factors
including: exposure to conflict-related violence, shared histories of long-term
displacement, diverse and shifting demographics, and changing normative values.
Principles, sources of authority, and legitimacy
• CBDR decision-making draws from Islamic, state and customary rules, and a mix of
shared and qawm-specific normative values. CBDR processes involve consideration
of evidence and witness testimony, local understandings of equity, and outcomes
that emphasise distributive and restorative justice.7 Central to their decisionmaking
process, CBDR practitioners work to strike an appropriate balance
between a sense of justice through the recognition of individual rights and broader
community peace and stability.
• State and Sharia law are often used strategically to support the individual rights
of disputants, while customary principles generally prioritise cohesiveness within
a larger group.
7 Distributive justice is concerned with the fair allocation of resources among community members in an
attempt to ensure that resolution addresses the underlying economic or resource-driven causes of conflict.
Restorative justice places strong emphasis on the needs of both victims and offenders, seeking to restore
the dignity, peace, and relationships of and between victims and offenders.
Community-Based Dispute Resolution Processes in Kabul City
5
• While CBDR processes may not always and immediately resolve a dispute, they are
valued for their ability to regulate or contain disputes that could otherwise erupt
into violence.
• In the research site, CBDR is seen as an effective and necessary response to state
corruption, incapacity and excessive bureaucracy. Attendant to this is the frequent
use of referral to the state as a threat to facilitate participation in and enforcement
of CBDR decisions, by state and non-state actors alike. While highly effective, this
pattern may be reinforcing overly negative images of the state among community
members, thereby elevating levels of distrust and precluding positive interaction in
the long-term.
CBDR and the state
• While a majority of disputes are handled solely through family and community
processes, those that warrant state intervention are most often managed through
the serial or simultaneous collaboration of state and community-based actors.
Community members appreciate this collaboration, while at the same time, value
having the ability to choose between pursuing resolution through state and CBDR
processes as distinct resources.
• There is a limited demand in the research site for documentation and registration
of CBDR decisions by the state, as state registration is not seen as required for
sustainable enforcement of CBDR decisions. Rather than formally linking state
justice and CBDR, community members wish to see improvements in state justice
mechanisms as a seperate system. This would ensure a viable alternative to CBDR,
either in the first instance or as a matter of appeal.
• District actors often duplicate community-based mediation principles and practices
in order to avoid subjecting community members to state judicial processes.
Although district and community-based actors recognise these practical similarities,
they uniformly assert a distinction between district and community processes. This is
based on conceptions of legitimacy versus legality, and formality versus informality.
• The presence of intractable disputes and the ease with which disputants can reject
enforcement of both state and CBDR decisions pointed to significant gaps in rule of
law in the country as a whole.
Gender equity and resources for women
• While women may be constrained relative to their male counterparts, there
is space for women to access, participate in, and influence CBDR processes. In
Afshar, women’s participation is increasingly welcomed due to social factors such
as urbanisation, higher levels of education, and people’s exposure as refugees to
alternative perspectives on women’s social roles.
• Sharia law was the most frequently used source of authority for the protection
of women’s rights and interests at the community and district levels. Instances
where protection for women failed were commonly the result of poor access to
information, restricted physical and social mobility, negative reputation in the
community or a lack of actively protective male relatives.
• Women’s access to community and district actors varied by dispute type, with
strongest participation in household matters and land or inheritance-related issues.
Younger and more educated women in the research site were able and willing to
approach district bodies established specifically to address human rights claims and
family disputes, although social restrictions still precluded access for many.
Afghanistan Research and Evaluation Unit
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• There are times when CBDR decisions do not adhere to generally accepted notions
of human rights. However, this is not a product of the design of Afghanistan’s justice
system or CBDR itself as much as it is a consequence of prevailing gender roles and
relations in the country more generally.
Community-Based Dispute Resolution Processes in Kabul City
7
3. Research Methodology
The goal of the research was to enrich the existing body of work on dispute resolution
in Afghanistan through a qualitative survey of CBDR practices in an urban environment.
The study was designed around four central objectives:
1. to understand the kinds of disputes commonly regulated by community actors and
the processes used in resolving or managing disputes at the community level
2. to examine the principles and sources of law deployed by state and non-state
dispute resolution actors
3. to understand patterns of co-management in dispute resolution between key actors
at the district and community levels
4. to examine issues of gender equity in community-based dispute resolution, with an
emphasis on women’s access to various processes and the conditions under which
women’s rights and interests are acknowledged or denied.
3.1 Selection of informants and analytical methods
The research team began by conducting informal conversations with community members
to build rapport.8 Researchers then selected informants and focus group discussion (FGD)
participants in several ways. First, researchers selected key informants, mainly wakils
(community representatives). These were integral in identifying community members
who were or had been involved in specific disputes, managed either strictly within the
community, through district processes, or via a combination of both. Researchers used
a snowballing technique to identify additional informants. These included opposing
parties in particular disputes; neighbours, family members or others with first-hand
knowledge of disputes; individuals with specialised knowledge of dispute resolution
processes; and particularly knowledgeable or communicative residents who were likely
to contribute valuable information to the study. Researchers encouraged informants
and FGD participants to discuss their own perceptions and experiences of local dispute
resolution processes in general and disputes in which they had been involved or had
detailed knowledge, with an emphasis on what made a particular resolution process or
outcome legitimate and sustainable.
Key informants were also essential in identifying the main district-level actors involved
in dispute management and resolution, including the district prosecutor, head of the
district police department, head of the criminal investigations unit of the district police,
head of the huqooq (district civil cases department), and the head and a caseworker
from the district police’s family guidance department. District-level informants were
essential for gathering information on existing links between district and communitybased
resolution processes and actors, including how far district actors are involved
in community mechanisms, and the processes involved in referring cases between the
systems.
Fieldwork took place between February and May 2008. In total, researchers conducted
individual in-depth interviews with 14 men and 10 women from the community,
along with seven district actors (six men and one woman). It also ran six FGDs: three
8 The author was not involved in the design of research methodology or data collection for this study. This
section presents the research process as described by one national researcher involved in data collection.
Afghanistan Research and Evaluation Unit
8
with men and three with women.9 Researchers sought to achieve an ethnic balance
among informants and FGD participants; as it happened, they discovered a relatively
representative demographic mix among community members who were involved in
particular disputes or were the most articulate regarding dispute resolution in the area.
With minor exceptions for triangulation or clarification of findings, researchers collected
data in one round to minimise the burden on informants and FGD participants.
Determining the reliability of data was managed in four ways: by asking researchers
to record their own observations and reactions to interviews in daily field notes and
to compare interview data with their broader experiences of CBDR in Afghanistan; by
comparing interviews with district and community actors on their own dispute resolution
processes and those of one another; by sharing initial data analysis with community
members through single-gender FGDs at the end of the research to ensure accuracy,
clarity and to gather reactions and further input; and by situating findings within an indepth
review of secondary source materials.
Interviews were conducted by a gender, age and ethnically-balanced research team
(Pashtun, Hazara and Tajik). This was instrumental in building trust and rapport with
informants and FGD participants at all levels, and improved communication by linking
informants with researchers of the same language group. Interviews and FGDs took place
in the language preferred by informants and FGD participants (Dari, Pashto and Hazaragi
in this site) and were recorded in written notes. Where note-taking raised concerns over
privacy and confidentiality, researchers reproduced interview outcomes immediately
after concluding the session. The research team discussed translations at length to
ensure precision of meaning; specific terms used to refer to dispute resolution practices,
principles and institutions are preserved in their original language throughout this paper.10
Data analysis focused on exploring informants and FGD participants’ descriptions and
opinions regarding individual disputes, identifying patterns of dispute types, causes, and
selection of resolution processes, and understanding the complex relationships between
community and district actors in conflict management. A representative selection of
detailed case summaries from the interviews is included in the annex to show how these
themes and sub-themes play out in the context of actual disputes.
3.2 Site selection, ethical considerations and important
demographic factors
Researchers used several criteria when selecting which area of Kabul City to conduct
the research. It was important that the community was large enough to include several
different extended and separated families11 and a diverse mix of qawm groups;12 that
9 A Social Demography Chart is provided in the annex.
10 Definitions of terminology used by informants and FGD participants are included in the glossary.
11 Extended families contain multiple generations or branches of a single family; separated families
contain a single nuclear family unit.
12 Qawm is a flexible concept used to describe a form of solidarity group that serves as the basis for multifaceted
social networks. Qawms can be based on a range of sociological constructs, including tribe, clan,
region or village of origin, extended family, or professional, religious or ethnic group. Rather than suggesting
a fixed identity, individuals use the notion of qawm to express a “portfolio of identities” based on the
identity, expectations or political ideology of the person to whom he or she is speaking. See Thomas Barfield,
Afghanistan: A Cultural and Political History (Princeton: Princeton University Press, 2010), 18, 22; Bernt
Glatzer, “War and Boundaries Significance and Relativity of Local and Spacial Boundaries,” Weld des Islams
41, no. 3 (2001), 385; Olivier Roy, Islam and Resistance in Afghanistan (Cambridge: Cambridge University
Press, 1986), 12; and Massoud Karokhail and Susanne Schmeidl, “Integration of Traditional Structures into
Community-Based Dispute Resolution Processes in Kabul City
9
the population included returnees and recent migrants;13 that a range of disputes were
ongoing and being managed within the area, including inter- and intra-qawm disputes;
and that potential informants and FGD participants were willing and able to discuss
these matters in detail. Responding to these criteria, researchers selected one section
of a neighbourhood in Afshar—an area with a population of approximately 3,000 families
of varying ethnic, religious, linguistic, regional, educational and social backgrounds, as
well as experiences of migration and displacement.
It is standard practice to protect the confidentiality of informants and FGD participants
by omitting specific details about the location of research sites. In this instance, however,
the history of the site is critical to understanding the context in which informants’
and FGD participants’ experiences of conflict and dispute resolution are embedded.
Confidentiality has instead been maintained by omitting specific personal, geographic,
and dispute-related details. Researchers were extremely sensitive to the potential
emotional burden on interviewees of discussing conflict-related violence in particular,
creating a supportive environment for informants and FGD participants to address the
issue should they so choose, but refraining from direct questioning.14
Informants and FGD participants were initially unwilling to participate in the research
without financial compensation, given the extent to which Kabul has been saturated with
governmental and nongovernmental development programming, financial aid and dispute
resolution services. Community leaders were integral in overcoming this resistance by
explaining to residents how the study would be used to contribute to future policy and
advocacy initiatives regarding the development of Afghanistan’s justice system.
Afshar’s neighbourhoods occupy the hillsides surrounding Afshar Mountain, in the
western part of the city leading to Qargha Dam and the hills of Paghman Province. The
neighbourhood is arranged in a way that reflects the durability of social segmentation,
migration patterns15 and the ongoing impact of war-related violence.16 Sayeds17 live in an
intentionally homogeneous sub-section of the neighbourhood; Tajiks live in a somewhat
homogeneous area, although are more inclusive of other groups; Hazara and Qizilbash18
families are relatively integrated; Pashtuns, comprising the smallest demographic
subset, are interspersed primarily among the Tajiks.
the State-Building Process: Lessons from the Tribal Liaison Office in Loya Paktia” (Berlin: Heinrich Boll
Foundation, 2006).
13 The implications of this distinction are explored in section four.
14 These issues are handled directly in AREU’s Legacies of Conflict Series. See Emily Winterbotham,
“Legacies of Conflict in Afghanistan: Healing Complexes and Moving Forward in Kabul” (Kabul: Afghanistan
Research and Evaluation Unit, forthcoming).
15 Migration patterns in Afghanistan tend to coalesce around shared social networks that preserve
connections to the migrant’s area of origin, while allowing for new networks to be generated in the urban
environment. (See Gilles Dorronsoro, “Kabul at War (1992-1996): State, Ethnicity and Social Classes,” South
Asia Multidisciplinary Academic Journal (2007), http://samaj.revues.org/index212.html (accessed 27
February 2011); Alessandro Monsutti, “Cooperation, Remittances and Kinship among the Hazaras,” Iranian
Studies 37, no. 2 (2004); Alessandro Monsutti, “Afghan Migratory Strategies and the Three Solutions to the
Refugee Problem,” Refugee Survey Quarterly 27, no.1 (2008)). It is thus not surprising that new migrants
to Afshar come from just a handful of districts outside of Kabul, with some groups represented entirely by
individuals from a single village. To protect the confidentiality of informants and FGD participants, specific
areas of origin are not mentioned in this study.
16 These issues are examined in section five.
17 Often inaccurately described as Arabs, Sayed people claim descendence from the Prophet Muhammad
and can be affiliated with any ethnic group or religious sect. For more on Afghanistan’s ethnic makeup, see
Barfield, Afghanistan, 24-31.
18 A group of Shiite Turkish origin, see footnote 32 for further details on their migration to the area.
Afghanistan Research and Evaluation Unit
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Afshar is one of Kabul’s many informal settlements—an area that is not incorporated in
the city’s master plan and does not comply with formal land access requirements.19 This
has two primary effects on residents. First, residents frequently experience land tenure
insecurity resulting from customary or absent title documents. Community informants and
FGD participants routinely described ownership and transfer of land through customary
deeds, oral testaments, informal rental agreements or squatting; no informant or FGD
participant mentioned transfer through official state mechanisms. Although customary
land transfers provide a cheap and efficient way around the bureaucratic wrangling of
state process, this lack of regulation can itself leave residents vulnerable to conflict
through competing claims, forceful occupation or eviction, unauthorised transfer of
communally held property, or extralegal distribution by those in power.20
Second, residents live with a chronic lack of access to municipal resources, including
roads, electricity, sewerage, drinking water, health and educational facilities, garbage
removal and other services.21 During the research period, water supply pipelines were
being installed in the area; in the meantime, residents purchased water from a supply
truck and hauled it up the hill on foot or by donkey along a network of small, unpaved
pathways. The nearest girls’ school is roughly an hour’s walk from the neighbourhood
and the boys’ school even further. A majority of parents in Afshar strive to keep at least
one child in school (girls as well as boys), although the distance generates concern
regarding transport expenses and security.22 Most residents complain of the hardships
that follow from lack of inclusion in the municipal plan. However, mistrust for the current
regime is so high (even among those more used to the state’s role in service provision)
that residents banded together to thwart state efforts to include the area in a revised
municipal plan—a move that would have likely paved the way for the formalisation of
existing landholdings and the extension of much-needed services.23 This tension is best
articulated by two FGD participants, both community leaders:
If the government counts us as citizens and our area is to be considered part of
the city, then we must be given the same facilities as citizens in other urban
areas. The mayor should clean our streets, and make sure we have canals to
bring us water. Look at the mud everywhere here—it is better in rural areas
where at least people have built their own water systems.
— Wakil A, 58, FGD 2
The government comes here sometimes to tell us that we should pay some
taxes for our houses, but we are very poor people. We tell them: “From hungry
people, what can one take to eat?” (Az goshna che bana, ke gada bokhora?)
— Mullah, 60, FGD 3
19 Yohannes Gebremedhin, “Preliminary Assessment of Informal Settlements in Kabul City” (Kabul: USAID
Land Titling and Economic Restructuring in Afghanistan (LTERA), 2005), 4.
20 These issues are reflected, respectively, in the Returnee Property Dispute, Yar Gul’s Case, the Sold
House Inheritance Dispute, and the Mosque Dispute. See also Gebremedhin, “Preliminary Assessment,” and
Colin Deschamps and Alan Roe, “Land Conflict in Afghanistan: Building Capacity to Address Vulnerability”
(Kabul: Afghanistan Research and Evaluation Unit, 2009).
21 For more on the connections between informal settlements and lack of access to services in Kabul,
see Wahid A. Ahad, “Workshop Notes on Natural and Man-Made Disaster Risks of Kabul City,” http://www.
preventionweb.net/files/section/230_KabulDRRPresentation.pdf (accessed 27 February 2011), and Stefan
Schutte, “Searching for Security: Urban Livelihoods in Kabul” (Kabul: Afghanistan Research and Evaluation
Unit, 2006), section 4.1.2.
22 For example, informants and FGD participants spoke of the traffic-related deaths of as many as eight
local children in recent years as well as fears of kidnapping, particularly of girls.
23 See the Municipal Plan Dispute in the annex.
Community-Based Dispute Resolution Processes in Kabul City
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Reflecting the community’s relatively marginal status, the majority of households
involved in this study experience high levels of under- and unemployment, along with
the physical and mental effects of grinding poverty.24 Among men, primary sources of
income include irregular wage labour, office work, and the operation of small shops.
Older male returnees who participated in this study expressed great frustration at their
inability to secure the kind of skilled employment they had before the war, while others
said they had refused positions with the Karzai government due to its questionable
reputation. The majority of female informants and FGD participants were housewives,
with two running neighbourhood bakeries and another involved in carpet-making to
make ends meet. Poorer households, commonly those headed by women or by a man
who is unable to work, are often compelled to send one or more of their children into
the labour market.
Although poverty levels are lower in urban as compared to rural areas of Afghanistan
as a whole, studies show that urban households with an un- or under-employed head of
household are as likely to be below the poverty line as their rural counterparts.25 Evidence
from this study also suggests that although returnees more commonly own their homes
and thus have fewer expenses than those forced to rent, they are as likely as newer
migrants to suffer from chronic poverty. Still, prior access to education and employment
in professional or governmental sectors has created an important class hierarchy in
Afshar. This is delineated predominantly by literacy levels, access to knowledge and
social connections as opposed to financial resources.26 Informants and FGD participants
linked financial resources to the exercise of power, but not necessarily to authority or
status.
Community leaders commonly cited poverty as the main cause of disputes in the
neighbourhood. It was seen as a major factor in cases related to the individual rights of
women, in particular forced marriages, as well as to some of the most severe violence in
the research site. As the relative of an influential community leader described:
One night a female neighbour ran to our house screaming that her husband was
trying to kill their children with a knife. The wakil went and found the man,
took the knife from him and brought him under control. The man explained
that they didn’t have any food and it was better for him to kill the whole
family than for them to die of hunger. The whole community was informed
about the issue, everyone advised the man that he should not do this and many
people provided help to the family. I don’t know what happened after that.
— Sayed woman in her 20s, informant 20b
Given their location within Kabul’s city limits, residents of Afshar are accustomed to the
role of UN agencies and national or international nongovernmental organisations (NGOs)
in the provision of aid and services. However, their involvement has also contributed
to disputes, distrust and competition among residents.27 Two male informants involved
in land disputes mentioned their experiences of corruption (real or perceived) among
24 See Schutte, “Searching for Security,” section 4.2; Jo Beall and Daniel Esser, “Shaping Urban Futures:
Challenges to Governing and Managing Afghan Cities” (Kabul: Afghanistan Research and Evaluation Unit,
2005). For statistics on poverty and employment levels in Afghanistan see Government of Afghanistan (GoA),
National Risk and Vulnerability Assessment [NRVA] 2007/8 (Kabul: GoA, 2009), section 4.2. Although this
does not speak directly to conditions in Kabul, it is a helpful analytical tool.
25 NRVA, section 6.2.
26 See, for example, the Municipal Plan Dispute in the annex.
27 See, for example, the Red Crescent’s role in the Mosque Dispute and in Yar Gul’s Case in the annex.
Afghanistan Research and Evaluation Unit
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lawyers working for a well-known international NGO. Others discussed how NGOs have
been given a bad reputation by the frequency of theft committed in their name; in
one case the purported representative of a national NGO absconded with between 500
and 1,000 Afghanis (US$10 and 20)28 collected from each household, supposedly for a
program to assist widows. Competition for access to aid has generated physical violence
and reputational damage among female residents, between husbands and wives, and
between ethnic groups.
28 Currency conversions are based on the prevailing rate at the time of the research, which was 50 Afs
to one US dollar.
Community-Based Dispute Resolution Processes in Kabul City
13
4. Afshar—Setting the Scene
Neither interpersonal conflicts nor the mechanisms designed to manage them arise
in a vacuum. For the rule of law to take root in a given society, legal practices
and principles must be seen as legitimate. Rules that shape dispute resolution must
derive from shared, meaningful social values and be logically linked to how these are
administered.29 As the scholar Martin Krygier describes:
Whatever we decide them to be...legal conditions themselves depend on
conditions that are not legal. For they all have to do with the social reach
and weight of law, which are matters of sociology and politics, as much as of
law. Indeed, social and political questions are central ones to ask about the
place of law in a society, and they will be answered differently in different
societies, whatever the written laws say or have in common. This is not
because the law has no significance, but because the nature and extent of
that significance depend on so many factors outside, or underlying, the law
itself.30
It is therefore crucial to begin this case study by examining the complex set of social and
political factors that have shaped Afshar residents’ ideas and expectations regarding
what justice means, how best to pursue it, and the state’s role in that process.31
Factors that had particular resonance include: exposure to war-related violence,
extended displacement, significant demographic shifts, the instrumentalisation of
ethnicity, economic marginality, and significant social change largely related to the
rights of women. These will be examined briefly here to help frame the analysis that
follows.
4.1 The instrumentalisation of ethnicity and its impact on local
demographics
Prior to 1978, Afshar was mainly populated by the Qizilbash and Hazara—two Shiapracticing
groups which, albeit under dramatically different circumstances, had
attained a degree of inclusion within Afghanistan’s state apparatus.32 Sayeds of Shia
descent are also known to have inhabited the area for generations.33 Many Afshar
residents were employed by state institutions and, unlike their rural counterparts,
looked to the government for resolution of disputes beyond those that could be
29 Martin Krygier, “The Rule of Law: Legality, Teleology, Sociology,” in Relocating the Rule of Law, ed.
Gianluigi Palombella and Neil Walker, 45-69 (Oxford: Hart Publishers, 2008), 60.
30 Krygier, “Rule of Law.” Emphasis in original.
31 This analytic approach finds support in the work of Antonio De Lauri, “Legal Reconstruction in Afghanistan:
Rule of Law, Injustice and Judicial Mediation,” Jura Gentium: Journal of Philosophy of International Law
and Global Politics 6 (2010), 18.
32 The Qizilbash have inhabited the Afshar area since as far back as the 1730s, when they were brought to
the area as soldiers under the Persian ruler Nadir Shah Afshar. Abdur Rahman Khan strategically incorporated
the Qizilbash during the earliest days of Afghan statehood as key military, economic and educational leaders.
See Barfield, Afghanistan, 29, 96; Louis Dupree, Afghanistan (Princeton: Princeton University Press, 1980),
59, chart 6; and Olivier Roy, Islam and Resistance in Afghanistan (Cambridge: Cambridge University Press,
1986), 50. Hazaras were first brought to Kabul as slaves at the end of the 19th century. Beginning in the
1950s, Hazaras primarily from central Afghanistan began migrating to Kabul, catalysed by a potent sense of
religio-nationalism and a shared history of discrimination, and seeking economic, educational and political
opportunities. By the end of the 1970s, Hazaras comprised as much as one-third of Kabul’s population. See
Roy, Islam and Resistance, 52; Dorronsoro, “Kabul at War”; and Barfield, Afghanistan, 26.
33 Although it is uncertain when Sayeds originally migrated to the area, it is clear that they are almost
uniformly from one small village in a neighbouring province.
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managed at home.34 This demographic pattern held until 1992, when the onset of civil
war in Afghanistan transformed Kabul into a battleground and began an extended
shift in social and civic relationships that continues to affect the country as a whole
today.35
Afshar residents were largely uninvolved in the resistance to Soviet occupation—
the conflict was kept out of the city, and many Afsharis benefited considerably from
Soviet expansions of the state bureaucracy. However, with the fall of the Najibullah
regime, resistance forces sought to gain control of Kabul, which quickly became the
epicentre of a volatile political contest. As the unifying force of religious jihad ebbed
with the retreat of the Soviets, mujahiddin leaders had to find a way of marshalling
support for this new phase of conflict. So began a project of politicising macro-level
ethnic identities, in many cases transforming what had been highly nuanced regional
and ethnic solidarity groups into presumed markers of political affiliation.36 This
instrumentalisation of identity was effective in mobilising resources, but with it came
a new wave of group-based violence driven by ethnic affiliation. 37
For Afshar residents, this process would have dire consequences. By December 1992,
the uneasy alliance between mujahiddin factions had begun to unravel.38 By this time,
Afshar had become a stronghold of the Hizb-i-Wahdat, a party hewn together by its
members’ double minority status as Hazaras and Shias.39 For almost a year, skirmishes
had been ongoing between Wahdat and two parties affiliated with the Sunni-dominated
Islamic State of Afghanistan (ISA): the Ittihad-i-Islami, a predominantly Sunni Pashtun
group led by Abdul Rashid Sayyaf, and the Jamiat-i-Islami, a predominantly Tajik
group led by Ahmad Shah Massoud and Burhanuddin Rabbani. These groups often
directly targeted the Hazara civilians living in Afshar, while Wahdat was known to
have directed violence against non-Hazara civilians elsewhere in the city.40
34 Historically, the Afghan state focused on consolidating its authority and administrative reach within
its urban centres, leaving rural areas to develop semi-autonomous systems of self-governance. One effect
of this was to instil different views among urban and rural Afghans regarding the role of the state and
their place within it. For background information on patterns of state-building in Afghanistan, see Barfield,
Afghanistan; Dupree, Afghanistan; Glatzer, “War and Boundaries”; Barnett Rubin, The Fragmentation of
Afghanistan: State Formation and Collapse in the International System (New Haven: Yale University Press,
2002); and Astri Suhrke and Kaja Borchgrevink, “Negotiating Justice Sector Reform in Afghanistan,” Crime,
Law and Social Change 50, no. 3 (2008), 223-43.
35 For important background information on this transition, see Dorronsoro, “Kabul at War,” and
Barfield, Afghanistan.
36 This was particularly effective among the Hazara, who had been mobilising on the basis of their
marginal social identity since at least the 1950s. See Dorronsoro, “Kabul at War.”
37 In the context of research and policymaking today it is critical to understand that Afghanistan’s civil
war was not the result of ethnic competition as much as it deployed ethnicity for political purposes. Key
Afghan studies scholars argue that misplaced assumptions regarding Afghanistan’s potential for ethnic
disintegration contributed to a process of political reconstruction that unjustifiably and problematically
amplifies ethnic competition. For important arguments in this regard, see Thomas Barfield, “Afghanistan is
Not the Balkans: Ethnicity and its Political Consequences from a Central Asian Perspective,” Central Eurasian
Studies Review 4, no. 1 (2005), 2-9, and Conrad Schetter, Ethnicity and the Political Reconstruction of
Afghanistan (Bonn: Center for Development Studies (ZEF), 2010).
38 The Islamic State of Afghanistan (ISA) was tenuously held together under a negotiated agreement
known as the Peshawar Accords of 1992. The ISA began to disintegrate when Burhanuddin Rabbani, the
second holder of what was meant to be a rotating presidency, managed to extend his term by means seen as
illegitimate by several parties, including the Wahdat and its new allies, the Hizb-i-Islami (led by Gulbuddin
Hekmatyar) and the Junbish-i-Milli Islami Afghanistan (led by Abdul Rashud Dostum). Dorronsoro, “Kabul at
War.” See also Barfield, Afghanistan, 249-50, and Thomas Barfield, “Problems in Establishing Legitimacy in
Afghanistan,” Iranian Studies 37, no. 2 (2004), 285.
39 Wahdat’s successes in recruitment may have had more to do with political pressure than genuine
Hazara nationalism, however. See Dorronsoro, “Kabul at War.”
40 Human Rights Watch (HRW), “Blood-Stained Hands: Past Atrocities in Kabul and Afghanistan’s Legacy of
Community-Based Dispute Resolution Processes in Kabul City
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The situation escalated in the early months of 1993. Wahdat’s rejection of the ISA, its
strategic holdings atop Afshar Mountain as well as parts of central and eastern Kabul,
and its alliance with Gulbuddin Hekmatyar’s Hizb-i-Islami and Dostum’s Junbish party,
made Afshar a key target in the government’s attempts to gain control over the city.
Civilians were not warned of the impending attack—Jamiat operatives purchased
the silence and cooperation of allied Shiite fighters stationed to the north and west
of Afshar. As the operation began, Wahdat forces scattered, leaving their Hazara
constituents to the mercy of predominantly Pashtun (Ittihad) and Tajik (Jamiat) forces.
The attack immediately descended into a wholesale massacre of Afshar residents.41
The Afshar Massacre, as it has come to be known by many, holds significance in national
as well as local history, serving as a symbol of the descent into civil war as well as
the transformation of the conflict into one expressed in ethnic and religious terms.42
Factional fighting would go on to reduce Kabul’s population from approximately 1.6
million in 1992 to 500,000 by 1996. Significantly, all informants and FGD participants
interviewed for this study who were living in Afshar during the time reported fleeing
as a result of violence. According to one prominent member of the community, of
1,200 families only 36 remained for the duration of the civil war—specifically, those
who could afford to pay for the protection of the commanders who now occupied the
area.
While there is little evidence of ethnic-based disputes in Afshar today, residents are
keenly aware of and sensitive to this history, as well as how it has informed current
state-building efforts. Without prompting from researchers, informants and FGD
participants repeatedly asserted that any existing ethnic or religious tension was to
be blamed on the mujahiddin and was now being actively erased. Yet at the same
time there remain reasons to hold on to ethnic divisions. First, many residents are
survivors of violence fuelled by a discourse of ethnic hatred for which there has been
no transitional justice process to date. This has created conflicted feelings among
residents, who simultaneously experienced targeted killings based on ethnic identity,
the betrayal of co-religionists, and survival through the kindness of individuals from
supposedly opposing groups. Second, the government’s promotion of ethnic equality
in democratic institutions has upset traditional patterns of distribution in economic,
educational and political institutions at a time of considerable economic hardship.
It is thus not surprising to find a preoccupation with ethnicity in such a diverse
neighbourhood as Afshar, as well as tension between those trying to move past the
ethnicisation of disputes and those who still see such divisions as important.
Community leaders in the research site have thus constructed a system of local
governance that accounts for residual ethnic tension while strengthening the community
as a whole by easing competition and increasing cross-ethnic collaboration. To date,
these mechanisms seem to have been successful, as only one dispute in the research
site was found to have ethnic overtones.43
Following the end of major hostilities in 2002, approximately half of original residents
returned to Afshar, leaving a large amount of land available for the flood of in-migrants
to Kabul.44 According to data amassed on refugee movements, returns to Afshar would
Impunity” (New York: HRW, 2005), section III.A: April-December 1992; Dorronsoro, “Kabul at War.”
41 HRW, “Blood-Stained Hands,” section III.C: February 1993: the Afshar Campaign.
42 HRW, “Blood-Stained Hands.”
43 See the Mosque Dispute.
44 Out of 24 community-level informants, 11 were returnees and 13 were in-migrants from rural areas;
Afghanistan Research and Evaluation Unit
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have likely begun at this time. However, most informants and FGD participants date
their return to the area approximately four to five years from the time of interviews—
as data collection was conducted in 2008, this places the majority of returns to
between 2003 and 2004.
out of 33 FGD participants, 16 were returnees and 17 were in-migrants from rural areas. For a discussion
of high rates of urban in-migration among returning refugees, see IRIN News, “Kabul Facing Unregulated
Urbanisation,” http://www.irinnews.org/Report.aspx?ReportId=75508, 26 November 2007 (accessed 27
February 2011).
Box 1: Perspectives on ethnic tension in Afshar
In Afghanistan, [ethnicity] was never a problem until the mujahiddin brought disunity and
made people enemies of each other. Before, one would never say “he is Hazara or Pashtun or
Tajik,” but during the civil war Pashtuns killed Hazaras, Hazaras killed Pashtuns, Tajiks killed
Hazaras and Pashtuns, Sunnis killed Shias, Shias killed Sunnis. Now it is not like this. The
people are united, they know that killing is not good and they are tired of fighting.
— Qizilbash man in his mid-40s, informant 1
Before the mujahiddin came, all the qawms accepted each others’ words. When Hazara
elders made a decision the Tajik people accepted it and the same if Tajiks decided something
affecting Hazaras. Disunity and fighting between the qawms came after the mujahiddin, they
are responsible for this. But now, thank God, these issues are decreasing day by day.
— Hazara woman in her early 60s, FGD 4, participant 6
During the Daoud and Zahir Shah regimes, they didn’t pay attention to the Hazara people. The
Hazaras were very poor and living in terrible conditions, and only a small percentage were
literate. But now things are better than before. Our people have now gained access to higher
education. Many of us are working in the army and police and in different ministries across
the country....I was here in Afshar during the civil war. We stood and fought together until
the mujahiddin created disunity between us. Then, they broke our backbone and killed many
of our Afshari people, Hazaras, Sayed and others, but most of the people killed belonged to
the Hazara qawm. The bodies of the dead were left in the street for one year until we could
return to collect the bones. We burned the bones and buried them in a mass grave. We want
to build a mosque near the martyrs’ grave, but the Sayed people living there now won’t allow
us. They want to build a mosque there for the Tajiks, Pashtuns and Sayeds to create unity
between different ethnic groups, but this does not include us and my people want to fight
them.
— Hazara elder, informant 5
I was an eyewitness during the war. There were maybe 30 Pashtun households that didn’t
experience any loss during the attack here because the head of their party was very powerful
and strong.
— Hazara elder, informant 3
There was one jalasa [meeting] about a dispute with my neighbours. All of the elders in the
jalasa were from one qawm and my husband was alone. They don’t like Pashtuns. All of them
are Shiite. They say that we are dirty and won’t eat anything from us.
— Pashtun woman, informant 18
The people of this area plan to demonstrate against the government and block the main
roads. The reason is that the government distributed aid to Pashtun people in a nearby area
where mostly Hazara people are living. There was a battle here against the Hazara people,
they are poor and many don’t have their own houses, but the government has distributed aid
to Pashtun residents that is beyond their percentage of the population. It is really unjust.
— Wakil A, FGD 1
Community-Based Dispute Resolution Processes in Kabul City
17
Although many migrants originated from relatively isolated rural areas of Afghanistan,
almost all had been exposed to life in urban or mixed-ethnicity environments while
in displacement.45 Additionally, all refugees regardless of provenance had been
exposed to the discrimination, insecurity and instability of extended displacement.
As explained by several informants and FGD participants, managing disputes was
particularly risky in this context. Engaging in any sort of conflict could exacerbate
already heightened levels of vulnerability, resulting in extralegal fines, summary
incarceration or deportation. The shared experience of displacement thus catalysed
a social phenomenon no Afghan regime had successfully been able to produce: a sense
of Afghan national identity.46
In the refugee camp [in Pakistan] there was no distinction among Afghan
refugees in terms of ethnicity. No one was saying, “Oh, you are Tajik, you
are Pashtun or Uzbek.” There were only elders and the people.
— Prosecutor, informant 13
In Iran, no one would say “this is this qawm and that is that qawm,” Afghan
people there were just Afghans. They liked each other or they didn’t. In
Afghanistan the people had issues with each other in the past, but it has
changed now. No one says anymore, “You are Tajik or Hazara or Pashtun.”
This behaviour finished during migration. When people came back, they saw
their own Afghans and they were happy.
— Hazara woman, 35, FGD 6, participant M
This developing national identity was accompanied by an increasing appreciation for
the state’s role in providing services that many refugees, predominantly the rural and
urban poor, had never experienced before.47 Urban returnees and rural migrants thus
brought with them a host of new demands and expectations regarding the role of the
state, particularly relative to dispute resolution. Informants and FGD participants in
the research site remained engaged in ideological debate regarding the appropriate
role of the state in dispute resolution—a conversation heavily informed by returnees’
diverse backgrounds and experiences of extended displacement. While some eschewed
state incapacity in favour of a vision of the community that maximises self-governance
and social cohesion, others’ preference for state processes reveals lingering social
divisions.
Across Afghanistan, local self-governance structures are anchored by a member of the
community elected by residents to serve as official representative to the district. In
Afshar, this figure is known as the wakil.48 Wakils gain their authority in large part by
the degree to which they are recognised as part of the formal governance structure
45 See Ghazal Keshavarzian, “The Transformation of the Afghan Refugee: A Study of the Impact of the
Displacement Experience on Afghan Women and Children Living in the Islamic Republic of Iran and Pakistan”
(Master’s Thesis, Fletcher School of Law and Diplomacy at Tufts University, 2005), and Khalid Koser and
Susanne Schmeidl, “Displacement in the Muslim World: A Focus on Afghanistan and Iraq,” in The Brookings
Institute Project on U.S. Relations with the Islamic World: Doha Discussion Papers, 8-21 (Washington, DC:
Brookings Institute, 2009). One of the more important contributions to analysis on this and other issues
pertaining to effects of displacement on Afghan identity is Pierre Centlivres and Micheline Centlivres-
Demont, “The Afghan Refugee in Pakistan: An Ambiguous Identity,” Journal of Refugee Studies 1, no. 2
(1988), 141-152.
46 See Glatzer, “War and Boundaries.”
47 Keshavarzian, “Tranformation of the Afghan Refugee.”
48 Although the figure of the community representative is almost universal across Afghanistan, the term
used to describe this role is highly variable. Other terms include: arbab, qaryadar, malik, kalantar, and
mesher. See for example: Gang, “CBDR in Balkh”; Smith, “CBDR in Nangarhar”; and Smith with Manalan,
“CBDR in Bamiyan.”
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Box 2: Debating the state’s role in dispute resolution
The active nature of this debate was evident in one FGD (FGD 4) involving women
from different ethnic groups. Approximately half had lived in Kabul or Afshar prior to
the civil war, while the remainder were post-2003 migrants from rural areas:
I do not agree that the government’s role in taking responsibility for resolving disputes is
a thing of the past. The government has the job now. Every task has its own place: if you
are sick you go to the doctor, if you want to study you have to go to school. It is the same if
people have disputes—they have to go to the police or the court so that the government can
resolve their issues. People can take their small disputes to the whitebeards—if there is an
asphalt road then there is no need to take the rough one—but people should be able to go to
the government for dispute resolution.
— Pashtun in-migrant in her mid 40s
But then why do we have these experienced whitebeards? They resolve disputes well and
people respect them a lot.
— Hazara returnee in her mid 40s
You are right, but then what is the government for?
— Hazara returnee in her early 50s
Among male informants and FGD participants, returnees who had been involved with
the government prior to displacement were particularly articulate on the role of the
state today:
Our Afshar was destroyed in the civil war. When the Karzai government came, our people
were very happy. We had expectations that they would rebuild our houses and roads, but this
government hasn’t done anything for the people of Afshar. The government workers, from the
very bottom to the top, are just looking for money. They don’t think about the development
of the country. Therefore, now people don’t expect anything from them.
— Hazara elder, informant 5
People should resolve their disputes through the government because real governments are
for the service of the people. But we do not have this expectation from this government—if
our people face any problems they must try to resolve their disputes through the elders or
shura [council].
— Wakil, FGD 1, participant Gh
During Zahir Shah and Daoud Khan’s time, at least we had a stable government. Every country’s
government has some problems, even in the US or UK. But here, now, we don’t even have a
government. We don’t have a framework of law.
— Qizilbash man in his early 50s, FGD 3, participant S
I lived in Iran as a refugee for 26 years. They had a good and stable government, where
everything was regulated under the law. When I returned to Afghanistan, I didn’t think there
was any government at all. Even if someone kills another person, I haven’t seen anyone put
them in jail or even question them. Now when I see the police in the city I turn my face away.
— Sayed man, 29, FGD 3, participant A
I think we shouldn’t blame the government for all of our problems. Our problems are all
the result of the communists who invited the Russian troops to Afghanistan. Now everyone
is complaining about the government, but I think we should be helping to build it. I don’t
have any expectations from the government these days, but I believe that if we should all
contribute to the government if we can.
— Hazara elder, informant 3
Community-Based Dispute Resolution Processes in Kabul City
19
by district officials, signified by their possession of the district stamp. Conceptually,
wakils are meant to be impartial, representing community members and supporting
dispute resolution activities without regard to social identity. This is in contrast to
qawm-based elders, who are in many ways expected to prioritise the interests of their
group members. However, this idea of representative governance is undermined by
the historical strength of patron-client politics49 in Afghanistan—a pattern that was
further entrenched by conflict-related violence and social upheaval.50 Many informants
and FGD participants thus assumed that all community leaders are influenced in
their decision-making by family, ethnic and/or religious affiliations and choose their
representatives accordingly when in need of assistance.
This analysis was substantiated by the actions of the two Hazara groups in the area, which
were demarcated by area of origin. Neither group felt adequately represented by the
neighbourhood’s existing wakils—a Qizilbash, a Sayed and a Tajik—and thus each selected
their own wakil to represent them before district authorities. The two Hazara wakils had
not yet been approved by district officials at the time of the research, however, and thus
were performing without district authorisation or access to the district stamp. Other
community members who do not feel adequately represented within local governance
structures or do not subscribe to the authority of local actors generally choose to manage
disputes themselves or submit them to state or district authorities.51 This diversity of
opinion can be seen in the following comments:
When people choose the wakil, everyone tries to select someone from their
own qawm. The wakil will only listen and give benefits to his own qawm
members. Benefits will never reach the other people.
— Hazara woman in her 40s, FGD 5, participant A
We don’t listen to the wakil anymore because he wanted to take money
from us with the help of our neighbour or sell our land to another person.
Their plan was to divide the money between themselves. After that we took
our dispute to the district police headquarters.
— Tajik woman in her 30s, informant 19
It is good for people to take their disputes to the wakil. If they take them
to their elders, people might say that these qawmi elders are taking the
side of their relatives. If the dispute is between members of two qawms
then the elders from both qawms will sit, but the elders will take the side
of their own qawm members.
— Hazara woman in her early 50s, FGD 6, participant L
It is clear that the experience of both the immediate and long-term effects of the
civil war continue to shape the daily lives of Afshar’s diverse population in numerous
49 Patron-client politics is classically defined as a cluster of relationships “consisting of a power figure
who is in a position to give security, inducements, or both, and his personal followers who, in return for such
benefits, contribute their loyalty and personal assistance to the patron’s designs.” James Scott, “Patron-
Client Politics and Political Change in Southeast Asia,” The American Political Science Review 66, no. 1
(1972), 92.
50 On patron-client politics and the impact of social upheaval in Afghanistan see Rubin, The Fragmentation
of Afghanistan, 42; Amin Saikal, “Afghanistan’s Weak State and Strong Society,” in Making States Work:
State Failure and the Crisis of Governance, eds. Simon Chesterman, Michael Ignatieff and Ramesh Thakur,
193-210 (New York, Tokyo: United Nations University Press, 2005); Sarah Lister, “Understanding State-
Building and Local Governance in Afghanistan” (London: London School of Economics, Crisis States Research
Centre, 2007), 3; and Jennifer Brick, “The Political Economy of Customary Village Organizations in Rural
Afghanistan” (Washington, DC: Central Eurasian Studies Society, 2008).
51 See section five, as well as Yar Gul’s Dispute in the annex.
Afghanistan Research and Evaluation Unit
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ways. Experiences of war-related violence and extended displacement both created
and eased ethnic divides. In catalysing both a sense of national identity and dramatic
demographic change, it brought together a new ethnically, religiously, and regionally
diverse community. The next section will explore how the processes that have evolved
to manage dispute resolution in the research site are a reflection of these social and
political factors.
Community-Based Dispute Resolution Processes in Kabul City
21
5. Afshar’s Multi-Tiered CBDR Structure—Processes,
Actors, Principles and Choices
This section introduces the processes and actors involved in dispute resolution in the
research site. It highlights how disputants determine appropriate forums for dispute
resolution, the decision-making principles and sources of authority and legitimacy
involved, and strategies relative to enforcement of resolution agreements. The section
also offers observations on women’s ability to access, participate in and influence
decision-making in CBDR, as well as women’s increasing use of district-based resources
in cases involving individualised, human rights-based claims. Finally, it explores the
relationship between community- and district-based actors in dispute resolution,
specifically the overlap in dispute management roles, as well as the principles or
conceptual devices used to delineate spheres of authority.
5.1 Small-scale and family mediation
The most common mode of resolution in the research site was small-scale mediation
conducted by a respected elder or elders, usually at the request of one or more parties
to a specific dispute.52 Small-scale mediation is used to manage disputes of a private
nature, such as those rooted in household affairs, and minor disputes that do not
require extensive support. Resolving disputes within the family or immediate social
network is the stated preference for most informants and FGD participants. Doing so
helps protect privacy and reputation, maintains the appearance of family or qawmi
unity, prevents further conflict through rapid, inexpensive, equitable and restorative
dispute resolution,53 and avoids the social and financial costs of resolution through state
process.
Small-scale mediation is also the most frequently used resolution method for minor
disputes arising outside of household affairs. These are primarily conflicts of a less
contentious nature or involving lower financial stakes between members of the same
qawm. Disputes in this category commonly include loan default, accidental injury, or
matters related to possession or transfer of small portions of land and property. An
example of this was seen in Kobra’s Inheritance Dispute, in which a woman sought
realisation of her son’s entitlement to a portion of his deceased father’s estate against
the wishes of her brother-in-law (the son’s uncle). According to informants and FGD
participants who spoke on this point, members of the same qawm have a stronger
impetus to resolve disputes quickly and quietly in order to protect the reputation and
cohesiveness of the group. In contrast, disputes between members of different qawms
were said to pose a greater threat to the stability of the community as a whole and are
thus managed through a more structured and public process.
In an effort to keep the resolution process as private, efficient and effective as possible,
disputants tend to select elders for small-scale mediation (including neighbours, street
representatives, qawmi elders, the mullah and the wakil) based on their physical or
52 Several terms were used to describe these sessions in the research site, including: jalasa (Dari), jirga
(Pashto), and maraka (a Pashto term used most frequently by Hazaras in the research site who originate
from Pashtun-dominated areas of Ghazni Province). For purposes of this paper, “small-scale mediation” will
be used to signify this concept except where informants and FGD participants used one of the mentioned
terms.
53 Restorative justice promotes “reparation for injury, reconciliation between the parties involved, and
the reinforcement of community/collective equilibrium and cohesion.” De Lauri, “Legal Reconstruction,”
17.
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relational proximity, subject matter expertise, local knowledge, and reputation for
strong values and honesty. As in other areas of Afghanistan, the role of the mullah in
dispute resolution has largely decreased, except in cases directly governed by Sharia
rules such as inheritance division and family law matters, where the mullah is required to
assist in the determination of rights.54
The majority of CBDR in the research site is conducted by respected elders referred to as
“whitebeards” (male) or “whitehairs” (female).55 While almost any male with a positive
reputation in the community is likely to be considered a whitebeard, selection criteria
become more skills-oriented as leadership roles become more specialised. Every extended
family will thus have one or more male and female elders, while the most capable or respected
of the male elders in a locality or qawm group will be chosen as street representatives
or qawmi elders. In addition to moral requirements, wakils must possess the skills and
knowledge required to navigate district and municipal structures. Informants and FGD
participants point out that community leaders of various types are selected according to
merit rather than wealth or status, and that the emphasis on positive reputation increases
the strength of mediated outcomes. The ability of community members to determine who
will be involved in the mediation of their disputes and to observe and participate in the
process also serves as an accountability mechanism for decision-makers.56 As one FGD
participant describes:
There is transparency between the people and the whitebeards. The people
choose certain whitebeards because they know who is honest, respected and has
a good background in the community. When the whitebeards come to resolve
the dispute, they remember that the people chose them for these reasons. They
think, “I must be honest to maintain my good reputation in the community.”
— Sayed man, 29, FGD 3, participant A
It is likely, however, that factors such as wealth, family status, employment, political
influence, and access to legal or extralegal power structures are also directly or indirectly
considered based on the responsibilities attached to specific roles in the community.57
In the majority of cases, disputants are left to initiate CBDR processes in their own time,
as it is generally considered unacceptable to interfere in another person’s private affairs.
As disputes persist or become more violent, however, community leaders may intercede
to protect individual parties or the reputation, autonomy and stability of the qawm group
or community as a whole. In the three examples of this seen in the research site, qawm-
54 See, for example, Gang, “CBDR in Balkh,” 19, 21.
55 Iterations of these terms are to be found across the country and the Central Asian region. See Gang,
“CBDR in Balkh”; Smith, “CBDR in Nangarhar”; and Smith with Manalan, “CBDR in Bamyan” for Afghanistan,
and for a comparison from Kyrgyzstan, see Judith Beyer, “Imagining the State in Rural Kyrgyzstan: How
Perceptions of the State Create Customary Law in the Kyrgyz Aksakal Courts” (Halle, Germany: Max Planke
Institute for Social Anthropology, 2007).
56 The analysis is substantiated in the work of Ali Wardak, “Jirga—A Traditional Method of Dispute
Resolution in Afghanistan” (UK: University of Glamorgan, 2003), 8-9.
57 Responsibility for dispute resolution in Afshar differs in one significant way from patterns seen in
other parts of Afghanistan and the broader region. Research has shown that Sayeds are often relied upon
as community mediators based on their perceived structural neutrality. Thought to be descendants of
the Prophet Muhammad through his daughter Fatima, Sayeds exist outside of prevailing ethnic and tribal
genealogies. In Afshar, Sayed elders are certainly involved in dispute resolution and number among those
individuals who have been chosen as wakils, but they do not appear to hold a special position as mediators
in the research site. For research on the role of Sayeds in dispute resolution across Afghanistan, Central
Asia and the Middle East, see Nile Green, “Blessed Men and Tribal Politics: Notes on Political Culture in the
Indo-Afghan World,” Journal of the Economic and Social History of the Orient 49, no. 3 (2006), 344-360, as
well as the work of Ernest Gellner and Fredrik Barth.
Community-Based Dispute Resolution Processes in Kabul City
23
based elders intervened to re-establish equilibrium between members of the same qawm:
in Maryam’s Divorce Case, to quell neighbourhood gossip regarding the abuse and the risk
of escalating violence between the families; in the Exchange Marriage Divorce Case, to
address the deterioration of relationships between two families evidenced by the eruption
of a street fight and to secure the release of several male family members arrested as a
result of the fight; and in the Bicycle Dispute, again to restore peace between two families
caught up in a violent altercation resulting from a street accident. External interventions of
this sort are also commonly seen in instances of chronic or more severe domestic violence,
as described here:
Twenty days ago there was a woman who was threatening to burn or kill herself
because her husband and father-in-law were beating her severely every day.
When I heard this news I called someone I knew in the district police to come
with me to the woman’s house for resolving the dispute.
— Hazara elder, informant 3
In another example, the catalyst for external intervention was not so much to address
an instance of domestic violence as to preserve the stability of the relationship between
a prominent male community member and his son. This highlights the existence of a
“tolerated residuum” of abuse58 in the research site, more likely a reflection of prevailing
gender relations in the country as a whole than a feature of this community in particular:
Once I was weaving carpet in the house and I made some mistake, so my older
brother slapped me. At that time my father saw me crying and became very
angry, he beat my brother and took a knife to him. Later, someone informed the
whitebeards about what had happened and they called a meeting in the mosque
between my father and brother. The whitebeards blamed my father and told
him, “your son is your daughter’s brother, what is wrong if he slaps her? Your
son contributes to the expenses of your daughters, so he has the right to correct
them if they do something wrong.” My father agreed with their words and after
that my father and brother hugged and apologised to each other.
— Sayed woman in her early 20s, informant 20b
In most cases, disputants chose to convene small-scale mediations in their own yards or
guest rooms. Resolution practitioners may also decide to hold sessions in a neighbourhood
mosque if a neutral space is required to mitigate tensions (as seen in Maryam’s Divorce Case).
Linked to priorities of speed, equity and pragmatism, there are two consistent procedural
requirements in small-scale mediation: disputants must be physically present or adequately
represented, and parties must assure their consent through an oral grant of decision-making
authority (ekhtyar) to selected elders. Where disputants cannot be present, for example
in disputes involving incarcerated individuals, women unwilling or unable to attend, or
those lacking mental, physical, or legal capacity, they are most commonly represented by a
respected male family member, qawm-based elders, or the wakil of their area.
5.2 Shuras: Qawm and community
In more complex, long-standing, or financially driven cases, dispute resolution may require
a more structured process than small-scale mediation. This is often the case when smallscale
mediation is unsuccessful, disputes are more complicated or contentious than elders
feel capable of managing independently, or if the nature of a dispute requires broader
58 For a fascinating discussion of how a tolerated residuum of sexual violence can be constituted by legal
and social responses to that abuse, see Duncan Kennedy, “Sexual Abuse, Sexy Dressing, and the Eroticization
of Domination,” in Sexy Dressing, Etc.: Essays on the Power and Politics of Cultural Identity, 126-214
(Cambridge, MA: Harvard University Press, 1993).
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community involvement to ensure legitimacy and enforceability of negotiated outcomes.
A common theme within these more complex cases is the risk they pose to community
stability as a whole, often due to demonstrated or potential violence. Physical fights were
relatively common in the research site, often over minor offenses and even involving
female combatants (see, for example, the Bicycle Case and the Domestic Violence Case).
In these types of cases, disputants or mediators most commonly refer the matter to
one of the community’s shuras (councils) in the first instance or as a matter of appeal.
In the research site small-scale mediation sessions (described alternately as jalasas,
jirgas, or marakas), were contrasted with shuras, which were described as standing selfgovernance
institutions mandated to support issues facing the community as a whole.
Mediation of more serious disputes often took place within community shuras, and with
a greater sense of formality than those that took place independently.59 As described by
the (Pashtun) head of police:
A jirga is a group of influential elders who are selected by the disputants to
resolve their dispute according to time-honoured local custom and tradition.
A shura, on the other hand, is a group of community representatives who
sit to resolve problems that the community itself is facing. Shura members
sometimes participate in jirgas, but they are not the same.
— Head of police, informant 30
There are two primary types of shura in the research site, each with its own loose sense of
jurisdiction. Qawm-based shuras manage disputes between members of the same qawm
(see, for example, Maryam’s Divorce Case and the Bicycle Dispute), while the multi-ethnic
shura-i-mahal (community-wide shura, literally “shura of the location)” handles disputes
between members of different qawms or those requiring more intensive management
by community leaders. Two examples of disputes deemed appropriate for management
by the shura-i-mahal were seen in the research site: in the Returnee Property Dispute
competing claims to a house emerged following the extended displacement of the original
owner; in the Sold House Inheritance Dispute, a daughter sought to evict the bonafide
purchaser of a family home unlawfully sold by her mother. While members of different
qawms were involved in both of these cases, the disputes were seen to warrant more
extensive management due to the fact that in both cases disputants had been unable or
unwilling to finalise resolution through state courts. A National Solidarity Program (NSP)
shura has also been established in the research area, but this was rarely mentioned by
informants or FGD participants and never in relation to dispute resolution.
The primary function of community-based shuras in the research site is to manage
community affairs, such as resource distribution, infrastructure needs, and community
welfare issues. In Afshar, however, both qawm-based shuras and the shura-i-mahal have
become increasingly involved in dispute resolution as a response to state incapacity
and illegitimacy. Community leaders felt compelled to provide mechanisms for
self-governance in the absence of effective state institutions, as well as to protect
59 There is significant variation as to how the terms jirga, maraka and shura (all of which can be loosely
translated as “meeting” or “council”) are used across the country. While in the CBDR research sites these
terms were sometimes used interchangeably to describe hoc councils for resolving specific disputes, shuras
tended to be more permanent in their membership, often taking on an ongoing governance role. However,
even within this context the level of institutionalisation in Afshar’s shuras was notable. Here, informants and
FGD participants used the term shura to refer to a standing body involved in local governance and dispute
resolution, in contrast to specific mediation sessions described as jalasas, jirgas, or marakas, depending
on the language of the user. Thus, jalasas can occur within or outside of the shura, depending on the
weight of decision-making called for by each dispute. This is possibly a direct or indirect response to the
institutionalisation of governance in present state-building efforts, for example through the shura-building
exercises of the National Solidarity Program, but would require further research to draw any conclusions.
Community-Based Dispute Resolution Processes in Kabul City
25
community members from a state seen as extractive and corrupt (a fact made clear
in the eyes of community members by the assignment of high level former mujahiddin
commanders to key governmental posts).60 While many informants and FGD participants
suggest that they simply revived the processes they had relied on in the rural context,
the institutionalisation of Afshar’s shuras, their role in dispute resolution, and their
intentional inclusion of representatives from all present solidarity groups is a pragmatic
response to both state incapacity and demographic diversity.
60 It must be noted that a majority of Afshar’s older male residents were most certainly involved in
fighting during the Soviet resistance and subsequent civil war. Now elders of the community, many of these
individuals were likely involved in some of the same atrocities that undermine the authority of state actors
at the national level. As this was not a focal point of the study as well as being an incredibly sensitive issue,
researchers were careful not to investigate individuals’ roles in past conflict too closely. It is therefore
uncertain what kind of role former commanders play in the administration of CBDR in Afshar today. The
author has since heard, however, that a recently-elected wakil in the area has been identified as a former
commander who was involved in civil war-era violence and retains inappropriate links to non-state military
forces.
Box 3: Afshar’s shuras—combining tradition and innovation
I have lived here in Kabul for a long time, and I have also lived in rural areas. In the past,
many disputes in the rural areas were resolved by local elders through jirgas or jalasas,
but in the cities it was different. If someone faced a problem, the disputant first took his
problem to the government because the government was good. Today people complain that
the government has become too corrupt and they want to keep their distance. This is a very
big problem for the people, as well as for the stabilisation of the government.
— Hazara man in his mid 60s, Retiree from Public Service Department1
When I came to Afghanistan in 2004, I voted for Karzai. I was happy that a good government
had been settled. When I saw that Karzai was giving so many high positions to former
commanders, I understood that he would not be able to control the government. Now, this
government is not taking care of the people, it has sold out the Afghan people. For this
reason, the government can resolve the disputes of rich people who can pay, but poor people
can only go to the local elders for resolution.
— Qizilbash man, 45, Disputant in Sold House Inheritance Dispute, informant 1
We made these shuras just to provide facilities for the people. We try to resolve the people’s
problems so that they don’t have to go to the government.
— Sayed man, 45, informant 2
Since a very long time ago, disputants collected their neighbours and elders to resolve their
disputes. If disputants didn’t accept the decision, then the whitebeards referred their case
to the government. This was our custom and tradition. In the past there wasn’t any kind of
shura, but now people come to the shura for resolving their disputes.
— Hazara man, 45, FGD 2, participant Gh
These days, especially during Karzai’s time, the shura has a very big role in working with the
government, the NGOs and among the people. If someone has a property dispute and they
take it to the government they will use up their money and physical energy until only their
bones are left. It doesn’t matter who is Hazara or Qizilbash or Pashtun because every qawm
has a representative in the shura.
— Mullah, 60, FGD 3, participant M
1 This man was encountered during initial phases of data collection and was not included as an
informant or FGD participant.
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Male elders involved in dispute resolution in the research site frequently discussed
how Afshar’s tiered shura system was designed to manage even the most problematic
conflicts, forcing shura members to think strategically about how to maximise legitimacy
and sustainability of decision-making in the absence of coercive force. Their solution was
to create institutions that balanced long-standing customary practices with the demands
of regulating behaviour in a complex, highly dynamic and diverse urban environment.61
Qawm-based shuras comprise the first tier, protecting the reputation and unity of the each
group by internally regulating the behaviour of its members. There are six qawm-based
shuras in the research site, broadly reflecting its demographic makeup: the Qizilbash,
Pashtuns, Tajiks, Sayeds, and two Hazara groups, from Bamyan and Ghazni. However, as
Afshar’s population grew and diversified, a second tier was required. Community leaders
thus designed the shura-i-mahal, a multi-ethnic community shura to manage largerscale
and more destabilising conflicts. In the words of the shura-i-mahal’s chairman:
We decided to build a shura with members representing every ethnic group in
our area. By choosing members from different groups, we absorb the people
under them and are able to resolve the disputes of people from all groups.
When our decisions are implemented, our decision-making becomes more
effective. Now, people will not reject the decisions of the shura and disputes
will not be repeated again in the future.
— Qizilbash elder, head of the shura-i-mahal, informant 7
Shura process and principles—mechanisms for establishing legitimacy and
durability
More so than qawmi shuras, the shura-i-mahal has a clear structure, including an
elected chairman, a dispute resolution specialist62 and a clerk, each with specific tasks
and reporting requirements. Area wakils are also members of the shura-i-mahal; given
their status as official conduits between the community and the district they are often
essential in initiating the shura process, inviting key participants, and documenting
shura decisions. The shura-i-mahal meets weekly to discuss issues or disputes that have
arisen during the week, while additional sessions are scheduled for the management of
specific disputes.
Qawmi and community shura resolution procedures resemble those used in small-scale
mediation, but more formalised. As in jirgas or jalasas, shuras require that disputants be
present or adequately represented in proceedings regardless of gender, but here authority
must be given in written form. Likewise, in addition to any personal representatives,
disputants must nominate three respected individuals to represent their interests to the
shura. Parties are required to present their version of events, witnesses, and physical
evidence (including customary or Sharia land ownership documents, bills and contracts,
and even doctors’ reports in cases of domestic violence or other injury). Disputants must
then leave the venue so that their representatives, other parties and subject matter
experts can openly deliberate. Disputants are usually called back within two to four
61 Although CBDR practices in rural areas have also been impacted by displacement, conflict-related
violence, shifting forms of power and many other factors, the effect of these factors seems heightened
in the urban context. This is likely due to the magnifying effect of urbanisation—specifically increased
population movements, lower levels of social cohesion, the drive toward institutionalisation, and greater
proximity to new and ever-changing state resources. This is an issue that will be explored directly in the
forthcoming CBDR synthesis paper.
62 It is unclear from the data how this person came to be chosen as the shura-i-mahal’s dispute resolution
specialist. As he does not have any formal legal training, it is likely that his selection was based on his
demonstrated skills in dispute resolution.
Community-Based Dispute Resolution Processes in Kabul City
27
hours for a reading of the decision. If shura members have not been able to reach a
resolution, they will develop plans to prevent outbreaks of violence while the dispute
is ongoing, such as a negotiated truce. An example of this was seen in the Mosque
Dispute where political solutions were unsuccessful, necessitating a mutual strategy for
the prevention of violence as the dispute remained unresolved.
In most cases of successful mediation, the shura’s clerk records details of the agreement
in a document that is signed (or thumbprinted) by disputants, witnesses and shura
members. All decisions, even those delivered orally, are recorded in the shura’s register
book which is held by the group’s dispute resolution specialist. As stated by many shura
members and the wakils, registration of shura decisions increases the durability of
mediated agreements among community members by serving as a public accountability
mechanism. None of the informants involved in disputes resolved in this manner
expressed concern that their resolution agreements were not registered with the state,
as registration with community shuras was seen as insurance against resumption of the
dispute at issue.63
As in other levels of CBDR, selection of representatives in shura-based mediation is
strategic, based on personal connections, subject matter expertise, perceptions of
neutrality and reputation. Here, however, the selection process is more finely calibrated
to maximise the legitimacy and thus the durability of decision-making.64 In the most
contentious cases, shura members even invited important social actors from outside the
community to participate when increased legitimacy was necessary to ensure an end to
hostilities, as seen here:
I selected the wakil and two whitebeards from different ethnic groups [to
represent me in front of the shura] because first of all, they are well known
in the community to be just and everyone respects them. Secondly, they are
impartial—I know they won’t resolve the case in anyone’s favour. Even though
they are not my friends, we [the disputants] are the same to them.
— Hazara elder, disputant in Returnee Property Dispute, informant 3
The head of the association for all Qizilbash people was also invited to the
shura. The wakil invited him because he is a very knowledgeable and very
important man. Because this was a somewhat complicated case, the wakil
wanted someone there who could make the mediation more formal and
valuable to the disputants.
— Qizilbash man, 45, shura-i-mahal dispute resolution specialist, informant 8
Both of these quotes refer to the Returnee Property Dispute, a case of competing house
ownership claims. Note that shura members prioritised inclusion of a well-known Qizilbash
elder from outside of the neighbourhood, despite the fact that neither disputant is from
that qawm. This choice illustrates the weight of personal reputation and the quest for
neutrality over the perceived advantage of ethnic affiliation in many cases.
In general, disputants seek access to qawmi shuras and the shura-i-mahal through an
elder or shura member with whom they have had prior contact. Most often, these elders
will attempt to dispatch the matter themselves, referring it on to the relevant shura only
if they are unsuccessful. This pattern was demonstrated throughout CBDR processes in
63 Further discussion on the documentation and registration of decisions is found in section seven.
64 For a more theoretical discussion of this idea, see Antonio Palmisano, “On Informal Justice in
Afghanistan,” in Afghanistan: How Much of the Past in the New Future, eds. Giandomenico Ricco and
Antonio Palmisano 37-74 (Gorizia, Italy: Institute of International Sociology, International University Institute
for European Studies, 2007), 47-8.
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the research site, by family elders, street representatives, qawmi leaders, the shurai-
mahal’s dispute resolution specialist, as well as every district officer interviewed for
this study. While this practice may have to do with accruing debt for social patronage,
a likelier cause is a general culture of interpersonal conflict mitigation seen across
Afghanistan as well as a common desire to avoid state intervention.65
For disputes between members of different qawms, the shura-i-mahal increases its
procedural and substantive legitimacy by incorporating the customary requirements of
parties as deemed appropriate. In addition to the basic principles of peace-building,
equity and pragmatism, inclusion of ethnically or regionally specific customary rules
may also be negotiated at the beginning of the shura process as part of securing
informed consent. In the Returnee Property Dispute, for example, the shura decided
to resolve the case according to specific Pashtun customary rules to increase one
side’s commitment to the outcome. Other practices mentioned by informants and FGD
participants include taking a monetary guarantee (machalga) from parties to ensure
adherence to mediated agreements, enforcing punitive compensation payments (deya,
jirmonha), or ordering the responsible party to offer apologies (uzr) in the manner
most acceptable to the opposing side.66
In the most serious disputes, displays of forgiveness and acceptance commonly include
women to underscore the responsible party’s shame for causing harm, as well as the
depth and genuineness of the apology. This is most commonly practiced in Pashtodominated
areas and is referred to as nanawati.67 In the Bicycle Dispute, women
from the family deemed responsible for unnecessary escalation of the conflict led
a procession to the home of the opposing side in a display of nanawati. Respectful
of the gravity of the circumstances, members of the opposing side had swept the
path leading to their home and were prepared with an offering of a headscarf to the
women to signify acceptance of the apology. Women can also be used strategically to
pass on requests for demands or to elicit support from community or district actors.
An example of this was seen in Yar Gul’s Wall Dispute, where one side deployed their
mother to request the support of district authorities, knowing that she would cut a
more sympathetic figure. This practice can also be used to force a change in behaviour,
as explained by the main informant in the case:
Here is what matters: that woman came to my house and asked me to let
her build her wall. It is not good for me to reject her. When a woman comes
to someone’s house it is a very heavy thing. Everything should be accepted.
I told her, my honour (ghairat) won’t allow me to reject you, go ahead and
build your wall where you like.
Shura-i-mahal members state, however, that they will not order customary resolution
mechanisms that they consider to be illegal, un-Islamic or socially destabilising, such
as revenge killings, extreme corporal punishment or baad (the exchange of women
to resolve a dispute).68 While shura members recognised the potential efficacy and
65 See Thomas Barfield, “Culture and Custom in Nation-Building: Law in Afghanistan,” Maine Law Review
60, no. 2 (2008), 355; and Dupree, Afghanistan, 249.
66 See other instalments in AREU’s CBDR series for case studies of regionally specific customary resolution
practices.
67 Louis Dupree defines nanawati as “the right of asylum and the obligatory acceptance of a truce offer”
(Dupree, Afghanistan, 126). Ali Wardak argues that a more precise definition is that offered by M. Ibrahim
Atayee, specifically: “seeking forgiveness/pardon and the obligatory acceptance of a truce offer” (See
Wardak, “Jirga,” 11, citing M. Ibrahim Atayee, A Dictionary of the Terminology of the Pashtun Tribal
Customary Law and Usages (Kabul: The Academy of Sciences of Afghanistan, 1979), 65-67.
68 Baad involves giving one or more women to an opposing group to settle a blood feud or other violent
Community-Based Dispute Resolution Processes in Kabul City
29
appropriateness of these methods in certain cases, they explained that in the context of
the shura-i-mahal the legitimacy of decisions depended on the collective acceptance of
principles and practices deployed therein. Further, as part of finding a balance between
individual demands for justice and collective needs for peace, resolution outcomes
must be seen as logically calibrated to the particular circumstances of each case. As
can be seen in the following comment, this logic was not static, but was changing as
considerations of economic hardship and human rights became more of a priority in the
research site.
Dispute resolution is very much about addressing the unique principles of a
violation. For example, if someone steals something according to Sharia his
right hand should be cut off. If some commits adultery (zina), he should be
stoned to death. If someone kills someone, the victim’s family should take
revenge (qesas).69 In every qawm, in every province, the custom of baad still
exists. But, I tell people these practices are not allowed in Sharia. It is not
logical, for example, that if one person kills another that a girl, who doesn’t
know anything, hasn’t done anything, is given to the other family. When this
happens, the only result is that more people become harmed or guilty.
—Mullah, 60, FGD 3, participant M
At all levels of CBDR, legitimacy and enforceability are derived by balancing the rights of
the violated party against the need to restore peace and stability among disputants and
their families. Thus, alongside notions of basic fairness, a central principle to dispute
resolution in the research site and in CBDR in Afghanistan more broadly is that of islah,
where peace and reconciliation are pursued as a central goal of mediation.
The most important thing when resolving disputes is to restore peace between
the two sides of the dispute. At the end of the dispute, the responsible party
should cook food for their former opponents. The families should come
together in the home of the responsible party for a shared meal. After the
food, when everyone is drinking tea, the whitebeards will make both sides
of the dispute stand and hug each other. This will make everyone happy and
finalise the resolution of the dispute. This is the most important thing.
— Sayed man, 29, FGD 3, participant A
At the same time, however, outcomes are commonly evaluated through the lens of the
“common good” or the stability of the community as a whole, which necessarily includes
the reparation of damages to parties as individuals.70 Specifically, pragmatic issues such
conflict. Women exchanged in this way are often subjected to a lifetime of abuse in revenge for the cause
of the initial dispute, leading many national and international human rights advocates to condemn Afghan
CBDR practices more generally. The practice seems to be largely in decline, however. Only one instance
of baad was reported to have occurred in the research site, although more cases from rural areas were
recounted to researchers in this study. For descriptions of these practices in context, see Smith, “CBDR in
Nangarhar”; and Smith with Manalan, “CBDR in Bamiyan.” For a critique of these practices from a human
rights perspective, see for example, Women and Children Legal Research Foundation (WCLRF), “Bad:
Painful Sedative” (Afghanistan: WCLRF, 2004); and Wahida Paykan, “Afghan Girls Suffer for the Sins of Male
Relatives,” http://iwpr.net/sw/node/14860, 3 April 2009 (accessed 27 February 2011).
69 Qesas is the Sharia principle of proportional remedy. Among informants and FGD participants, it is
commonly described as a mechanism for taking revenge, but always in a manner calculated to fit the crime.
Generally, qesas rules prescribe corporal punishment of the responsible party or financial compensation to
the victim and set the appropriate limit under each remedy.
70 For a comparison regarding the individual versus the group as a unit of measure in dispute resolution in
Islamic and non-Islamic jurisdictions, see Mohammad Abu-Nimer, “Conflict Resolution in an Islamic Context,”
Peace and Change 21 (1996) 22-40. For how this issue relates to resolution practices in Afghanistan, see De
Lauri, “Legal Reconstruction,” 17-19; Palmisano, “On Informal Justice,” 46; and Jonathan Eddy, “Rule of Law
in Afghanistan: The Intrusion of Reality,” Journal of International Cooperation Studies 17, no. 2 (2009), 16-17.
Afghanistan Research and Evaluation Unit
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as economic capacity, family circumstances and other factors are incorporated into
decision-making to ensure that resolutions are perceived as fair to all involved, and thus
durable in the long term.
CBDR practitioners thus tend to avoid hard findings of fault even as they establish parties’
respective degree of harm and determine restorative solutions accordingly. This was
particularly evident in the various factors used to calculate responsibility and appropriate
compensation amounts in the Bicycle Dispute (reparations required for escalating the
conflict, assaulting a woman and medical expenses resulting from the fight); Traffic
Case (anticipated loss of wages for unintentional injury to be paid in installments by
economically-constrained driver, coupled with the driver’s release from jail), Returnee
Property Dispute (awarding possession to the original owner while compensating the
occupier for improvements to the property), and the Sold House Inheritance Dispute
(protection of the bonafide purchaser in exchange for choice of financial or land-based
compensation calculated by a neutral property dealer).
CBDR practitioners argue that individualised punitive approaches, such as those commonly
found in the courts or even in Sharia, are not always enforceable or sustainable in the
long-term as they do not account for the marginal economic conditions of those most
likely to commit punishable acts. This type of decision-making thus risks doing harm to
the offender’s family, thereby undermining local stability. This principle was deployed
in the Traffic Case, where the father of the accident victim sought mediation in part
out of sensitivity to the harmful economic effects of the continued incarceration of the
driver. In one telling quote from an area wakil, it is the need to balance justice and
peace, individual rights and group stability that makes the pragmatism of customary law
so attractive:
Sometimes Sharia law creates a problem for us, because Sharia never ignores
the rights of the individual. With customary law, we can tell one side of the
dispute to ignore some aspect of their rights and give this to the other side
to satisfy them and finish the dispute. In other words, if we take one rope
and two disputants and ask them both to pull from each side, if one side
doesn’t give a little to the other, then perhaps the rope will break and both
of them will fall down. The people who mediate should be experts in finding
this balance.
—Wakil, informant 23
Alignment of decisions with community stability rather than individual rights can result
in outcomes that may appear unjust to those situated outside (and often inside) these
solidarity groups. In the Exchange Marriage Dispute, for example, a woman was forced to
divorce at the behest of her family. In this case, two sets of siblings were exchanged in
marriage; when the relationship of one set dissolved, the woman of the second set was
forced to leave what she felt was a satisfactory marriage. On one hand, this practice can be
interpreted as a violation of the human rights of the woman who wished to remain married.
On the other, the second divorce was argued by the parents of the woman and by a portion
of resolution practitioners involved in the case as necessary to complete the severing of
familial relationships. The second divorce was further justified as a move to protect the
woman involved—was she to stay with her in-laws, she could be subjected to abuse as
revenge for the insult of the first divorce. Although demanding the second divorce against
the wishes of the wife was clearly a violation of Sharia law, all parties to the resolution
(excluding the woman and the mullahs) felt that customary practices would better serve
the needs of both families.
Community-Based Dispute Resolution Processes in Kabul City
31
5.3 CBDR: Sources of authority71 and enforcement in the absence
of force
CBDR practitioners in the research site do not have access to the coercive force required for
the enforcement of decisions that are non-consensual. For this reason, practitioners must
work to ensure the enforceability of their decisions by grounding them in shared community
values of equity, fairness, prohibitions against unjust enrichment, and, as described earlier,
the principle of islah. However, CBDR decision-making is not based on abstract notions of
peace and harmony.72 As in any legal system, CBDR draws legitimacy from being predictable,
non-arbitrary, and grounded in local understandings of customary, Sharia and state law.73
While CBDR practitioners principally deploy customary norms in their decision-making,
state and Sharia legal principles are also strategically incorporated, particularly in cases
that evoke the rights of women.
Reliance on Sharia law was consistently used to support the rights of women and their
children in inheritance claims (Kobra’s Inheritance Dispute), to gain access to financial
maintenance in cases of divorce, in child custody negotiations (Exchange Marriage Divorce
Case) and even in support of a love marriage between members of different ethnic groups.
The following example highlights the use of Sharia-based rules and values to protect the
rights of women in the research site:
My mother had a dispute with my father when he remarried and kicked her
and her children out of the house without any money or household items.
Although my mother believed that it was not appropriate for women to go to
the district or to the whitebeards with this kind of problem, she still went to the
whitebeards and asked that they organise a jalasa. My mother and father both
sat in the jalasa. The whitebeards said to him, “This is a respectable woman.
You remarried and kicked her out of the house with nothing. Aren’t you afraid of
God?” Then my father agreed to give my mother financial maintenance (naqafa)
for herself and for us.
—Qizilbash woman, 25, FGD 5, participant B
In another instance, community elders untangled a dispute caused by the multiple
engagements, four in total, a father made for his daughter by invoking state rules on
marriageable age. Marriageable age in Afghanistan is 18 for boys and 16 for girls, but
in this case community leaders incorrectly stated that it was 18 for both. Community
members must know of instances in which their leaders have supported marriages
below the age of 18, yet in this instance, elders were able to constitute a state rule by
speaking it from a position of authority.74 By resting the decision on (imagined) state
requirements, mediators were able to deflect personal responsibility for the decision
while restoring economic loss to the families of the would-be husbands, allowing each
family a graceful exit from a potentially volatile conflict.75 Deflection to the state
71 The notion of how authority is designated and experienced within a given community is one that
continues to warrant the attention of political and social scientists. For purposes of this paper, the concept
of authority in the research site is understood as a contextually-driven combination of Max Weber’s ideal
types of legal-rational, traditional and charismatic authority. See Max Weber, The Theory of Social and
Economic Organization (New York: US, Free Press, 1964).
72 See De Lauri, “Legal Reconstruction,” 20-1, on the “myth of mediation.”
73 For a discussion on the significance of primary rules of obligation and secondary rules of recognition in
establishing legitimacy in the Afghan legal context, see Eddy, “Rule of Law in Afghanistan,” 10-12.
74 For discussion of how the idea of the state can be constituted by local actors, see Beyer, “Imagining
the State.” For a discussion of legal majority in customary and Islamic law in Afghanistan, see Palmisano,
“On Informal Justice,” 64.
75 Engagement prices collected by the father of the girl ranged from 100,000 to 400,000 Afs each, or
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was also evident in the Returnee Property Dispute, where fault for the existence of
competing title deeds was placed squarely on the municipality. Once fault was taken off
the table, shura members were able to craft an equitable division of costs associated
with shifting possession of the property.
Complicating the resolution process is the changing nature of commonly-shared values
in the research site as a result of the social and political factors presented earlier. While
the vast majority of informants and FGD participants continue to experience Afshar’s
CBDR mechanisms as faster, cheaper, more satisfying and more durable than state
processes, there is significant debate among residents regarding the validity of recent
changes to the social norms that govern decision-making. In other words, although the
rules themselves have not changed, there is no longer universal agreement on how and
when these rules should apply to the behaviour of community members.76 While this
has not substantially undermined the stability and authority of CBDR processes, diverse
perspectives on what social norms should be and how they should be applied is likely to
persist as a source of tension within the community.
between US $5,000 and $8,000.
76 See Eddy, “Rule of Law in Afghanistan,” 10-12.
Box 4: Displacement and Social Change
Many families migrated to foreign countries during the war—they stayed for a long time and
learned about different cultures in these places. Now that many have come back, they talk
about new problems like good quality schools or the environment. There is a big difference
in the minds of people who left and people who stayed, our ideas are different. Returnees
are open to new ideas, but those who stayed behind during the war are closed—they can only
think like it is still war.
— Hazara elder, informant 3
The women who have lived in Afghanistan are adapted to their environment. But the women
who have come from Iran have seen different things and they want those things in Afghanistan,
even if they are not available here. This is creating problems among some families who have
come from Iran.
— Hazara elder, informant 5
In the past, people hadn’t seen the rest of the world. After they migrated to other places
they saw and learned many things. For example, in the past, girls didn’t have permission to
go to school and they would be married very young. Now, girls can study and choose when
to marry. In the past, people’s eyes were dark. They didn’t think about the next generation.
They thought, “I have lived this life and it is nothing more to do with me.” Now people think
about the next generation, they think “this happened to me and it shouldn’t happen to the
next generation. The next generation should have education and other services and be calm.”
— Pashtun woman, 45, FGD 4, participant 5
In the past when a woman married she couldn’t return to her father’s house for two years.
Now, if a woman marries, after two or three days she can go to her father’s house. In the past,
if people married a young girl to an old man, the girl couldn’t say anything. Now, the girl can
say that she doesn’t agree and her family will accept that.
— Hazara woman, 33, FGD 4, participant 7
In the past, a woman’s in-laws would beat her if she made too much noise kneading the dough
for bread. In the past, when people made stew the good part was for men and the women
didn’t get any of the meat. Now, women decide what they want to cook and they will be asked
what they want to eat. So, [laughing] we can say there have been lots of changes.
— Hazara woman, 50, FGD 4, participant 6
Community-Based Dispute Resolution Processes in Kabul City
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This diversity of opinion is evident among informants and FGD participants, whose
perspectives are informed by generational differences and areas of origin, but also
in many cases the length and location of their displacement, together with the ideas
and educational opportunities many were exposed to as refugees. These shifts in what
were once more commonly held values are particularly palpable when discussing the
rights and roles of women, whose exposure to different social structures and, for many,
to economic productivity, education and freedom of movement, has had a significant
impact on social relationships.
At all levels of CBDR, disputants are generally held responsible for pursuing
implementation of their own decisions. Given their lack of coercive force, community
leaders tend not to follow up on the outcome of mediated agreements, assuming instead
that disputes have been effectively resolved if they are no longer a topic of discussion
among community members. However, CBDR practitioners can deploy three main
enforcement mechanisms where necessary. These include the use of social reward and
stigma, denial of future mediation services, and threats to refer the case on to state
authorities.
Parties are consistently rewarded for participating in CBDR, which is intimately connected
to the idea of upholding the reputation and autonomy of the individuals involved and
the wider community. This is effective given that community processes are in many ways
tied to one’s sense of honour and credibility,77 as seen here:
The opposing party said, “I gave my authority to the jirga, so any decision
they make is acceptable to me. Even if they order me to sell my house with
everything in it, I would still respect the jirga’s decision.”
— Shura member involved in mediation of the Bicycle Dispute
At the same time, community leaders typically encourage the idea that the external
pursuit of dispute resolution is inherently shameful given the wastefulness of inefficient
process and public airing of community business. As the following statements suggests,
residents are inclined to agree:
Even if people have a big dispute, they will still try to resolve it through the
whitebeards. They will not take it to the district because it will bring about
a bad reputation. For as long as that person is alive, members of the qawm
will say bad things about them.
— Sayed woman, 55, FGD 4, participant 1
If the disputants are rude and disobedient then they will not accept the
decisions of white beards.
— Hazara man, 45, FGD 2, participant Gh
Alternatively, elders can threaten parties who do not participate in or adhere to
mediated agreements with their refusal to assist in any subsequent disputes they may
have. This denial of services isolates non-cooperative community members and plays on
local fears of state process, thereby acting as a deterrent among future disputants and
reinforcing the authority of community elders. Further, CBDR practitioners recognise
that their authority could be undermined by revisiting disputes once disputants have
rejected the outcome of prior mediation. One exception to this was seen in the Sold
House Inheritance Dispute, where one party’s rejection of previously agreed terms was
based on legitimate grounds, namely a lack of independent ingress to the compensatory
property.
77 See also Palmisano, “On Informal Justice,” 71.
Afghanistan Research and Evaluation Unit
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After we resolved their dispute once before and they didn’t follow through with
the outcome, most of the shura members decided that they would not come
together and resolve the dispute again. Personally, I would sit and discuss the
case again but the real problem is that if we come together again for resolving
the dispute, we will damage our reputation. If we try to resolve the dispute after
they’ve broken the first agreement, they will just break the next agreement.
We are also unsure about what to do in this regard.
—Head of the shura-i-mahal, informant 7
Finally, community leaders often use the threat of state action to scare disputants into
line as well as to bolster their own authority by signifying familiarity with processes
beyond common knowledge.78 Community leaders deploy this threat in ways seemingly
calculated to target disputants’ greatest fears, whether of expense, time wasted,
incarceration, sexual assault, or being forced to accept a decision that is not consensual
or perceived as legitimate. That these fears have been absorbed by community members
is evident in the tales they tell of others’ experiences with district processes. In one
example, an informant described how a knife fight between brothers was witnessed by
surrounding neighbours. Although acknowledging the instability such violence presented
to those living in the area, the informant described how the district’s demand of a
30,000 Afs (US$600) fine as a result of the fight forced the family to give their house up
for rent and return to their extended family compound in another part of the country.
At the same time, community leaders increase the stakes of this threat by letting
community members know that should parties violate a mediated agreement, cases are
unlikely to be referred to district actors in a positive light. In one example, a female
disputant similarly deployed the state as a threat to compel her opponent into agreeing
to mediation. Her threat was effective in that it played on his fears of the time, expense,
but most significantly, the reputational cost of being sued by his former sister-in-law
(see Kobra’s Inheritance Dispute).
78 See Beyer, “Imagining the State,” 2, 12.
Box 5: Self-enforcement as the product of legitimacy
In every case, our shura emphasises finding resolution in a short time and without asking any
money for this service. On one side, our people are very poor, and on the other side, if the
shura asks for money the value of our shura will be gone and no one will come for resolution.
We want to maintain the good reputation of our shura.
— Hazara elder, informant 5
In my thinking, this shura is for the people and by the cooperation of the people. If the people
do not cooperate with us, then we cannot accomplish anything. This is the basis of our dispute
resolution system.
— Qizilbash elder, head of the shura-i-mahal, informant 7
People must accept the decisions of the whitebeards because the whitebeards do not make
decisions that are unreasonable or harmful for the people.
— Sayed woman, informant 14
When I tried to talk to the disputant about resolving his land dispute he told me to go away.
He said, “This is not your problem, only I can solve it.” I said, “It is not only your problem,
it is the community’s problem. Let me help you.” But he pushed me and told me to go away,
and said that he would resolve the matter through the district.
— Hazara elder, regarding Yar Gul’s Wall Dispute
Community-Based Dispute Resolution Processes in Kabul City
35
Since they rely on the consensual nature of their decision-making for purposes of
enforcement, CBDR practitioners are conscious of the reasons for their legitimacy
in the community and seek to resolve disputes according to the priorities of their
constituents. Just as preserving one’s reputation is a mechanism for maintaining
the accountability of elders involved in dispute resolution, successful and sustained
enforcement of CBDR decisions increases respect for and authority of decision-makers.
However, in a system based on the consent of the governed there is little community
members can do when disputants refuse to comply.
Perhaps unintentionally, this reliance on the threat of state process to enforce decisions
mediated at the community level has contributed to a negative feedback cycle in the
research site. Afshar’s multi-tiered shura system was designed by community leaders
only after they could no longer expect to turn to the state for support in dispute
resolution, although many continue to hope for the rise of a capable government
in the future. While using negative images of the state is effective in increasing
local authority in the short term, CBDR practitioners are ultimately undermining the
area’s long-term incorporation into state systems. This way particularly evident in the
Municipal Plan Dispute, where fear of the extractive behaviour of the state precluded
the neighbourhood’s access to needed state services through inclusion in a revised
municipal plan. This pattern is potentially harmful for residents specific to municipal
services, but may also be increasing local tendencies to oppose state intervention in
all matters.
Box 6: CBDR uses of the state as a threat
We called her husband and said: “This is a family issue and you should resolve it among
yourselves. If this matter goes to the police, not only will it take a lot of time and money,
but the district will hand this woman over to the human rights office, who will put her in the
shelter for women who are victims of violence. This woman will be without a husband, you
will be without a wife, and your children will be orphans. You have to tell your father to stop
beating her, it is not humane. If after today we hear that your father is beating your wife,
then we will do something against you.”
— Hazara elder, informant 3
If the disputants don’t accept the decision of the whitebeards, then we will send the case
to the district. But we will also give a recommendation to the district officials that the
disputants are very disobedient people so that they will send the case to the provincial
authorities and make it even more complicated.
— Sayed elder in his 50s, informant 4
I said to her father: “Please tell your daughter not to inform the district about her claim. If
you inform the police, they will come and take you to Pul-i-Charki prison. We don’t have good
police in our country—they will make other problems for your daughter.”1
— Hazara elder, informant 5
The wakil and the elders get upset with people when they do not agree with their decisions.
They refuse to resolve any disputes of these people ever again, which forces people to go to
the government and spend their money for resolution. The whitebeards tell them that they
will have to accept any decision that the government makes, even if is not fair.
— Sayed woman, 35, informant 15
1 Note that in this case the daughter would not be dissuaded. She took her divorce claim to the human
rights unit of the district police headquarters, with no ill effect to herself or her father.
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Further, use and enforcement of CBDR rests to a great extent on the perceived corruption of
the state, as many community members have never directly encountered state resolution
processes. While corruption levels are genuinely high throughout the Afghan state and
particularly in the justice sector, the idea that all state processes are wholly corrupt is
undermining some that may not be. For example, in describing the Traffic Case, informants
saw evidence of corruption in the police’s demand for a fine to release the driver’s car
from the impound lot. Although state-issued penalties for criminal negligence in operating
a vehicle are seen around the world, in the research site this common municipal strategy
was perceived as public theft.
Still, even among the diverse opinions of informants and FGD participants, it is much
more the pull of CBDR’s legitimacy rather than the push of state corruption that informs
respondents’ choice of mechanisms.
5.4 Women’s access to CBDR, decision-making authority and social
change
Negative reactions to CBDR as a viable source of dispute resolution in Afghanistan are
commonly related to concerns over women’s ability to access, participate in and secure
equitable outcomes in practices rooted in customary norms. These concerns are reflected
in studies that highlight outcomes that violate the human rights of women in Afghan society.
This study therefore specifically sought to examine issues of gender equity as practiced
within CBDR processes in the research site.
Women’s involvement in dispute resolution was most commonly mentioned in relation to
disputes that arise within the household. These most private of disputes commonly include
low-level domestic violence against new wives, escalation of disputes among children
by their mothers, or conflict between sisters or co-wives regarding access to domestic
resources. In a society where exposure of women to outsiders is commonly a cause of
Box 7: If there was no corruption?
If the district didn’t take bribes, I still think people would prefer to take their disputes to the
whitebeards. People in the district and the court behave in a bad way. They question us about
our disputes disrespectfully, so our people prefer to resolve issues in the jalasa.
— Hazara man in his 50s, informant 16
People have a very positive opinion regarding local mediation because the people who sit
with you treat you like family members. Jalasa members make good decisions and without
spending money for even one cup of tea.
— Sayed woman, informant 14
People don’t like the district because when they resolve an issue the disputants are forced
to accept it. The district just decides without thinking if the people are satisfied with the
decision or not.
— Hazara whitehair, informant 17
My opinion is different from the others. I think that it would be better if people took their
disputes to the government, because sometimes the whitebeards are also corrupt. Some
whitebeards have good relations with just one disputant, and not so good with the other, so
they might favour one side over the other.
— Sayed man, 50, FGD 3, participant K
Community-Based Dispute Resolution Processes in Kabul City
37
great shame, these types of disputes rarely even come to the attention of male household
members.79 Instead, disputes among women tend to be self-managed or mediated by female
elders, as seen in the following comments:
If women have any disputes they resolve them in the house through a whitehair
from the family. Taking the disputes of women out of the house is not good. The
men won’t let the women take these disputes outside, so it is up to the women
to resolve it amongst themselves. Most of the time the women don’t even let the
men find out about these issues, the women keep it secret.
— Hazara woman in her late 30s, informant 21
My mother is a whitehair of the qawm here. She sits and advises women within
the qawm if they have any issues among their relatives. She resolves their
disputes in a very good manner, so our qawm has respect for my mother and
accepts her advice. We women, even if we have big problems and disputes, we
never go to the district or the wakil. We resolve the issue among ourselves and
don’t take it out of the house.
— Young woman80
Female elders are considered the most appropriate resource to mediate household disputes
given the degree of authority they hold over domestic matters. Across Afghanistan, decisionmaking
by women is almost always limited to the domestic realm except where men are
absent or incapacitated. At the same time, there is a degree of expectation regarding
women’s participation in local governance on topics considered relevant to women—an
arena they feel has been rapidly expanding in recent years as described earlier.
It is interesting to compare these comments on the restricted nature of women’s role
in decision-making with the degree of social change experienced by women as a result
79 For support of this assertion, see De Lauri, “Legal Reconstruction,” fn 64.
80 The identity of this woman cannot be determined from the field notes, so it is uncertain as to whether
she was included as an informant or FGD participant.
Box 8: Reproductive versus productive decision-making
If we look at Afghan customs, we know that women have a strong role in their families but
outside of the family it is a little difficult. We don’t have a women’s shura in our community
because if the women have any problems they are free to come to the men’s shura and the
men will cooperate with them. Our women are a very important part of our community, but
in each family the women just advise the men while the men ask the women to make the
decisions about the family.
— Sayed man, 29, FGD 3, participant A
I know that women are very important and I know that life without a wife is very difficult, but
we don’t want to let them out of the house. Believe me whenever I want to buy one pencil or
one spoon I ask my wife for her advice. Her advice is very important to me because on these
things women know a lot more than men. But on other issues like the government, policies,
planning, decisions, and these kinds of issues it is difficult to ask my wife.
— Qizilbash man, 50, FGD 3, participant S
Our qawm has a shura meeting once a month. Women can participate in that meeting if the
issues they are discussing relate to the women, like if the people’s money will be spent on a
wedding or ceremony or funeral, or if the whitebeards need to talk about whether to spend
money on building a street or a mosque in the area.
— Hazara woman, 30, FGD 6, participant S
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of the exposure to urban norms or social patterns that migration brings—including their
elevation into public life. The pace of this change was noted, albeit with some reservations,
by several male FGD participants. While they acknowledged the importance and value
of women’s increased standing, they asserted that the people and culture of Afghanistan
were simply not yet ready to embrace it fully, or that it should evolve in a religiously and
culturally appropriate fashion:
Women are also human, and we have very strong women in our community.
Look at our parliament, we have very qualified and active female senators in
parliament. They have a direct role in implementing the constitution and they
make sure that the voices of the people reach the government. But now, our
community is illiterate. We need more time to reach the civilised countries.
— Qizilbash man, 38, FGD 3, participant R
I agree that women should have a shura, but they should be sure to make the
shura according to the rules of Islam. For example, they should keep their
hijab (head covering) and they should pray on time. But this is impossible in
Afghanistan. It is possible in other countries, but [pointing out the window] this
is our life, this is our street. It is impossible. The government should first take
care of all of the other things we need.
— Qizilbash man, 50, FGD 3, participant S
Increases in the participation and protection of women within community and districtbased
dispute resolution practices due to shifting social values are evident in the research
site. While many male and female community members feel that these changes are
positive, they are also experienced as a harbinger of instability and disruption. What is
clear, however, is that these changes are unfolding on a daily basis—through the efforts and
ideas of community members themselves, and in a way that is meaningful and sustainable
within the community.
Box 9: Women’s access to the state
It is a very bad thing for women to go to the district. Even if a woman doesn’t have a man
at home, it is still bad for her to go—much worse than if she goes to the jalasa. Women are
only for housework and for taking care of their children. Going to the district and the shura
or jalasa is men’s work.
— Sayed woman, informant 14
My sister-in-law wanted to go to the district but her husband didn’t let her. He asked her, “Do
you want me to be embarrassed and faulted in front of the qawm? They will talk about us and
laugh because of you.”
— Pashtun woman, informant 18
We can say that women are different from each other. Some don’t have permission to go out,
but some don’t have anyone to speak up for them so they have to go to the district and these
places by themselves.
— Tajik woman in her 30s, informant 19
Yes, I myself took my case to the district police and to the court. In the past women were not
allowed to take their cases to the district or anywhere else, but now we are able to do so.
— Hazara woman, 40, Omer’s mother in Omer’s Murder case, informant 22
More women could go if there was a female judge in the court. Women can share their heart’s
problems with other women, but not with men.
— Qizilbash woman, 25, FGD 5, participant B
Community-Based Dispute Resolution Processes in Kabul City
39
5.5 When all else fails, the district81
Despite fears of corruption, time and expense, there are a variety of circumstances that
can propel a dispute beyond the community to the realm of state processes. In the research
area, cases most commonly referred to state actors were those of heightened severity,
where CBDR processes were likely to extend or exacerbate the conflict.82 Common
circumstances in such cases included: disputants unwilling to accept a communitymediated
agreement or wanting to access resolution mechanisms unavailable within the
community (Domestic Violence Dispute); community leaders unable to reach agreement
or feeling that the subject matter was beyond their mandate; disputants not recognising
the authority of community leaders (Yar Gul’s Wall Dispute); death or injury leading to
arrest of one or more parties (Bicycle Dispute, Omer’s Murder, Traffic Case); or criminal
acts requiring the expertise of state investigators.83 Alluding to the pervasiveness of
corruption in the district, many informants and FGD participants stated that the choice
between state and local processes was often determined by a disputants’ access to
sufficient resources to pay for bribes and connections to influential wasita (middlemen)
in district offices.84
Although research was not conclusive in this regard, analysis suggests the diversity of
conditions and frequency with which informants and FGD participants are willing to
access state authorities could be due to factors such as proximity to and awareness of
various state services; higher levels of acculturation to the state’s responsibility for
dispute resolution; the heterogeneous demographic of the population; and patterns of
social change arising from displacement and urbanisation, especially concerning the
rights of women.
Given the research site’s location within Kabul City, community members have access to
a wide variety of district-level actors and processes for dispute resolution. These include
bodies typically seen in other parts of the country, such as the district prosecutor, courts,
police and civil cases (huqooq) departments as well as resources currently functioning
only in Afghanistan’s provincial centres, specifically the human rights and family guidance
unit located in the district police headquarters.
While Afshar residents can approach these resources directly, the majority do not,
relying instead on the wakil is his role as an official conduit between the community and
the district. As described by the district prosecutor:
There is only one person in the community who is recognised by the
government, and that is the wakil. He holds the district stamp and any
document he signs will be seen as valid in the municipality. Every official in
the municipality has the wakil’s telephone number. Other members of the
shura do not have any stamp and they are not recognised by the government.
81 Among informants and FGD participants in the research area, state processes were commonly referred
to in relation to the hawza (district police headquarters), nahia (municipal headquarters) and huqooq (civil
cases department). In practice, however, the term hawza was used as a catch-all term to signify state
process as contrasted to CBDR.
82 For validation of this analysis, see Palmisano, “On Informal Justice,” 72.
83 This was seen in the context of robberies in the neighbourhood, although no examples of this are
included in the annex.
84 These middlemen are known as wasita, while the process of using middlemen to bypass formal rules for
quick results is known as wasita bazi, literally “playing middlemen.” The use of middlemen was seen in Yar
Gul’s case and the Sold House Inheritance Dispute. In some ways, this tracks on to a problem seen around
the world: that formal adjudication tends to be to the advantage of those with wealth and influence. See
Palmisano, “On Informal Justice,” 44-5.
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However, dependency on the wakil to direct disputants to the appropriate district bodies
is highly variable. While the least educated community members were unable to articulate
the differences between the district police headquarters (hawza), civil cases department
(huqooq) or municipality (nahia), the majority of residents (albeit men more so than
women) were familiar with the jurisdiction of district resolution bodies by dispute type,
such as criminal, civil, or family-related. This is likely the result of higher literacy levels
among this portion of Afshar residents, but also of greater expectations of and familiarity
with the state in the urban context. Residents with connections among district officials and
those who reject the authority of community leaders (often one and the same) consistently
approached district actors independently, eschewing the role of the wakil entirely.
Female informants and FGD participants consistently exhibited awareness of the human
rights and family guidance units—the district’s primary support services for divorce and
domestic violence—regardless of age, education level, or area of origin.85 However,
willingness to access these resources was significantly affected by demographic factors.
Whereas older, less educated women of rural origins tended to seek out external support
services as a matter of last resort, younger, urbanised and more educated women were
more comfortable accessing these resources as an expression of their human rights to
choice in marriage, freedom from abuse, and higher education.86 This dynamic highlights
the ongoing negotiation of social norms in the research site, one that pits customdriven
prohibitions against women’s access to external bodies against knowledge-driven
normalisation of women’s rights to state support services. Case workers at the family
guidance unit acknowledge the complexity and sensitivity of the issues brought before
them, explaining that the best they can do in most circumstances is explain the girl’s
position to her family members in the hope that they will support her. Women’s access
to other state bodies, in particular the district police and the court system, was similarly
affected both by the individual woman’s access to information and familial support, and
also the nature of the harm directed against her.
Even among those familiar with district structures, referral through the wakil is often
preferable due to his reputation and connections among district authorities. Some district
actors value the role of the wakil to such an extent that they may not even accept the
claims of disputants who have either rejected a decision facilitated by the wakil, or have
approached district actors independently. Although in some ways this practice supports
the authority of CBDR structures, it also undermines their voluntary and consensual nature
while increasing the risk that the wakil will be seen as just another middleman.
5.6 District bodies: Sources of law and enforcement in the
presence of force?
The structure of state legal procedure in Afghanistan in many ways acknowledges
widespread preferences for mediation and other forms of restorative justice. This is
especially true for two of the main sets of authorities operating in the research site:
85 According to district officials, the human rights and family guidance units were established in order to
increase gender-sensitive services to women and families while decreasing corruption among police staff in
these kinds of cases. At the time of the research, these offices had been operational for about nine months.
Notably, no other organisations were mentioned by women in the research site. Further, female informants
and FGD participants showed almost complete lack of awareness that female judges were actively serving
in Kabul while emphasising that this would be extremely beneficial. An interesting research project would
thus be to examine information dissemination and awareness-raising among women on judicial resources
for women.
86 As researchers were not able to speak to this cohort of young women directly, this conclusion is drawn
from interviews with two staff members at the district’s family guidance unit.
Community-Based Dispute Resolution Processes in Kabul City
41
the huqooq,87 and the human rights and family guidance units of the district police. As
the heads of both bodies stress, their role is to attempt resolution of disputes that come
before them through mediation and counselling, referring on to court processes only if
parties are unable or unwilling to settle. A similar pattern emerged regarding the district
police; this revolved less around having a specific mandate as it did on their central
obligation to maintain public order and their authorisation to issue warnings in this regard.88
District actors expressed an almost identical set of guiding principles in mediation as
those described by community actors, the most significant difference being that district
actors spoke of their mediated decisions as being outside of their legal obligations, in
contrast to community-based practitioners. This is likely the result of conceptual divides
between legitimacy and legality, and formality and informality, which are explored in the
next chapter.
For the most part, district actors will only initiate formal investigation, prosecution or
adjudication when disputants refuse to cooperate in the mediation process or adhere to
mediated agreements. The main exception to this pattern in the research area was when
parties specifically requested prosecution in particularly violent cases, such as rape and
murder.89
District–level informants uniformly expressed respect and appreciation for the work of
CBDR practitioners in effectively and sustainably resolving disputes, reducing district
caseloads and preventing the escalation or re-ignition of violence. While approval is
commonly grounded in respect for local customs, a few state actors justified their reliance
on CBDR processes by reference to the constitution. According to the head of the family
guidance unit:
If a dispute is resolved by community elders before it comes to us then it is fine,
we don’t have to do anything. We have articles in our constitution about the
elders—it tells us to respect the culture and customs of the people. Resolving
disputes through the elders is one of these customs, that’s why we can’t
interfere when they make decisions. If the elders refer a case to us, however,
then we will resolve it according to the law.90
State actors interviewed for this study had greater access to coercive force and expressed
a strong sense of obligation to uphold state law. However, those interviewed were
unanimously reluctant to subject district residents to state process, which they describe
as complicated, time-consuming, expensive and potentially harmful to disputants or their
families. In the words of the district prosecutor:
If a case is formally filed with the government, it is very difficult to resolve it in
a short time because it has to pass through all stages of the legal process. One
case takes a minimum of three or four months, depending on how complicated
it is. As I think, my idea might not be good for you or for someone else, but if
disputes are resolved by community elders now that the shura is established,
then it is good for everyone...
For example, when we hear of fighting between teenagers who have not reached
the legal age for imprisonment, we work with the elders to solve this dispute
87 See United Nations Assistance Mission in Afghanistan (UNAMA), “The Huquq Department: An Analysis of
its Procedures, Functions and Needs” (Kabul: UNAMA, 2010).
88 See Police Law (Official Gazette no. 862), 2004 (SY 1384), Articles 5 (Duties and Obligations) and 10
(Notice and Warning).
89 See the Rape Case and Omer’s Murder in the annex.
90 The author suspects that this informant is most likely referring to Article 130 of the Afghan Constitution
(2004), on sources of law for judicial interpretation.
Afghanistan Research and Evaluation Unit
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in the community. It is not good to send the file of an accused child into the
court system. We give some slight warnings to them, like slapping them, and we
take a guarantee from the father and the wakil that they will not fight again
in the future. But I myself don’t refer cases to the courts because I understand
the situation of the people, especially those who are weak economically. If we
refer them to the courts, they will have a hard time releasing themselves as the
process is very long. It is good for the police department and for the people to
resolve their disputes through the community.91
District authorities also expressed concern about the legitimacy of state decisions, as
adversarial outcomes are often considered unfair by residents and are therefore impossible
to enforce. This was seen in two cases in the research site. In the Sold House Inheritance
Dispute, the court’s decision to reward the total value of the property to the claimant against
a bonafide purchaser prompted community leaders to deem the verdict unconscionable
and begin mediation afresh. In Omer’s Murder, an aggrieved mother complained to the
presiding judge that the sentence he had given to her son’s killer was wholly inadequate;
in response to this, he encouraged her to pursue further resolution through community
channels.
District actors interviewed for this study were also conscious of community leaders’ distinct
advantage in generating the local knowledge and authority necessary to effectively manage
civil and criminal cases. In one example, a member of the shura-i-mahal describes how a
land dispute was referred back to the community from the huqooq.
The huqooq referred the case back to us by sending an order letter to the wakil,
who transferred it to the head of the shura. In that letter it was written, “You
people know better about this case, we don’t have the information. Both of
the disputants have Sharia deeds and neither appears to be fraudulent. For
this reason, we are sending this dispute to your shura as you will be able to
determine who is right and who is wrong.”
— Dispute resolution specialist of the shura-i-mahal, speaking of the Returnee
Property Dispute
District police officials further acknowledge the deficit of trust they experience among
community members, creating a situation where the police will not conduct local
investigations unless they are accompanied by community leaders. As the head of the
criminal investigations unit explained:
If there is a claim of some serious crime, we go to the wakil in order to identify
the house of the accused person. Any time we go to the area, we ask the
whitebeards and the wakil to come with us inside the house of the accused
person so that in the future they cannot claim that we stole something from
them or did something else wrong. We are not familiar with these people, but
the wakil and whitebeards are.
— Head of criminal investigations unit, informant 32
District informants thus consistently deploy CBDR practices and principles in civil and
criminal matters, often working serially or simultaneously with community leaders. This
degree of cooperation is less complicated in civil matters, where district actors keep
the majority of cases off the records by mediating disputes in lieu of filing paperwork
to initiate a formal claim. In criminal cases, the process is somewhat more complex,
particularly when the starting point for district-community collaboration involves the
release of an incarcerated community member.
91 For validation of this perspective, see De Lauri, “Legal Reconstruction,” 22-23.
Community-Based Dispute Resolution Processes in Kabul City
43
5.7 Splitting criminal jurisdiction: The rights of God versus the
rights of man
Although statutory law grants exclusive jurisdiction in criminal matters to the state,
district actors appreciate that they are not always best situated to understand or
manage the root causes of violence among community members. Further, district
officials acknowledge that the arrest and prosecution of individual actors may in fact
have negative outcomes for community members, such as the loss of income to an
entire family (Traffic Case) or the escalation of violence between groups of disputants
(Bicycle Dispute).
To support the idea of shared jurisdiction in criminal matters, district informants
relied on the Islamic legal concepts of huqooq-ul-Allah and huqooq-ul-ibad. Translated
literally, huqooq-ul-Allah means “the rights of God,” but is used as a specific legal term
to signify the ruler or state’s responsibility to uphold the social good.92 In contrast,
huqooq-ul-ibad is understood as the bundle of rights designated to individuals as
members of society.93 Hence, a criminal incident can be understood as having two
components: statutory violations requiring incarceration or fines, and personal
violations requiring forgiveness, compensation or revenge. An example of this is found
in the Traffic Case: district police released the driver of the vehicle after his payment
of a fine for violating state traffic codes (huqooq-ul-Allah) to give the family of the
accident victim an opportunity to make amends with the family of the driver (huqooqul-
ibad). This two-pronged solution satisfied state requirements while preventing
future conflict and ensuring the well-being of both families. Although only a subset of
actors at the community level had the vocabulary to articulate this jurisdictional split,
many informants and FGD participants seemed to have a general understanding of the
concept. This can be seen, for example, in the words of Omer’s mother:
I wasn’t satisfied with the court’s decision because they sentenced him for
seven years. Three years have passed and after four years he will be released
and he’ll be able to happily walk everywhere. Because of this I am not happy
with that decision. The court said to me that I should go to our area and
resolve it through the whitebeards. I will demand that the whitebeards find
a way to pay me 100,000 Afs (US$5,000) because I am in debt and this is the
money they took from my son’s pocket when they killed him. If they don’t
pay me the money, then the government should give that boy to me and I
will punish him. It is up to me to murder, to punish or to take property for
my son’s blood. It is a matter of blood for blood. Even though a long time
has passed, if I see his mother or father I will do something to them. It is up
to me.
Enforcement of district-based mediation is grounded in the same strategy seen at the
community level: the threat of state action. Like community leaders, district officials
faulted state process for its length, expense, risk of corruption, and lack of cohesion
to community values. After all, district officials are just as much a product of their
society as anyone else. Hence, instilling fear of state processes was commonly seen by
district informants as the most effective and expedient means of eliciting acceptance
of mediated agreements. This was commonly done through the use of police and
prosecutorial discretion, where district actors issue a warning with the promise that
92 Anver M. Emon, “Huquq Allah and Huquq Al-Ibad: A Legal Heuristic for a Natural Rights Regime,” Islamic
Law and Society 13, no. 3 (2006), 329.
93 Emon, “Huquq Allah and Huquq Al-Ibad,” 329. See also Palmisano, “On Informal Justice,” 48-9.
Afghanistan Research and Evaluation Unit
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future infractions will be met with the full extent of state process.94 In one case resolved
by the family guidance unit, the threat of referral to the family court was used against a
husband to force him to stop beating his wife, and then again to force the wife to accept
her husband’s promise to desist. The husband in this case was so fearful of the shame
of being seen in the family court that he volunteered to sign a statement committing
himself to life in prison if he beat his wife even one more time. Examples of how this
strategy is used by district actors are described as follows:
We are involved in many domestic violence cases, in which we advise both
sides, find the source of the problem, and help them to resolve their issues
between themselves. When we are successful in the mediation we write down
the agreement including a promise never to commit the violence again, take
their signatures, and keep a copy of the letter. It isn’t the proper legal way,
but we also tell them that if they violate the agreement in the future we
will put them in prison or send them to the provincial police headquarters.
It’s not legal, but we want to frighten them so they don’t beat their wives
again and again.
— Case worker at the family guidance unit, informant 33
To make sure that disputants don’t get involved in any other disputes, we
make them sign a guarantee letter. We tell them, “if you fight again in the
future, the whitebeards will not be permitted to resolve your dispute, that
this will be the work of the police.” We tell them, “when you come under
the hand of the police it is difficult to be released in a short time, and
sometimes it can also be very expensive.”
— Head of district police, informant 30
Although effective, threat of state action may not always address the underlying causes
of domestic disputes. In one example described by a case worker at the family guidance
unit, a father was forcing his daughter to follow through with an engagement to a much
older man prompted by the father’s inability to feed his remaining children. When the
case worker threatened the father with prosecution should he continue to force the
marriage, the father quickly responded that he would cancel the engagement, that she
could finish her education and make her own decisions regarding marriage in the future.
The existence of this office and the willingness of the father to adhere to human rights
standards are important to acknowledge in the context of Afghanistan today. However, if
crushing poverty was the original catalyst for the engagement, one has to wonder about
the aftermath of this case for the daughter, her father and other siblings.
5.8 High stakes cases: A category of their own
Informants and FGD participants presented three types of cases that do not conform
to the loose framework described in previous sections. These are cases involving high
social or financial stakes, murder, and intractable disputes. Although there is little
pattern to the management of these most problematic of disputes, certain factors
are nonetheless likely to inform disputant and community leaders’ choices regarding
94 It is important to note that a similar practice exists in countries with a robust rule of law. Justice sector
professionals may lawfully use the threat of future criminal prosecution to shape the behaviour of an accused
in a present criminal matter. Rather than send juveniles to court, for example, police and prosecutors in
the US and Canada may withdraw a charge with a threat or warning of future prosecution if the behaviour
in question is not modified. The use of police or prosecutorial discretion in this regard is similarly based on
social values of leniency, community and family stability, and judicious use of scarce state resources, as
well as an acknowledgement of the inappropriateness of formal procedure in some circumstances. Thanks
to Sarah Han for insight on this point.
Community-Based Dispute Resolution Processes in Kabul City
45
appropriate resolution process. These include social stratification based on access to
knowledge, divergent relationships to the state, and the ability of well-connected or
powerful parties to avoid the authority of existing legal mechanisms.
Executive action
The first exceptional case type includes those where the social or financial stakes are
particularly high, such as in disputes over large parcels of land or entitlement schemes.
Outcomes of these types of cases are likely to affect a large group of people, generally
bound together as a solidarity group. Most commonly, high stakes cases are managed as
a form of class action, involving a lead representative advocating on behalf and at the
direction of a larger group. Two points emerge as particularly important when examining
high stakes cases: first, that social identities are solidified and instrumentalised as part
of a class-based advocacy strategy, and second, that neither community or state justice
mechanisms are seen to have the capacity or authority to resolve such issues. As a result,
resolution attempts in these cases commonly involve lobbying at the highest levels of
the executive branch along patronage networks informed by particular aspects of group
identity. Examples of this approach were seen in two cases in the research site, one
based on ethnicity and the other on a broader identification as Afsharis.
In the Mosque Dispute, competing claims over access to land for the construction of a
mosque were transformed into an ethnic contest expressed through competing views on
the best way to facilitate post-conflict healing in the community: memorialisation of the
past versus peace-building for the future. At no point in the management of this case did
representatives on either side consider approaching state or non-state legal bodies for
resolution. The dispute was in many ways the result of prevailing patterns of informal
land distribution by those in power; further, disputants anticipated the inability of any
justice sector body to reach an enforceable decision. Both sides thus sought out the
support of powerful political advocates from their own qawm groups: on one side Vice
President Karim Khalili, on the other the Country Director of the Red Crescent Society.
Perhaps due to the recognition that overly expedient and extralegal decision-making
contributed to the dispute itself, neither political advocate has done a great deal to
bring the case to resolution, while leaders of the opposing groups struggle to prevent the
commission of violent acts on either side.
In the Municipal Plan Dispute, local residents thwarted attempts by the municipality to
incorporate Afshar in an expanded municipal plan, despite the desperate need for state
services in the area. Confronted with requests to regularise their land holdings through
a tax payment in anticipation of the municipal expansion, informants described how a
lack of access to information rendered them unable to respond effectively. Describing
themselves as illiterate and incapable, the group sought out literate, urbanised
community members whom they felt would be best situated to manage the situation.
Explaining their approach as if there were no other option, leaders of the literate group
decided to secure an exemption from the tax (and the municipal plan) by directly lobbying
President Karzai regarding their historical, if informal, entitlement to the area.95 Karzai
allowed the exemption, removing the immediate source of the conflict while precluding
community members’ future access to municipal services. People’s tendency to identify
themselves according to their access to knowledge not only entrenches a hierarchical
class structure, but highlights the feelings of ignorance and inferiority experienced by
many rural community members. At the same time, these moves illustrate community
95 It is unclear from interviews why this issue was important enough to President Karzai to warrant a
personal audience.
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members’ keen understanding of the degree of access and authority granted to more
educated, urbanised members of society.
In these cases, resolution is complicated by the politicised nature of disputes and the
recognition that informal solutions often contributed to and are likely to exacerbate
conflict. The practice of executive lobbying underscores several points about Afghanistan’s
governance structure as a whole: that the judiciary does not hold exclusive jurisdiction
over legal claims in the minds of Afghanistan’s citizens and leaders, that complex legal
problems are readily transformed into political questions, and that governance strategies
continue to be rooted in the politics of patronage.
Murder and intentional injury
In the realm of murder and intentional injury, informants and FGD participants offered
articulate yet divergent arguments regarding appropriate jurisdiction, resolution
principles and outcomes. While some community members argued that murder cases
should fall within the sole jurisdiction of the state, others hold that only customary
practices are appropriate and effective given the implications to family and community
stability. Because only one murder case was observed in the research site (Omer’s
Murder), details of these customary practices will not be included here.96
Intractable disputes
The third type of exceptional cases are those that have become intractable: these
disputes either cannot be resolved or decisions implemented, usually due to the refusal
of one or more parties to submit to state, non-state or executive authorities. This type
of case can be further complicated by the intermittent advocacy of one or more patrons,
usually powerful people with connections to state or independent military or police
forces. Like high stakes cases, multiple and often conflicting informal solutions (such as
extralegal distribution of land, executive or police orders) can exacerbate conflict and
undermine attempts at legal resolution.
5.9 Concluding remarks
Several intractable disputes were seen in the research area, posing different levels of
risk to the equilibrium of the greater community. These included Yar Gul’s Case, the
Mosque Dispute, Omer’s Murder and the Domestic Violence Divorce Case. The frequency
with which such disputes arise should be seen as symptomatic of the larger challenges
facing the country: weak state governance haunted by a lack of legitimacy, lack of
authority, and competition among justice-related bodies.
The research site thus contains a complex mix of dispute resolution processes and values
that reflect the rich demographic diversity of its inhabitants. Many of the mechanisms
and principles seen in Afshar are common across Afghanistan: family-based and small
scale mediation; qawm-based governance structures; an emphasis on privacy, honour,
peace-building and equity; and a lack of clear separation between state and non-state
actors in many disputes. Others are more uniquely adapted to the specific needs of the
environment: a multi-ethnic shura; the incorporation of district bodies specifically for
domestic disputes; the ubiquitous and heavy-handed use of the state as a threat; and
executive lobbying. By providing this mix of tools, community leaders have attempted to
maximize the legitimacy of local mechanisms while building a broader sense of community
96 This topic will be explored in detail in a synthesis of the CBDR series, forthcoming.
Community-Based Dispute Resolution Processes in Kabul City
47
among residents. District cooperation with local structures amplifies authority on both
sides, thereby increasing the impact and efficacy of state interventions when required.
The authority of Afshar’s system of self-governance is challenged by several factors,
however. The first of these is the changing nature of shared social values as community
members are increasingly exposed to alternative visions of state power, social services,
educational and employment opportunities, and notions of individual human rights,
particularly for women. CBDR practitioners’ willingness and positive efforts to incorporate
these shifting dynamics into their decision-making processes probably accounts for why
CBDR continues to hold as much legitimacy as it does in Afshar today. The second of
these is the number of cases that slip through the cracks between community and state
justice mechanisms, the intractable and political disputes that are often caused and
perpetuated by the abuse of power and the wholesale weakness of the state as an entity.
These failures in the rule of law are perhaps more symptomatic of the state and society
itself than of conditions specific to Afshar.
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6. Conceptual Divisions
A major finding of this study is that, in practice, state and community-based dispute
resolution processes form a continuum of justice-related services in Afghanistan. Within
this continuum, ideas, values, tools and outcomes overlap or are identical and actors
work collaboratively, either in sequence or simultaneously, to reach durable solutions. At
the same time, however, this fluidity breaks down at the theoretical level, where both
district- and community-based resolution practitioners consistently assert a conceptual
split between their roles and responsibilities. This pattern was most clearly observed
where concepts of legitimacy versus legality, and formality versus informality were
concerned, distinctions which had an impact on the documentation and registration of
mediated agreements.
6.1 Notions of justice and legitimacy versus legality
Throughout this paper, much of the analysis regarding the principles, processes and
outcomes of dispute resolution has been spoken of in terms of legitimacy. It is a strong
sense of legitimacy that makes CBDR decisions effective, sustainable, durable and
satisfying for Afshar residents—but what does this actually mean?
In evaluating a legal system, legitimacy means that there are rules, those rules are
known, non-arbitrary and predictable, they define when a violation has occurred, they
provide a process for achieving meaningful and enforceable remedies, and are understood
and accepted by the people they govern. But rules are not what lives at the heart of a
legal system. It is instead the notion of justice that animates law, instils meaning, and
determines whether or not a decision is valid and enforceable. The question of how
justice is defined and whether it can be achieved is particularly salient in the Afghan
context, where the legitimacy of the state and community-based leaders is often linked
to their ability to deliver justice.97
In his recent study of legal reconstruction efforts in Kabul, Antonio De Lauri pushes the
reader to “consider how justice, even before referring to law, is tied to the concepts of
‘right’ and ‘wrong’...These are socially constructed categories that although apparently
stable, are continuously subject to reformulations caused by contamination from the
spheres of culture, religion, and law as well as by events and social transformations.”98
Legal decisions are considered to be just “exactly because they apply primary norms
that are close to the sensibility of the people.”99 Justice, in other words, is a concept
which draws its authority from the values and expectations of society broadly, but even
more so how these concepts are experienced by individuals in times of crisis. Ideally,
social definitions of justice will track on to the written rules that comprise a state’s
system of statutory law, but this is not always the case. The notion of justice is further
complicated by the need to emphasise peace-building solutions in the Afghan context,
as a response to social conditions that prize consensual decision-making coupled with an
endemic lack of coercive enforcement tools. Legitimacy in dispute resolution thus rests
in the balance of these competing interests.
Throughout the research, informants and FGD participants described a fluid relationship
between district and community-based processes. However, when it came to direct
97 On how this idea relates to the current project of state-building, see Stephen Carter and Kate Clark,
“No Shortcut to Stability: Justice, Politics and Insurgency in Afghanistan” (London: Chatham House, 2010).
98 De Lauri, “Legal Reconstruction,” 16.
99 Eddy, “Rule of Law in Afghanistan,” 17.
Community-Based Dispute Resolution Processes in Kabul City
49
questions on this relationship, district and community-based resolution practitioners
were adamant in drawing a distinction between their respective practices based on the
concepts of legitimacy versus legality. While district and CBDR practitioners uniformly
described state processes as “formal,” defined by their adherence to all required stages
of codified procedure, and therefore legal, they described community processes as
legitimate, despite being “informal,” not pursuant to state rules, and therefore illegal.
Still, district and community practitioners were unanimous in their conclusions that
CBDR’s lack of legality did not undermine its legitimacy. Rather, it was the departure
from lengthy, expensive, often corrupt and thus arbitrary state process that provided
disputants with the sense of justice they often feel is missing from state decisions.
Informants further tied the legitimacy of CBDR decision-making to an additional factor:
that community-based processes consistently balanced local notions of fairness, the
protection of collectively understood rights, and community stability, both in extending
compassion and delivering punishment as required in the circumstances. Examples of this
run throughout the paper, from a mother’s refusal to accept seven years’ incarceration
as fair punishment for her son’s violent murder (Omer’s Murder), to a father’s efforts to
release the man who seriously injured his son from jail (Traffic Case), to a prosecutor’s
reluctance to prosecute offenders he knows to be economically deprived.
Resolution practitioners in the research site are keenly aware of the differences between
the social and legal components of justice, and the related weaknesses in their own
systems. Community actors lament the lack of legal force to their decision-making,
which relies only on the commitment of community members to a set of shared social
values. However, the problem runs much deeper for district actors; bound as they are to
uphold their legal rules, they recognise their hollow formality and often feel pressured to
avoid applying them if they are to perform a legitimate and effective function in society.
It is this conceptual divide between the legitimate and the legal that has entrenched a
further division, that between formality and informality. This dilemma is well articulated
by district-level informants, quoted here at length:
We can’t do anything without consideration of the law of Afghanistan. Our
responsibility is just to investigate a case and prepare a file for referral onto
the courts. We don’t resolve cases in our department because we don’t have
that power or authority. But sometimes, if a case comes to us first [and has
not been registered in any other department] and it is not a complicated
issue, we will resolve the case here. If disputants tell us that they want to
resolve their dispute in court then we are compelled to refer them, but if the
parties agree then we won’t allow the dispute to become bigger. We try our
best to satisfy the disputants, to pursue islah between them, or we send them
back to the shura. If they accept our decision, we sign a letter stating that
both disputants consented to resolve their dispute here, but we don’t write
that this issue was resolved by the government legally. Formal decisions are
those which pass all stages of the government process.
— Head of the huqooq, informant 31
No, we don’t recognise the shura as formal. It is not part of the government
so we cannot send criminal cases there, because criminal cases need to be
resolved according to the law. But, I should tell you, that sometimes according
to the traditions of the Afghan people it is possible to deliver a case back to
the shura or the whitebeards. It is good for us to let them take their disputes
back to their communities, but we do have to pay attention to the law of the
government and implement it over the people.
— Head of police, informant 30
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We cannot accept decisions of the shura or the elders because it is the police’s
job to implement the law. Still, if a criminal and victim agree to the shura or
whitebeard’s decision, then there is no need for the police to interfere. If one
of the parties doesn’t agree with the decision, they can come to us and we will
investigate the case according to the law. In the future, if either side faces a
problem they can come to us or if they want to resolve the issue again through
the whitebeards they can, but they have to hold the jalasa in our office so we
can see the evidence. I have to say that if people resolve their issues among
themselves it is better for them. We never want people to come to the police
for these kinds of problems because we don’t want their issues to become
more complicated. We want people to resolve their issues more effectively
and as easily as possible. Also, people are more likely to agree to the decision
and follow it if it is resolved [by jalasa in our office] or by the shura or elders.
— Case worker in the family guidance department, informant 26
When asked whether he ever took part in dispute resolution with community elders or
shura members, the head of the family guidance unit was adamant that he did not,
asserting that “when people resolve their disputes by shura, it is not legal because the
shura is not formally registered with the government. We have law and we obey the
state law.” In the same interview, however, he went on to describe how he and his team
members mediate approximately 80 percent of the disputes that come before them. In
his own words:
As I told you, we don’t have authorisation to make decisions. Our office is just
for consultation, and we have no way of enforcing our decisions on people in
any case.
[Later]: When small cases come to us, we resolve them with the help of the
disputants’ relatives and elders. We talk to them and advise them, and then
the elders of each side talk to them separately. For us, the judgement of the
elders and the satisfaction of both sides are very important. Because we are
Muslim, we want to resolve people’s issues through negotiation. If we are
successful, we prepare a letter explaining the history of the dispute and the
terms of the agreement and we give it to the disputants. We register the
decision in our records, but informally. We never register this kind of dispute
resolution letters officially in the district because the shura and the elders
are not formally recognised in the district system. This practice is a kind of
cooperation with the people, because they don’t have time to resolve their
problems through district process. People here are very poor.
Despite the known pervasiveness of these practices, state actors likely feel they cannot
be forthright about the tools they most commonly use to manage disputes considering
their mandate to apply the letter of the law.100 Still, it is important to reflect on the
extent to which they are willing to deviate from state procedure in order to craft dispute
resolution agreements that fit with local needs and understandings of what makes
decisions legitimate, as opposed to legal.
6.2 Effects on documentation practices
District and CBDR practitioners’ insistence on a conceptual divide between state
“formality” and community “informality” has also had significant impact on local
practices of documenting and registering CBDR decisions. Unlike in some rural areas,
100 This lack of openness was certainly exacerbated by the presence of the research team, and the
potential futility of assuring confidentiality when an informant’s reputation and employment could be on
the line.
Community-Based Dispute Resolution Processes in Kabul City
51
where distance from the state seems to have increased the authority of formal
documentation,101 in Afshar the legitimacy of state decision-making is so limited that
such registration within state bodies seems to be much less of a priority to disputants
and resolution practitioners. Some informants describe actively trying to avoid these
processes for the additional burden and attention from authorities they may garner.
In the vast majority of cases, informants and FGD participants were content with
verbal agreements or written agreements registered “informally” with district or
community practitioners. Where disputants felt that they needed more assurance—most
commonly seen in the case of women afraid to return home to situations of domestic
violence—security was not derived from formal registration, but through the promises of
practitioners to intervene in case the agreement was broken. Even in land cases, where
resolution so often hinges on the possession of formal documentation, the prevalence of
informal tenure systems in the research site minimised demands for formal registration.
Community members’ emphasis on local notions of fairness, equity, and other factors as
measures of legitimacy meant that confidence in the durability of CBDR decisions was
derived not through registration with state institutions, but through the reputations
of practitioners. This was further reinforced by their assurances to offer supportive
testimony should the dispute arise again in the future.
The identification of such a conceptual divide raises questions of how to link these
two systems in a way that fills the gaps that undermine rule of law in Afghanistan. It
is true that many in the community see the benefits of formally engaging with state
authorities, through registration of CBDR decisions in particular. Community members
did not suggest that registration was necessary for reasons of enforcement or protection
of human rights, however, but primarily because this would legalise CBDR decisions for
use as formal evidence in case of failed enforcement at the community level. Yet there
is a stronger sense that affiliating too closely with the state would detract from the
legitimacy of community processes. In many ways, CBDR gains its authority from being
distinct from the state, from being an autonomous process, from shielding community
members from the outside:
If the shura becomes governmental [i.e. formalised] then it will be like the
government. If people know that the shura is formal and depends on the
government, I don’t think people will bring their disputes to it. Because
our government is weak, people don’t trust in it. Only if people continue
to respect and support the shura will it be able to have an effective role in
dispute resolution.
— Sayed man, 50s, FGD 3, participant K
While state actors may be open to the idea of participating in community shuras,
observing the process, ensuring that no corruption or human rights violations are taking
place and offering insights on the law, local concerns regarding the shura’s reputation
and independence would likely result in the creation of shuras in name only, pushing
genuine CBDR practices deep underground.
101 See Gang, “CBDR in Balkh.”
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7. Conclusions
As with the other case studies in AREU’s CBDR series, the research conducted in Kabul
focused on four central themes: the processes used in managing disputes at the community
level, the principles and sources of authority that legitimise dispute resolution at the
local level, the relationships between community- and district-level dispute resolution
processes and actors, and equity within these processes, particularly as experienced by
women.
The way informants and FGD participants in the research site experience CBDR
demonstrates that these processes are highly dynamic in a number of ways: in their
design, in the collaboration of district and community actors, and in the protection and
new resources offered to women. The most significant observations gathered from the
residents of Afshar kind enough to participate in this study are as follows:
• The adaptive nature of Afshar’s multi-tiered self-governance structure: By
examining key social and political factors that have shaped Afshar’s population
and physical environment, one can see how community leaders’ choice to combine
qawm-based shuras with a multi-ethnic community-wide shura is a direct response to
state incapacity, desire for local autonomy, and the needs of a diverse and dynamic
population. Having multiple sites of dispute resolution, and allowing disputants to
approach the forum they feel is most appropriate for them, has contributed to a
sense of the system’s legitimacy among the vast majority of community members.
This portfolio of options increases the efficacy and durability of dispute resolution
practices in the area.
• The shifting nature of social values in the urban context: As a result of key social
and political factors (including experiences of conflict-related violence, histories
of displacement, the instrumentalisation of ethnicity, demographic shifts and
exposure to alternative societal arrangements), Afshar is undergoing a dramatic
shift in its collective values. This is most clearly evidenced by ongoing debate on
the role of women, their access to community-based processes, and the increasing
acceptance of younger women’s reliance on district resources to advocate for their
individual rights. While these shifts may be destabilising to CBDR processes in Afshar
in the short term, the system’s ability to adapt ensures that these new ideas will be
gradually incorporated into local decision-making in the long term. What is key is
that these debates are happening internally and at a pace tolerable to community
members, making any shifts in ideas and practices legitimate and sustainable over
time.
• The complex and increasingly negative relationship to the state: Although autonomy
in the management of dispute resolution increases the efficacy and legitimacy of
CBDR, reliance on the state as a threat is potentially creating a negative cycle
in the area. CBDR and district actors are fomenting higher and higher levels of
distrust and distance from formal state processes in order to increase their own
grip of localised rule of law in the community. While this has been an effective
enforcement tool in the short term, this strategy could result in the increasing
isolation of the area, precluding community members’ access to much-needed state
and municipal services in the future.
• The existence of dispute types that are not manageable by any currently operative
justice institution: Three types of cases identified in the research site did not
seem to fall conclusively under the jurisdiction of either community or statebased
resolution actors; these included high stakes cases, murder and intractable
Community-Based Dispute Resolution Processes in Kabul City
53
disputes. Some of these disputes highlighted the role of informal political solutions
in causing and perpetuating disputes, while others illustrated fault lines in the basic
acceptance of the social contract among some segments of the population. This
finding sheds light on one of the most pressing problems facing Afghanistan today:
that many people in the country are simply unwilling to submit to being governed
and have little reason to reconsider this position.
• The conceptual division between legitimacy and legality in community versus
state-based dispute resolution: Despite fluid practices that render community and
state-based dispute resolution more like points on a continuum than distinct justice
systems, community and district-level dispute resolution practitioners strenuously
insist on important conceptual divisions. CBDR is described as legitimate yet
informal, while district processes are seen to be legal and formal yet illegitimate.
Although this divide logically inspires a desire to find ways to effectively link
these two systems, community and district-based informants and FGD participants
involved in this study are concerned about what affect any formal links may have on
the current equilibrium between the systems. As such, interventions in this regard
should be minimal or even avoided entirely, lest they undermine the stability and
efficacy of the dispute resolutions mechanisms as they currently stand.
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Annex 1: Case Summaries
Sold House Inheritance Dispute
Qabir’s home ownership rights were challenged by Fereshta, who argued that her mother,
Zainab, had sold family property without her consent. Although Fereshta secured a
series of favourable court decisions entitling her to the full value of the property, the
decision proved unenforceable. Qabir, Fereshta and Zainab turned to the shura-i-mahal
for resolution. This story demonstrates the following:
• Women’s ability to access and participate in the state justice system, and the
personal nature of this decision
• The existence of legal mechanisms to protect women’s rights in state law and CBDR
• The impact of social considerations in CBDR decision-making
• Lack of enforcement capacity within the state justice system
• How abuse of authority by district officials creates push factors towards CBDR
• CBDR resolution principles, including equity, fairness and pragmatism
• Local perspectives on what makes a legal decision just
Background to the dispute
Qabir returned to Afshar from displacement in approximately 2004. Qabir found his
family home destroyed, prompting him to purchase a new home from a widow, Zainab,
through her son. At the time of purchase, the son was under the age of legal capacity
to contract. Qabir states that this was the reason he took a customary deed instead of
a state-issued title. He explained that customary deeds were common in the area, and
that the exchange had been witnessed by community leaders. This arrangement also
suited Zainab, who wanted access to the sale price as quickly as possible due to reasons
of poverty.
Qabir lived in the house for three years without incident, until another woman, Fereshta,
appeared claiming that the house was her inheritance and had been sold without her
permission by Zainab, her mother. Unbeknownst to Qabir, Fereshta had already claimed
successfully against him as an unlawful occupier in the primary, appeals and Supreme
Court. The Supreme Court had ordered that Qabir must vacate, whereafter Fereshta
would take full possession of the property.
One morning, the police summoned Qabir to the district huqooq. Qabir emphasised
that the head of the huqooq spoke to him very disrespectfully, demanding to know why
he had occupied the property and arguing that his customary deed was invalid. Qabir
then describes how the head of the huqooq offered to resolve the dispute in his favour
if Qabir gave him 5,000 Afs. When he refused, Qabir watched as Fereshta handed the
official 20,000 Afs to force the transfer of the property. Qabir cursed the official and left.
A few days later, an enforcement panel from the huqooq came to Qabir’s house to
demand that he vacate the premises. The wakil intervened, explaining that he would
immediately convene the shura-i-mahal to resolve the dispute.
Resolution process
As the issue had become such a public one, many elders and other community members
attended the shura session in addition to the wakil, the shura’s dispute resolution
Community-Based Dispute Resolution Processes in Kabul City
55
specialist, Fereshta, Qabir, and Zainab’s son (Fereshta’s younger brother). Zainab did
not feel comfortable to attend, and had given prior authorisation to the shura-i-mahal
through the wakil to resolve the matter as they saw fit.
Qabir, Fereshta and Zainab’s son each described their version of the case. It was at this
point that the shura learned that Fereshta had been disinherited by her father many
years ago.102 Only after his death did Fereshta try to claim her portion of the estate, to
find that her mother had already sold the house.
The shura threw out the decision of the courts, agreeing unanimously that the decision
was unjust: Qabir had purchased the house in good faith, and should not be penalised
for a dispute that was between Zainab and Fereshta. After approximately three hours of
discussion, the shura members decided that Zainab should either compensate Fereshta
for the value of her inheritance or hand over title to a portion of the family land in
Wardak Province of comparable value. Qabir would be permitted to retain full ownership
of the house. Fereshta chose to take the land in Wardak and everyone placed their
thumbprints on a decision letter drafted by the wakil. The decision was recorded in the
shura’s register and each party was given a copy of the letter for their own records.
When Fereshta saw that the land lacked a direct access route, she rejected the agreement
and returned to Qabir demanding enforcement of the court’s decision to vacate the
Afshar property. Fereshta returned to the district prosecutor for assistance, who sent a
letter to the wakil requesting that the shura attempt resolution a second time.
All parties were present for the second round of mediation, including Zainab. Additionally,
Qabir brought a defense attorney (wakil-e-modafe) to ensure that his statutory rights
were protected during the proceedings. The shura members decided that because the
land in Wardak was unacceptable to Fereshta, Zainab should compensate her for the
value of the Afshar property. This was determined to be 250,000 Afs, based on the
independent appraisal of a local property dealer. Given Zainab’s financial constraints, it
was agreed that this amount should be paid in four instalments. An agreement was again
drafted, signed, registered with the shura and a copy given to each party.
Outcome and its rationale
The shura members found the court decision to be unjust in that it shifted responsibility
to Qabir when the dispute was in fact between Fereshta and her mother. Although shura
members disagreed about the justness of Fereshta’s disinheritance, on the whole they
felt that Sharia inheritance requirements entitled Fereshta to a portion of the estate.
Rather than prolong the dispute, Zainab chose to release the full value of the Afshar
property to her daughter. Qabir has since heard that Fereshta remains unhappy to be
dispossessed of the property itself, but so far no one has renewed the claim.
102 After the death of her husband during the civil war, Fereshta remarried to a local commander without
first securing her father’s permission. It was for this reason that she was disinherited.
Afghanistan Research and Evaluation Unit
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Exchange Marriage Divorce Case
Two sets of siblings were linked through an exchange marriage. One couple was compelled
to divorce when the other couple’s tumultuous relationship destroyed relations between
the two families. Presented by the qawmi elder who led the mediation, this story
illustrates the following:
• The tension between Sharia and customary law in pursuing the balance between
justice and peace
• Sharia-based protection for women
• How family relationships may take priority over individual rights
• How existing gender hierarchies can deprive some women of self-determination,
while allowing others to influence resolution outcomes
• Application of a “best interests of the child” standard in custody determinations
• The normalisation of corruption as a bureaucratic requirement
Background to the dispute
A few years ago, Shakib and his sister Sharifa were given in an exchange marriage to
siblings Anila and Anwar. Although Sharifa and Anwar were happy, Shakib and Anila
fought constantly. About four months after the wedding, Anila declared that she could
no longer live with Shakib. She returned to her father’s home, where Sharifa and Anwar
were living, and threatened to set herself on fire should she be forced back. At the time,
both wives were pregnant with their first children.
Over the next few months, relations between the two families deteriorated until a street
fight erupted between male relatives on both sides. Several of the men were arrested,
including Shakib and Anwar. Shakib called Gholamnabi, a well-respected elder of their
qawm (Sayed), to secure their release from the district police station. Gholamnabi did
so with a payment of 5,000 Afs to the head of the district police and a commitment to
prevent further violence.103 Both sides gave Gholamnabi full authority to serve as their
representative in resolving the dispute.
Gholamnabi agreed to lead the mediation process, but he instructed both of the men to
find another representative so that he could remain impartial. Feeling that the dispute
was an especially complicated one, Gholamnabi enlisted two local mullahs to participate.
He explained that the strong reputation of these mullahs would increase the legitimacy
and durability of any decision reached.
Resolution process
Gholamnabi, the two mullahs, the husbands and their fathers participated in the
mediation. Although Sharifa wanted to remain married, Anwar concluded that since
positive relationships between the families were no longer possible, there were no
benefits to staying together. Gholamnabi and the mullahs tried to convince the men to
remain married, arguing that Islam did not permit divorcing women while they were
pregnant. The men insisted.
Outcome and its rationale
The mullahs concluded that Sharia law supported the dissolution of the first marriage,
given the parties mutual dissatisfaction, but not the second marriage as there was no
103 It is unclear whether this was a fine for disrupting public order or an extralegal payment.
Community-Based Dispute Resolution Processes in Kabul City
57
deficiency between the husband and wife. Based on the insistence of parties on both
sides to pursue dissolution according to customary principles, however, the mullahs
were compelled to determine the terms of each divorce according to Sharia rules. They
ordered that the wives would retain physical custody of the children (both boys) until
they reached the age of three at which point they would be transferred to the husbands’
families.104 The wives would not be permitted to remarry until their period of physical
custody lapsed. During this time, the husbands would be required to pay for the children’s
maintenance. Additionally, because Anila had initiated her divorce proceedings, she
would not be entitled to receive any payment from Shakib. Alternatively, as he had
initiated the divorce, Anwar was required to give Sharifa 50,000 Afs as the return of her
dowry (mahr).
Approximately one and a half years later, Anila remarried without hassle while Sharifa
seemed to have fallen into a deep depression. Both women still held physical custody of
their sons and seemed likely to continue doing so for some time, based on the mullahs’
determination that the boys had become too attached to their mothers to be separated.
While the former spouses had no contact, family members on both sides facilitated visits
of the boys to their paternal homes.
104 This is closely aligned with state rules on child custody operating at the time. With the publication
of the amended Shiite Personal Status Law, mothers may now retain custody of male children until they
reach seven. It would be interesting to see if and how the publication of this law has affected child custody
mediations in the area. See Shiite Personal Status Law (Official Gazette no. 988), 2009 (SY 1387), Article
194 (3), (Child Support).
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Domestic Violence Dispute
First cousins Maryam and Najeeb were married a few years ago, but are no longer able
to stay together due to severe tensions between Maryam and her in-laws. Elders from
Maryam and Najeeb’s qawm sought to mediate the dispute but were unsuccessful. This
story illustrates the following points:
• Effects of shifting social norms on family relationships
• Application of qawm-specific customs in CBDR
• Openness to community involvement when family disputes become disruptive
• Women’s knowledge of and ability to access district resources for domestic violence
and divorce, and increasing family support for this in some cases
• How district actors account for social values in implementation of state process
• How lack of authority and coercive force among CBDR practitioners can lead to
intractable disputes
Maryam and Najeeb, the children of two sisters, were married for about three years when
the situation began to deteriorate. Najeeb’s mother thought Maryam was lazy while
Maryam felt unwelcome, her mother-in-law accusing her of having cursed hands and
preventing her from doing many household chores. The dispute erupted when Maryam
attempted to earn some money through piecemeal sewing without her mother-in-law’s
permission. It was at this point that Maryam began receiving beatings, at first only from
her mother-in-law but soon from her father-in-law and then her husband. Maryam states
that the beatings were initially minor but that they escalated over time.
After one particularly heated episode, Najeeb expelled Maryam from his house because
she was unable to behave appropriately with his parents. Although her parental home
was only next door, Maryam insisted on being escorted so she wouldn’t be accused of
running away. Najeeb refused, forcing her out the door. Seeing his daughter weeping and
injured, Maryam’s father got his pistol and readied himself to confront Najeeb and his
father. Maryam and her mother begged him not to make the conflict any more serious.
As news of the dispute began to spread, the elders decided to organise a meeting of
the qawmi shura to handle the matter. Maryam’s father requested that Jamshid, an
elder known for his dispute resolution skills, lead the mediation. Jamshid agreed and
instructed both sides to bring five elders to represent them.
Resolution process
Jamshid chose to hold the mediation in the mosque, explaining that a non-neutral
environment would have inflamed tensions further.105 Maryam, Najeeb, and their fathers
participated in the session; by this time, Maryam and Najeeb’s mothers were no longer
speaking and did not wish or were not welcome to attend.
Najeeb began by declaring that since Maryam could not live peacefully with his parents,
he was ready to divorce her. Maryam responded that she did not wish to divorce Najeeb,
but that she could only stay married to him if he agreed to live separately from his
parents. Najeeb countered that this was impossible—his conscience would not let him
separate from his parents, to whom he owed his life.
105 Informants used the Hazaragi term maraka in this case to describe the small-scale mediation.
Community-Based Dispute Resolution Processes in Kabul City
59
Maryam consented to the divorce, but from the district’s human rights unit instead of
the mullah. Najeeb responded that he would only divorce through the mullah. Unable to
secure decision-making authority from either side, the elders terminated the mediation
and told the families to manage the dispute on their own. Elders from Maryam’s family
approached Najeeb’s family a second time to attempt resolution, but were unsuccessful.
Outcome and its rationale
Maryam and her father subsequently approached the district’s human rights unit to
petition for a divorce. Staff from the human rights unit came to interview qawmi elders
regarding the dispute and to encourage Najeeb to establish a separate household. Some
of the elders attributed the cause of the abuse to Maryam’s laziness, while others faulted
Najeeb’s mother for making things impossible for Maryam. The human rights unit cannot
go forward with the divorce without the consent of both sides, and neither side is willing
to initiate proceedings in the family court. In the meantime, Maryam continues to live
with her parents.
Postscript:
Soon after the failed mediation, Najeeb’s mother arranged for him to marry another of
her relatives. During the engagement party, Maryam was bereft at the sound of the music
next door and took herself to the district police headquarters to file a claim against
Najeeb and his father. She returned with a policeman, who attempted to arrest the two
men in the middle of the party. A local resident with ties to the district police office
objected to the timing of the arrest and told the police to return the next day, offering
himself as a guarantee should Najeeb not be present. This dispute remains unresolved.
Afghanistan Research and Evaluation Unit
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Returnee Property Dispute
Fahim returned to Afghanistan after several years as a refugee to find his property
occupied. After almost 18 months spent pursuing the case through state channels, Fahim
and his opponent Sadat agreed to resolve the dispute through community mediation.
Although this story is told from the point of view of a single, interested informant, it
illustrates the following:
• How weaknesses in the land tenure system leads to conflict in the research site,
particularly involving returnees
• How excessive state bureaucracy creates push factors towards CBDR, including
increased opportunities for and perceptions of corruption among district actors
• The normalisation of corruption as a bureaucratic requirement
• The role of informal titling in property ownership disputes
• Examples of CBDR process, including selection of representatives, informed consent
for decision-making authority, evaluation of written evidence, and use of resolution
principles such as fair compensation and opposition to unjust enrichment
• Documentation and registration of resolution agreements with key community
actors to increase enforceability and durability of CBDR outcomes
Background to the dispute
Upon his return from extended displacement, Fahim discovered one of his properties to
be occupied. A tenant living in the house told Fahim that he had rented the property from
its owner, a man named Sadat. Fahim located Sadat and confronted him as to why he was
claiming ownership of the house, asserting his own entitlement by showing his Sharia
deed, tax receipts, and municipal records of utility payments. Sadat responded that he
had lawfully purchased the property after a change in the municipal plan brought it to
market a few years ago; he showed Fahim his own Sharia deed, tax and utility records.
Sadat approached the district huqooq to file a claim against Fahim for seeking to take
possession of his property. Soon thereafter, a policeman appeared at Fahim’s door to
summon him to the huqooq for questioning. Fahim states that he received very harsh
treatment from the head of the huqooq, which he suspects was the result of a bribe
paid by Sadat. Both men showed their ownership documents to the head of the district
huqooq, who referred them to the provincial huqooq office, which referred them to
the Special Court for Refugee Land Disputes.106 They were instructed to return with the
appropriate claim and answer letters the following day.107
When the head of the huqooq realised that Sadat was refuting Fahim’s claim of ownership,
he instructed Fahim to prepare another document—a reply to his opponent’s answer.108
When Fahim returned with the document, the head of huqooq added it to the case file
and sent the two men on their way.
106 The Special Court for Refugee Land Disputes was created by presidential decree in 2003, with the
goal of quickly processing the sizeable backload of displacement-related land disputes. The Special Court
soon became notorious for delay and corruption due to logistical and administrative challenges built in to
its design, and was disbanded in 2007/8.
107 Legal documents such as this are commonly drafted by lawyers, called darul-i-wakils, who specialise
in this task. Although similar practices are seen across the world, disputants in Afghanistan commonly object
to fees charged for the drafting of legal documents. This practice has fostered questions over the legitimacy
of a process that stresses complex written documents in a society with excessive levels of illiteracy.
108 Up to three rounds of claim and answer are permitted in Afghan judicial procedure.
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61
After a few weeks, Sadat and Fahim returned to check on any progress in their case. The
men were told that the process was long and complicated and they should return after
three months. During this period, both men spent considerable time and money in the
huqooq trying to facilitate a speedy and favourable outcome. After several months, they
returned and were again sent away. After another few months without progress, Fahim
proposed resolution through community channels. Sadat gratefully accepted, saying that
both men would soon have spent more money in government offices than the property
was even worth.
Resolution process
Fahim and Sadat visited the wakil individually to explain the details of the dispute. The
wakil praised both men for their decision to bring the dispute back to the community
and instructed them to choose three representatives for mediation in the shura-i-mahal.
Sadat chose elders from his own qawm, while Fahim chose representatives based solely
on their reputations for fairness and impartiality.
The shura members began by explaining the resolution process and possible outcomes to
Fahim and Sadat, including the possibility of a wholesale transfer of the property from
one party to the other. Once certain that the stakes were understood, the representatives
asked Fahim and Sadat to sign a letter granting decision-making authority. After
presenting their cases, Fahim and Sadat were asked to wait outside while the shura
members deliberated. Approximately one hour later, the wakil informed the men of the
shura’s decision to grant ownership to Fahim in exchange for compensation to Sadat for
construction costs accrued during his possession of the property.
Outcome and its rationale
The shura members concluded that Fahim and Sadat’s ownership documents were both
valid; any overlap in entitlement was attributed to the municipality. Because he was
the original owner, Fahim would retake possession of the house. To ensure an equitable
resolution and avoid future conflict, Fahim was ordered to pay Sadat 250,000 Afs. Sadat
was required to destroy his ownership documents in front of the shura and vacate his
tenant. The wakil recorded the terms of the agreement in a decision letter which was
signed by Fahim, Sadat and the shura members. Fahim and Sadat each kept a copy, as
did the shura, which recorded the decision in its dispute register.
Fahim and Sadat took copies of the decision letter to the huqooq to inform them of
the resolution and to collect their files. The head of the huqooq declined to register
the decision or hand over the files, explaining that the case must expire according to
state process. Fahim is confident that the dispute will not rise again due to both men’s
commitment to the decision, Sadat’s destruction of his ownership documents, the strong
reputation of jalasa members, and the registration of the decision with the shura-imahal.
Afghanistan Research and Evaluation Unit
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Kobra’s Inheritance Dispute
Kobra, a woman in her mid-30s, was pregnant with her first child when she was widowed
during the civil war. Several years later, Kobra sought recognition of her young son’s
inheritance rights to her late husband’s land. Her claim was contested by her late
husband’s brother, Ibrahim, who argued that Kobra’s remarriage negated any entitlement
to the land.
Although this story is told from the point of view of a single, interested informant, it
illustrates the following points:
• Women’s ability to initiate and participate in dispute resolution processes at the
community level
• How concerns regarding the reputational, temporal and financial costs of state
process can influence parties to resolve disputes at the community level
• The role of the mullah in determining inheritance rights
• Documentation and registration of resolution agreements with key community
actors to increase enforceability and durability of CBDR outcomes
Background to the dispute
Kobra’s family is originally from Bamiyan, though she has lived in Kabul all her life. While
she was pregnant with her first child, her husband was taken during the attack on Afshar
and never seen again. He was one of five brothers, four of whom were killed during the
civil war. Ibrahim, the only surviving brother-in-law, took sole possession of the family
house and surrounding land.
Soon after the birth of her son, Kobra remarried to avoid the difficulties of living as
a widow. Her second husband works as a cart pusher, and she and her children weave
carpets to support the family. Due to their poverty, Kobra decided to pursue her son’s
entitlement to his late father’s portion of the family estate. Ibrahim disputes the claim,
arguing that any rights Kobra may have had to the house and land were invalidated when
she remarried. Kobra argues that she is claiming on behalf of her son, whose inheritance
rights remain in effect.
Once Kobra decided to pursue the claim she first approached her father, a mullah, and
her husband for their support and advice. Kobra then discussed the problem with the
wakil, who gave her his support in mediating the dispute. Kobra gathered a small group
of elders from the neighbourhood surrounding Ibrahim’s home, who would have the best
knowledge on the validity of any claim to Ibrahim’s land. Despite encouragement from
the wakil and elders, Ibrahim refused to attend the jalasa.
Although she feared the shame of taking the dispute to the district, Kobra threatened
to take the dispute outside if Ibrahim continued to refuse to mediate. Worried about
becoming involved in a protracted, public and likely expensive state procedure, Ibrahim
finally agreed.
Resolution process
Kobra again collected the local elders, the wakil, her husband and father (in his dual
role as her supporter and Sharia expert) to mediate a resolution to the dispute. Kobra
convened the meeting in the yard of her home, choosing to represent her son’s interests
Community-Based Dispute Resolution Processes in Kabul City
63
herself. Acknowledging that this was at some risk to her reputation, she attributes her
boldness to the support she received from her father and husband, her exposure to
educated people, and her willingness to fight on behalf of her son at any cost.
Confirming that Kobra’s argument was according to Sharia, the jalasa members worked
to convince Ibrahim that his nephew’s inheritance rights were valid and that Kobra was
genuinely claiming on her son’s behalf. After approximately two hours of discussion,
Ibrahim agreed to give Kobra’s son a small portion of the land.
Outcome and its rationale
Once Ibrahim agreed to the inheritance, the jalasa members negotiated about the size
and location of the parcel.109 The terms of the final agreement were recorded in a
document, which was signed by Kobra, Ibrahim and all of the jalasa members. Kobra,
Ibrahim and the wakil were each given one copy of the letter.
Kobra has since built a small house on the land that she will rent out until such time
as her son is ready to sell it or take possession. During construction, Kobra twice faced
difficulties from Ibrahim, who continues to live in the family house on the same land.
Both times, Kobra was able to overcome these obstructions with the help of the wakil.
109 Kobra was either unable or unwilling to provide researchers with the final details of the agreement.
Afghanistan Research and Evaluation Unit
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Traffic Accident Case
Siddiq accidentally injured Arif while driving his taxi. As a result, Arif spent three months
in the hospital while Siddiq spent the same period in jail. Recognising that the situation
was detrimental for both families, Arif’s father sought to resolve the dispute with Siddiq’s
father through community mediation. Told from the perspective of the shura-i-mahal’s
dispute resolution specialist, this story illustrates the following:
• CBDR resolution process: defining case type (criminal versus civil), finding of fault,
calculation of compensation, uses of apology
• Registration of resolution agreements with key community actors to increase
enforceability and durability of outcomes
• The willingness of state authorities to prioritise community-based mediation, even
in some criminal cases
• The conceptual split in criminal jurisdiction between public and individual rights
• The normalisation of corruption as a bureaucratic requirement
Background to the dispute
Siddiq, who lives in a nearby district, accidentally hit and seriously injured Arif while
driving his taxi. Siddiq immediately took Arif to the hospital and contacted his father.
Upon seeing the extent of Arif’s injuries, Arif’s father summoned the police, who arrested
Siddiq pending an investigation.
With Siddiq still in jail three months later, Arif’s father approached Salim, the shurai-
mahal’s dispute resolution specialist to request assistance in resolving the dispute.
Arif’s father had come to feel that the issue was presenting a hardship for his and
Siddiq’s family, and that neither family had the money to pursue resolution through
government channels. Salim agreed to facilitate mediation and called Siddiq’s father
to attend. Siddiq’s father welcomed the invitation, explaining that his son was the sole
breadwinner for the family and that his incarceration had taken a serious toll.
Resolution process
The wakil convened the shura-i-mahal to resolve the dispute, as Siddiq and Arif were
from different qawms. Shura members decided to follow Pashtun customary terms to
secure Siddiq’s family’s commitment to any outcomes. Salim took authority from both
men, then asked them to wait outside while the shura deliberated.
After approximately two hours, the men were informed that Siddiq’s family would be
required to apologise and compensate Arif’s family for wages lost during his recovery
period. In exchange, Arif’s father would accompany shura members to the district
police headquarters to secure Siddiq’s release based on their guarantee that the dispute
was resolved and would not be revisited. No agreement letter was issued in this case,
although Salim recorded the decision in the shura’s dispute registry.
Outcome and its rationale
The shura concluded that although Siddiq was at fault, his injury to Arif was not intentional
and thus should not be treated as a crime. The shura calculated fair compensation to be
40,000 Afs (US$800): Arif had been earning 200 Afs per day as a day labourer and would
be out of work for approximately six months in total.
Community-Based Dispute Resolution Processes in Kabul City
65
Siddiq’s father agreed, but requested permission to delay payment until Siddiq could
amass the necessary funds once he was released from jail. A delegation approached the
district headquarters to request Siddiq’s release. Because Siddiq committed a violation
of statutory traffic laws, he was required to pay two fines: one to district police for his
release, and one to the traffic department for the release of his taxi.110
Salim explains that no agreement letter or guarantee was required in this case as both
men welcomed the resolution. He further states that having a decision recorded in
the shura’s register is sufficient for enforcement purposes in the area. Salim is unsure
whether Siddiq’s father has paid the compensation as of yet, but assumes that there
have been no further problems as he has not heard from either of the men again.
110 The traffic fine has basis in statutory requirements, while the payment to police is less clear. It
seems that parties involved with this dispute were not able or interested in differentiating these fines,
considering all payments to be evidence of district-level corruption.
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Bicycle Dispute
A fight broke out among members of the same qawm following a bicycle accident between
Rahul and Azim, during which several men and women were injured. Following the arrest
of several men from Azim’s family, qawmi leaders intervened to release the men and
resolve the dispute internally. This story illustrates:
• Women’s access to and participation in dispute resolution processes at the
community level
• Women’s contribution to episodes of violence
• How concerns regarding the reputational, temporal and financial costs of state
processes can influence parties to resolve disputes at the community level
• The willingness of state authorities to prioritise community-based mediation, even
in some criminal cases
• Cooperation between district and community actors in dispute management
• How social relationships create added incentive to resolving disputes promptly
within the community
• How reputation, respect for community leaders and principles of social cohesion
contribute to enforcement of CBDR decisions
• The normalisation of corruption as a bureaucratic requirement
Background to the dispute
Rahul, 16, lost control of his bicycle and knocked over three-year-old Azim, who was playing
in the street. Both boys are from the same qawm and their families are distantly related.
Witnessing the accident, Azim’s uncle admonished Rahul to be more careful and demanded
compensation for the younger boy’s injury. Rahul spoke back disrespectfully and pushed
him, at which point Azim’s uncle slapped Rahul in the face. The street flooded with people
from both families punching, kicking and beating one another with sticks and rocks. Azim’s
family followed Rahul’s family to their home to continue the fight—it was at this point that
women from Azim’s family physically assaulted Rahul’s mother by hitting her and ripping
her clothes. Men and women from both sides were injured, while Rahul required medical
attention.
The fighting became so intense that witnesses grew concerned, particularly as the wakil of
the area was not available to intervene. Someone in the crowd called to report the fighting
to the district police. The police broke up the fight, arrested several male fighters and
brought Rahul to the hospital.
As soon as the wakil and qawmi elders learned of the arrests, they approached the head of
the criminal department at the district police headquarters to release the men, explaining
that this was a dispute within the qawm, which could, and should, be resolved by qawmi
leaders. The head of the criminal department agreed. No discussion was reported regarding
management of the assault on Rahul’s mother.
Resolution process
The following day the qawmi shura convened in the guestroom of Rahul’s house, including
disputants from Rahul and Azim’s families, the wakil, members of the qawmi shura and
the mullah. Women from both sides were present as observers and witnesses.
Community-Based Dispute Resolution Processes in Kabul City
67
After confirming that both sides had given their authority, the wakil (a member of the
same qawm) began by explaining that it was shameful for members of one qawm to
fight—not only should they live peacefully for their own benefit, but such a public dispute
gave other community members a reason to laugh at their qawm. The shura concluded
that Azim’s family should apologise to Rahul’s family, compensate them for the cost of
Rahul’s treatment, replace two bicycles that were destroyed in the fight, and pay a fine
for the assault on Rahul’s mother. The decision was accepted by both sides in an oral
agreement.
Outcome and its rationale
Based on their own observations and witness statements, the shura members determined
that Rahul had not intentionally injured Azim. For this reason, Azim’s family should be
held responsible damages resulting from the fight. With the exception of the assault to
Rahul’s mother, the rest of the fighting had been fairly balanced such that no further
resolution was needed in that regard.
For qawmi elders, a peaceful resolution was necessary to restore the reputation of the
qawm in the neighbourhood. Azim’s mother explained to researchers that the resolution
was fair given the extent of Rahul’s injuries; Rahul’s mother expressed disappointment
that Azim’s family had repaired the old bicycles instead of providing new ones, but felt
that it would bring shame to her family to raise the issue again. She was satisfied by
Azim’s family’s promise to pay for additional medical costs should Rahul need further
treatment. Both women expressed their lingering suspicions of one another, however:
Azim’s mother suggests that Rahul’s side called the police, and therefore must have
some connection in the district to support their claim. Rahul’s mother suspects that
someone in Azim’s family must have bribed the authorities to secure a release from
detention so quickly.
For purposes of enforcement, both families were asked to provide a certain amount
of money to prevent fighting in the future. The oral agreement also stated that should
either side resume hostilities, they would be required to go to the other family’s home
and slaughter a sheep. While respondents admit that hostilities remain, both parties
wish to avoid costs—in terms of both time, money and reputation—of disregarding the
shura decision and involving district authorities.
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Yar Gul’s Wall Dispute
Yar Gul has been fighting with his neighbour Hamidullah for years over a shared boundary
line. Hamidullah argues that he has the right to extend his compound wall, while Yar Gul
urgently wishes to shield his daughters from the view of Hamidullah and his brothers.
Neither the district or community authorities have been willing or able to secure
resolution in the dispute. This story illustrates the following points:
• Women’s ability to influence dispute resolution at the community level
• Women’s access to and participation in dispute resolution processes at the district
level
• Lack of enforcement capacity among state and non-state actors, particularly where
parties to a dispute do not recognise the authority of community leaders
• Issues related to informal land tenure in the urban context
• How abuse of authority by state actors can undermine decision-making and
enforcement capacity of community leaders
• The normalisation of corruption as a bureaucratic requirement
• Where social inclusion is less important, individuals can more openly rely on wealth
and violence
Background of the dispute
In approximately 2003, Yar Gul brought his family to Afshar from their native Ghazni
seeking better opportunities. Yar Gul and men from seven other families attempted to
claim vacant parcels but were forcibly removed by police sent to guard the land, which
had been donated to the Red Crescent Society. Yar Gul and the other men gathered at
the office of a human rights organisation111 to complain that they had nowhere else to
go. Officials at the Red Crescent agreed to let the families stay, providing each with an
informal ownership document. Yar Gul began building his house immediately, but owing
to a lack of funds he was unable to complete the wall of his compound at that time.
Soon thereafter, the police arrived at Yar Gul’s compound in the company of Hamidullah.
The police informed Yar Gul that, with the support of a letter from the Interior Ministry,
Hamidullah would be taking over the area just up the hill from Yar Gul. The police
helped Hamidullah to line the area with rocks to signify his claim. When Hamidullah and
his brothers returned to begin construction, he accused Yar Gul of moving the boundary
rocks to reduce the area of Hamidullah’s parcel. Yar Gul denied the accusation and
refused to let Hamidullah build his wall beyond where the boundary stood at the time,
arguing that any expansion would bring Hamidullah’s wall too close to his own compound.
Resolution process
There is some discrepancy about what happened next. According to Hamidullah’s sister,
her brothers tried to resolve the issue through the area wakil and elders, but they beat
one of the brothers when he refused to pay the wakil for the vacant land. Hamidullah’s
family did not trust the wakil or elders to resolve the dispute fairly because of the
beating, and because the elders were from a different qawm. They chose to approach
the district authorities for resolution, sending their mother on behalf of the family
111 No name was given in the transcripts.
Community-Based Dispute Resolution Processes in Kabul City
69
because she was a widow and thus more likely to elicit the sympathy of local officials.
A district official thereafter informed the elders that since the land was vacant no one
had the right to prevent Hamidullah from claiming a parcel or to charge him for doing so.
Yar Gul’s wife suspects that Hamidullah’s family secured this decision through relying
on a personal connection in the district (wasita bazi). According to Yar Gul, it was
Hamidullah’s mother rather than any district official that led him to agree to the
expanded boundary wall. Hamidullah’s mother, a white-haired widow, had appeared at
Yar Gul’s door crying, apologising on behalf of her sons, and begging Yar Gul to let them
build where Hamidullah was insisting. Yar Gul agreed, acknowledging that his sense of
honour would not permit him to refuse her.
The next year, Hamidullah’s family again sought to expand their boundary wall. Yar
Gul protested to the wakil who arranged a jalasa to mediate the dispute. The area
elders measured and divided the land between the families. Both men signed a written
agreement demarcating the boundaries and committing to a fine of 50,000 Afs (US$1,000)
should either side raise the dispute in the future. Again with the support of the district
authorities, Hamidullah soon broke the agreement, expanding his own boundary and
threatening Yar Gul should he attempt to complete the wall of his own compound. At
Yar Gul’s request, the elders tried to hold a second jalasa in the strip of disputed land.
Hamidullah and his brothers pushed the elders off the land and told them the dispute
was none of their business.
Outcome and its rationale
At the time of the research, the dispute remained unresolved. The district authorities
continue to support Hamidullah’s family. The area wakil and elders support Yar Gul’s
claim but refuse to intervene any further, acknowledging that they have no power over
parties who do not consent to their authority.
For Yar Gul, the situation is intolerable. His most urgent complaint is that without his
own compound wall, he has no way of protecting his teenage daughters from the view
of Hamidullah and his brothers. Yar Gul has approached district and national authorities
on several occasions without success, including the huqooq, the district police and the
Ministry of Women’s Affairs (his employer), even publicly admonishing an MP from Shomali
for his ongoing support of Hamidullah. Yar Gul also sought the support of an international
NGO involved in civil land disputes, but he suspects that their unwillingness to help is
evidence of their affiliation with Hamidullah.
Threats from Hamidullah’s family persist in the form of verbal and minor physical assaults
to Yar Gul, his wife and children. Everyone in the area is fearful of Hamidullah’s family,
and rumours abound as to which commander or government official they are affiliated
with to have become so powerful. Yar Gul and his wife would gladly sell to Hamidullah’s
family, but they believe Hamidullah’s intention is to push them out rather than buy and
they have no other assets. Yar Gul has taken to sleeping with a loaded rifle next to the
bed, fearful of an overnight attack by Hamidullah and his brothers.
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Omer’s Murder
Zara’s son Omer was beaten to death by young men from his neighbourhood. Confident
that the government would deliver justice, Zara chose to prosecute but now feels that
state justice has been inadequate. Although this story is told from the point of view of a
single, interested respondent, it illustrates the following points:
• The rapid escalation of physical violence where shame and honour are implicated
• How disparate notions of justice can undermine the legitimacy of state legal
decisions
• Factors involved in forum choice, including the desire for punitive action
• The role of the wakil in managing disputes
• The conceptual split in criminal jurisdiction between public and individual rights
Background to the dispute
Three years ago, Zara’s son Omer and his friend, Raouf, were bicycling home from school
when they crossed paths with a girl from their street. Raouf told the police that he had
offered to let the girl pass first so that they wouldn’t splatter her with mud. Whatever
was said, however, the girl called for help. Witnessing the exchange, the girl’s male
relatives began to gather with knives and chisels. They called the girl’s elder brother,
Fayaz, to come take charge of the situation.
Omer and Raouf were suddenly surrounded by a group of about nine men, led by Fayaz.
Raouf was hit in the back of the head with a rock but managed to run away and hide.
Although Raouf had been the primary target, the men caught Omer, beating and stabbing
him repeatedly. The men also allegedly robbed Omer during the attack. The men
scattered, leaving Omer for dead. Raouf returned to carry Omer to the hospital.
Pursuant to government hospital policy, a hospital worker informed the district police
about the two badly injured men so that they could initiate an investigation. The
police called the wakil to gather background information regarding the dispute and to
coordinate how best to handle the matter. By the time the wakil visited Zara and her
husband at home, Omer had died; Raouf would succumb to his head injury three days
later.112 The wakil informed Zara that the district police had already arrested Fayaz and
suggested that they hold an urgent shura meeting to resolve the dispute.
The wakil gathered elders from the two families in the mosque, ensuring beforehand
that Fayaz’s three representatives would agree to any demands from Zara’s side.
Although Zara’s husband did not permit her to attend the meeting, she met with the
wakil beforehand to ensure that her demands would be represented. Zara insisted that
Fayaz be punished by the fullest extent of the law, as no apology or compensation would
make up for her loss.
Resolution process
With mediation off the table, the wakil told the district police to proceed with the
prosecution. In the end, Fayaz received a prison sentence of seven years and his
accomplices were released without charge.
112 It is unclear how Raouf’s family chose to handle the aftermath of his murder.
Community-Based Dispute Resolution Processes in Kabul City
71
Acknowledging that the sentence was not likely to quell hostilities between the
families, Fayaz’s family approached Zara to suggest that they negotiate a secondary
resolution. Whether this would have been effective or not is unknown. Shortly after
Fayaz’s sentencing, his parents submitted to an offer from a Kandahari man to marry
their daughter in exchange for a generous bride price and the promise to secure Fayaz’s
release. The man quickly disappeared with the daughter, however. Soon thereafter, the
parents also disappeared.
Outcome and its rationale
Zara was devastated by the seven-year sentence, having believed that government
justice would mean a lifetime in prison for Fayaz. She expressed her dissatisfaction to
the presiding judge, who suggested that Zara pursue further resolution at the community
level.113 At the time of the research, Zara had not yet done so due to the sickness and
death of another of her children.
When asked what further remedy she would seek, Zara stated that community elders
should find a way to pay her 100,000 Afs (US$2,000) to help with debt she has accrued
since Omer’s death and to compensate for the amount that was stolen from him during
the attack. If she cannot be compensated, she argues that the government should release
the boy into her custody so that she can punish him herself. In Zara’s words: “it is now
a matter of blood for blood.”
113 It appears that Zara was able to attend and even speak out in court although she hadn’t been
permitted by her husband to attend the shura meeting. Unfortunately, there is no further information in the
transcripts to clarify this point.
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Municipal Plan Dispute
The wakil met with deep distrust and resistance among the local population when
seeking to implement plans to bring Afshar into the municipal structure. A delegation of
community elders managed to secure dispensation from the plan by directly petitioning
President Karzai. Although this story is told from the point of view of a single, interested
respondent, it illustrates the following points:
• How deep distrust of the state precludes access to needed services
• Identification of class hierarchy delineated by access to knowledge
• The ability of community leaders to petition government officials at the highest
levels, signifying the ongoing traction of patronage politics
• The willingness of the state to tolerate informal arrangements despite state law
and mandates
• The normalisation of corruption as a bureaucratic requirement
Gholamjan, who migrated to the area before the time of the Soviet occupation, was at
home when the wakil and a municipal official appeared at his door. The wakil explained
that the municipality wanted to incorporate Afshar into the city’s master plan and that
all residents would be required to contribute 6,000 Afs (US$120). The money would be
used to pay municipal taxes which would be recorded in a safaee, a notebook of utility
and other municipal payments often used to prove informal land ownership.
Gholamjan did not trust that the two men were collecting the money for honest purposes.
He gathered his neighbours, who agreed that they were not educated enough to know
what to do. The group sought out Afshar’s literate community members to determine the
correct course of action, selecting one man who was particularly knowledgeable about
the workings of the government to represent them.
Resolution process
The wakil convened the shura-i-mahal to discuss the issue. Illiterate community members
such as Gholamjan were invited, but largely deferred to the ideas of the literate men.
The literate men argued that many of the houses had existed for many decades and
no government had yet challenged their right to be there. For this reason, residents
believed they had an entitlement to the area and they did not trust the municipality’s
reasons for coming to collect any money from them now. The group determined that
they would never accept such an incursion from the wakil or the municipality. Although
he did not agree with their perspective, the wakil joined a few of the most respected
elders as part of a protest delegation to President Karzai’s office.114
Outcome and its rationale
Karzai told the delegation that he would call off the municipal plan and that the area
would remain in the hands of the Afsharis. Gholamjan states that no municipal officers
have been back to the area since. Residents still have no access to electricity, sewerage
and running water, street cleaning services, local educational or medical facilities, or
other services.
114 It is unclear why this dispute warranted an audience with President Karzai, but this degree of direct
access was described so nonchalantly by informants such as to signify the practice as not unusual.
Community-Based Dispute Resolution Processes in Kabul City
73
Mosque dispute
Two different qawm groups are disputing a parcel of land high on the Afshari hillside. The
Hazaras says the land was given to them to build a mosque commemorating the victims
of the Afshar Massacre, while the Sayeds argue that the land was given to them build
a multi-ethnic community mosque (masjid-e-jummah). Although the dispute remains
unresolved, the story illustrates the following:
• How regime change, patron-based governance practices and irregular patterns of
land tenure can create land-related conflict
• How government action can be required to resolve major land disputes, but can at
the same time exacerbate conflict by authorising informal or ad hoc solutions
• How NGO involvement, as a parallel structure to the state, can exacerbate conflict
by facilitating informal or ad hoc solutions
• The existence of intractable disputes, predominantly over land
• The role of community actors in the prevention of violence in the face of ongoing,
irremediable dispute
• How disputes involving group rights over access to valuable resources can activate
tensions along ethnic lines
• The normalisation of corruption as a bureaucratic requirement
Background to the dispute
In 1993, many of Afshar’s Hazara residents were killed during a targeted attack; survivors
were forced to flee immediately. About one year later, a group of survivors returned
during a lull in the fighting to burn and bury the bones of the dead in a mass grave high
on the hill.115 Over the next few years, all remaining survivors fled Kabul as the fighting
worsened.
Following the end of major hostilities, many survivors returned to the area with the
mission of erecting a mosque to commemorate the Afshar martyrs. They discovered
that the Red Crescent had established their offices just below the mass grave, and the
surrounding area had been primarily repopulated by a group of Sayeds. Hazara leaders
drafted a petition to second Vice President Karim Khalili requesting allocation of the
area covering the mass grave for a memorial mosque.116 Khalili agreed and gave the
petitioners an authorisation letter directing the municipality measure and officially
designate the land.
Soon thereafter, the municipality sent a delegation from the property department
(Amlak) to survey the area. Having learned that the delegation was coming, elders of
the Sayed group arranged for their qawm members to begin digging the foundation for
their own mosque. When the municipal officers arrived, the Sayeds’ leader produced
two letters: one showing that the land had been given to the Red Crescent by the
government of Zahir Shah (1933-1973), and the other that a portion of the land had been
donated by the Red Crescent’s current director to the Sayed people for construction of
115 Residents were able to locate approximately 70 bodies at this time. For years after and even still
today, bones continue to be found in wells and in building sites.
116 Vice President Abdul Karim Khalili is a Hazara from Wardak, which is close to disputants’ area of
origin. Khalili has been a leading member of the Wahdat party since 1989.
Afghanistan Research and Evaluation Unit
74
a congregational mosque. Not wanting to make matters worse, the municipal officers
refused to complete the measurements, instead submitting a report outlining the
competing claims. In reaction, members of the Hazara group prepared to attack the
Sayeds. One of the senior Hazara elders talked them down, however, reproaching the
group for their willingness to perpetuate the violent behaviours of the war and vowing
to reach a compromise with the Sayed leader.
Resolution process
In the course of negotiations, the Sayeds invited representatives from the Hazara side to
build the mosque with them but they refused. Sayed representatives brought the issue
back to Khalili, who claimed ignorance of the competing claims and said that he would
endorse any resolution reached by those involved. The Hazaras have sought support from
the municipality, the attorney general’s office and the courts, but to little avail. The
Hazara leaders state that this is because they have no money to pay off local officials.
Outcome and it rationale
The dispute is ongoing. The Hazaras have become increasingly resentful of the Sayeds,
who have refused to halt construction until the dispute can be resolved. The issue is
further complicated by the presence of Fatima Gailani, the head of the Red Crescent in
Afghanistan and a strong supporter of plans to build a multiethnic mosque. It is widely
rumoured that Gailani is financially supporting the Sayeds through the Red Crescent’s
access to foreign funds. Due to threats from Hazara residents to raise arms against any
Sayeds who commence building the community mosque, Hazara leaders are concerned
about their inability to prevent future violence should the building plans continue to go
forward.
Community-Based Dispute Resolution Processes in Kabul City
75
Rape Case
Note that this case was only briefly described by the head of the criminal investigations
department in the course of data collection. Although researchers were unable to gather
sufficient data for a complete case summary, this vignette offers important insights on
the following points:
• Protections for women in state law and process
• Women’s ability to access and participate in dispute resolution at the district level
• Sensitivity about and willingness to prosecute instances of rape and other forms of
severe violence against women at the district level
• Cases in which victims may choose the relative privacy of dispute resolution through
district channels
• The social value of having multiple systems available for dispute resolution
Roya was living alone with her sister and the sister’s husband. Although this was not
considered the most appropriate arrangement, the women’s parents were no longer
alive and there were no other siblings with whom Roya could stay. Roya felt that her
brother-in-law often behaved in a way that made her feel uncomfortable, but she tried
to put these thoughts out of her mind. One day, Roya stayed behind at home while her
sister and brother-in-law went out for a picnic. When they arrived at the picnic spot,
the brother-in-law told Roya’s sister to wait there while he returned to the house for
something he’d forgotten. Back at the house and finally alone with Roya, he raped her.
Afraid for her reputation and that of her sister, Roya told no one.
After some time, Roya was married to her aunt’s son, who noticed on their first evening
together that Roya was not a virgin. Although this amounted to just cause for termination
of the marriage, Roya’s husband doubted that Roya was at fault. As she began to weep,
he sat with her until she was able to explain what had happened.
With her husband’s support, Roya submitted a claim on her own behalf in the criminal
department of the district police. The head of the criminal investigations department
states that the brother-in-law was called in for questioning, after which the case was
referred to the attorney general’s office for prosecution in the primary court. The brotherin-
law was convicted, and the conviction was upheld through multiple appeals. Given
the nature of the case, the head of the criminal investigations department suspects that
the brother-in-law remains in prison to date.
Afghanistan Research and Evaluation Unit76
Annex 2: Social Demography Charts
Table 1: Informant Demography
Informant No.
Gender
Age
Employment
Ethnicity
Area of origin
Years in Afshar
Dispute?
Access to education?
1
M
45
Former military, part time shopkeeper
Qizilbash
Afshar
Returned 2004
Sold House Inheritance
Yes; in Russia
2
M
Mid- 40s
Day labourer
Sayed
Wardak
No; illiterate
3
M
Elder
Retired military
Hazara
Ghazni
Returned 2003
Returnee Property Dispute
Yes; high school
4
M
50s
Shopkeeper
Sayed
Wardak
Returned 2003
5
M
Elder
Unemployed, former government employee
Hazara
Bamiyan
Returned 2003
Yes; high school
6
M
45
Office support staff, Ministry of Women’s Affairs
½ Pashtun, ½ Tajik
Ghazni
Migrated 2003/4
Yar Gul’s Wall Dispute
7
M
Elder
Head of shura-i-mahal
Qizilbash
Afshar
8
M
45
Property dealer; Dispute resolution specialist, shura-i-mahal
Qizilbash
Afshar
Returned 2004
9
M
Shopkeeper
Sayed
Wardak
Migrated 2003/4
Bicycle Dispute
10
M
50s
Unemployed, former government employee
Qizilbash
Afshar
Returned 2004
Yes; class 14
11
M
55
Retired, qawmi elder
Hazara
Wardak
Migrated 2006/7
12
M
Elder
Mullah
Hazara
Wardak
Many years in Kabul, not Afshar resident
13
M
District Prosecutor
Pashtun
Kabul resident
Returned 2004
Yes
14
F
Housewife, carpet weaving at home
Sayed
Wardak
Migrated 2004
Bicycle Dispute
No; illiterate
15
F
35
Housewife
Sayed
Wardak
Migrated 2004
Bicycle Dispute
No; illiterate
16
M
50s
Unemployed
Hazara
Ghazni
Returned 2004
Municipal Plan Dispute
No; illiterate
Community-Based Dispute Resolution Processes in Kabul Province
77
17
F
Elder
Housewife
Hazara
Wardak
Migrated 2004
No; illiterate
18
F
Housewife
Pashtun
Ghazni
Migrated 2004
No, but from literate family
19
F
30s
Housewife
Tajik
Parwan
Migrated 2003/4
Yar Gul’s Wall Dispute
No; illiterate
20a
F
40s
Housewife (mother)
Sayed
Wardak
Migrated 2002/3
No; illiterate
20b
F
20s
Unmarried daughter
Sayed
Wardak
Migrated 2002/3
No; illiterate
21
F
Late 30s
Housewife, carpet weaving with children
Hazara
Bamiyan
Returned 2003/4
Kobra’s Inheritance Dispute
Yes; class 2, self-educated
22
F
40
Operates neighbourhood bakery
Hazara
Bamiyan
Migrated 2003
Omer’s Murder
No; illiterate
23
M
55
Wakil, shopkeeper
n/a
n/a
Returned 2002
Y
24
F
Late 30s
Housewife
Tajik
Ghazni
Migrated 2003
Yar Gul’s Wall Dispute
No; illiterate
25
F
Operates neighbourhood bakery
Sayed
Migrated 2004
Domestic Violence Dispute
26
F
35
Caseworker at Family Guidance Unit
Tajik
Yes; class 6
30
M
Head of police
Pashtun
Y
31
M
Head of huqooq
Tajik
Y
32
M
Head of Criminal Investigations Dept
Pashtun
Y
33
M
Head of Family Guidance Department
Pashtun
Logar
Y
Afghanistan Research and Evaluation Unit
78
Table 2: FGD Demography
FGD Participant
Gender
Age
Employment
Ethnicity
Area of origin
Years in Afshar
Dispute?
Access to education?
FGD 1 (Male)
S
M
52
Shopkeeper, shura member
Sayed
Wardak
A
M
45
Sayed
Wardak
M
M
47
Sayed
Wardak
Yes; literate
A
M
50
Day labourer
Hazara
Bamiyan
Kh
M
55
Unemployed
Tajik
Bamiyan
Yes; literate
Gh
M
57
Wakil
n/a
n/a
Yes; literate
FGD 2 (Male)
W
M
58
Wakil, shopkeeper
n/a
n/a
Yes; literate
N
M
64
Retired teacher
Qizilbash
Afshar
Gh
M
45
Day labourer
Hazara
Ghazni
M
M
50
Coppersmith by trade, unemployed
Qizilbash
Afshar
T
M
37
Day labourer
Qizilbash
Afshar
FGD 3 (Male)
M
M
60
Mullah
Hazara
Wardak
Yes; literate
K
M
50
Unemployed
Sayed
Wardak
Migrated 2003/4
No; illiterate
A
M
29
Unemployed
Sayed
Wardak
Returned 2004
Yes; class 12, medical education disrupted by return
R
M
38
Unemployed
Qizilbash
Afshar
Returned 2003/4
Yes; class 12
S
M
50
Mosque servant
Qizilbash
Afshar
Returned 2003/4
No; illiterate
FGD 4 (Female)
1
F
55
Housewife
Sayed
Wardak
Returned 2004
2
F
35
Seeking outside employment due to poverty
Sayed
Wardak
Migrated 2003
3
F
40
Hazara
Balkh
Migrated 2004
4
F
45
Hazara
Ghazni
Returned 2004
5
F
45
Pashtun
Nangarhar
Migrated 2004
Yes; self-taught at home
Community-Based Dispute Resolution Processes in Kabul Province
79
6
F
50
Hazara
Wardak
Returned 2004
7
F
33
Hazara
Returned 2004
FGD 5 (Female)
A
F
40
Housewife
Hazara
Wardak
Migrated 2006
B
F
25
Housewife
Qizilbash
Afshar
Returned 2004
C
F
45
Housewife
Hazara
Wardak
Migrated 2003
D
F
35
Housewife
Hazara
Wardak
Migrated 2003
Omer’s Murder
FGD 6 (Female)
M
F
35
Housewife
Hazara
Ghazni
Migrated 2002/3
A
F
50
Housewife
Hazara
Ghazni
Migrated 2002/3
Z
F
40
Housewife
Hazara
Ghazni
Migrated 2007
S
F
30
Housewife
Hazara
Ghazni
Migrated 2003
Sh
F
30
Housewife
Hazara
Wardak
Migrated 2004
L
F
50
Housewife
Hazara
Ghazni
Migrated 2003
Afghanistan Research and Evaluation Unit
80
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Community-Based Dispute Resolution Processes in Kabul City
85
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Recent Publications from AREU
All publications are available for download at www.areu.org.af, and most in hardcopy for free from the AREU office in Kabul.
Feb 2011 Beyond the Market: Can the AREDP Transform Afghanistan’s Rural Nonfarm Economy?, by Adam Pain and Paula Kantor
Feb 2011 Proceedings of a Roundtable Discussion on Community-Based Dispute Resolution
Feb 2011 Undermining Representative Governance: Afghanistan’s 2010 Parliamentary Election and Its Alienating Impact, by Noah Coburn and Anna Larson
Feb 2011 #The 2010 A to Z Guide to Afghanistan Assistance - Ninth Edition
Jan 2011 #Afghanistan Research Newsletter 28
Jan 2011 Running out of Options: Tracing Rural Afghan Livelihoods, by Paula Kantor and Adam Pain
Dec 2010 Understanding and Addressing Context in Rural Afghanistan: How Villages Differ and Why, by Adam Pain and Paula Kantor
Dec 2010 Securing Life and Livelihoods in Rural Afghanistan: The Role of Social Relationships, by Paula Kantor and Adam Pain
Nov 2010 Poverty in Afghan Policy: Enhancing Solutions Through Better Defining the Problem, by Paula Kantor and Adam Pain
Nov 2010 Governance Structures in Nimroz Province, by Anna Larson
Nov 2010 #Means to What End? Policymaking and Statebuilding in Afghanistan, by Sarah Parkinson
Oct 2010 #Afghanistan Research Newsletter 27
Oct 2010 Community-Based Dispute Resolution Processes in Balkh Province, by Rebecca Gang
Oct 2010 #Peace at All Costs? Reintegration and Reconciliation in Afghanistan, by Tazreena Sajjad
Oct 2010 Does Women’s Participation in the National Solidarity Programme Make a Difference in their Lives? A Case Study in Parwan Province, by Chona R. Echavez
Sept 2010 Capacity-Building Through Policymaking: Developing Afghanistan’s National Education Strategic Plan, by Dana Holland
Sept 2010 The Impact of Microfinance Programmes on Women’s Lives: A Case Study in Parwan Province, by Sogol Zand
# Indicates that the publication or a summary is or will be available in Dari and/or Pashto.
The Afghanistan Research and Evaluation Unit (AREU) is an independent research institute based in Kabul. AREU’s mission is to inform and influence policy and practice through conducting high-quality, policy-relevant research and actively disseminating the results, and to promote a culture of research and learning. To achieve its mission AREU engages with policymakers, civil society, researchers and students to promote their use of AREU’s research and its library, to strengthen their research capacity, and to create opportunities for analysis, reflection and debate.
All AREU publications are available for download at www.areu.org.af and most in hardcopy from the AREU office:Flower Street (corner of Street 2), Shahr-i-Naw, Kabulphone: +93 (0)799 608 548 website: www.areu.org.af email: publications@areu.org.af

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