A new Hybrid Model of the justice system in Afghanistan

Dr Ali Wardak

Key Facts

  • Changes to Afghan Law: the key recommendations of the ‘hybrid model’ of the Justice System in Afghanistan, developed by Dr Wardak, were written into draft Afghanistan law under the title, ‘The Law on Dispute Resolution, Shuras and Jirgas’, by the Ministry of Justice.
  • Implementation of Wardak’s hybrid model: the ideas derived from Wardak’s new model were piloted in different parts of Afghanistan by the United States Institute of Peace, by USAID, TLO and CPAU.
  • Preliminary results of pilot studies, in selected districts in Afghanistan, indicate that the hybrid model provides workable solutions to many of the problems that Afghan state and non-state justice systems currently face.

Background

During the early 2000s, Dr Ali Wardak, a native of Afghanistan, became concerned about the high level of corruption, inaccessibility and ‘elitism’ of the formal State justice system in Afghanistan.

At the same time he became interested in traditional non-State dispute resolution called Jirga and Shura (Council of Elders) that is used by the majority of people seeking justice.

In 2002, he published a paper titled, ‘Jirga: Power and traditional conflict resolution in Afghanistan’. Later that year, Wardak and three co-researchers from Australia, UK and the USA were invited by the Overseas Development Institute (London) to conduct field research on the current situation of law and politics in Afghanistan. Wardak, alongside his three co-researchers, travelled to Afghanistan and completed their field research in different parts of the country. The findings of this research were published as Afghanistan’s Political and Constitutional Development in 2003.

This publication is the first official report on the subject in post-Taliban Afghanistan.

The report caused a great deal of interest, and, in 2004, Wardak was invited to present a paper on the relationships between formal and informal justice in Afghanistan at the Australian National University, in Canberra. This paper was subsequently published in the International Journal of Crime, Law and Social Change in 2004 under the title ‘Building a post-war justice system in Afghanistan’. It was the first publication to link his ideas about informal and restorative justice to the formal justice system in Afghanistan.

In August 2006, Wardak attended a meeting of the United Nations Development Programme (UNDP) in Afghanistan and was asked to be a lead author of the 2007 Afghanistan Human Development Report focusing on Rule of Law. In 2007, the UNDP published the report under the title, ‘Bridging Modernity and Tradition: Rule of Law and the Search for Justice [4]. Wardak was the first author of the report. As part of the process of writing the report, he designed and supervised a survey of justice processes in 32 of the 34 provinces of Afghanistan.

Based on the findings of the survey and his ethnographic data in Afghanistan, he proposed his own ‘Hybrid Model of the Justice System in Afghanistan’. The UNDP report was prefaced and praised by President Karzai personally, and was launched in New York and in Kabul.

The new insights or findings

Dr Wardak’s research produced what is described as the ‘hybrid model’ of justice for Afghanistan. The ‘hybrid model’ combined and blended traditional Afghan justice (Jirga and Shura) with more modern Afghan State justice system and existing human rights institutions in Afghanistan. the ‘hybrid model of Afghan justice’ proposes the creation of institutional links between state and non-state justice systems and a female-dominated human rights unit as a check and balance on rights abuses by both courts and jirgas, while courts and jirgas were also each checks and balances on the other.

According to this model, the Alternative Dispute Resolution (ADR) mechanisms would handle minor criminal offenses and civil cases, giving people a choice to have their cases heard at the nearest state court. All serious criminal cases, according to the model, would fall exclusively within the jurisdiction of the state justice system. The model further proposes that when ADR decisions fail to be approved by either the proposed Human Rights Unit or the concerned state court, they would need to be revised, or referred to state justice system for adjudication. Also, when ADR decisions are not satisfactory to one or both disputants, they can be taken back to the state justice system.