Informal Justice as Restorative Justice – Efforts to Improve Relations between State and Traditional Dispute Resolution Mechanisms in Afghanistan

The aim of this project is mainly to introduce the concept of restorative justice to the relevant Afghan stakeholders as a new approach towards bridging the gap between the state justice system and tribal councils. In some regards, the concept of restorative justice is very similar to practices of the Afghan tribal councils.

The starting point of the planned project will be the “Basic Principles on the Use of Restorative Programs in Criminal Matters”, which were introduced by the Economic and Social Council of UN (ECOSOC) in 2002. The project team intends to enable and encourage Afghan stakeholders to use the UN Principles as a starting point for the development of a legal framework for the tribal councils in their own country.

European criminal justice practices predominantly aim at retribution and punishment of the offender. In contrast, restorative justice approaches which originate in indigenous societies such as the Maori of New Zealand focus on reparation, the needs of the injured and instauration of positive social relations. Victim, offender and often other members of the community are actively involved in a process of mediation. This typically involves face-to-face meetings between victim and offender in the presence of a facilitator. Participants are given the opportunity to discuss the crime’s impact. They collectively decide on the resolution of matters arising from the crime.

The state justice system in Afghanistan has improved in recent years. Yet it is still unpopular and unable to solve the countless disputes that arise in Afghan society every day. In rural areas in particular, tribal councils called jirgas, shuras, and marakas are used as primary forums of dispute resolution. Over centuries and in separate, more or less autonomous communities, these councils have developed norms to govern communal life. The legitimacy of these norms, which are passed down orally, rests upon consensus within the communities. However, council decisions often violate rights that the State guarantees its citizens – particularly women’s and children’s rights. Furthermore, their decisions are not registered or recognised by state authorities.

The divide between the two systems of justice – i.e. courts and tribal councils – is to some degree bridged by a countrywide structure of Ministry of Justice offices, called Hoqooq Department. Its district offices offer citizens legal advice and mediation. In practice, they also refer civil cases to the tribal councils – however, until to date, without a clear legal basis. Some efforts to develop an official policy on the relations between state and non-state justice mechanisms have focused on the Hoqooq Department. Others aimed at officially recognizing the tribal councils as a complementary system of dispute resolution besides the state courts, and directly connecting them. But consens has not been found during the past years, while access to justice remains an unfulfilled promise for most habitants of the country.

Since the 1980s, significant growth in restorative justice initiatives can be observed all over the world, and in very different contexts. For example, it is applied to juvenile crime in many countries worldwide. In 2002, the Economic and Social Council of the United Nations (ECOSOC) introduced its resolution on “Basic Principles on the Use of Restorative Programs in Criminal Matters”. The document encompasses a framework of rules within which restorative justice can function in line with international law standards. In many countries, the UN Principles have inspired the reform of traditional systems of dispute resolution (“informal justice”).

Funding

Embassy of the Republic of France in Kabul

Republic of France

Duration

1 January 2014 – 31 December 2014

Local Partners

  • Afghanistan Civil Service Institute (ACSI)
  • Independent Commission for Overseeing the Implementation of the Constitution (ICOIC)
  • Independent Administrative Reform and Civil Service Commission (IARCSC)
  • Capacity Building for Results (CBR)

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