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Bridging Modernity and Tradition: The Rule of Law and the Search for Justice

Author: Ali Wardak, Daud Saba, Halima Kazem
Date: 2007
Size: 198 pages (6.8 MB)

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Summary

How can justice and the rule of law be strengthened to advance human development in Afghanistan? This report from the Centre for Policy and Human Development highlights the links between human development and the rule of law. It makes the case for a 'Hybrid Model' of Afghan justice involving a collaborative relationship between formal and informal justice institutions. 

The failure of state and non-state institutions to work together is inhibiting improvement to justice delivery in Afghanistan. A model that allows traditional justice institutions to cooperate with state institutions is required. This would harness the positive aspects of non-state dispute settlement institutions while ensuring that decisions are compatible with the Afghan Constitution, Afghan laws, and international human rights standards. The proposed 'Hybrid Model' would establish institutional links between formal and informal justice in Afghanistan.

Despite advances in human development since 2002, Afghanistan is not progressing fast enough to achieve its Millennium Development Goals (MDG) by 2020. The report highlights the broader human development agenda and explores the current traditional and state justice institutions:

• Human development requires a deep commitment to social justice by the government and its citizens, based on the rule of law and the democratic empowerment of all Afghans
• Informal and non-state institutions of dispute resolution are prominent in Afghanistan as well as the main formal justice and law enforcement institutions
• Traditional justice systems are more accessible, more efficient (in terms of time and money), perceived as less corrupt, and are more trusted by Afghans than formal state courts decisions
• The judicial system, the Ministry of Justice, the central prison system and the police all suffer from a lack of adequate human resources, equipment and physical infrastructure
• The formal justice system suffers from 'institutionalised corruption'.
• The expanding narcotics trade and pervasive corruption undermine the rule of law and can potentially erode the legitimacy of the government and international assistance.

Tensions between the formal and informal justice systems need to be reconciled by fostering the respective strengths of these competing and conflicting approaches to the rule of law. Further recommendations include:

• The formal state institutions of justice require a renewed and more coherent strengthening and restructuring effort.
• Assessments of the efficacy of the rule of law should go beyond the content and application of laws and determine how they enhance citizens’ capabilities and freedoms
• A holistic response is required, given that many of the challenges faced to strengthen the rule of law and promote human development are interrelated
• The government needs to develop and implement a comprehensive anti-corruption strategy in order to make significant progress in this area
• Increased investments in human development and corrective policy actions must be undertaken immediately if Afghans are to succeed in reaching their MDG targets.

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Source: Wardak, A., Saba, D. and Kazem, H., 2007, 'Bridging Modernity and Tradition: The Rule of Law and the Search for Justice', Afghanistan Human Development Report 2007, Center for Policy and Human Development, Kabul University, and Army Press, Islamabad