A recent study suggests that half of people who face significant legal issues, are not able to access justice. Without it, people living in poverty are unable to claim their rights or challenge crimes, abuses and violations committed against them. They’re often left trapped in a vicious cycle of criminal impunity and personal deprivation and exclusion. This has been the case in Afghanistan, and especially so for women. A report by the United Nations showed that just 18% of murder and 'honour killings' of women resulted in conviction for the accused. And this is just in the formal courts.
Since 2001, there have been many attempts and significant resources invested by international parties to reconstruct the formal courts in Afghanistan. However, these attempts have often been uncoordinated and have led to a legal system out of touch with the majority of the citizens it is meant to serve. The effect is that an estimated 80% of the country’s citizens now turn to the informal legal system. The informal system typically comprises a council of local male elders, called a Jirga or Shura. In these Jirga, decisions tend to be swift and more sensitive to the local culture.
The net impact is that the two systems are becoming increasingly polarised and this has affected access to human rights. Compounding this is the resurgence of the Armed Opposition Groups (AOG) over recent years and an increasing preference in many parts of the country for local courts which they have established.
The formal judicial system in Afghanistan faces significant problems, including a lack of qualified staff and funding, limited technical knowledge, inadequate human rights understanding, minimal reach in rural areas, and corruption. Most citizens in search of justice therefore choose traditional justice mechanisms, despite their limitations. In research which we conducted at the beginning of the project, 69% of people said that they didn’t trust the formal courts system.
These traditional systems, however, are also fraught with problems. Afflicted by the same challenges that affect the formal system, they also operate within differing local justice codes and Sharia legal interpretations. Caught between two inadequate and inconsistent systems are citizens who have limited understanding of their rights and severely restricted means and motivation to access the formal judicial system.
A key component of the project has been the establishment of Community-Based Human Rights Committees (CBHRCs). These comprise typically five members of the local community, including at least one woman, who are selected and then trained on human rights, including the laws relating to the Afghan constitution – ranging from navigating the country’s penal codes to dealing with arranged marriages and dowry payment disputes. They are then tasked with spending time in the community, raising awareness of human rights, especially amongst those who are more marginalised and vulnerable. They provide a safe place where those who are victims of crimes can come and discretely share their experience and, if appropriate, can be helped to go through legal procedures to resolve the issue.
The CBHRCs also comprise at least one member from the local Shura, meaning that cases can easily be referred to the traditional justice system if required.
In the past year, all of the 90 CBHRCs have been established across Herat and Badghis Povinces as planned. So far, they have officially dealt with 308 cases.
After a substantial period of training and getting established in the communities, it’s only recently that many of the committees have started to build some momentum – 70 of these cases have been dealt with in the past three months.
But, as alluded to by Yaqoob Rauf, part of the ITL team based in Afghanistan, the reported cases really only represent the tip of the iceberg.
The ‘women’s issues’ which Yaqoob Rauf refers to are part of the largest category of cases which the CBHRCs deal with. 177 of the recorded cases are ‘family’ cases, compared to 113 civil cases and 18 criminal cases.
These could range from gender-based violence to forced early marriages. Understandably, these cases are not always recorded. Forced early marriages are commonplace in parts of Afghanistan. According to the charity Girls Not Brides, one in ten girls are married before the age of 15. Twelve-year-old Aneesa* was set to be part of that 10%.
When Aneesa’s father told her that she was going to marry a local man, she was shocked. Her father would regularly beat her and so she was too afraid to say anything. In fact, the trauma of the prospect of being forced into marriage made her withdraw completely. She stopped going to school and wouldn’t respond at all in classes when she was there. It wasn’t until after the case was resolved that she would say anything at all.
At first, Aneesa’s mother tried to talk with her husband and convince him to change his mind, but she could not. She too was afraid of him.
She decided to share the case with Sousan, a trained Human Rights Defender and a member of the local CBHRC.
Sousan shared the case with CBHRCs members and they immediately took action. They instigated a meeting with the father through the local Shura. Following two meetings, through discussion involving elders from the community, Aneesa’s father was convinced to change his mind and call off the wedding plans.
Aneesa is now back at school and looking forward to where her education can take her.
It’s important for women to become educated so they understand their own rights. So, they can find a job, have their own income and stand on their own feet.
- Aneesa, School student and beneficiary of the Access to justice project.
For girls that are forced to marry, this typically means an end to their education – this was one of Aneesa’s biggest fears. But now she looks forward to realising her dreams, including emulating the impact which Sousan has had on her life. ‘If I get married, I want to stay in school and become a help in my community. I want to be a leader like Sousan, to know human rights, to support women and stop the violence which I have suffered from. I hope to finish school, then go to university. And then to find a husband... a good husband.’
Sousan is a role model for me. She always listens to me and gives me time to ask questions.
- Aneesa, School student and beneficiary of the Access to justice project.
Sousan also has suffered violence in the past, and she says this helps in her work. ‘Because I’m a woman, I experience a lot of violence in the past. I am a woman and I understand other women. I want to support them because I know what I’ve been through.’
Importantly the CBHRCs also enable linkages with the country’s formal courts which previously wouldn’t have existed.
There has traditionally been mistrust towards the formal courts – they are often perceived to be overly bureaucratic, slow-moving and open to corruption. However, they are arguably better placed to deal with more serious cases.
Christian Aid’s locally-based partner agency CRDSA, organised an exposure visit for 150 CBHRC members to meet with formal justice system senior staff in Attorney and Justice Departments of Herat and Badghis provinces. The main aim of this activity was that actors of both systems sit together, talk and exchange their knowledge and experiences in the field of justice delivery process.
Before this visit, the majority of CBHRC members weren’t aware of the workflows and procedures involved in the formal justice system, nor how to start a claim. The CBHRC members got the opportunity to ask questions from the formal justice actors and exchange their thoughts and experiences.
The ITL Access to Justice Annual Summit provided another opportunity for these conversations to be continued and for relationships to be forged – as attested to by Christian Aid’s Tiphaine Valois, who attended the summit.
The impact of improved relations has led to a better understanding of how and when cases should be referred from the informal to formal courts. This has born fruits. Of the 308 cases, 27 of them have been referred to the formal courts.
The concept of CBHRC is a relatively new one and has not been without its challenges, especially in more conservative areas of Herat and Badghis Provinces.
The integration of women into the committees has been one such challenge. There was push-back from a number of villages. For example, one male member refused to sit and talk with female members on religious grounds. There have also been examples of where women members have either been marginalised from committee meetings, not being given full visibility of the cases, or that they have lacked the confidence to become actively involved in committee meetings.
There has been a lot of careful work from CRDSA, engaging community members in these cases to push for the inclusion of women and to encourage them to become more involved. There has been some success – there are now just two CBHRCs who have refused to include women. And clearly, as illustrated in Sousan’s story above, there are examples of where women are effectively advocating for the needs of the most marginalised.
It hasn’t just been through the personal interaction between community members and the CBHRCs that awareness of human rights has been generated. The ITL project has also used larger-scale media to achieve this.
On local radio stations, articles from Afghanistan’s constitution have been recorded and broadcast.
Short episodes featuring actors playing out scenarios relating to topics such as gender-based violence and forced marriage have also been shown on local television stations.
We are currently approaching the third and final year of the project. So far the project has reached 1,126 people directly and indirect it's estimated that 17,500 people have a better understanding of their human rights through the radio and video activity.
At the end of the project an end line survey will be conducted to assess to what extent communities in Herat and Badghis have a better understanding of their human rights and access to justice. At this point, we should have a clear picture of the impact of the project.
In the meantime though, there are definite signs of progress. The CBHRCs are becoming more embedded within the communities and the number of cases which they’re dealing with is increasing, as their awareness grows. And the connections between formal and informal justice systems are becoming stronger.
The progress which has been achieved so far should be understood within the context of the working conditions in Afghanistan. Although not always covered in the media, conflict continues throughout Afghanistan – Herat and Badghis are no exception. The biggest challenge this represents for the running of the project is safely accessing the villages where the CBHRCs operate. Tensions are compounded by the upcoming national elections. In conversations with Christian Aid staff on the ground, just 10% of Afghans are expected to vote, demonstrating a wider distrust, especially among the rural majority of the Kabul-based government.
The progress that the project has achieved is made all the greater in light of this. The final year of the project will be critical to its success, as we build on the momentum which we have seen so far. In addition to the continued support of the CBHRCs, an important step which will be taken in the coming months will be to document and publicise a ‘legal workflow’, agreed between the formal and informal legal systems, defining how and when cases are dealt with by the respective systems.
£168,170 is required in order to fund the remaining activities. We welcome your continued support for this programme, enabling us to fulfil our commitment to our partners and beneficiaries and see this project through to its successful conclusion. For more information on the project or the funding needs, please speak with your dedicated contact in the Philanthropy team.
Longer term investment is required in order to sustain the change. We are therefore engaging with institutional donors, like EU, through specific commitment is yet to come.
But ultimately, on behalf of the men, women and children like Aneesa, whose lives have already been impacted by the Access to Justice project, we’d like to thank you again for making this work possible.