Reign of the desert court
 

Up to 13 per cent of the 365 districts in Afghanistan’s provinces have no state-run courts, human rights activists assess. The situation is most pronounced in Ghazni Province, where the majority of the population has no other recourse in local disputes than to mobile Taliban courts that visit their villages. In this first of two stories about dispensation of alternative justice, Afghanistan Today looks at the emergence of the so-called "desert courts".  

Ghazni City still has a working court system, but officials concede that the districts have largely become the domain of Taliban judges. (Photo: Alizada)

When a Taliban judge ruled on Lal Agha’s 18-month land dispute with his cousin, he knew that was an end to the matter.

“When we referred the case to the Taliban they solved it instantly, and now we don’t have any problem,” said the resident of the Khogiani District. “If there is any further disagreement over this land, the Taliban will first warn the objecting party, then give him a beating, and if he still persists, they will kill him.”

Done.

The swift and unflinching administrations of the Taliban courts are now a fact of life in all but four of Ghazni’s 18 districts, said Muhammad Ali Ahmadi, the deputy governor of Ghazni.

“Corruption and lack of judicial institutions in districts have led to a vacuum between people and the government, and presented an opportunity that the opposing armed [Taliban] forces have used to the full.”

Citizens were let down

Hamidullah Danish, a member of the Ghazni Provincial Council, agreed that the government has failed badly in resolving citizens' disputes. This left the Taliban to intervene in unstable areas while the police mainly protect the district centres and “their own lives behind security checkpoints, in fear and panic,” he said.

“The Taliban decide and act very legally and precisely compared to the government.” Landowner

According to Shah Jahan Noori, member of the Afghan Parliament for Ghazni, as much as 80 per cent of legal disputes in the 14 unsecure districts of the province are resolved by the Taliban, who are often paid in wheat or other produce. 

There is more to the growing prevalence of these so-called desert courts than the physical absence of state courts in many areas, says another provincial council member, Nadir Khan Girowal:

“[State court] decisions take a very long time and if the court rules in someone’s favour, the government is still lax in enforcing that ruling,” Girowal said.

Bribery of prosecutors and judges is often cited as a reason people turn to the Taliban, who as well as having their own judges, appoint shadow governments in almost all provinces of the country.

According to the Afghanistan Independent Human Rights Organization, there are now no state courts in 47 districts nationwide (13 per cent of the 365 districts), leaving the field clear for Taliban judges to step in. 

Outcome can be ruthless, irreversible

There is no regularity to the Taliban court hearings; nor do they have set venues, notes Girowal: “They come on motorcycles and bring mobile courts, they decide cases in short thrift and implement them very seriously.”

"The Taliban accused my brother of theft in a desert court hearing, issued the death penalty and executed him."

Haji Alam Shah, a resident of Ghazni’s Andar district, will vouch for that. “A couple of months ago, the Taliban accused my brother of theft in a desert court hearing, issued the death penalty and executed him.

"My brother had just returned from Iran and had no knowledge about this theft case - he had never stolen anything in his entire life,” he said. Alam Shah believes these courts harm many innocent people and that if such impromptu hearings become an accepted legal mechanism, then no one will be guaranteed any real rights.

“The desert courts are organized at very short notice, they accuse and then punish defendants without any evidence or witnesses. And because they have neither the time nor the resources to do a proper investigation, they end up doing injustice to people,” he said.

Disputed legal authority

General Saleh Islamdost, head of the local council of the Andar district, said Taliban rulings lacked any recognizable legal grounding.

“The law of the Taliban is whatever comes into their head at the time and they think is right,” he said.

Land disputes are commonly resolved by Taliban courts in Ghazni and other provinces. Rulings may be harsh or brutal, but they are swift and final.(Photo: Allen)

But not every case appears to be handled in such arbitrary fashion.

“The Taliban decide and act very legally and precisely compared to the government,” said Ghazni City resident Shukrullah Jamal, who together with rivals in a land purchase took the case to the Taliban after getting no satisfaction through state channels.

“We finally had no alternative other than to refer it to the Taliban and they resolved it very quickly according to legal documentation and current market price of the land,” Jamal said.

The Taliban stand by the legitimacy of the mobile courts.

“Most of the disputes of people from the districts and Ghazni City are solved via Taliban courts under the chair of experienced and professional judges,” Taliban spokesman Zabiullah Mujahid told Afghanistan Today by telephone. “Decisions are made according to the Hanafi school of Islamic law, without any manner of bribery and intermediation. And justice is done to the righteous.” 

But despite being the dominant judicial power in Ghazni, these judges who arrive on motorcycles seem to restrict themselves to localised, more manageable disputes.

“The mobile Taliban courts reject cases that are very big in stature and in which the evidence and witnesses are archived and registered with the Interior Ministry,” Mujahid added.

On this point, the state authorities seem to agree: “The issues the Taliban deal with via these mobile courts are very straightforward, and people contact the government to resolve more complex cases,” said Abdul Ghafar Sayem, the head of the Provincial Court of Appeal.

Don’t take the easy route, advise state officials

the Governmont is trying to bring security in the unsecure districts and by that provide access to Governmental Judicial Institutes

Corruption - the bribing of prosecutors and judges - is another widely cited reason why many people prefer to take their disputes to the Taliban.

Sayem acknowledged that corruption was present in official structures but he stressed that the extent had been greatly overstated and that corrective steps were being taken. “In the last 10 years around 200 judges and attorneys have been arrested for involvement in corruption,” Sayem said. 

The Ghazni Provincial Court of Appeal: There are no short cuts in obtaining genuine justice, say officials. (Photo: Alizada)

Other officials emphasize that people still have recourse to state justice in Ghazni and other provinces.

“There is a shortage of judges in our system but this shortage of staff has not hampered our activities and our work,” said Abdul Wakil Omari, spokesman for the Afghan Supreme Court. “We have active courts in all provinces of Afghanistan, and while there are some districts where courts are not active for various reasons, people can still come to the centre of the province and solve their problems.” 

The bottom line, says judge Musa Assadi of the Ghazni Provincial Court, is that the Taliban hearings are illegal. However long state court decisions take, they are well researched and grounded, he stressed. "It is impossible to resolve matters in a mobile court fashion, where lack of time and research is commonplace."

Citizens were advised not to take short cuts by turning to the Taliban, the Court of Appeal head Sayem said. Improvement of security and the restoration of the court system in the districts will in effect mean that “people will [have to] start their cases again from scratch,” he warned. 

 
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