Bitter pills of jirga justice

Jirga participants and onlookers assemble daily to resolve local disputes - sometimes causing worse conflicts (Photos: Khoshnood)

When a jirga of elders ruled in favour of Lahur Jan’s cousins in a land dispute - allegedly influenced by a better payment than he could offer - things got increasingly violent. One gunfight later, two of the cousins were dead.

“Our families are locked in hatred now, life has become so bitter that we can’t tell day from night,” the Khost resident said, standing guard with an automatic rifle outside his home. “I am now constantly afraid that the other side will attack and hurt someone in my family.”

It came to this because no one in the state courts was interested in the case he took to them three years ago, Jan claims. He then felt compelled to turn to the elders of a local jirga to defend his ownership of the land. 

In some places where government forces have little control, the Taliban step in as arbitrators. In the eastern Khost Province, there is a strong tendency to turn to centuries-old tribal resolutions of such disputes.

“The state justice structures are inactive in Khost so many people come to us instead,” said Nasrullah Qasemi, an elder who presides at jirga sessions held at the Spozhmai restaurant in the centre of Khost City. 

“Wrong decisions of the elders are causing lasting enmity among people.”

This two-storey building has emerged as a hub of jirga activity, with assorted groups of elders leasing rooms for hearings on a wide range of issues, including land ownership, grazing rights and marriage disputes, and even killings.

“We have an office here but sometimes we go to different areas with the clients to see things first hand and come back and make the final decision,” said Kati Tarkhel, another elder who works here.

It sounds reasonably thorough, but the decisons are often just a matter of  interpretation. Accusations of prejudice and bribery are commonplace among the losers of hearings.

Tribal law is lucrative business

Rates vary, but according to elders at the Spozhmai, the conflicting parties there each pay a fee equivalent to up to 115 US dollars to have their case taken on. 

“Since we have worked from our offices here we haven’t taken a wrong decision for people and haven’t caused any problems,” insisted Qasimi, noting that principles of Sharia Law are observed by his jirga. 

But less scrupulous groups also set up in the premises, he says. “There are elders working here who just put on black turbans and black shoes and then issue rulings. It is these newcomers who are causing the problems.”

A contentious jirga ruling in a land dispute sparked a fight that left two of Lahur Jan's cousins dead. Now he mounts a daily guard at his home against a revenge attack. 

One elder who did not wish to be named seemed to say as much: “We issue a verdict but we may not always rule in favour of the most deserving person.”

Now, the expanding and largely unregulated jirga business is part of the local economy. 

“It is now our profession to solve problems and arguments among the people,” said elder Bashar Mal. “If all lawsuits go to the government, what will we do then? And what will we eat?

The commercialization of the ancient jirga tradition and the potential for perversion of justice is a source of worry for both supplicants and the authorities.

“These traditional jirgas can reduce the people's faith in governmental institutions,” said the head of the Provincial Court of Appeal, Fazel Atiq.

At the receiving end of the justice system, people are concerned about the resultant conflicts that can blight their communities. 

“Wrong decisions of the elders are causing lasting enmity among people,” said Mir Habib, a resident of Khost’s Tanai district where such jirgas are especially active. “The traditional and cultural worth and credit of jirgas which could solve people's problems will be lost across Afghanistan.” 

But that does not seem to deter the public from turning to the elders instead of the government.

A province full of custom

Clients are still drawn to the jirgas by the prospect of fast results, compared to protracted deliberations or even obstruction by the state courts.

Minadin, a resident of the village of Laknu Ayub Khil, has been locked in a land dispute with a neighbour for six months. Turning to the Provincial Court of Appeal just dragged matters out further, he said.

“The biggest reason for the delay in processing our documents is that the judges want a bribe,” said Minadin, adding that he refuses to pay.

“These traditional jirgas can reduce the people's faith in governmental institutions.” Head of Court of Appeal.

Nik Mat Khan, another resident of the Tanai district, consulted a jirga after getting no satisfaction from the state in a land dispute. He now blames elders at the Spozhmai restaurant for an erroneous ruling he says caused huge damage in his life and community. 

“If the government had working judicial organizations, the people wouldn’t go to these elders,” said Khan. “Old people like me are good Muslims, but because of bad rulings I now have to walk around with a gun.”

Others, however, sing the praises of the jirga system. Without such swift intervention, many local disputes would end in bloodshed, said Sayed Naseem, a resident of the Saberi district.

“A few months ago, elders in my district resolved a case of murder and they were able to convince both sides to accept their ruling,” said Naseem, who firmly supports the jirgas “because they always think about the people.”

Jirgas have no legal force, say officials

Abdul Wakil Omari, spokesman for Afghanistan’s Supreme Court, said the jirgas were an accepted traditional tribal means of resolving minor issues in a non-binding manner. Anything weightier was the jurisdiction of the courts, he stressed.

Jirgas can be closed affairs or attract an interested audience.

“These jirgas are not qualified to pass judgment and if they do, their judgments have no legal force and offer no solution for legal problems,” said Omari.

As for claims that inefficiency or corruption of state courts are driving people to the jirgas, the Court of Appeal head Atiq said cases get dealt with in a normal length of time. Plaintiffs themselves and security forces failing to produce defendants caused many of the hold-ups, he said.

“It takes time to decide accurately [about cases], it requires correct information and regular investigations, and legal processes can delay matters from one day to the next. This isn’t just in Khost province but all over Afghanistan,” said Atiq, who strenuously rejected allegations that justice officials take bribes. 

“It is up to people which course they choose to take to obtain a judgment. But they must accept the enmity and problems that result from jirga decisions,” said the official. He noted that the courts had no direct power over elders who issued flawed verdicts, and said only the police could deal with them.

State court system is growing

According to Atiq, court offices are being opened successively in all of Khost’s districts. Provincial Governor Abdul Jabar Naimi has repeatedly pledged to strengthen the state’s judicial power so that no one has any further need of the jirgas.

“If we thoroughly activate judicial bodies in Khost Province we will have ensured security here and we will create a credible government for people,” Naimi said, when asked about efforts to improve the situation.

Law enforcement bodies would investigate elders who made uninformed decisions that created hostility, said Naimi, who also plans to hold “law acknowledgement workshops” for the public in which local council members would participate. 

Just getting some sort of explanation about how the law works and what recourse citizens have would be a significant step, say locals.

“Our people don’t have the education to know how to go about solving their problems,” said Sayed Mustafa, a resident of central Khost. 

“The government should create programmes to explain the law. And it should also force justice organizations to solve people’s problems in a lawful way,” Mustafa said.