Harvard University fellow Jasteena Dhillon
It is widely believed that 80 per cent of Afghans use what is called the "informal justice" system to resolve their legal disputes. If this is accurate, we must ask why the international community continues to spend billions of dollars on implementing a Western-style justice strategy that focuses primarily on formal institutional development - like the rebuilding of courthouses and training of the actors in the formal judicial system - when most Afghans are perfectly content with what they already have.
Having just returned from Afghanistan, where colleagues and contacts in the supreme and appeal courts, provincial and district courts, Ministry of Justice and Attorney-General's office kept emphasizing that they need more money to provide services to those who seek justice, I began to wonder why is it that we spend millions per year on developing judicial institutions that serve just 20 per cent of the population.
After meeting with tribal and religious leaders all over the country, it was clear that the efficiency and accessibility of the informal justice system - one that is steeped in history and based on familiar traditions - was what made it more attractive to Afghans.
So why does the international community continue to spend money on a policy that builds institutions with only a limited effect on building rule of law and justice and, ultimately, governance and security in Afghanistan? Critics of the approach to rule-of-law development in postconflict settings have grappled with this question over and over again.
The international community has too often approached the development of institutions in postconflict states from the perspective that they know best how to solve the problems there. But this viewpoint is naive and shortsighted. Shortsighted in that we cannot simply transplant Western values regarding institutional ideas of justice into Afghanistan without accommodation made for the historical developments and cultural nuances of the Afghan constitutional and judicial systems. And naive when thinking that when our ideas do not take hold it is because we have not thrown enough money at the problem.
Now that the disillusionment with our great strategy for justice is setting in, the policy-speak is changing. The new mantra for justice-sector development has become "We must acknowledge and support the informal justice system," more commonly known by its mechanisms of jirgas and shuras . This has become the new answer to all of our problems and the way forward to realize our version of the dream state for Afghans.
I would advise policy-makers to follow a more sensible framework when it comes to working to encourage the growth of the informal system. First and foremost, the process of strengthening support for the informal justice mechanisms has to be led by Afghans. This is because this system is based on Afghan traditional values and principles and it emerges from the communities, not from Afghan state institutions.
Second, cultivating trust from the formal actors in this system will require patience and control on the part of the international community to allow the traditional leaders and the state judicial officials to come to a consensus on how to balance the informal and formal justice systems.
The real question is not whether we should spend money on formal justice-sector development, but how much we should spend. It is clear that because of the destruction of recent wars and conflicts, there are courts that need building and libraries that need resources and advocates that need training. But the overarching need is to allow a space for Afghans to develop their own processes of decision-making that they feel comfortable using in their daily lives.
If we do not do take this approach, we risk wasting more time and money and creating a false sense of importance for a formal system of justice that Afghans are clearly saying they do not need and will not use.
Jasteena Dhillon is a fellow at Harvard University's state-building and human rights for Afghanistan/Pakistan program.