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The M-Jirga


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The M-Jirga

  1. 1. The Mobile Phone Jirga: Supporting Rule of Law in Afghanistan with Online Dispute Resolution August 2009 Contributors: Colin Rule, Chittu Nagarajan, Jin Ho, Sanjana Hattotuwa, Jeff Aresty, Dan Rainey
  2. 2. Overview <ul><li>The importance of Rule of Law in Afghanistan </li></ul><ul><li>Current efforts (USAID’s AROLP Program) </li></ul><ul><li>Structural challenges facing that effort </li></ul><ul><li>Formal vs. informal justice </li></ul><ul><li>Characteristics of Afghan informal justice </li></ul><ul><li>The value and role of informal justice </li></ul><ul><li>Characteristics of Jirgas </li></ul><ul><li>Proposal: the m-jirga </li></ul><ul><li>m-jirga Process Flow </li></ul>
  3. 3. The Importance of ROL in Afghanistan “ Afghans will only view their government as legitimate if it provides rule of law. The lawlessness and corruption of the Afghan government are often cited by Afghans as reasons for their disillusionment with the Afghan government and their growing sympathy for the Taliban. To deal with this problem, the United States should assist in the creation and support of a judicial sector strategy for addressing the absence of the rule of law.” Center for American Progress, 6/10/08 <ul><li>Afghan Rule of Law is currently threatened by several challenges: </li></ul><ul><li>Inefficient judicial mechanisms </li></ul><ul><li>Lack of transparency </li></ul><ul><li>Corruption </li></ul><ul><li>Lawlessness </li></ul><ul><li>Each of these challenges undermines confidence in government </li></ul><ul><li>To adequately address these challenges, strategies must straddle several gaps: </li></ul><ul><li>Informal vs. formal </li></ul><ul><li>Urban vs. rural </li></ul><ul><li>Tribal vs. national </li></ul><ul><li>Religious vs. secular </li></ul>
  4. 4. <ul><li>USAID’s Afghanistan Rule of Law Project (AROLP) </li></ul><ul><li>Objectives: </li></ul><ul><li>Develop the human/institutional capacity of the justice sector </li></ul><ul><li>Increase access to justice, particularly for women </li></ul><ul><li>Meet increasing public demand for rule of law. </li></ul><ul><li>Specific Goals: </li></ul><ul><li>1. A competent, independent judiciary </li></ul><ul><li>2. Higher quality legal education </li></ul><ul><li>3. Harmony in actions of the formal and informal justice systems </li></ul><ul><li>4. Public confidence in the justice system </li></ul><ul><li>5. Universal access to justice (emphasizing the rights of women) </li></ul><ul><li> </li></ul>
  5. 5. <ul><li>USAID’s Afghanistan Rule of Law Project (2) </li></ul><ul><li>Planned Actions: </li></ul><ul><li>Conduct five public legal education campaigns </li></ul><ul><li>Roll-out Afghanistan Court Administration System (ACAS) nation-wide </li></ul><ul><li>Increase the administrative capacity of the Supreme Court’s Office of General Administration </li></ul><ul><li>Identify and train new judicial candidates </li></ul><ul><li>Produce eight course curricula under the unified core legal curriculum </li></ul><ul><li>Open five new legal aid offices </li></ul><ul><li>Train every judge on the elements of the new code of judicial conduct </li></ul><ul><li>Conduct two national campaigns on women’s rights and produce a comprehensive assessment of women’s access to justice </li></ul><ul><li>Affected populations include all individuals entering the justice system as a defendant or claimant, and in particular women. </li></ul><ul><li> </li></ul>
  6. 6. Judge Walks Eight Days For Rule of Law Training Kabul, Afghanistan  | Tuesday, December 30, 2008 “ With little else other than a few changes of clothes, a judge from rural Afghanistan said he walked eight days from his isolated district in order to attend a judicial skills training program in Kabul organized by the USAID…  “ As you can see, I am an old man,” says the judge, who walked 14 hours per day, sleeping in mosques and in homes of distant relatives and strangers. “Along the way, there were many problems. It was raining, there were no roads, and we had to cross mountains.”  A judge for 16 years in the same, isolated district court, the judge said he knew his journey was worth the effort: “I was thinking, the road is so difficult, it is so hard, but the training is so important that it is worth the problems.” {…} “ No doubt, when I go back, I will try to implement the law in my district and make good decisions,” says the judge, smiling and putting away his glasses before looking up to add that he will have to walk another eight days home to do that.” <ul><li>Spreading the benefits of formal legal systems and training across Afghanistan is difficult </li></ul><ul><li>Much of Afghanistan is hard to reach by foot or car </li></ul><ul><li>It is enormously challenging for legal professionals to move around the country (see sidebar article) </li></ul><ul><li>Being physically present at a hearing or trial in a regional capital or Kabul may be nearly impossible for some parties </li></ul><ul><li>Geographic proximity will advantage individuals closer to urban centers </li></ul><ul><li>Technology may effectively address issues of geographic constraints </li></ul>
  7. 7. Community Cultural Centers provide information about access to justice and how to use the judicial system Kunduz, Afghanistan | Thursday, May 07, 2009 To bridge the gap between Afghans and the justice system, USAID has established 34 Community Cultural Centers in six of the country’s provinces. The newest center, located in Kunduz, was opened in February 2009. The centers rely on trained local volunteers to educate their fellow citizens about their legal rights and how to defend their rights in Afghanistan’s formal and informal justice systems. The centers reach out to the local communities that they serve. Using a variety of public education materials including comic books, pamphlets, and multimedia CDs, the centers spread information on access to justice, particularly for women and children, to schools, health clinics, local councils, police stations, and NGOs. Center volunteers also provide legal referrals and information on human rights and fair trial principles. The Community Cultural Centers have had a tangible positive impact on the lives of Afghans who seek information and resources there. <ul><li>Formal vs. Informal Justice </li></ul><ul><li>USAIDs AROLP is focused primarily on the formal justice system </li></ul><ul><li>The formal justice system implements the statutory law and sometimes Sharia law in three levels as primary, appeal and supreme courts, located in 34 provinces and 364 districts. </li></ul><ul><li>Legal education focuses on a narrow band of the population </li></ul><ul><li>Structural challenges remain even with a well-trained judiciary </li></ul><ul><li>Traditionally most justice in Afghanistan has been informal </li></ul>
  8. 8. <ul><li>The Importance of Informal Justice Systems </li></ul><ul><li>According to AHDR, jirgas settle more than 80% of judicial cases </li></ul><ul><li>Afghans largely rely on informal justice system due to lack of “trust and confidence” in the formal judicial system as well as their physical absence and low capacity. </li></ul><ul><li>The NJSS recognizes the informal justice system as &quot;one of the ways of access to justice” but argues that &quot;proceeding a case through it should be: </li></ul><ul><ul><li>1. with the agreement of litigants, </li></ul></ul><ul><ul><li>2. without any kind of discrimination, </li></ul></ul><ul><ul><li>3. should not be criminal issues and </li></ul></ul><ul><ul><li>4. decisions should not be against Islam, the Afghan Constitution, and Human Rights law.” </li></ul></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  9. 9. <ul><li>Informal Justice Systems in Afghanistan </li></ul><ul><li>In Afghanistan there are three kinds of laws ruling across the country: statutory law, customary law and Sharia or Islamic law. </li></ul><ul><li>The customary law is a compilation of indigenous tribal codes and local customs. Afghan people, regardless of their political and social background, apply customary law as a means of dispute resolution and collective reconciliation through an Informal justice system. </li></ul><ul><li>Informal Justice System (Traditional Dispute Resolution) is known in Afghanistan as jirgah, shura and markah. </li></ul><ul><li>The term jirgah is commonly used among Pashtoons but the terms shura and marka are used among Tajiks, Hazras and Uzbeks. </li></ul><ul><li>Jirga or shura is convened by a group of people mostly local and tribal men and elders who elaborate on a problem affecting individuals, families or tribes. </li></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  10. 10. <ul><li>Characteristics of Jirgas </li></ul><ul><li>To convene a jirga, one or both of the parties to a dispute ask tribal elders to attend a jirga </li></ul><ul><li>One or both parties prepare food for the elders (e.g. killing a cow or a sheep). </li></ul><ul><li>The number of the jirga members varies and depends on the nature of the issue. If six or more men are asked to mediate a dispute between persons, villages, or tribes, half will be drawn from one side and half from the other in order to keep balance between the parties to the dispute. </li></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  11. 11. <ul><li>Characteristics of Jirgas (2) </li></ul><ul><li>To solve a dispute, Jirga men gather in a mosque or under a tree and discuss it under special principles and regulations. </li></ul><ul><li>During the proceedings, all members of a Jirga principally have equal rights, but practically accept the solution which the main members provide. </li></ul><ul><li>The participants discuss the issues in a calm atmosphere. </li></ul><ul><li>Every member is entitled to state his point of view and make suggestions. </li></ul><ul><li>The participants in a jirga or shura are: </li></ul><ul><ul><ul><li>- men, </li></ul></ul></ul><ul><ul><ul><li>- persons who are well known in their communities by their ability, wisdom and knowledge of social issues to solve the problems, </li></ul></ul></ul><ul><ul><ul><li>- volunteers who are genuinely eager to serve and find solutions to disputes. </li></ul></ul></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  12. 12. <ul><li>Proposal: The m-Jirga </li></ul><ul><li>There is no reason that the traditional justice mechanisms of Afghanistan cannot be replicated using modern technology </li></ul><ul><li>Disputants can call a special number on their mobile phone to begin the process </li></ul><ul><li>Facilitators will coordinate the m-Jirga and enable the disputants to record their cases </li></ul><ul><li>Both sides will be able to hear and respond to the statements from the other side </li></ul><ul><li>Panels of elders will then convene by phone, to hear each case </li></ul><ul><li>The elders will then be able to weigh in with their decision, and to record their rationale </li></ul><ul><li>The final decision will be shared with the disputants, and each disputant will be able to review the statements of the elders </li></ul>
  13. 13. Process Flow <ul><ul><li>SIMPLE MAJORITY WINS </li></ul></ul><ul><ul><li>The decision of the Jirga is offered back to the disputants over mobile phone. </li></ul></ul><ul><ul><li>JIRGA ELDER VOTE </li></ul></ul><ul><ul><li>Case presented to Jirga elder panel, who reviews the recorded cases and registers their opinion. </li></ul></ul><ul><ul><li>PARTY A REBUTS </li></ul></ul><ul><ul><li>Complainant receives a call and is able to review the respondent’s assertion and offer their own rebuttal </li></ul></ul><ul><ul><li>PARTY B RESPONDS </li></ul></ul><ul><ul><li>Respondent then receives a phone call on his mobile phone, hears party A’s case, and records their response. </li></ul></ul>PARTY A BEGINS JIRGA Complainant initiates the process by dialing the m-jirga line and making their case.
  14. 14. <ul><li>Proposal: The m-jirga (2) </li></ul><ul><li>The facilitators will be based in Community Cultural Centers around the country (see slide 7 sidebar) </li></ul><ul><li>m-jirga services will be available in every local dialect, and elders will be local to the parties involved in the dispute </li></ul><ul><li>Mediation services will also be available to the parties via mobile phone in advance of the Jirga being convened </li></ul><ul><li>Research to inform the design of the m-jirga will be conducted by the Microjustice initiative at the University of Tilburg </li></ul><ul><li>The technology supporting the case management and mobile phone recording will be provided by eBay/PayPal’s Community Court initiative </li></ul><ul><li>Additional justice services, coaching, and consultation will be available at the Mobile Justice number targeting commercial law and women’s legal rights and issues, supported by InternetBar . </li></ul>
  15. 15. Appendix
  16. 16. <ul><li>Characteristics of Jirgas </li></ul><ul><li>Diversity; there is no exact model for a jirga in the whole country, there is no fixed number of participants and no fixed time for proceedings, </li></ul><ul><li>Male members; nearly in all shuras the participants are men, elders and influential persons </li></ul><ul><li>Ad hoc; when a dispute needs to be resolved, jirga will be convened and the participants will discuss on the issue until it is concluded, </li></ul><ul><li>Unwritten; the decisions are normally conveyed orally, as they have been for centuries from one generation to the next, </li></ul><ul><li>No imprisonment; there is no any imprisonment as punishment. </li></ul><ul><li>Restorative; it is restorative (curative) justice rather than retributive </li></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  17. 17. <ul><li>Advantages of Jirgas </li></ul><ul><li>Cheaper: proceedings in a jirga are cheaper than a court </li></ul><ul><li>Shorter process: people prefer jirgas because they are quick </li></ul><ul><li>More comfortable: the parties to the dispute have better access to jirgas than court, the proceeding is in their local language, and the jirga is not held far away, </li></ul><ul><li>Accessible: jirgas can be found and conducted everywhere while court is not operational in some unsecured or remote places. </li></ul><ul><li>More peaceful: : jirgas are more restorative than court. Retributive state sentences will be difficult to enforce at the local level given the distance and lack of infrastructure. </li></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  18. 18. <ul><li>Disadvantages of Jirgas </li></ul><ul><li>Male members: jirga decisions rely largely on the judgment of a few male elders. </li></ul><ul><li>Violation of human rights: it is more likely to violate human rights especially women’s rights, such as continuing a bad marriage or forcing widows into compulsory marriages. </li></ul><ul><li>Unfairness: the lack of codified procedure can lead to unfairness in jirga decisions and Afghanistan lacks the civil society and state capacity to monitor such lapses. </li></ul><ul><li>Arbitrary and abuse: the unwritten nature of Afghan customary law leaves informal justice open to arbitrary application and abuse. </li></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>
  19. 19. <ul><li>Customary Law </li></ul><ul><li>Due to its ethnicity and tribal structure, Afghanistan has developed customary law which is a flexible and adaptable justice tailored to local beliefs and conditions. </li></ul><ul><li>The customary criminal norms are based on the notion of restorative justice rather than retributive: </li></ul><ul><li>Customary practices are developed in Afghanistan in various fields including personal matters and marriage, land issues and civil and criminal matters. </li></ul><ul><li>This detail was provided by the Attorney General of Afghanistan’s website – for more detail, see the Appendix </li></ul>For instance, instead of being sent to prison for his crime, the culprit is asked to pay Poar, or compensation money to the victim or the victims' family and to ask for forgiveness. This special custom of seeking apology and eliminating enmity is known as Nanawati among Pashtooon and ‘Uzr among other communities. In the case of an intentional or accidental murder, one form of Nanawati requires that the aggressor go to the victim's house with some elders, Ulama, aged people, some Sadats and old ladies and also take with them a sheep.