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Taliban Courts Seek To Undermine Afghan Judiciary

A view of Firoz Koh, the capital of the western Afghan province of Ghor. (file photo)

FIROZ KOH, Afghanistan -- Nasima, an Afghan woman and claimant, often travels more than 125 kilometers to pursue her divorce case in Ghor, a remote rural province in western Afghanistan.

The 22-year-old, who like many Afghans goes by one name only, says a lack of government courts in her home district has forced her to seek justice in Firoz Koh, the capital of Ghor Province, where a court hears her divorce case.

“We do not have a prosecutor's office or judges in Chahar Sada,” she told Radio Free Afghanistan of her district.

Nasima says that unlike many male litigants in her district, she cannot turn to the makeshift Taliban court for justice that is closer to home. “Most of our people turn their cases over to the Taliban or tribal elders,” she noted. “[But] the Taliban always rules against women or talks about stoning and lashing [them]."

The Taliban’s alternative justice system is gaining traction in many regions that the hard-line militants control or contest with the Afghan government, experts say. In Ghor, officials in Chahar Sada, Shahrak, Dolaina, and Pasaband, four of the provinces’ 11 districts, say a lack of government courts, judges, and prosecutors has forced people to go to the Taliban courts or local mosques for legal assistance.

The growing reliance on Taliban courts in rural Afghanistan is important as the group negotiates peace with the Afghan government. It underscores gains by the insurgents over Kabul, which locals say has failed to establish a functioning judiciary despite receiving billions of dollars in international aid over the past two decades.

The General Directorate of Courts of Appeal in Firoz Koh, the capital of the western Afghan province of Ghor.
The General Directorate of Courts of Appeal in Firoz Koh, the capital of the western Afghan province of Ghor.

The Taliban has stepped in to fill this vacuum by establishing shadow courts that attract those seeking to settle disputes or mete out justice.

"Many civil and criminal cases remain stuck in our courts,” said Gholam Sakhi Sabooryaar, district governor of Shahrak, of the stagnant judiciary. “Local elders help with [resolving] some of these cases while those with more serious cases go to the Taliban courts,” he added. “This has been a problem.”

Rights campaigners in Ghor say that government corruption, a weak rule of law, lack of access to courts and mounting insecurity are prompting some in the province to turn to the Taliban courts.

Mubarak Shah Shirzadah, provincial head of Afghanistan’s Independent Human Rights Commission, says that many litigants approach the Taliban court in desperation because they have no other choice.

"When citizens and people go to the Taliban to have their cases heard, there is no guarantee that the rights of both sides will be respected,” he told Radio Free Afghanistan. “These courts do not follow a specific [Afghan] law that guarantees to protect the rights of the defendants and claimants.”

The Taliban Law

During its rule in Afghanistan in the second half of the 1990s, the Taliban enforced what it said was Islamic Shari’a law, which emphasized the enforcement of certain laws. These edicts, collectively called Hudood, invoked harsh punishments such as execution for murder, limb amputations for theft, and death by stoning for adultery. Such punishments attracted strong international condemnation and opposition.

Today Qari Yusuf Ahmadi, a purported Taliban spokesman, says the group addresses all cases in a three-tier court system in the areas it controls, including some districts in Ghor.

"Every case goes through those courts and the decisions are announced in the presence of the claimant and the defendant,” he said. Judges are part of the shadow Taliban administration that now controls or contests large parts of the Afghan countryside. They have used the courts to undermine government control and to question its legitimacy and efficiency.

Ghor's Appellate Prosecutor's office in Firoz Koh.
Ghor's Appellate Prosecutor's office in Firoz Koh.

Senior Afghan officials in Ghor, however, deny the problem. Mohammad Arif Aber, spokesman for the provincial governor, says they have not witnessed a trend of people turning to Taliban courts.

"We have not received information at all that there is such an issue that the majority of the people are taking their cases to the Taliban or that are being tried extrajudicially," he said.

Local activists, however, want the government to be proactive to prevent the growing influence of the Taliban courts. Nisar Ahmad Koheen, an activist in Ghor, says that in addition to curbing corruption, the government needs to set up a legal advisory office in each Ghor district to restore the people's trust in the courts.

"This office should be able to identify and advise people in need and people who are not really capable of filing a lawsuit and who are not able to obtain their rights or those who lack financial capacity,” he said.

According to a report by the Overseas Development Institute (ODI), a think tank based in London, the Taliban justice system is proliferating across Afghanistan because people living in areas controlled by the insurgents have no choice while some see them as “accessible and easier to navigate than state courts, as well as quicker, fairer and less corrupt.”

The report, published in May and titled Rebel Rule of Law: Taliban Courts in the West and North-west of Afghanistan, says the Taliban has disempowered customary dispute resolution mechanisms and questions remain about how women, government supporters, and minorities experience justice under its rule.

“It has implications for the future of justice in Afghanistan as well as the fate of legal norms and rights embodied in the current Afghan constitution,” the report noted.