Informal Dispute Resolution as a Forum for Female Empowerment in Afghanistan

Erika Valentina Suhr

“If you’re not at the table, you’re on the menu”, quipped Congresswoman Susan Davis (D-53) at an event at the United States Institute of Peace where Afghan First Lady Rula Ghani spoke on the role of women as peacemakers in Afghanistan. However, getting to the table is easier said than done for women in Afghanistan, where violence against female public officials, regressive social norms, and wild disparities in law enforcement exist. The First Lady prompted women to work for their rights and to “not wait for them to fall in their laps”, but it is difficult to imagine that anyone in Afghanistan labors under the delusion that rights will be spontaneously bestowed upon women. How are women to assume the mantle of peacemakers in any substantive way if they are barred from most formal and informal dispute resolution and peace building mechanisms?

Of foremost importance is that women have a forum where their grievances can be redressed. Although much focus has been placed on improving the formal judicial system, an estimated 80% of disputes, not counting family-level disputes, are resolved by informal dispute resolution mechanisms. Both men and women prefer informal processes, such as local councils known as shuras and jirgas, perceiving them to be quicker, more cost-effective, and more cognizant of community norms and values, which in turn leads to a greater likelihood that those decisions will be upheld. Given that these methods are the overwhelming preference, it is significant that in many instances, informal dispute mechanisms are closed to women to varying degrees. For instance, in Aqcha District of Jowzjan Province, women are restricted from leaving their homes, let alone accessing a venue where they have to appear and speak before men who are not family members. Since the fall of the Taliban, the Afghan government and foreign actors have endeavored to expand local informal justice venues, including by increasing the number of shuras and jirgas, as well as creating new types of shuras driven by the government’s National Solidarity Program (NSP), designed to increase women’s access to justice by being required to have a quota of female membership, or at least a minimum of female input in decision-making. In certain districts, all-female shuras have been established.

Of course, even where these NSP shuras exist, there are considerable barriers to women achieving a just result. Women are cognizant of this, and although most theoretically prefer local enforcement over the formal court system, they are not optimistic about their chances in either forum. Some of this skepticism is due to the motivation behind local dispute resolution, which is geared more towards community welfare as opposed to individual rights, particularly women’s rights, the upholding of which can be perceived as being at cross-purposes with community goals. Relatedly, despite the existence of mixed-gender shuras, and even select all-female NSP shuras, the vast majority of these local councils are composed entirely of men, village elders and religious leaders, who have incentives to maintain the status quo, given that they are the beneficiaries of the current system and would be reluctant to share or relinquish power Also, of those community dispute resolution spaces where there are women arbitrators, women are threatened, and their decisions are not treated with the same authority as men’s.  Added to this is the more insidious problem of normative barriers to justice. Where the ability to quietly suffer and place one’s family and community above oneself is valued as a virtue of Afghan women, the result is incredible pressure to not pursue legal disputes.

As the First Lady and partners at USIP suggest, despite the aforementioned barriers to access, informal dispute resolution mechanisms are an important means by which Afghan women can both participate as peacemakers and themselves seek legal remedies. If the threshold of access to community-based systems are great, those to access government venues are even greater, and they carry comparably little weight in the view of the majority of Afghans. Further, future projections of greater instability and violence in Afghanistan place the reliability of government mechanisms in question. Reliance on external NGOs and foreign donors is equally suspect, given their potential inability to access remote parts of the country should there be greater instability. This phenomenon has already been evinced by the United States’ post-Benghazi reluctance to place American personnel at risk, which has had a cooling effect on several State Department and non-profit sector initiatives. American personnel not being allowed to stray from the embassy signifies that they cannot perform their important diplomatic functions to the best of their ability, because of information asymmetry and inefficient relationship building with local actors and communities. Furthermore, as has happened in the past, conservative elements within the national government could roll back the reforms that the current administration has implemented, rollbacks that local initiatives could be inured from. Thus, Afghans should invest in locally driven informal dispute resolution forums, with the end of relying less on externally driven or government programs.

No doubt, reformers should take a holistic approach and expand opportunities for women at every level of society; government state and local. Making the governmental court system more consistent, less corrupt, and accessible to women is important, but focusing on informal processes is the pragmatic way to get women to the table and off the menu right now.