Taliban Justice Gains Favor as Official Afghan Courts Fail

By AZAM AHMED

JAN. 31, 2015 

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KANDAHAR, Afghanistan — Matiullah Khan and Muhammad Aywaz were each dug in, their property dispute in southern Afghanistan at an impasse.

Despite paying more than $1,000 apiece in lawyers’ fees, they found no resolution in the government’s judicial system. The tribal courts, informal networks of elders that most rural Afghans rely on, had also come up short.

So the two men did what a growing number of Afghans do these days when there is no other recourse: They turned to the Taliban. Within a few days, their problem was resolved — no bribes or fees necessary.

“He would have kept my house for himself if it wasn’t for the Taliban,” said Mr. Khan, a resident of Kandahar City who accused Mr. Aywaz of commandeering his home. “They were quick and fair.”

Frustrated by Western-inspired legal codes and a government court system widely seen as corrupt, many Afghans think that the militants’ quick and tradition-rooted rulings are their best hope for justice. In the Pakistani cities of Quetta and Chaman, havens for exiled Taliban figures, local residents describe long lines of Afghans waiting to see judges.

“You won’t find the same number of people in the Afghan courts as you do in the Taliban courts,” said Hajji Khudai Noor, a Kandahar resident who recently settled a land dispute through the Taliban in Quetta. “There are hundreds of people waiting for justice there.”

Western officials have long considered a fair and respected justice system to be central to quelling the insurgency, in an acknowledgment that the Taliban’s appeal had long been rooted in its use of traditional rural justice codes. But after the official end of the international military mission and more than a billion dollars in development aid to build up Afghanistan’s court system, it stands largely discredited and ridiculed by everyday Afghans. A common refrain, even in Kabul, is that to settle a dispute over your farm in court, you must first sell your chickens, your cows and your wife.

Countless training programs funded by Western allies for lawyers and judges have become bywords for waste. Laws suited to Western-style democracies have populated the books.

“The problem is we spent money on what we wanted to see, as opposed to thinking about what Afghans wanted to see,” said Noah Coburn, a political anthropologist at Bennington College.

Recognizing that informal tribal law would remain the choice for most Afghans, the United States in recent years began spending money to support local councils and connect them more publicly with the government. But a review by an independent monitoring organization found that instead of bolstering the government’s image, the effort mostly reinforced the primacy of the informal courts — of which Taliban justice could be considered a radical extension, wielding a mix of Pashtun tradition and extreme interpretations of Islamic law.

President Ashraf Ghani made cleaning up the judiciary one of his first pledges in office, but it will be a daunting task. According to a poll released by Gallup in October, just 25 percent of Afghans expressed confidence in the nation’s judicial system.

The Taliban have seized on this discontent. In some areas, they have set up mobile courts to reach villages outside their zones of influence. They hold hearings two days a week in the southern borderlands, requiring plaintiffs to produce evidence and witnesses. In Kunar, Taliban legal experts embed with militant commanders to provide services to locals and the fighters.

While few Afghans recall the Taliban rule from 1996 to 2001 with any fondness, the lack of corruption in justice then was seen by some as a strong suit. Bribes were uncommon. The power of litigants and their extended clans mattered less. The implementation of Islamic law, or at least the rural Afghan version of it, was standard.

But the brutality at the heart of Taliban justice has not been forgotten. Mass public executions were common. Minor offenses, like cutting beards short or listening to music, often brought fierce beatings as punishment. Yet the government system still compares unfavorably in the eyes of many Afghans. “There are no people who think that government justice is better than the Taliban’s,” said Amanullah, a schoolteacher from the Andar district of Ghazni. “Even if someone feels they have had their rights violated, there is an appeals procedure within the Taliban system.”

Yegan, a 65-year-old farmer in Kunduz, said he went to the Taliban to resolve a dispute with his sister over their inheritance.

He admits that he did not want to share their father’s land. But after reviewing the case, the Taliban forced him to adhere to Quranic law and give her a share.

“I am happy now that I am clear with God,” he said. “If it were the government, I would have had to pay a bribe.”

Experts say that informal justice is rarely fair to women and children, who are still sometimes bartered between families to settle disputes. But the government system is not doing much better. Lawyers complain about judges and prosecutors who do not know the law. Five men accused of rape in Paghman were hanged in October after a trial of only a few hours, highlighting a lack of due process.

There are some potentially simple fixes, especially among the personnel.

Consider the district judge of Spinbaldak, a relatively populous area on the border of Kandahar and Pakistan deep in the country’s Pashtun heartland. Azizullah Rahman, the judge, does not speak Pashto, the dominant language there.

“I am trying to learn,” Mr. Rahman said as he sat in the newly constructed courthouse where he usually fields two or three cases a month. “But it is difficult to understand people sometimes.”

One of the biggest challenges for any justice system is enforcing rulings, and that is where the Taliban’s intimidating reputation ranks as an advantage. It was a major reason that Mr. Khan, the Kandahar landowner, sought the Taliban’s help in resolving his case against Mr. Aywaz.

The dispute concerned the ownership of land on the edge of Kandahar City. Mr. Khan had built a house on the plot and was renting it to Mr. Aywaz. But shortly after moving in, Mr. Aywaz told Mr. Khan that he would not be leaving — ever. He claimed that before Mr. Khan built the house, the land belonged to him.

After giving up on the Afghan courts, they referred the matter to tribal elders, who agreed that Mr. Khan owned the property.

But Mr. Aywaz refused to acknowledge the decision.

Mr. Khan turned to the Taliban. The men brought their evidence and witnesses to a house in the border town of Chaman and presented their case.

Three hours later, the Taliban judges came back with a verdict in favor of Mr. Khan. They told Mr. Aywaz that simply placing a small sign on the land, which he claimed gave him ownership, did not establish possession.

Surprisingly, Mr. Aywaz was not bitter about the result.

“The Taliban took my land from me, but to be honest I didn’t understand how Shariah worked,” Mr. Aywaz said. “Now, logically looking at it, when they told me I needed to build a proper building, it makes sense to me.”

Ruhullah Khapalwak and Taimoor Shah contributed reporting. 

A version of this article appears in print on February 1, 2015, on page A1 of the New