United Nations, New York - In Afghanistan, "the justice system must be rebuilt in a way that bridges modern and traditional justice institutions, protects citizens' rights and strengthens rule of law, a pivotal step in Afghanistan's march to successful political transition and development." This is a key recommendation of the Afghanistan National Human Development Report 2007, unveiled here today.
RAWA Photo: Childern are the prime victims.
'Bridging Modernity and Tradition: Rule of Law and the Search for Justice' is the second National Human Development Report (NHDR) for Afghanistan. Supported by the Government of Afghanistan and UNDP, but prepared by an independent team of authors, the report explores the importance of rule of law to human development in the country. It identifies severe shortfalls in human and material resources in the formal justice system, and calls for it to be strengthened for more effective dispute settlement. It makes a strong case for a "hybrid model of Afghan justice" with traditional systems of dispute settlement - jirgas and shuras - complementing the formal justice system.
"In analyzing the challenges of human development and the rule of law, this Report advocates a bold and creative approach to strengthening the justice institutions in Afghanistan," said Hamid Karzai, President of Afghanistan, in a statement read during the launch. "While remaining committed to universal principles of human rights and Afghan laws, we believe that the state and traditional justice bodies working together can help make justice and the rule of law more readily available to Afghans."
Afghanistan has adapted the globally-agreed Millennium Development Goals (MDGs), which include halving the number of people living in extreme poverty and hunger, to include nine Afghan MDGs. Since 2002, the country has maintained a steady growth rate and is likely to achieve its poverty goal by 2020. The picture, however, is disappointing for most of the other goals. Some 6.6 million Afghans — or one-third of the population — do not have enough food to eat, and half the population expressed concerns about whether they will have enough to eat.
The country does better on women's political representation than many of its South Asian neighbours, with about a quarter of seats reserved for women in the lower house of the National Assembly. However, income disparities between men and women are huge, with men earning four times more than women on average. Only 12 percent of women are literate – compared to 32.4 percent of men – and 23.5 percent of the population aged 15 years and above can read and write. Injustices to women and children, both in the denial of basic services like healthcare and education and lack of livelihood opportunities, as well as high levels of domestic violence and discrimination, are among the major challenges to attaining the country's development goals.
Despite notable progress, the mortality rate for children under five years and the proportion of mothers dying in childbirth are among the highest in the world. Also, less than one in three households has access to safe drinking water and forests have been reduced by almost half since 1978.
In 2004, the Afghan Government estimated that the amount of aid required over the next seven years would be US$27.5 billion or $168 per capita per year. But disbursements between 2002 and 2005 fell far short of this target at an estimated $83 per capita per year. Since 2006, donors have so far contributed or pledged $10 billion, only half of what the Government believes is needed to implement its development strategy. The Report, therefore, urges donors to meet their commitments to support the country's efforts to achieve the MDGs.
"The findings of the 2007 Afghanistan Human Development Report reveal that despite decades of war, Afghanistan has made measurable progress with regard to some key dimensions of human development as well as towards achieving Afghanistan's development goals," said UNDP Administrator Kemal Derviš. "With the spectre of violence and uncertainty lifting ever so gradually from Afghanistan the need to expand prospects of life and human development across the length and breadth of the country assume ever-greater urgency."
The Report notes that personal security is among the major impediments to achieving the goals in Afghanistan. In 2006 alone, more than 4,400 Afghans—including 1,000 civilians— died in anti-government violence, twice as many as in 2005. The Report states that "security is a prerequisite for the rule of law that, in turn creates an atmosphere conducive to human development. Strengthening the rule of law can nonetheless, serve as an important means to advance the freedom of people to exercise choices and enhance their capacity to live meaningful and healthy lives."
The Report highlights the need for reconciliation to come to terms with past human rights violations. It finds that two out of three Afghan respondents in a survey said that either they themselves or a family member had been a direct victim of injustice and human rights violations over the past two decades. The primary victims of human rights violations and war crimes were women, children, and ethnic and religious minorities.
The ever-expanding narcotics trade has serious political and national security implications for the region. Poppy cultivation spiked in 2006 by 61 percent and Afghanistan produced 90 percent of the world's opium. "The opium economy is a source of corruption and undercuts public institutions, particularly those in the security and justice sectors," says the Report. Pervasive corruption in Afghanistan, if unchecked, can also erode the gains made so far, as well as the legitimacy of both the Government and international assistance, the Report says. The courts are perceived as the most corrupt institution followed by the Administrative branches of the Government. The Report observes that pervasive corruption in Afghanistan severely undermines the rule of law.
Land entitlement and secure property rights are other roadblocks to the rule of law according to the Report. Judicial staff members are poorly paid and many lack professional qualifications. Moreover, key components of the formal justice system do not operate as a whole. All these problems hamper the efficiency and effectiveness of the Afghan justice system.
In the traditional system, the emphasis is on speed and reconciliation with the aim of reintegrating the offender back into the community. Qualitative data from perception surveys conducted earlier this year shows that Afghans see jirgas and shuras as more accessible, more effective in the delivery of justice, less corrupt and more trustworthy than formal courts. Women, on the other hand, lose out in both formal and informal systems. They are often denied equal and fair access to justice as they are not allowed to register cases themselves. Traditional mechanisms are even less equal with outcomes like baad, a practice that clearly violates human rights principles through forced marriages.
While alternate dispute resolution mechanisms are needed to buttress the fledgling formal justice system, the Report also makes a strong argument in favour of an effective supervisory human rights oversight in order to ensure that decisions made by jirgas and shuras are in line with human rights principles and the Constitution of Afghanistan.
The Afghanistan National Development Strategy, to be completed by mid-2008 following a series of sub-national consultations in all 34 provinces, acknowledges that good governance, justice and rule of law are essential pre-conditions for development and the basis for legitimate government, protection of citizens' rights and a competitive market economy. It also commits the government to making a functioning justice system available to all Afghans.
The Afghanistan National Human Development Report was prepared with the support of UNDP by a team of independent researchers led by distinguished analysts from the Kabul University-based Centre for Policy and Human Development. The Report is based on both primary and secondary (qualitative and quantitative) data and on consultations with citizens throughout Afghanistan.