The Guardian, September 15, 2011

The long road to justice in Afghanistan

London barrister Naina Patel spent a year in a hostile Afghanistan province working to establish the rule of law. Safely home, she describes the greatest challenges – and successes – of the role

By Naina Patel

As I finished a meal with Helmand's wizened yet progressive chief justice, grandstanding chief prosecutor and rather disengaged justice department director in Lashkar Gah, the challenge of trying to provide non-Taliban justice in a country ravaged by 30 years of war, in one of its most hostile and drug-ridden provinces, began to sink in.

It had sounded fascinating – taking a sabbatical from life as a barrister in London to be senior justice adviser to the Helmand Provincial Reconstruction Team (PRT). Justice is central to the counterinsurgency. As the military repeatedly told us, a key driver of Taliban popularity was their ability to dispense justice that was cheap, swift and severe, if barbaric by our standards. Undermining this popularity therefore required the Afghan government to provide people with a credible alternative for resolving their problems.

But this was no small task. When I arrived in June 2010, Helmand had seven judges for an area the size of Wales. Sixteen criminal prosecutors were matched by two defence lawyers, and three huquq officials (empowered to mediate cases regarding debt, private land or family issues) were available for civil cases. The old provincial courthouse had been blown up, there were opium poppies growing in the grounds of the new courthouse, and there weren't any courthouses at all in the 13 districts outside the provincial capital. About 90% of cases were resolved outside the state legal system, by community elders, religious scholars or the Taliban.

I set to work alongside UK police officers, prison governors, fellow lawyers and engineers, all supporting the Afghan government's efforts to improve policing and prisons, combat terrorism and establish the much-vaunted "rule of law". There were civil servants and there were people like me, "deployable civilian experts" from the UK government's Stabilisation Unit – individuals chosen for their skills in diverse areas such as agriculture, infrastructure and law, all highly relevant to stabilising conflict-affected countries but limited within government.

Everyone was a long way from their different day jobs, slotting into multinational, civil-military teams, putting their skills to work in a wholly novel environment. And yet for the 12 months of our tours, we lived similar existences to one another and the soldiers around us: the morning run around the helipad before the heat began in earnest; breakfast in the mess tent; the trips downtown for meetings to train, mentor and advise, always travelling in a convoy of armoured vehicles; the afternoon video conferences with Kabul and London to discuss progress and challenges; the evening emails home, followed by sweet oblivion in a shipping container.

During the year, I began to understand how fortunate we are to have only one set of laws in Britain. Afghanistan is really three legal systems within one: the state system, dating back to the reign of King Amanullah, inspired by the codes of Turkey and Egypt; sharia, founded on ancient religious texts and their interpretation; and customary law, such as Pashtunwali, the strict honour code of the Pashtuns. Only the first two of these are explicitly recognised in the country's constitution. Still, the result is a confusing labyrinth of rules and norms, which only heightens the challenge of providing high quality and consistent justice.

The problem was illustrated in one of the training sessions held on criminal law and procedure. A heated debate erupted between an elderly Pashtun judge and a persistent young man from the national human rights commission. "Why were women in prison for running away from home?" the young man asked. It was not a crime that appeared in the penal code. "Sharia," answered the judge from under his imposing turban, with a glance that told the young man not to ask any more. A worried training coordinator, concerned at the way this exchange was going, decided to call a tea break while we discussed with the trainer how to respond. Understanding the importance of clarifying the issue, the trainer spent the remainder of the afternoon with both the code and religious text, explaining where one began and the other ended, and the centrality to both of asking why the woman had run away – adultery was clearly problematic, abuse was a very different matter. And custom, he made clear, had no basis in law.

I also came to realise how much we take our physical security for granted and how much justice, as we know it, depends on it. Take something as simple as increasing the number of justice officials. Farid, a mild-mannered criminal prosecutor from Kabul, was one of several assigned to a district – in his case, Sangin – to "take justice to the people". He hailed from the Tajik middle-class elite, and I doubt very much whether, when he was completing his studies at Kabul university, he imagined he would be living in a shipping container on a forward operating base, patrolling alongside troops and dodging bullets while trying to explain to people what a prosecutor was and why they should report crime to him, let alone why witnesses should attend court. Shortly after he arrived, he was gone. Farid became the third prosecutor to leave Sangin in a year.

Afghanistan police guard three drug smugglers who were arrested with 87kg of opium in Herat city. (Photo: Aref Karimi/AFP/Getty)

It was the chief prosecutor, during one of his monologues over tea, who pointed out the folly of expecting to retain prosecutors in such difficult environments on a salary of $60 (£38) a month – a quarter of what the average policeman received – or if they did stay, expecting them to be honest. Lawyers like myself were paid hazard allowances to deploy to places such as Helmand; why did we expect Afghan lawyers to deploy on far less, he asked, smiling. With his support, we liaised with the ministry to supplement the salaries of criminal prosecutors, and with the military to ensure sufficient security existed in an area before a prosecutor was deployed.

Finally, I appreciated how much an educated society underpins our legal system and public acceptance of it. In Afghanistan, as justice officials grew in both numbers and abilities, we began to shift our focus to improving awareness of the justice system and access to it. The dedicated chief justice, who travelled with me on study tours to New Delhi and London shortly after losing his brother in an explosion in Nangahar, returned committed to launching a court listing system. Summoning everyone to his office to explain the idea in traditional Afghan consultative fashion, he was met with a response from one court clerk that although he was quite happy to oblige, since most people didn't read, he didn't really see the point. The chief justice sighed. He acknowledged the challenge of literacy, but explained that listing would be valuable for lawyers and the press. He hoped literacy among the masses would improve in the years ahead and it was important to start somewhere.

In the meantime, we explored alternative methods of publicising justice services and successes: radio messaging, pictorial pamphlets, posters and workshops. Even these were not straightforward. Pictures of the imposing new provincial courthouse had only been up on billboards a month, celebrating its opening under the banner "justice comes to Helmand", when explosives shook the northern-most side of the compound.

By the time I left in June this year, I had seen significant progress. There were 17 judges, 29 criminal prosecutors and four defence lawyers/paralegals with many more in the pipeline. Eight huquq officials were available to mediate civil disputes. Trials were happening in four districts outside Lashkar Gah and links between the state and community-based dispute systems were improving. In July, Lashkar Gah was one of the first districts, nationally, to transition to Afghan control, a testimony to the hard work of many.

As Afghanistan looks toward the transition of further districts, leading up to the withdrawal of Nato troops by 2014, it is worth remembering that a functioning justice system takes time. The UK has had its own rites of passage through the duels and dynastic marriages of medieval times, but on a much longer timeframe, during which both security and education could improve drastically. For now, we must focus on the areas where the justice system can buy the credibility needed in the next three years – demonstrating the state's ability to provide security through the prosecution of insurgents, serious criminals and corrupt military and police, and providing finality of title to those involved in intractable land and water disputes. The rest will take time, and will need to be led by the Afghans themselves.

Names have been changed. Naina Patel, 30, has been a barrister since 2006. She specialises in public law and human rights. She was deployed by the Stabilisation Unit as senior justice adviser to the Helmand Provincial Reconstruction Team from June 2010 to June 2011. She has now returned to practise at Blackstone Chambers in London.

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