Questioning Assumptions on Justice Policy

Questioning Assumptions on Justice Policy

The fate of Afghan women is on the minds of national and international stakeholders as the international community edges closer to transitioning out of the country. These concerns are particularly active in the effort to reform Afghanistan’s justice sector. The project began with a sole focus on the state justice system, but national ministries and international advisors have increasingly focused on questions of how to strengthen and improve women’s access to and protection within community-based dispute resolution (CBDR) processes. While this goal is an important one, I am concerned that certain assumptions among reformers may be getting in the way of a criticial examination of how justice is understood and practiced within communities across Afghanistan.

My thinking on this issue begins with the knowledge that each of us is the product of a society—a community of some form or another with a shared set of social values, understandings and practices. As we grow, we learn the “right” and “wrong” ways of doing things; we learn not only how things work in reality, but also how they should work. These lessons become a part of us, forming a set of assumptions that shapes the way we perceive and interact with the world. Our assumptions tell us what is to be considered a problem and what isn’t, and further, the important questions to ask in solving a problem and what will be considered acceptable answers. While in most circumstances this is quite helpful, outside of our own communities our assumptions may define a problem and dictate a set of questions and answers that do not accurately fit the context.

Many of us working in the justice sector have heard terrible stories of women and girls sold by their families, forcibly married, or given away to resolve a blood feud. These exchanges can result in a lifetime of torture for some women, and are by all accounts a violation of their individual rights as Afghan citizens and their human rights more broadly. We also know that women’s access to CBDR is often highly constrained, leaving them without a voice in advocating for their lawful rights and entitlements. For many of us—Afghans and internationals alike—these stories violently collide with our understandings of justice, and thus, increasing access to justice for Afghan women has been identified as a problem for us to solve.

Because many of us are the product of communities or educations that prioritise individual rights, and have the governmental capacity to enforce them, this problem leads us to ask questions that flow from the state’s role in delivering conflict resolution services: How can we improve CBDR processes to better protect women’s rights? What systems can we develop to help women enforce their rights against their family members or local decision-makers? How do we increase women’s access to state justice services? The answers to these questions are likewise dictated by our assumptions about how a legal system should work: We assume that state justice is more aligned with and better able to enforce our own understandings of justice, and thus our answer is to put in place legislation that forces an end to such violations. We seek legislation that will deliver change through the coercive force of the state, by facilitating the review and even criminalisation of decision-making that contradicts state statutory requirements and national commitments to international human rights treaties.

However, an alternative line of questioning could build from the opposite angle—from the ground up. For example, how often are these violations happening and how does this compare to women’s treatment by state and district actors? Are there ways in which women’s rights are being protected within CBDR, and how can we build on these? In what kinds of cases are men also asked to sacrifice their individual rights? What happens in our own countries when our systems fail to protect the rights of women? In looking at this different set of questions, we would likely come up with a very different set of answers. At least, our inquiry would be driven by the assumptions and processes that are at work on the ground as opposed to those that come from above or from very far away. For, despite the notion that there is a universal set of human rights, there are as many ways to achieve their protection as there are societies.

My concern about how our assumptions dictate our identification of problems and their acceptable solutions is particularly important in policy and programming in Afghanistan today. Throughout Afghan history, top-down, ideologically-driven efforts at social reform (especially regarding the rights and roles of women) have consistently eroded the legitimacy of state governments. King Amanullahcertainly learned this lesson, as did the communists and the Taliban.

AREU’s work on CBDR highlights a point of critical value to policymakers and program practitioners: social change is happening in Afghanistan. Maybe not as rapidly as we’d like or in a way that comports to how we think things should be done, but it is happening. To try to shape the direction of this change into something that more closely resembles our own understandings and assumptions is to risk adopting the same ideologically-driven approach as those who came before us.

Rebecca Gang is a consultant working with AREU on issues of justice and rule of law. Her publications with AREU to date include Community-Based Dispute Resolution Processes in Balkh Province and Kabul City.

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