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Abstract
Footnote1Afghanistan’s justice system is currently at a crucial and troubled stage of development that will determine its effectiveness. This article focuses on the phenomenon of corruption inside judicial institutions. By integrating the analysis of narratives of corruption with the observation of judicial practice and a critical approach to the reconstruction process, I argue that in Afghanistan, the phenomenon of corruption can be understood in terms of its “double institutionalisation”, whereby mechanisms of exchange and of compensation, both already affirmed at the level of social practice, find a possibility of reaffirmation (of re-institutionalisation) in the legal system itself. The creation of an economic system that depends on international aid, the consolidation of a state apparatus over-determined by warlordism and foreign influences, and the process of legal modernisation itself all play an important role in the re-institutionalisation and radicalisation of corruption. By taking into consideration this scenario, I adopt an ethnographic perspective to explore some of the effects of corruption on the work of judges and on the access to justice itself.
Notes
1. I am grateful to anonymous ASR reviewers for insightful comments. An earlier preliminary version of this work appeared as ‘Afghanistan: Corruption and injustice in the judicial system’. Further research and fieldwork has been undertaken within the framework of activities of the Fernand Braudel International Fellowship for Experienced Researchers (Paris) and Rechtskulturen Fellowship (Berlin). I discussed some of the ideas illustrated here in a presentation at the Faculty of Law of Humboldt University (Berlin) in January 2013.
2. I have assigned fictitious names to all my interviewees.
3. See, for example, the speech of Colin Powell on 23 March 2004, available at the website of the National Commission on Terrorist Attacks Upon the United States at http://www.9-11commission.gov, accessed 29 September 2012.
4. See, for example, Captain David R.D. Nauta, Legal Adviser of Allied Joint Forces Command NATO, The judicial reform process in Afghanistan: In everyone’s interest. Available at the NATO website at http://www.nato.int, accessed 22 August 2012.
5. United Nations Assistance Mission in Afghanistan website at http://www.unama.unmissions.org, accessed 28 September 2011.
6. Since the end of the Cold War humanitarian interventions mediated by the use of force and post-war reconstruction projects have increasingly become salient features of international political relationships. In the Afghan case, countries fully involved in the post-war reconstruction have serious responsibility for the destruction that occurred during past and present wars, from the first Anglo-Afghan war to Enduring Freedom.
7. See, for example, Wyler and Katzman (2010). In comparative terms, see Combating corruption for development: The rule of law, transparency and accountability (UNPAN – United Nations Public Administration Network, 2002).
8. This involves a series of problems concerning privacy, adversarial approaches, values of objectivity versus subjectivity, the inclusion of customs as legitimate sources of law, the inclusion of elders as fundamental authorities for normative decision-making, and so on.
9. Conversation with a member of the Afghan Women Judges’ Association, 28 September 2006.
10. See, for example, Coppier (2005), Gupta (1995). As Ruth Miller (2008, p. ix) has maintained, “In the 1990s, the menace that corruption apparently posed to ‘developing’ democracies grew to such a degree that nearly every international aid organization devoted a department, an office, or at least a conference to combating it. The academic literature on corruption likewise burgeoned over this period, leading scholars of the subject to designate the 1990s and their academic activity during this time as the ‘corruption eruption’. Although this mania for defining, analyzing, and combating corruption came to peak in the 1990s, however, the turn of the twenty-first century was not the only moment in the modern period that such an obsession with the issue arose. Throughout the previous two centuries, the bureaucratic or financial deviance that is the hallmark of corruption literature was gradually becoming a subject of increasingly intense – even prurient – interest”.
11. From the Latin occultus (hidden), referring to the knowledge of what is hidden, not visible.
12. Anti-corruption policies can at times reach a level of exasperation: socio-biological programs, for example, are actually formed to promote the hiring of more women in public institutions because it is believed they are more apt to act ethically (see Alhassan-Alolo, 2007).
13. Basir received an education in Law at the University of Kabul. His help during my research in Afghanistan has been crucial for accessing judicial institutions.
14. Conversation, 12 September 2006.
15. Social institutions spread all over the country and made up of important men at the local level. They are not permanent institutions but are created when there are important decisions to be taken (at the level of the community) or conflicts to be solved (for example, conflicts between families). As composition of customary assemblies is directly linked to dynamics of prestige and honour, their decision-making mechanisms are very often unfavourable for marginal members of the community.The assemblies are not only functional to the resolution of disputes but also play an important role as communication channels among the Afghan population. The assembly carries out a relevant part in the production of public consent, in times of both peace and war. Composition and function of jirga and shura have changed over time, especially as a result of radical political upheavals of the last decades. There are several “levels” and forms of customary assembly; for a synthesis see Hanifi (2009).
16. There are also cases where customary assemblies, frequently with the support of local governors and/or mullah, resort to this type of practice. In these cases, what is at stake is the political role of customary institutions as well as their socio-normative function.