Afghan Legal Reform: Challenges and Opportunities

Jan 2003

The purpose of this brief is to summarize a series of observations on the current status of legal reform in Afghanistan gathered during a research mission undertaken by the Harvard Program on Humanitarian Policy and Conflict Research (HPCR) in November 2002, identify a key set of challenges to the reform process, and suggest strategies for addressing these challenges. The HPCR mission sought to go beyond the prevailing assumption that assistance to legal reform must focus primarily on quick impact material and technical assistance projects, urging rapid action by domestic players. Based on numerous interviews with legal actors and analyses from the field, this brief suggests that international assistance to legal reform should devote pressing attention to the political and religious environment of the legal reform process in order to ensure the viability of the efforts of the Transitional Administration in this area. Legal reform is a critical foundation of reconstruction in post conflict situations. In Afghanistan, where decades of international and civil war have devastated formal legal mechanisms, and depleted much of the country’s class of legal professionals, legal reform is vital to the success of other areas of development and reconstruction. In addition to the general obstacles facing legal reform in post-conflict situations, Afghan legal reform must face major barriers such as the lack of a network of legal professionals, a weakened system of formal legal education, the existence of parallel and fragmented judiciary systems in the regions that have, over the years, replaced the state structure and some of its laws. Moreover, the Afghan situation is made more complex by the historic and ongoing role of Islam in the Afghan society that has had a significant and disputed influence on its legal framework. International donors and the UN, recognizing the significance of law reform in post conflict environments, have emphasized the urgency of legal reform in Afghanistan, and have developed strategies to address this sector of assistance. To date, these actors and the Transitional Administration have focused on one track of legal reform assistance: material and technical. Explaining this inordinate focus on material and technical assistance is not difficult: for the international community, these needs are easy to identify, and relatively simple to address. For the administration, such needs are immediate, critical, and politically uncontroversial. However, the HPCR mission observed that a series of significant policy and doctrinal issues linger beneath the surface, and threaten to undermine the fruits of this assistance, and the very process of legal reform in Afghanistan. Unlike material and technical needs, policy and doctrinal challenges are complex, politically charged, and suggest no obvious ‘quick impact’ interventions. Most actors seem paralyzed by the substantive complexity of these issues as well as a lack of strategies for engagement. At the same time, many in the donor community as well as in the domestic arena recognize that these issues are both urgent and weighty and that, if ignored, could resurface to instigate stringent political opposition to legal reform efforts. 

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