Judging women's access to justice - an insider's view

29 September 2014

by Shahrnaz Rafi

Australian-qualified lawyer Shahrnaz Rafi highlights issues hindering women's access to fair justice

As someone who has been in direct contact with the judicial system in Afghanistan - both as a lawyer working for private legal firms in Kabul and in my capacity as the Program Manager for the International Association of Women Judges - I have been provided with the platform to work closely with judges, especially female judges and lawyers. As a result, I’ve observed the many shortcomings that are prevalent in the legal profession across the country.

Women and their access to justice has been a major focus of state building in the Post-Taliban era, so much so that gender equality is one of the three pillars of the Afghanistan National Development Strategy. As a fundamental principle of human rights, women’s access to justice has an inevitably close relationship with human development. This was acknowledged by the government of Afghanistan in 2003 by ratifying the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

For such strategies to work, there is a need for qualified lawyers and judges, in particular females in order to implement the policy. However from my experience, there is a lack of such qualified professionals working in the current legal system. The main reason for this is because the current sitting judges are mostly graduates of the old system or graduates of ineffective curriculums presently taught at Kabul University and many other private universities across the country. A considerable number of judges are also graduates of the Sharia Law faculty and hence lack proper legal training.

The judicial system in Afghanistan is comprised of formal and informal functions. The formal judicial systems’ major institutions are functions like the police, the three level court system, forensic and legal medicine and other government entities such as the Ministry of Justice, Ministry of women's affairs and the Independent Human Rights Commission. However, this formal system is unpopular among ordinary citizens, in particular women.

The Open Society Institute found that a majority of women, 45.9% reasoned the fear of a male member of the family as their major obstacle to access justice through the formal function. Other reasons stated were the fear of sexual harassment, public rejection, financial problems, lack of information and the length of the procedure and inaccessibility.  If those fears are enjoined with the overall problems such as corruption, poverty, the high rate of illiteracy and dominance of gender biases, then we can start to understand how these factors not only undermine the principles of equal access to the formal justice system, but contribute to its unpopularity.

On the other hand - traditionally, the informal judicial mechanism has been much more prevalent and widely used by people across Afghanistan. The informal judicial mechanism is seen as an elder’s forum or most commonly known as a Shura, which lack any formal or legal functions. In a country that is widely accepted and recognised as traditional rather than Islamic, the informal justice system does not only oppose international laws and standards but it also stands against basic rights sourced in Islam. It is therefore highly biased against women and lacks basic understanding of rules and regulations.

However both formal and informal justice systems share a common similarity; the systems are male dominated in terms of both the number of people accessing the systems or working in the systems.

Overall, there are currently around 240 women judges registered at the Afghan Women Judges Association. That is a considerable number if we compare it to some of the neighbouring countries, for instance- Nepal with only 10 female sitting judges. But my observations have seen that Afghan women judges are to a certain extent symbolic. This is because most heads of divisions are male and they are the ones that influence female presiding judges’ decisions and verdicts.

According to a research conducted by the United Nations Office on Drugs and Crime, women judges tend to be less corrupt, with a significant decrease in the share of bribe-payers giving bribes to judges in recent years. However each still receives bribes from roughly a quarter of bribe payers. Whilst women judges might be less corrupt, I observed a sense of discriminatory behaviour towards women. This is dominate in the family court, where strict interpretations of Islamic Sharia law and a majority of the family court judges being women, divorce and child custody cases are looked upon in prejudiced eyes. This is because the female judges activism is limited to working on day to day cases, only a very few are involved in other social or self-learning/building projects, which makes it harder to break down the walls of conservative views.

Therefore, if Afghanistan is going to continue to implement gender equality and women’s access to the formal justice system then, better training and support is needed for better qualified lawyers and judges. This would increase the number of female legal practitioners and slowly remove obstacles for women to access the legal system, their main obstacle being the difficulty to openly express their problems with a male lawyer.