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Afghan women: Trapped in tribal court system

A burqa-clad Afghan woman walks in a cemetery Kabul on November 23, 2011.
A burqa-clad Afghan woman walks in a cemetery Kabul on November 23, 2011. AFP/Getty Images

This story originally appeared on Global a series entitled Life Sentence: Women and justice in Afghanistan

(Global Post) KABUL, Afghanistan -- Sakina's eyes are dark wells of despair that lighten only briefly when the 20-year-old mother looks at her nine-month-old son, Mirwais.

Mother and child are inhabitants of the Badam Bagh women's prison in Kabul, Afghanistan. Here children born to inmates share their mothers' sentences.

But it is not a life behind the walls of the prison that troubles Sakina most. It is the possibility that she may soon be released.

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"They will send me to my father's house," she says, her voice barely above a whisper as she speaks to a reporter permitted a rare glimpse inside Afghanistan's criminal justice system for women.

"He will kill me for sure. Then he will kill, or sell, my little boy, " said Sakina, whose full name is being withheld by GlobalPost.

Sakina's tale -- one of Kafkaesque twists and turns inside the labyrinth of a criminal justice system that is stacked against women -- reveals an Afghan society that has proven uniquely resistant to change throughout its tortuous history. Invaded in modern history by the British, the Soviets and now the Americans, generations of Afghans have endured occupiers and resisted their influences and attempts to establish a central government, leaving an informal legal system in place that dates back centuries.

Sakina's imprisonment stems from her attempts to evade a uniquely medieval form of restitution practiced in tribal courts and known as ba'ad. It is Afghanistan's version of restorative justice in which women and girls are bartered from one family to another as a way to settle a dispute.

In Afghanistan, there are essentially two legal systems that exist in parallel. One is the Kabul central government's justice system which, despite years of funding from the US and the international coalition, is rife with corruption, widely discredited and virtually disregarded by the populace. The other track is built around traditional legal practices, including ba'ad, and the cases are heard by local, tribal courts.

The United States and the international community have recently begun working with these tribal courts after multiple surveys indicated that up to 90 percent of criminal and civil complaints end up in this informal justice system. Critics say these tribal courts have grounding in neither constitutional nor Islamic law, and that international efforts to support and reform them only legitimize an inherently misogynistic legal framework.

The structure of these courts is so completely dominated by men that the only way a woman can access them is through a male family member, who in many cases is the very tormentor she wants to complain about, as was the case with Sakina.

"This is very worrisome," said Latifa Sultani, Coordinator for Women's Protection with the Afghanistan Independent Human Rights Commission (AIHRC). "Tribal courts will never allow justice for a female victim."

But these courts are, for now, a main focus of US efforts to improve access to justice for the citizens of Afghanistan. Faced with the exploding corruption and slow pace of reform in the state courts, the US Agency for International Development (USAID) has turned its attention to these local structures.

According to Roshan Sirran, the head of the Training Human Rights Association for Afghan Women (THRA), this is not good news for Afghanistan's beleaguered females.

"In the tribal courts, the first sacrifice is women," Sirran said. "Always. If there is a fight for land, for water, if there is violence, a girl can be given in ba'ad to settle these things."

Despite a decade of hard work and significant investment by the international community to improve the lives of women after the fall of the Taliban government, the problem of violence continues to grow.

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Based on figures recently released by the Afghan government, 2,433 cases of violence against women were brought to the attention of the Afghan Independent Human Rights Commission (AIHRC) in the first six months of Afghan year 1390 (April-September 2011), more than double the number recorded for the same period in the previous year.

Sakina's life hangs in the balance between this failing court system and the very real threat of violence. Her odyssey began under the Taliban, but the story of her arrest and punishment dates from the more recent era, when the presence of foreign troops and aid workers was supposed to be loosening the bonds that had imprisoned women under the brutal, fundamentalist regime of the Taliban.

Her story illustrates that, despite intense efforts devoted to reforming the justice system, Afghan women's life of misery remains unchanged in many important respects and the injustices against them persist.

The tale is a long one, and illustrates the enormous, perhaps hopeless task that confronts those hoping to reform the Afghan justice system. In Afghanistan, justice, especially for women, is an extremely difficult concept to grasp.

Sakina's Story

Sakina is in prison for the heinous crime of kidnapping. What makes her case a bit unusual is that the kidnapping victim was Sakina herself.

The problem began when she was just a small child, living in Nooristan province with her father, her stepmother, and two brothers who were nearly grown. Her mother was dead, and her father had taken another wife.

Nooristan is in northeastern Afghanistan, a province of mountains and trees. Its population is ethnically distinct from the rest of the country, with a minority of Pashtuns and Tajiks. Sakina herself is Pashtun.

When Sakina was five, one of her brothers eloped with his cousin's wife, a grievous offense in Afghanistan: the penalty for adultery is death by stoning.

The couple was found and dragged back to the community, where a council of elders, a jirga, decided to spare the young lovers. They would be allowed to marry, but the price was a steep one: Sakina would be betrothed to her uncle, the father of the scorned husband.

To assuage affronts to honor, to compensate for financial loss, even to reconcile families of murderers and victims, jirgas often award a young girl to the affronted party in the practice known as "ba'ad."

The rationale is deceptively benign: uniting two families by blood is supposed to smooth over the enmity, preventing feuds that often drag on for years, even into new generations.

But the reality is quite different. A young girl who is given in ba'ad all too often becomes the scapegoat for her new family's grief and anger. They take out their rage on the helpless girl, who is usually wed to a male member of the new family, regardless of age or temperament.

In Sakina's case, the match was more than inappropriate: she was a child of five. Her "fiance" was 70.