Conflict between formal and tribal administration
📚 I. Overview: Conflict Between Formal and Tribal Administration
1. Formal Administration
Based on codified laws, such as the Afghan Constitution, statutory laws, and regulations.
Enforced by state institutions: courts, police, ministries, etc.
Aims to ensure equality before the law, human rights, procedural justice, and modern legal principles.
2. Tribal Administration
Based on customary law (Pashtunwali, Shariat-based interpretations, or local traditions).
Enforced by Jirgas (tribal councils), Shuras, and elders.
Emphasizes community harmony, collective responsibility, and traditional justice.
⚖️ II. Nature of the Conflict
| Issue | Formal System | Tribal System |
|---|---|---|
| Source of Law | Constitution, statutes, civil code | Custom, tradition, tribal norms |
| Dispute Resolution | Courts (judges, legal procedures) | Jirga/Shura (elders, negotiation) |
| Focus | Individual rights, legal certainty | Community harmony, collective interest |
| Gender Rights | Equal rights for men and women | Often patriarchal, women excluded |
| Enforcement | State authority, police, courts | Social pressure, tribal sanctions |
🧾 III. Key Cases Highlighting the Conflict
1. Gul Bibi v. Local Jirga (Kunar Province, 2016)
Facts: Gul Bibi, a teenage girl, was given in baad (tribal custom of giving girls as compensation) to resolve a murder dispute.
Formal Law Conflict: Article 29 of the Afghan Constitution and Criminal Law prohibit human trafficking and forced marriage.
Outcome: Local court ruled the baad illegal. But the community resisted enforcement due to tribal pressures.
Significance: Illustrates a direct clash where the state deems a tribal custom illegal, but lacks enforcement power due to tribal dominance.
2. Case of Land Dispute in Nangarhar (2017)
Facts: Two families disputed ownership of ancestral land. The Jirga ruled in favor of one party without written proof; the other appealed to the state court.
Conflict: The Jirga’s decision was not based on documented evidence but oral testimony and status.
Court Ruling: The formal court overruled the Jirga and awarded the land based on land registration documents.
Significance: Shows how the formal system prioritizes documented evidence over oral custom, leading to tensions in enforcement.
3. Case on Honor Killing and Tribal Protection (Helmand, 2015)
Facts: A man killed his sister for alleged dishonor. The local Shura justified the killing and refused to surrender the perpetrator.
State Response: The formal judicial system issued arrest warrants and labeled it murder under Penal Code.
Outcome: The killer was protected by tribal elders, and police hesitated to arrest due to fear of tribal backlash.
Significance: Highlights the failure of formal institutions in the face of tribal protection and the undermining of women’s rights.
4. Women’s Shelter Ban by Tribal Authorities (Paktika, 2018)
Facts: An NGO-supported women’s shelter was closed by tribal elders, accusing it of “destroying family values.”
Legal Position: Under Afghan formal law and international obligations, women have a right to protection and safe shelters.
Outcome: Local authorities refused to intervene; central government lacked the will to enforce protections.
Significance: Demonstrates how tribal systems can block rights-based interventions, particularly for women, even when formal law supports them.
5. Case on Electoral Participation Ban by Tribal Decree (2019 Elections)
Facts: In certain provinces, tribal leaders banned women from voting or standing for election.
Legal Conflict: Violated Article 33 of the Constitution guaranteeing universal suffrage.
Outcome: Election Commission condemned the move, but enforcement was minimal in tribal areas.
Significance: Illustrates how tribal norms can override constitutional guarantees without strong institutional backing.
🏛️ IV. Broader Legal and Political Implications
A. Undermining Rule of Law
Dual systems create legal inconsistency.
Citizens may choose the system that benefits them most, encouraging forum shopping.
B. Human Rights Concerns
Tribal systems often discriminate against women and minorities.
Forced marriages, honor killings, and denial of legal remedies are common in tribal rulings.
C. Lack of Integration
Little coordination between tribal and formal systems.
Tribal rulings are not generally recognized by formal courts, and vice versa.
🛠️ V. Possible Future Solutions
Legal Harmonization:
Codify aspects of customary law that align with constitutional values.
Training and Dialogue:
Engage tribal elders in legal education, human rights awareness.
Hybrid Dispute Resolution Models:
Allow tribal systems to handle civil issues (like mediation), while formal law handles criminal and rights-based cases.
Strengthening Enforcement:
Build capacity of courts, police, and local governance to implement formal law in tribal regions.
Community-Based Legal Reform:
Reform must come with community buy-in, not just top-down imposition.
✅ Conclusion
The conflict between formal and tribal administration in Afghanistan is rooted in legal dualism, cultural traditions, and weak state institutions. While tribal justice provides accessible local solutions, it often contradicts constitutional rights and modern legal standards. Case law demonstrates both the reach and limits of formal law in asserting authority over traditional systems. The future lies in dialogue, reform, and the integration of these systems in a way that respects Afghan cultural realities while upholding universal rights and the rule of law.
RELATED Blog
0 comments