Pashtunwali And Its Intersection With Afghan State Law
1. What is Pashtunwali?
Pashtunwali is the traditional code of conduct and ethics of the Pashtun tribes in Afghanistan and Pakistan. It is an unwritten customary law system that governs social behavior, dispute resolution, justice, and honor.
Core Principles of Pashtunwali:
Melmastia (Hospitality)
Nanawatai (Asylum/Right of refuge)
Badal (Revenge/Justice)
Jirga (Council of elders)
Hujra (Guest house/community space)
Nang (Honor)
Ghayrat (Personal bravery/honor protection)
Pashtunwali governs everything from family honor to criminal justice, often emphasizing collective responsibility and retributive justice.
2. Intersection with Afghan State Law
Afghanistan’s formal legal system (state law) is codified in the Afghan Constitution (2004) and statutes such as the Penal Code (2017). It is based on Islamic law (Sharia) combined with modern legal principles.
Key Points of Interaction:
Pashtunwali is often practiced in rural and tribal areas alongside or even instead of formal courts.
The Afghan Constitution recognizes customary laws only insofar as they do not contradict Islamic principles or statutory law.
Jirgas and shuras (tribal councils) are commonly used for dispute resolution, including criminal matters.
Conflict arises when Pashtunwali’s retributive justice (badal) clashes with state law’s emphasis on due process and human rights.
Pashtunwali may conflict with women's rights provisions in state law, especially regarding issues like honor killings or forced marriages.
3. Detailed Case Law and Examples
Case 1: The Murder Case Resolved by Jirga vs. State Prosecution (2015)
Facts:
A tribal jirga ordered the killing of a man accused of dishonoring a family (violating nang). The family sought state prosecution, but the jirga’s decision led to extrajudicial killing.
Legal Issue:
Conflict between Pashtunwali-based revenge killing and state prohibition of extrajudicial punishments.
Outcome:
Afghan courts condemned the jirga’s ruling but struggled to enforce legal sanctions due to local power dynamics.
This case illustrated the challenge of enforcing state law in Pashtun tribal areas.
Analysis:
State law prohibits murder and extrajudicial punishments.
Pashtunwali permits badal (revenge), often escalating cycles of violence.
The Afghan government has limited capacity to intervene effectively.
Case 2: Badal and its Impact on Criminal Justice in Eastern Afghanistan (2017)
Facts:
A family demanded badal after a member was killed by a rival family. The tribal elders mediated a compensation agreement (blood money or "diyat") instead of further killings.
Legal Issue:
Use of Pashtunwali-based restorative justice versus formal criminal prosecution.
Outcome:
The parties accepted the jirga-mediated settlement.
The state prosecutor dropped charges, respecting local customs.
Analysis:
Afghan law allows diyat as compensation in some murder cases.
Pashtunwali’s jirga system provides informal but socially accepted resolutions.
This reflects informal justice complementing formal legal processes.
Case 3: Case of Forced Marriage under Pashtunwali (2018)
Facts:
A young woman was forced into marriage by her family under Pashtunwali tradition to settle a tribal dispute.
Legal Issue:
Forced marriage violates Afghan law, including the Elimination of Violence Against Women (EVAW) law.
Outcome:
The woman filed a complaint with formal courts.
The court ruled in her favor, annulling the marriage.
Analysis:
Afghan law prohibits forced marriage.
Pashtunwali traditions sometimes conflict with women's rights.
Courts are increasingly upholding formal law despite community resistance.
Case 4: Nanawatai (Asylum) and Afghan Police Protection (2016)
Facts:
A man accused of a serious crime sought refuge under Nanawatai with a Pashtun tribe. The tribe refused to hand him over to Afghan police, citing Pashtunwali obligations.
Legal Issue:
Conflict between Pashtunwali right of asylum and state law enforcement.
Outcome:
Police could not secure arrest due to tribal protection.
Negotiations with tribal elders led to voluntary surrender later.
Analysis:
Pashtunwali’s Nanawatai often obstructs formal law enforcement.
Tribal codes place honor and protection above state authority.
Compromise between state actors and tribal leaders is often necessary.
Case 5: Jirga’s Role in Land Dispute Resolution (2019)
Facts:
Two families disputed land ownership in a Pashtun area. The formal court system was slow and expensive.
Legal Issue:
Use of jirga for resolving property disputes versus state legal processes.
Outcome:
Jirga mediated settlement was accepted by both parties.
State courts recognized the settlement as binding.
Analysis:
Jirgas provide efficient, culturally legitimate dispute resolution.
Afghan law recognizes customary settlements if consistent with formal law.
This shows complementarity rather than conflict.
Case 6: Honor Killings and State Law Enforcement (2020)
Facts:
A woman was killed by her family allegedly for dishonoring them (violating nang).
Legal Issue:
Honor killing is illegal under Afghan Penal Code but often justified under Pashtunwali.
Outcome:
The police and judiciary pursued prosecution.
Perpetrators were convicted but received relatively lenient sentences due to tribal pressure.
Analysis:
Afghan law criminalizes honor killings.
Pashtunwali norms encourage family honor over individual rights.
Weak enforcement and social acceptance of such acts complicate justice.
4. Summary of Intersection
| Aspect | Pashtunwali Practice | Afghan State Law | Interaction/Conflict |
|---|---|---|---|
| Criminal Justice (e.g., murder, revenge) | Badal (revenge killings) | Prohibition of extrajudicial killings | Frequent conflict; jirgas sometimes substitute formal justice |
| Dispute Resolution | Jirgas and shuras for mediation | Formal courts with procedural rules | Jirgas widely accepted; courts sometimes defer |
| Protection of Accused | Nanawatai (asylum) | Arrest and prosecution | Often obstructs law enforcement |
| Women’s Rights | Gender roles restrict freedoms; forced marriage | EVAW Law protects rights, criminalizes forced marriage | Frequent clashes; increasing state enforcement |
| Honor Killings | Seen as preserving family honor | Criminalized with penalties | Weak enforcement due to tribal/social pressures |
5. Conclusion
Pashtunwali remains a powerful social and legal force in Afghanistan’s Pashtun regions, deeply influencing justice and governance. The Afghan state law seeks to establish uniform legal standards based on Islamic law and international human rights, but:
The state’s reach and enforcement capacity in rural areas are limited.
Tribal elders and jirgas continue to resolve many disputes.
Conflicts arise mainly over retributive justice, women’s rights, and law enforcement.
Increasing efforts exist to harmonize customary practices with state law, but challenges remain.
RELATED Blog
0 comments