But around Kandahar, the Taliban's heartland and what Sen. John McCain (R) of Arizona called Monday the "key to success or failure" in the war, growing numbers of citizens are turning away from the new Afghanistan’s corruption-plagued justice system to an ancient means of resolving disputes that is overseen by the Taliban.
Some go because they’re Taliban partisans, most others because the Taliban have something to offer that the government of Afghanistan so far does not: Fast, generally impartial justice from a court that doesn’t demand bribes for its services.
The phenomenon is part tradition – local mullahs have been adjudicating disputes between farmers and small businessmen for centuries.
But it’s also evidence of a government that has so far failed to deliver the governance that is crucial to success of America's strategy in Afghanistan, according to its advocates. They are well aware that it was the predatory behavior and corruption of local warlords in the early 1990s that drove many Afghans, seeking honesty and an end to anarchy, into the arms of the Taliban.
Why Rahmatullah recommends Taliban courts
Kandahar – and Afghanistan more generally – is far from the state of collapse that prevailed then. But the fact that citizens are turning voluntarily to the Taliban’s parallel government in a city and province that is now the focus of a massive US and Afghan military buildup is a reminder of the limits of arms alone in defeating the insurgency.
“I don’t like our current government at all, and I don’t really like the Taliban, either. But I can either spend months in the government court and pay bribes, or I can go to the Taliban and have the matter settled in one day,” says Rahmatullah, who helps manage a construction site on the plains outside Kandahar where Al Qaeda once maintained training camps. “It’s an easy choice to make.”
He says he returned home in 2004, after almost 20 years in Pakistan, with optimism about the government of President Hamid Karzai. But he says he’s lost faith. “In the government areas, there are warlords everywhere and all the police have their hands out.”
An official working with the Canadian-led Provincial Reconstruction Team in Kandahar says they’re well aware of the issue, and that part of the problem is the lack of competent judges. He says they’re running a crash program to give basic training and hope to add 15 to 20 new judges to the Kandahar court system in the coming months.
Qaseem Ludin, the deputy director of Afghanistan’s anticorruption agency, says most judges across the country don’t have a degree beyond high school. He acknowledges that some judges take bribes, while others are intimidated by whichever of two disputants is more powerful. “We have a plan to build the judicial system's capacity, but it’s going to take time," he says.
How the mullahs get quick results
Rahmatullah, who asked that his full name not be used, contrasts his recent experience with the government court in Kandahar city with that of a property dispute that he took to the Taliban three months ago. Disputes over land in deeply rural Afghanistan are as common as summer sunshine after more than 30 years of war that have destroyed documents and encouraged land grabs from owners that fled the fighting.
The disputed land near the village of Marwais had led to fistfights among family members. The disagreement was threatening to turn even more violent, and the Taliban reached out to Rahmatullah and his cousin, the main parties, promising an impartial hearing.
He and his cousin agreed, and were invited to an ad hoc Taliban court in a ruined farmhouse, where a panel of five mullahs guarded by two gunmen reviewed their documents, consulted the stacks of books on Islamic jurisprudence at their elbows, and after about an hour found in Rahmatullah’s favor.
“My cousin wasn’t happy about it at first,” he says. “But the Taliban mullahs convinced him that to take my land was a sin, and that he’d go to hell for it. They eventually satisfied him.”
There is an element of coercion for some participants in the Taliban court process. The Islamist group has sent threatening letters to men who have refused to participate. Locals say that most people comply since the group still carries out assassinations inside the city, particularly in its crowded bazaar.
After $1,400 in bribes, district court has yet to rule
Still, Rahmatullah says, in most cases it’s a matter of being practical. As evidence, he brings up an inheritance dispute over another piece of land with his brother that’s currently before the Kandahar district court.
He says he has paid about $1,400 in bribes so far to a clerk in the court that he suspects is also extracting cash from his brother, playing the two sides off one another.
“It’s been months and we still don’t have a result. It’s disgusting," he says. "I’ve told all my friends and relatives to use the Taliban courts.”
Scared of the Taliban, officials hand over documents
Mohammed, who also asked that his full name not be used, is a landowner and also has a business running minibuses between Kandahar city and some of the surrounding towns. He chuckles about how his case was handled.
After his first approach to the Taliban, they told him to go to the land registry office and get the documents for his case. “I walked in and they asked me why – I told them I was taking a dispute to the Taliban. They were scared, and they gave me the documents without any hassles.”
His case was presided over by three mullahs in the garden of a private home just outside town. The Taliban ruled that it should be equally divided. “The key thing was that the dispute was ended. I have to live and work here. I choose what works.”