As Western troops plan for the drawdown in Afghanistan, one American lawyer has set up her own private practice in the Afghan capital and doesn’t have plans to leave any time soon. She’s too focused on helping make sure the laws are enforced.
The lawyer, Kimberley Motley, is best known for defending a girl imprisoned for “adultery” after being raped and impregnated by her attacker in 2010. The victim had received a 12-year sentence in appellate court with the alternative of marrying her rapist, and was serving the sentence when her case came to Ms. Motley’s attention.
She lodged a request for a presidential pardon citing Sharia law, Afghan law, and international conventions, while at the same time launching an online petition that garnered 6,000 Afghan signatures in three days. The girl was granted the pardon in December 2011 by President Karzai and released to a shelter.
Motley is trying to lead by example. She says it is important to draw attention to human rights abuses through specific cases – if the victims are willing to go public – in order, she says, “to create test cases of how things can be done.”
She made her first trip to Afghanistan in 2008 as part of the US government’s rule-of-law support program after five years working for the Wisconsin Public Defenders’ Office.
The aim of the program was to address a lack of general legal knowledge. Motley and the others on the program helped train local defense lawyers and assisted them in writing legal briefs. Motley personally helped write the brief for the landmark 2009 appeal by an Afghan student who had been sentenced to death after downloading an article on women’s rights.
As she looked around at all the nongovernmental organizations and researchers in Kabul trying to help, though, she realized tangible results were relatively few and far between.
So, “sick of all the report writing on capacity building,” she determined the best way she could achieve results was to act directly within the system. She started her own private legal services and consultancy firm, initially taking only foreign clients. She then spent two and a half years gaining familiarity with the complications and intricacies of Afghan law and courts before she decided it was time to accept her first Afghan client.
A series of firsts
Motley’s first case for an Afghan client didn’t draw much attention, but some of her subsequent ones have made international headlines and brought her death threats and an arrest warrant, which she shrugs off. “It’s sort of standard operating procedure,” she says.
In December Motley filed the first civil suit against government officials for refusing to act: A young law student reported spousal abuse to police who did nothing, and the student was later killed. The case is currently pending. Many local colleagues in the area have expressed appreciation for Motley’s work but also concern over potential backlash from conservatives.
"Sometimes international attention is needed," says Mary Akrami, who opened Kabul’s first women’s shelter and who represented Afghan civil society at the 2001 Bonn Conference. "But sometimes it is also very risky, given the reactions we’ve seen from conservatives.’’
Ms. Akrami has reason for concern. The few shelters in the country are in danger of shutting down due both to a sharp reduction in funding from the international community and an immediate threat to the Elimination of Violence Against Women law from traditionalist members of Parliament.
Motley is determined to make an impact on the system, but faces a number of hurdles, including corruption, lack of understanding of law – among both the population and many of those working within the system itself – and widespread distrust of the formal justice system. Many of the traditionalists have no formal training in Afghan constitutional law.
There are a lot of people currently working in the justice system who have been there for years, prior to any reform, says Heather Barr a researcher from Human Rights Watch. She points out that there are judges and lawyers who never went to university and who “cannot read and write well, let alone understand” Afghan law.
"You see this in the poor quality of judicial decisions, in the fact that there really isn’t any tradition of case law, of precedent. So it’s a very, very weak system, and it’s a system where rule of law is really compromised. And this is one of the threats to stability here,'' says Ms. Barr.
''There’s this feeling that if somebody violates your rights, if somebody comes to your house and steals from you or kills you, the government isn’t necessarily able or ready to protect you."
Another major problem, Barr notes, is that “the formal justice system is absent in many parts of the country,” leaving many with little choice but to make recourse to jirgas and shuras to solve disputes: traditional systems in which neither women nor the young have any voice.
In an attempt to address the inconsistency of decisions handed down and thus the population’s faith in the system, Motley recently launched a set of sentencing guidelines drawn up on the basis of Afghan law and in collaboration with the Italian Cooperation.
She noted that the Supreme Court had already “gotten on board” with the project. The idea is to apply the guidelines initially to juvenile cases, training judges and assessing them, and then eventually incorporate them into the entire justice system. She hopes that the guidelines will play a major role in increasing accountability. “I feel very strongly about this,” she says. “I think this is a very good way of building foundations, and I think I have enough institutional knowledge to create something like this.”
Overall, though, she says that "whether or not it’s sustainable is really up to the Afghan people – it’s always been up to whether or not they really want it."