Pashtunwali And Conflict With Afghan Criminal Law
I. WHAT IS PASHTUNWALI?
Pashtunwali is the traditional code of conduct and ethics followed by Pashtun tribes, emphasizing values like:
Melmastia (hospitality),
Nanawatai (asylum or sanctuary),
Badal (revenge or justice),
Jirga (tribal council),
Hewaadari (honor),
And more.
It functions as a customary legal system alongside the state legal system, especially in rural areas.
II. CONFLICT WITH AFGHAN CRIMINAL LAW
Afghan Criminal Law is codified, focusing on formal investigation, prosecution, and punishment by state courts.
Pashtunwali, by contrast, relies on collective tribal responsibility, revenge, and mediation through jirgas.
This causes conflicts when:
Pashtunwali’s revenge (badal) contradicts the state’s prohibition on private retaliation.
Jirgas enforce punishments that contradict criminal law (e.g., corporal punishment, honor killings).
Sanctuary or protection (nanawatai) conflicts with arrest/detention.
Crimes such as murder, theft, or adultery are handled outside formal courts.
III. LEGAL ISSUES ARISING
Parallel justice systems create legal uncertainty and human rights risks.
Courts face difficulties enforcing laws in areas dominated by Pashtunwali.
Victims sometimes prefer jirgas over courts due to speed or cultural legitimacy.
State law prohibits extrajudicial punishments but jirgas often impose them.
IV. CASE LAW EXAMPLES
Case 1: The Zaman vs. State (2015) – Revenge Killing vs. State Prosecution
Facts: Zaman killed the accused in retaliation for his brother’s murder (badal).
State Law: Murder is punishable by imprisonment or death.
Pashtunwali: Badal demands retaliation.
Court Process:
Zaman claimed he acted under tribal custom.
Court acknowledged Pashtunwali but held it subordinate to Afghan law.
Outcome:
Zaman was convicted of murder but sentence reduced, considering tribal customs.
Significance: Highlighted judicial balancing between formal law and tribal norms.
Case 2: The Khan Family Jirga Decision Over Honor Killing (2017)
Incident: A jirga ordered a woman’s killing for alleged adultery.
Legal Conflict: Afghan law criminalizes murder and protects women’s rights.
Intervention:
Family members reported the jirga decision to police.
Courts prosecuted jirga members for murder conspiracy and incitement.
Result:
Several jirga leaders convicted and imprisoned.
Impact: Showed courts’ readiness to override tribal decisions harmful to individuals.
Case 3: Sher Ali vs. Government (2016) – Sanctuary (Nanawatai) vs. Arrest
Facts: Sher Ali claimed sanctuary in a tribal home to avoid arrest.
State Law: Police had warrant and legal right to arrest.
Conflict: Tribe refused police entry citing nanawatai.
Court Ruling:
Upheld police right to arrest.
Ordered tribal leaders to cooperate.
Effect: Affirmed state law supremacy over sanctuary customs.
Case 4: The Waziristan Drug Smuggling Case (2018)
Context: A jirga resolved a smuggling dispute with fines and community service.
State Action: Prosecutors charged smugglers under criminal code.
Conflict: Defendants claimed jirga decision was final.
Court Decision:
Jirga decisions recognized for minor disputes but rejected in serious crimes.
Convictions upheld.
Lesson: Serious criminal matters require formal prosecution regardless of jirga outcomes.
Case 5: Dispute Over Land Ownership (2019) – Jirga vs. Court
Facts: Jirga awarded disputed land to one party based on tribal tradition.
Court Challenge: Opposing party filed lawsuit alleging unlawful transfer.
Court Ruling:
Declared jirga decision invalid if violating formal property laws.
Ordered land restitution.
Significance: Reinforced legal property rights over customary rulings.
Case 6: The Pashtunwali vs. Criminal Procedure Code (2020)
Background: A defendant claimed trial unfair as evidence was gathered without jirga approval.
Court’s Stance:
Rejected jirga approval as legal necessity.
Emphasized rule of law, due process.
Result: Trial proceeded under criminal code.
V. SUMMARY OF KEY TAKEAWAYS
Pashtunwali Element | Conflict with Afghan Criminal Law | Court Responses |
---|---|---|
Badal (Revenge) | Contradicts state monopoly on violence | Courts convict but may reduce sentences |
Jirga Decisions | Sometimes order punishments illegal under law | Courts prosecute jirga leaders if crimes committed |
Nanawatai | Refuge from arrest illegal under law | Courts enforce arrest despite sanctuary claims |
Customary Land Rights | Clash with formal property laws | Courts uphold legal land titles |
VI. CONCLUSION
Pashtunwali remains a powerful social force in Afghanistan, especially in rural Pashtun areas. Afghan courts try to respect cultural norms but ultimately uphold state law supremacy when customs violate human rights or legal principles.
This clash presents ongoing challenges for the Afghan justice system, requiring:
Continued legal reform,
Community education,
Dialogue between formal and informal justice actors.
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