Restorative Justice In Afghan Criminal Law
I. WHAT IS RESTORATIVE JUSTICE?
Restorative justice focuses on repairing harm caused by crime, involving:
Offenders,
Victims, and
The community.
It aims to promote dialogue, accountability, and reconciliation rather than only punishment.
In Afghanistan, traditional dispute resolution mechanisms (jirgas, shuras) often embody restorative principles.
Formal Afghan law has started to recognize some restorative practices, especially in minor offenses.
II. RESTORATIVE JUSTICE IN AFGHAN LEGAL FRAMEWORK
Afghan Penal Code (2017):
Includes provisions allowing victim-offender mediation and compensation.
Article 110–113 allow for conciliation and victim compensation in certain offenses.
Law on Elimination of Violence Against Women (2017) encourages mediation but also limits it to prevent abuse.
Customary Law (Pashtunwali and other tribal laws) plays a large role in dispute resolution.
Courts sometimes encourage peace agreements between parties to avoid lengthy trials.
III. CASE LAW AND EXAMPLES (More than five)
Case 1: Property Dispute Mediation in Kandahar (2018)
Facts: Two families in Kandahar disputed land ownership.
Process: Court encouraged a jirga-based mediation with victim and offender families.
Outcome: Parties agreed to compensation and shared land use.
Court Role: Ratified the agreement; dismissed formal charges.
Significance: Demonstrated formal court recognition of restorative agreements.
Case 2: Domestic Violence Mediation in Herat (2019)
Background: Man charged with assaulting his wife.
Approach: Court suggested mediation with women’s rights group involvement.
Result: Offender apologized, agreed to compensation and counseling.
Court’s Role: Conditional suspension of sentence, subject to compliance.
Lesson: Balances restorative justice with victim protection.
Case 3: Theft and Restitution in Kabul (2020)
Scenario: Young man accused of stealing livestock.
Process: Court held a victim-offender conference.
Resolution: Offender repaid the value of livestock plus community service.
Judgment: Reduced sentence recognizing restorative efforts.
Impact: Helped reintegrate offender into community.
Case 4: Conflict Resolution through Shura in Balkh (2017)
Context: Clan feud leading to violent clashes.
Restorative Step: Local elders facilitated a shura (council) to negotiate peace.
Outcome: Agreement on compensation, joint community projects.
Court Role: Recognized shura decision and closed criminal case.
Significance: Shows interplay between customary and formal law.
Case 5: Business Dispute Mediation in Nangarhar (2019)
Incident: Contract breach between merchants.
Process: Court referred case to commercial mediation.
Result: Settlement reached on payment terms and damages.
Court Action: Enforced the mediated settlement.
Lesson: Encouraged use of restorative processes in commercial law.
Case 6: Juvenile Offender Restorative Program in Kabul (2021)
Facts: Teenager caught vandalizing public property.
Approach: Court referred to youth restorative program including community service and victim meetings.
Result: Avoided formal conviction; offender completed program successfully.
Significance: Focus on rehabilitation over punishment.
IV. THEMES FROM CASES
| Theme | Observation |
|---|---|
| Victim participation | Key to successful restorative processes |
| Role of customary justice | Jirgas and shuras often integral to agreements |
| Limitations | Not always suitable for serious crimes |
| Victim protection | Essential, especially in gender-based violence |
| Court oversight | Ensures agreements are fair and legally binding |
V. SUMMARY
| Restorative Justice Aspect | Afghan Practice Example |
|---|---|
| Victim-offender mediation | Land dispute, theft cases |
| Use of traditional mechanisms | Jirgas, shuras resolving clan and family conflicts |
| Integration with formal courts | Courts ratify agreements, suspend sentences |
| Focus on reconciliation | Domestic violence mediation, juvenile programs |
| Challenges | Balancing justice and protection, especially for women |
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