Metrics. There is nothing so loved in the military as metrics. Boxed in nice, neat little packages, metrics give you a measure of something you value. In Afghanistan, we measure all sorts of things. How many Afghan National Police do we have today? 134,000? Why, that’s an increase of 15% from last year. We must be doing better. How many patrols are we running in Helmand province? A 10% increase? Wow, we’re doing better. We’re winning the war. The problem with this approach is that it values quantity over quality; an acute problem with rule of law programs.
It is sometimes said that the newest person in an organization brings the most unbiased eye. This is typically so because the new guy has no stake in what has been done before and neither has he been corrupted by group think. It is in this vein that I offer my initial observations based on many discussions with many folks. Of course, there is always the risk that initial opinion is colored by naïveté. Only time will tell whether that is the case here, but my initial view is supported by some of the “oldtimers” in Afghanistan that have a number of years in the business. Judgment will have to be reserved until near the end of my tour I guess. Well, on with it….
Metrics are used in a number of ways in rule of law programs in Afghanistan. We measure the numbers of courthouses, judges, prosecutors, training programs, law schools, textbooks per class, etc. We also determine the ratio of sharia-trained judges to the number of civil law trained judges among a plethora of other things.
There are 398 districts (think counties) in Afghanistan spread among 34 provinces (think states). Of these districts, 188 have no judges, 130 have no prosecutors, and 120 have no courthouse. Now these numbers are fairly dismal, but there has been improvement since 2001. Does that mean we’re winning the rule of law war? I’m not so sure. Let’s think about this for a moment while focusing on courthouses since that seems to be a favorite of many rule of law folks here. The numbers tell us we have 278 courthouse in Afghanistan; thus, 70% of districts have a courthouse. That number sounds fantastic in light of the fact that Afghanistan is an undeveloped country, right? So what’s the problem?
Well, that number doesn’t tell you whether a specific courthouse has a judge, a prosecutor, or is even open. Indeed, even if provided a courthouse, judge, prosecutor and all the other things you might imagine, we still might be losing the battle. To have effective rule of law, you must get buy in from the people. If the people do not trust your legal system and refuse to use it, you’ve lost.
Another problem lies with the law schools here. The facilities are dismal. My own law school, the University of Tennessee, scream law when you walk in the building. Italian marble floors, oak paneling and banisters, a law library that puts many to shame, and some mighty fine professors (all in the heart of Knoxville, the best damn college town in America IMHO). Here, the story is quite different. The buildings would likely be condemned in most US cities, bathroom are non-functional, there is no library – students shares books, and truly educated professors are hard to come by. Some have bachelor degrees with legal training; others were educated in Sharia at the madrassa. So, naturally, the solution to “winning” is building schools, filling law libraries and get regular professors – all things that can be measured with metrics.
The problem, however, is that law students are not taught critical thinking, even with a regular professor. Students are taught law, but not how to apply it to differing situations. For example, imagine that two farmers conspire to steal livestock from a neighbor. They make a plan for the first man to distract the neighbor, while the second takes the animals. The men carry out their plan, and are later caught. Should the two men receive the same punishment? If the men decide at the last second not to take the animals, should they be punished? What if they men mistakenly believe the animals actually belong to them?* These are issues that Afghan law students are not taught to work through, while any first year student in the US would at least have a coherent thought process for dealing with them. To be fairly applied, the rule of law must have able attorneys and judges capable of engaging in a critical thought process so that laws are evenly applied. Otherwise, law is applied arbitrarily and lacks legitimacy in the eyes of the population. Without legitimacy of law, we lose.
*This example taken from Afghan Legal Education Project, “An Introduction to the Law of Afghanistan,” 2d ed., 2009.
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