by Jennifer Brick Murtazashvili
Jennifer Brick Murtazashvili is assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She recently completed The Political Economy of Customary Governance: Informal Order and State Building in Rural Afghanistan (under review), and is finalizing Land, the State, and War (with Ilia Murtazashvili), on how conflict over property rights has shaped the trajectory of the Afghan state. She also co-authored “Community Documentation of Land Tenure and its Contribution to State-building in Afghanistan” in Land and Post-Conflict Peacebuilding with J.D. Stansfield, M. Y. Safar and Akram Salam, and provides an update in this guest posting.
Conflict over land is one of the most important, yet poorly understood, drivers of instability in rural Afghanistan. The Taliban, for example, has been active in trying to establish its credibility and authority as reliable mediators of land conflict as it competes with the Karzai government for legitimacy.
The solution offered by the international community to the problem of tenure insecurity is the promotion of formal, state-backed legal titles. The chapter I authored with J.David Stanfield, Yasin Safar, and Akram Salam, “Community Documentation of Land Tenure and Its Contribution to State-Building in Afghanistan,” suggests that customary forms of land titles may be more effective in promoting the legitimacy of the state than by simply issuing formal government deeds.
The state has very little credibility with most Afghans as it is largely viewed as a source of corruption rather than governance. This is not to say that Afghans do not want government. On the contrary, many Afghans are in demand of government but want to have little to do with formal state authority as it is currently exercised.
Thus, current efforts to promote property rights by promoting an extension of state authority in Afghanistan are not viewed by many Afghans as a viable solution. Instead, by making them more dependent upon a corrupt state, property rights based on state-issued legal titles may threaten, rather than enhance, tenure security in Afghanistan. This is largely due to the fact that many Afghans, especially those in rural areas, rely primarily upon customary mechanisms for the mediation of land disputes. Furthermore, as Doug Batson suggests in his chapter in the volume, formal land titles often fail to adequately account for forms of customary land tenure.
One of the reasons efforts to extend state authority in rural Afghanistan have struggled, is because state-builders (both in the international community and some in the Afghan government) view the relationship between customary authority and the state in zero-sum terms.
While some analysts of Afghanistan have argued that that customary governance has withered away, my own fieldwork has shown that such structures remain quite strong but have changed over time to adapt to new circumstances in the country. Due to war and displacement, customary structures are actually more representative and democratic than they had been in the past.
In some parts of the country, I found individuals actually using ballot boxes to select village maliks (community leaders who represent community issues to the government and outsiders). Similarly, villages rely on customary councils such as shuras, jirgas, or simply “elders” to mediate community disputes. Interestingly, despite the fact that villagers use the term “elders” or “white beards” to describe these councils, the “elders” who sit on these councils quite often very young.
Since we finished our chapter, I designed and analyzed the largest public opinion survey ever conducted in Afghanistan for the US Agency for International Development (implemented by Democracy International). The survey explores a wide range of issues related to democracy, governance, and elections. In addition to the nationally-representative survey, the research project collected more than one hundred interviews and focus group discussions to help explain survey responses. The survey substantiates many of the claims we made in our chapter regarding the primacy of customary governance in resolving land disputes.
Property rights remain among the most important governance issues for many Afghans. To this end, the survey asked a number of question about land governance and what role, if any, customary governance plays in mediating disputes.
Customary governance remains extremely important at the local level throughout the country, especially with regards to issues of land tenure. The survey asked whether Afghans own land, if so, what type of legal title they have to the land. The vast majority of Afghans (83%) report that they own land. In fact, land ownership is more prevalent among respondents in rural areas, where 85% report owning land, than those in urban areas, where 73% of respondent say they own land.
Among those that own land, just 32% say they have a state-backed legal title for their land, while 68% say they do not. On the other hand, 87% of those who own land say they have a customary deed for the land that they own.
Land disputes in Afghanistan are quite common, as 27% of the population report having a dispute over land that they either rent or own. Yet when individuals seek to resolve disputes, they rarely look to the state. About half turn to customary governing bodies (39% turn to a malik and 11% turn to a village council such as a shura or jirga).
Only 13% said they turned to government courts to resolve disputes and another 13% said they turned to local government officials (district governors or local police). Finally, just1% said they turn to donor-supported Community Development Councils, which the international donor community and some in the Afghan government have argued should replace customary bodies at the local level.
Hopefully, as donor largesse comes to an end in Afghanistan, government officials and those in the international donor community will be more willing to work with customary governance structures on issues of land tenure, rather than viewing them as obstacles to state-building efforts.