Ayesha Khan


Why are foreign donors so enthusiastic about alternative dispute mechanisms when they deliver second class justice for women?


Pakistani soldiers patrol in Swat District, 2013. Photo: Maurizio Gambarini/PA Images. All rights reserved.It has taken nine military operations since 2002 to clear Pakistan’s frontier and tribal areas from Taliban, and millions of people have been displaced from their homes, some more than once. Pakistanis have paid a high price for allowing religious extremism to grow on their soil. Between 2003-17 over 21,000 civilians, and even more militants, have been killed.


Women in these conflict-affected areas have coped with violence and displacement for over a decade now. They have lived with restrictions on their access to public spaces, attacks on women’s health service providers, and the closure of girls’ schools – with little public outcry in a nation that was reluctant to condemn the Taliban agenda.


Bravely, women have formed new organisations to resist some of the worst effects of ‘Talibanisation’ – including the first all-female jirga, or council, in Swat valley to give women facing family disputes and violence legal advice.


Some, like Farida Afridi, who founded the SAVERA group for women’s empowerment, have been killed for their audacity in promoting girls’ education and employment in the tribal areas.


The jirga system is a commonplace dispute resolution mechanism in Pakistan’s rural areas. It has been reviled by activists for its role in enforcing honourkillings, rape as retribution during tribal feuds, the exchange of girls to settle disputes, and the broader exclusion of women’s voices.


But it is a powerful system, and its role is enhanced by corrupt and inefficient, overloaded national courts. Taliban also killed some tribal elders who were members of jirgas in order to establish their own authority.


The all-female council in Swat is a structure set up by women to give other women legal advice – but it has no particular standing as a dispute resolution mechanism or as anything equal to tribal jirgas, which are male-dominated. Rather, it reflects women’s dissatisfaction with the system that excludes them.


Members of a tribal jirga at Peshawar press club. Photo: PA Images. All rights reserved.There is general agreement including among mainstream political parties and the government that the tribal areas must be fully integrated with the adjoining province Khyber Pakhtoonkhwa as a first step to resolving governance problems that made the area vulnerable to militancy in the first place.


As part of this, the government intends to do away with the colonial-era Frontier Crimes Regulations Act, which was used to govern the border areas indirectly through councils of tribal elders and administer punishments on communities for infringements.


But they are struggling to figure out how to do this without upsetting too many political interests.


Instead of simply giving the people full citizenship and political rights, and bringing them into the same administration as the rest of the country, the government’s Riwaj Bill proposed legalising the jirga a means of traditional conflict resolution alongside extending the jurisdiction of the higher courts to the tribal areas.


This was controversial and was rejected by political party representatives from tribal areas and by women’s groups, arguing that they should enjoy the same constitutional protections as other Pakistani citizens.


When the government presented its Riwaj Bill to the National Assembly earlier this year it was unable to get it passed amid opposition to the jirga system and concerns that the bill represented backtracking on government commitments to fully integrate the tribal areas into Khyber Pakhtoonkhwa.


“Under the Riwaj Act, the jirga system will be retained, while a council of elders appointed by the court will decide the criminal and civil nature of cases in light of Riwaj (tradition). That is unacceptable to us,” said Zuhra Mohmand of the Takra Qabailee Khwendo association of women’s groups in the tribal areas. It is also called for women’s inclusion in discussions which seem to be led from the capital Islamabad.


The government appears to believe that retaining the jirga institution should be part of reconstruction efforts in the tribal areas because of its ongoing relevance and importance in settling tribal disputes. It has also passed another law to regularise “alternative dispute resolution” (ADR) mechanisms.


The ADR Act, passed earlier this year, enables a range of disputes to be settled before arbitrators outside of Pakistan’s beleaguered court system. Although this new law applies only to the capital territory for the moment, it’s expected to be extended across the country.


The Act creates a panel of ‘neutral’ men of integrity and experience including lawyers, retired judges, civil servants, and ulema (Muslim scholars) to preside over arbitrations. The cases they may oversee range from commercial and banking disputes to issues of family law.


This legislation was described as “giving constitutional cover” to the jirgasystem.


In response to women’s rights concerns, in February law minister Zahid Hamidsaid both parties in disputes have to consent to go to arbitration, and “if any woman feels that she is not being given justice, she can move [to] the court”.


Given the difficulties that women face in accessing the judicial system, this is not very helpful. Women parliamentarians Nafisa Shah (Pakistan People’s Party) and Shirin Mazari (Pakistan Tehreek-i-Insaaf) have demanded that women be appointed as ‘neutrals’ as well.


‘the enthusiasm amongst foreign donors for ADR mechanisms is inexcusable’


It is unsurprising that Prime Minister Nawaz Sharif proposed a law without regard for its impact on women. His party has always been reluctant to oppose the religious right and implement progressive legislation. But the enthusiasm amongst foreign donors for ADR mechanisms is inexcusable.


Aid donors including the UK’s Department for International Development are already funding ADR capacity-building in the province of Khyber Pakhtoonkhwa and tribal areas. The government also promises to train jirgas, now called ‘private mediation committees’, to improve their functioning and educate them about human rights.


The Asia Foundation justifies its enthusiastic engagement with ADR as part of its efforts to bridge the gap between citizens and the legal system.


But jirgas as an institution never include women – neither as decision-making members nor as parties to plead their own cases. And, if Pakistan’s courts cannot deliver on human rights, how can this task be outsourced to men with a proven track record of misogyny and the exclusion of women?


Heavily veiled women walk with their children in Swat valley, 2013. Photo: Maurizio Gambarini.Aid agencies’ backing for ADR should be seen in the light of their larger concerns to address root causes of militancy. Their strategy involves moderating the rhetoric and power of cultural and religious institutions – as if that will, indirectly, end up granting men and women the rights they have so long been denied.


Interest in funding faith-based programmes, and working with religious leaders, is part of this strategy. For instance: the US government aid agency USAID recently spent a great deal of money on ‘sensitising’ religious leaders to win over their support for contraceptive use (as part of its “Extended Service Delivery” project).


USAID even got its family planning manual approved by the retrogressiveCouncil for Islamic Ideology. This was meant to undermine the Taliban’s assault on contraceptive services. But while this approach may have made sense politically, it was not grounded in empirical evidence that involving mullahs will have a long-term impact in contraceptive uptake.


‘women’s rights activists argue that we are overstating the importance of religious leaders as arbiters of everyday life’


Educated leaders of religious parties, Maulana Fazl ur-Rahman of Jamaat-i-Ulema-e-Islami (JUI) and leaders of the Jamaat-i-Islami publicly oppose family planning. Women’s rights activists argue that we are overstating the importance of religious leaders as arbiters of everyday life decisions.


Pakistan regularly runs nation-wide polio immunisation campaigns, yet it remains one of three countries where the disease is still endemic. The immunisation programme has for years been targeted by militants who accuse it of being a cover for a western conspiracy to sterilise Muslims and who are opposed to the use of women as vaccinators in communities.


Yet the government makes use of religious figures to promote and win back popular support for the struggling campaign, no matter how discredited or linked with the Taliban they are. Maulana Sami ul-Haq, in whose seminary Taliban leaders studied, was invited by WHO and Unicef to be a spokesperson for the programme in 2015 and 2016.


Maulana Sami-ul-Haq in Peshawar in 2017. PA Images. All rights reserved.Not only should Maulana Sami ul-Haq be made to answer for his support for the Taliban, but he has proven to be an unworthy polio ally by changing his mind at least twice about supporting vaccinations. In 2012 he renounced this support after Osama bin Laden was killed, telling the west to end their drone strikes or leave children unprotected.


Pakistan feminists have fought against what they call ‘the Talibanisation of Pakistani society’ for the last 15 years. The growth of intolerance and the instrumentalisation of Islam has been used to restrict women’s freedoms across the country, including by more mainstream religious parties and growing piety movements.


Using religion and culture as an excuse to limit (or on occasion expand) women’s choices, whether in matters of reproduction and sexuality, marriage, education, or inheritance, is subject to political whim and has little to do with the rights of women.


Ayesha Khan is a researcher on gender and development issues with the Collective for Social Science Research in Karachi, Pakistan. She conducted a study on women employed by a government community health workers programme for the DFID-funded research consortium Pathways of Women’s Empowerment.


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