POST-2001 STATE BUILDING IN AFGHANISTAN: INSTITUTIONAL PARADOXES, DISTRICT GOVERNANCE AND THE INTER-PLAY OF THE FORMAL AND INFORMAL AT BATI KOT, NANGARHAR

 Shahida Aman*

Abstract

This paper attempts to bring out the linkages between the formal and informal governance structures, actors and processes at Bati Kot district in Nangarhar. It explores the question: what linkages are present between the formal and the informal at Bati Kot district and how these linkages are affecting the state building practice at sub-national level in Afghanistan? The aim is to locate the findings at the sub-national district level in Afghanistan in the broader debate of how the state building practice of top-down and technocratic introduction of institutions generate paradoxes by either being remotely located, or incompatible with traditional socio-political life in fragile states. The context in fragile states is, on the other hand dominated by fragmented and informal governance practices and structures. Such reforms either sideline the informal processes, or engage with them in complex linkages that complicate the attainment of state building goals. In the process, the formal and the informal local power structures and practices coalesce and the resultant linkages between these either serve to inhibit state building goals, or promote these, but in non-orthodox, unconventional manner.Such contestations between the formal and the informal, the technocratic and the traditional makes the state building process complex and complicated for external state builders to device state building models that are more adaptive to local conditions.

Key Words: Bati Kot district, Nangarhar, State building in Afghanistan, Sub-national governance, formal and informal institutions

Introduction

Post 2001 state building in Afghanistan was the culmination of the 9/11 attacks on US soil and the resultant backlash in the form of international intervention and ousting of the Taliban regime. The state building model ensued after 2001 in Afghanistan has been constructed around a framework of establishing centralized and efficient state institutions for security and service provision and building legitimacy in the political system through democratic elections, a constitution guaranteeing individual rights, regulations for media independence and civil society strengthening, and building of free market economy structures. Such institutional and liberal approach to state building is in itself an extension of how mainstream literature engages in discourses on ‘failed states’ and the resultant need to build them on Weberian and liberal features of statehood. Majority of state building definitions emphasize building of formal government institutions; their absence, ineffectiveness or erosion is cited as the most important reason for state failure in the first place. Such an over-emphasis on formal government institutions, veils the contribution of informal institutions in the governance of conflict states, including religious, kinship, tribal and social structures.
In conflict settings, when service provision by state’s formal institutions is at the lowest, local communities construct informal institutional arrangements to provide essential services and maintain social and political order, which continues even in conditions of civil war. Not only by function of war and conflict, but also historical legacies, ecological features of subsistence economy and geographical constraints of inaccessible and harsh terrain, all contribute to making formal state institution’s penetration prohibitive. Historical evolutionary processes may make tribal groups overtly protective of their autonomy from state interference, as in Afghanistan, where the state has exercised loose suzerainty over the rural hinterland (over 90 % of the population in pre-1979 period). The 1979 war, served further to disengage the centralized state from the population, entrenching the hold of non-state informal institutions over local communities. This lack of understanding regarding the roots and function of informal structures is carried into post–conflict state building practice, when technocratic centralized institutions are introduced with little foundation in the society. Resultantly, these are often resisted by informal actors and suffer setbacks.
Helmke and Levitsky, define institutions as formal as well as informal rules and procedures ‘that structure social interaction by constraining and enabling actor’s behaviour’. In a similar vein, Boesen, explains ‘institutions as the rules of game in a society, or more formally, humanly devised constraints that shape human interaction’. Terming these as resilient social structures, he calls some informal, which are based on implicit understanding, rather than sanctioned through formal position. The findings of the paper suggest that the technocratic top down state building exercises are bringing the informal into contestation with the formal, by either failing to incorporate these or ignoring their relevance altogether in state building practices. The informal either resists the formal, or develops linkages with it, which under specific circumstances either compliment the state building goals or obstruct them. This paper aims to bring out just such contestation at the sub-national level governance in Afghanistan.
The broad framework for Afghan state building was detailed in the Bonn Agreement of December 2001, which provided the outline of not only an interim government, but also more permanent arrangements for a new constitution and elections. State building strategy in post 2001 Afghanistan initially focused on developing centralized state structures, confined to the urban centres. These centralized structures included, the Afghan National Army (ANA), Afghan National Police (ANP), judiciary and public administration. It was only after 2005, that more decentralized institution building practices were adopted. The election of provincial assemblies and creation of district government structures were some manifestations of such decentralized state building practice. Technocratic interventions at the sub-national level were handed to new institutional mechanisms, for example the Independent Directorate of Local Governance-IDLG (da seema-e-zo urgaono akhpalwaka idara), which was placed after its introduction in 2007, under the Afghan President’s direct control. IDLG is credited with manning and supervising the functioning and policy making on sub-national matters. One of IDLG’s achievements is this regard is the Sub National Governance Policy (SNGP), a 400 page document which outlines the policies and laws relating to various tiers of administration and councils at the sub-national levels.
Administratively, a three tier system is prevalent (theoretically) at the sub-national level in Afghanistan- 34 provinces (wilayatona), 399 districts (woluswalay) and 40,020 villages (Kali). The district governments are smaller replicas of provincial governments. Headed by district governor (woluswal), these contain line ministry offices, including police and justice departments, education, health, agriculture and others. There is one major difference in structure. While provinces have elected provincial councils, there is no elected district council functioning at the moment. In villages (despite the provision of a village council by law), devolution of representative institutions is yet to take place. Therefore, districts (woluswalay) are the lowest tier of administration currently functioning in Afghanistan and for the Afghans, the first point of formal contact with the state.
The SNGP classifies district governance into formal and informal administration. In the formal category, it places the governor, district council, police chief, courts, line department offices, District Administrative Assembly (DAA) and District Development Assembly (DDA). And the informal ones include private sector, civil society (shuras and councils) and media communities. The lowest tier in sub-national governance -Village Councils are supposed to perform all functions that the district administration, including governor’s office have at the district level and are by law accountable to the district Governor and district Council and downward to the village community.
This paper aims to explore the linkages between the formal and the informal institutions, actors and processes at the sub-national district level in Afghanistan. It further attempts to decipher how such linkages promote or demote the state building goals in Afghanistan. The case study is that of Bati Kot district in Nangarhar, located on the eastern border of Afghanistan. The paper is based on primary data collected in Bati Kot district through interviews based on written questions from official personnel, including district governor (woluswal) and heads of line departments and semi or non-official actors in the district. The field data was collected during the period August 15 to October 12, 2011. Semi-structured interview questions were drawn up for the purpose of gathering data. Primary data is supplemented by secondary data sources. Therefore after introduction, the paper divulges into the debate of district governance in Bati Kot with especial reference to the working and interplay of the formal and the informal governance structures and processes. This is followed by a discussion of how such interactions are constructive, or otherwise for promoting the state building process. The last section provides the conclusions.

District Governance in Bati Kot, Nangarhar: Formal Vs. Informal/ Technocratic Vs. Traditional

District administration in Bati Kot is headed by the woluswal (governor), and includes a number of line department offices, including, Ministry of Justice-MoJ (da adliye wezarat), police under the Ministry of Interior-MoI (wezarat-e-umuro dakhla ), Ministry of Public Health-MoPH (da aame roghtiya wezarat), Ministry of Education-MoE (da pohane wezarat), Ministry of Rural Rehabilitation and Development-MRRD (da kalo dabiya roghawane au parakhtiya wezarat) and Ministry of Agriculture Irrigation and Livestock-MAIL (da karane, ubo lagoane au maldari wezarat). Besides the district administration, provisions are provided in the 2004 Constitution as well as the 2010 Sub-National Governance Policy (SNGP) for elected councils at the district level; their first elections supposed to be undertaken in 2010 (under SNTV system), second in 2013 and so on . Despite such provision, no council elections have been attempted below the provincial level and resultantly, alternate bodies, such as the District Development Assemblies DDAs (Inkishafi shura) and the District Community Councils (DCCs) function as district level councils (shuras).  
The informal institutions in Bati Kot, including the community elders, maliks (village headman), arbabs (landlord), mullahs/ ulema (religious scholar), mosque shuras (councils), Jirgas (council of elders) and Non Governmental Organizations (NGOs) perform multifarious functions ranging from rural development tasks to dispute resolution and aiding line departments and NGOs in service provision. The maliks perform the role of intermediary between the district government and local population and perform minor administrative duties, such as, certifying applications for identity cards, passports and other government documents. In Bati Kot district, maliks are not paid for their services and their responsibilities include communicating people’s problems to the government and communicating government’s decisions etc., to the people. Some DCC shura members are also maliks (traditional chiefs) of their respective ethnic sub-groups/ khels. Ulemas in Bati Kot were state sponsored and received stipends from the department of Auqaff (property volunteered for Islamic education) and Hajj (pilgrimage).
In the Bati Kot district, an investigation into the question of which linkages existed between the formal and the informal and how such interactions affected the state building practice revealed interesting findings. The investigation revealed strong linkages between the formal and the informal governance institutions. It had various manifestations. One manifestation of this is district officials undertaking duties not exclusively provided by law. For example, woluswal’s functions under the law do not include referral of disputes for settlement to the formal court system or to the informal dispute resolution bodies. But, in practice, the disputant’s first point of contact with the formal government in their districts is the governor and, it is the woluswal who exercises the unwritten prerogative of referring disputes to concerned informal (Jirga or shura), or formal bodies (prosecutor’s office or huqooq department). Overlapping jurisdictions prevail among district personnel, not informed by law but underlined by practice. In Bati Kot, the district woluswal reported among his powers, referral of disputes among parties or individuals to concerned department for settlement (which also included the district shura), but insisted on non-interference in the affairs of the judiciary once case ended up in the primary court. He also attests the decision by the shura/DCC after it decides over a case.
Other studies also identify district governors (and provincial too) exercising considerable informal powers far beyond their official mandates of coordination and executive functions. Bati Kot woluswal reportedly worked in close cooperation with traditional structures and local elders in carrying out his responsibilities. The law also entrusts the district governor with moral and religious duties, including maintenance of religious places of worship, assistance in Hajj arrangements and assistance to religious ulema in their tasks. Though such religious responsibilities are informed by law, there are certain functions the woluswal indulges in, which are not expressly mentioned in law. For example, the SNG Policy does not mention woluswal to have powers in dispute resolution (only maintenance of law and order), but as the practice in Bati Kot and other districts suggest, he is actively engaged in referring cases to the appropriate formal or informal body for resolution and even participate in informal shuras to resolve certain disputes. Other linkages between formal and informal are demonstrated by the functioning of district shuras. As mentioned earlier, in the absence of popularly elected assemblies, the DCC and DDA perform shura functions in the districts. These shuras perform dispute resolution functions and communicate informally, the decisions and directives of the district government to the people. The SNG Policy does mandate the elected district council to arbitrate in civil cases with the consent of both parties and mentions dispute resolution as one of the responsibilities of DCCs at the district level. The Bati Kot DCC is also actively engaged in resolving disputes in the district. And their judgments are also recorded in the formal court system and serve as a point of reference for future decisions by the formal court.  
In Bati Kot district, the mechanism for settling disputes by DCC shura resembled the functioning of traditional structures, such as jirgas. The DCC member (also a malik) reported deciding on cases on the basis of reconciliation for avoiding enmity among the parties and for preventing the recurrence of further disputes. When the council decides in the presence of both the parties impartially and on acceptance by both, the woluswal after approval sent it to the judicial department. But he also stressed that in cases of serious injury or death, the police chief and public prosecutor arrested the accused and subjected the case to further investigation. This is interesting because the shuras while performing the function of a dispute resolution body try reconciliation, which is traditionally associated with indigenous dispute resolution bodies. The shuras also functioned as intermediaries, transmitting district government’s directives to the local population in Bati Kot. The woluswal considered this function positive and argued that there was a better chance of accepting state authority when government decisions were communicated to the public through shuras. He also noted that at times, differences may appear between district shuras (DCCs) and woluswals and the shura may approach the wali and the central government on complaints of wrongdoing on the woluswal and force the authorities to take notice. Such prerogatives are not provided in law. This reflects the two dimensional character of the relationship between the woluswal and the district shura. The district shura is helping the woluswal perform district related duties, but such help is conditional on how far the shura thinks of the woluswal as impartial in the discharge of his duties.
In the case of Bati Kot district, community elders were involved in dispute resolution functions at various levels-informally as members of their tribal jirgahs, at the village level as members of CDCs and at the district level as members of the district shuras, such as DDAs and DCCs. These informal actors, including maliks and elders were also consulted by the Bati Kot district police department through regular meetings for enhancement of security and peace. The police chief argued that the capacity of the district police department can be enhanced through regular meetings with the elders, village chiefs and maliks, necessary for maintaining durable peace.
The role of other informal bodies, such as mosque shuras, and jirgas is relevant in the context of not only dispute resolution, but also development functions at the sub-national level. For example in many urban districts, mosque shuras may be more influential in settling disputes, and are even relied on by INGOs for aid and food distribution. In Jalalabad Nahias (city districts), for example, each mosque has a mosque shura that works closely with the Nahai shura, for settling disputes and for coordinating aid distribution as well as liaison with the provincial line departments in reconstruction of infrastructure. These examples show that semi-formal and informal bodies actively participate in dispute resolution at different levels beginning from the mosque shura right up to the district, and provincial council or shura. In a survey conducted in some districts of North East Afghanistan, almost 78 % regarded shura to decide disputes in a just manner. A large number also thought (76 %) that shuras were immune to manipulation by outsiders and represented all households. Majority would go to elders of village shura first and none replied of going first to the provincial administration. In Bati Kot, when the district Qazi was asked about giving dispute resolution functions to elected councils and whether it will increase their chances to indulge in corrupt practices, he replied that the council may exercise dispute resolution powers over petty criminal and civil cases, but felt the need to engage when the decisions violated constitutional and Islamic laws. In case of such violations, the judiciary did not verify such a settlement. He also insisted that if elected councils are supposed to entertain all types of disputes, then it was hard to justify the existence of formal court system.
In the judicial sector, the link between formal and informal is pervasive. The Huqooq (rights) department, in case of registration of civil cases, not only urges the disputants to seek redressal through a Jirga, but also appoints mediators for such a Jirga. The Huqooq department chief had a positive opinion about Jirga and council’s dispute resolution role and argued about decisions by mediators to be brought on record. Especially decisions in those cases which were sent by the Huqooq department needed to be officially recorded for future reference by formal justice system. The primary court Qazi in Bati Kot responded affirmatively on harmony between the formal and the informal and on the positive role informal played in resolving disputes. He argued that harmony can increase if formal Qazis encourage facilitating dispute resolution (initially) through the council of elders and honouring its decisions and settlement, which are made on the basis of Islamic shariah and record it after necessary legal and doctrinal stages. The positive perception about the informal also stems from the fact that many judges and prosecutors, coming from respectable families also serve informally as members of Jirgas to resolve disputes between disputants. In Bati Kot district, before deciding under law, the court at first tries to settle dispute through reconciliation, and in case of failure, or in criminal cases, the public prosecutor looks into the case, and the judge decides the case according to the existing state laws. Though not formally empowered to do so, even primary court judges may refer a case to Jirga for settlement. On the question of all shura and Jirga decisions being registered with the primary court in Bati Kot district, the Qazi replied that as a first step the court tries to settle dispute between the claimant and the disputant though mutual understanding of both parties under the mediation of the elders, religious scholars. When agreed for reconciliation, notification is issued to both the parties, dispute is decided in the light of Islamic shariah and the department (primary court) is informed about the decision. At the satisfaction of both the parties, the decision is recorded and the case of the claimant and the defendant is concluded. A copy of decision is given to the parties each and one copy is kept in the register and in the files of the department. These observations and examples show that the inter-linkages between formal and informal dispute resolution bodies are very strong in Bati Kot. And that the disputes when referred by the formal court to informal bodies is decided according to the satisfaction of disputants, it is formally registered and becomes a fact of law. Some reports also cite district shura judgments being registered with the provincial governments.
The case of Community Development Councils-CDCs (Meli Paivastun Shuragano) functioning in villages as community governance institutions provide further examples of pervasiveness of intermingling and fusion of state and non-state customary roles. Their experimentation in two-third villages in Afghanistan reveal the importance of social context in determining their organization and functioning, which differs in different backgrounds, despite possessing a well developed set of standard procedures. These include, for example, reduced or one-third representation to women, where mixed councils are allowed and in cases, such as Herat and Nangarhar, organization of separate but equally numbered councils for men and women. Flexibility has been inbuilt in its operational manual for either mixed or if not possible, separate women councils to work side by side with men’s one. Differences were also revealed in the manner of project selection. The CDC members are also engaged in performing development councilor functions in tandem with their more traditional roles, such as, dispute resolution, labour organization and social protection for the vulnerable. The successful working of CDCs in villages show that there should be built in flexibility mechanisms in technocratic exercises of state building, which should allow these bodies, by consensus and in conditions of cultural sensitivities, to bring changes in their functional and organizational aspects. Such intermingling of informal with the formal is also reported in formation of DCCs. For example, in December 2009, the election of DCC in Khushi district (Logar province) was conducted through consensus in a jirga.  

Formal/Informal Inter-play: The Result?

The linkages between informal and formal present a complicated picture when analyzed in the context of whether these are working to extend state building goals, or not promoting the same, or even working to fail them. The case of CDCs in villages present a positive manifestation of the same, as local context has been substantially accommodated in deciding on local CDCs membership, form of election and scope of functions. Such an approach has helped increase its effectiveness and outreach to two-third villages in Afghanistan. Many studies on sub-national governance report CDCs to enjoy the best reputation. This positive perception is carried in Bati Kot too. In Bati Kot, male respondent expressed a positive opinion about international community’s developmental projects in building roads, schools, agricultural sector and electricity, which they carried out on the suggestion of village CDCs. One of district CDC heads in Bati Kot defended his village CDC against any charges of politicization and denied its use by village influential for personal gains and benefits. By implication, the CDCs are successful experiments in developmental oriented tasks and any hint of unfairness denied by its head. The CDCs are also involved in dispute and conflict resolution functions at the village community level. This positive aspect of CDCs functioning has invited suggestions from observers for legally transforming these into formal village councils; directly elected under Independent Election Commission (IEC) supervision and entrusted with corporate positions, for running their own finances and managing their own bank accounts.
The NGOs in Bati Kot as important informal actors are in various instances, contributing positively to enhancing state building goals especially in service provision sectors. All the district line ministries, including MoE, MoPH, MAIL and MRRD are supplemented by NGO partners. Besides, the support and involvement of informal community actors, such as local influentials and mullahs has been instrumental in raising community awareness about the benefits of vaccinations as well as basic education for girls. In Bati Kot, health department chief confirmed the positive contribution of community elders and mullahs in managing health issues of their villages. Village elders met in council meetings to resolve health related problems. Both village elders and mullahs acted as intermediaries in extending government health messages to the public. The health department head confirmed elder’s positive role in communicating to large number of people information about health problems, different diseases and the preventive measures to be undertaken in these diseases, from the elders.
The Bati Kot District Education Officer (DEO) conceded the positive role of village elders and mullahs in supporting and defending the cause of education in the district. His asserted that religious scholars and village elders showed their consent and agreement for support to girl education and did not entertain any complaints even in connection with co-education. He considered lack of resources, such as female teachers and girls schools greater hurdles than community’s or Taliban’s opposition, which he insisted did not exist in Bati Kot district. DCC shura member also confirmed malik and shura member’s role in mobilizing people on important issues such as educational development, for example, by placing requests for schools etc. These observations suggest the constructive role informal actors are playing in Bati Kot in helping line departments spread positive services among the district population. District elders are instrumental in helping the police to improve security in Bati Kot. The Bati Kot male resident responded in affirmative and confirmed their cooperation for keeping security, when asked whether state should involve the traditional institutions for maintaining peace. He expressed positive opinion about NGO involvement in development projects.
In some cases, the pervasive influence of informal over the formal assumes patrimonial features, but such patrimony is also said to be advancing in non-traditional ways, the goals of state building in Afghansitan. The example of Gul Agha Sherzai, the Wali of Nangarhar demonstrates that informal and formal enjoy a patron-client relationship and this relationship has paid dividends in maintaining security, initiating and sustaining reconstruction and controlling narcotics in the province. It also shows that the informal style of rulership is extending central state building goals in Nangarhar. Patron client relationship functions as a two-way process. The governor provides jobs out of personal favour, gives contracts to tribal influentials, resists technocratic appointment in favour of tribal ones, provides development funds on tribal priorities and the like. The tribal leaders on their part act as intermediaries between the formal administration and the people by extending government directives to the people and maintaining stability in their areas. There are other examples, for example, Ahmad Shah Massoud and Shurai Nazar Shumali (Northern Alliance), created administrative, judicial and military structures which carried out state related functions and also engaged with NGOs to provide health services to the people. Ismail Khan of Herat is also credited with developing an effective administrative system, which provided services (less corrupt) on revenues earned from customs and regional sponsorships. Biro, attributes the success of these informal patrimonial warlordism on their ability to cooperate and interact with traditional authority structures that define Afghanistan’s micro societies.
There are some examples at the district level, where even political appointments have promoted the cause of state building. In Kohistan (a district of Faryab), for example, the locals rejection of a Jumbesh appointee because of their political affiliation with Jamiat, led to the appointment of a Jamiat governor, which helped in operation of security and reconstruction institutions, such as the ANP and the PRT. But the above cases are exception rather than the rule and probably more relevant in cases where traditional structures survived the war and where traditional rulers may be patronized to generate allegiance from the entire tribes. In other cases, strongmen who based their authority on local security and economic networks, which were often outside the law, failed to provide dividends to their respective province of rule. In Helmand, for example, the corrupt rule of Sher Mohammad Akhunzada, not only estranged significant groups in the province, but also failed to curtail poppy cultivation and heightened provincial insurgency.
The interplay of informal with the formal also influences negatively the goals and objectives of state building exercises. This may happen, when informal power holders seek to influence the formal governance through patronage based appointments. Some of such practices may encourage because of legal authorizations to district and provincial governors to approve lower grade appointments. For lower level district appointments, local influential are supposed to provide references and such references become a source of patronage and relationship based appointments. The Bati Kot woluswal mentioned political interference as a salient issue confronting the line ministries working in the district. The DCC shura member in Bati Kot also mentioned besides inadequate resources and low security, undue interference by influential as a major hindrance in the way of development works. Such influence may translate in a bias among development council members such as the DDA, in choosing projects that specifically benefitted only their respective areas. Bati Kot male respondent mentioned Afghan state’s capacity to provide security and maintain peace being influenced by external interference and corruption issues. The corruption menace afflicts police department too, especially when elders try influencing arrests and investigations of cases. While recognizing the generalized practice of indulgence by influentials in wasita (connection) or corruption to get their works done, Bati Kot governor stressed his appointment had been done on pure merit and therefore his non-indulgence in unfair practices. This implies that the capacity to indulge in unfair practices increase as the office of the woluswal becomes an appointed one rather than filled in through a competitive process. Perhaps patronage appointment obliges the governor to fulfill illegal demands on the part of those influential who had influenced his appointment in the first place.
These examples illustrate the negative influence of informal over the formal practices of governance. Some such practices also confront the judicial sector and those bodies involved in dispute resolution at the district level. The linkages between the formal and the informal in judicial matters, may be convenient for resolving disputes at a faster and cheaper rate and pace, however, such cooperation also results in facilitating corruption and increasing relationship based influences on sub-national government priorities. The elder’s position as Jirga representatives and their influence as members of local shuras in charge of food and aid distribution coalesce to create at times (as suggested by the case of Nangarhar’s capital Jalalabad) unfavourable and unjust influences over distribution of resources. Here Jirga elders as gatekeepers to state and non-state resources, may influence the disputants to agree to accept specific mediators (who receive expenses as charges for fuel, meals or mobile phones, etc), or risk being excluded from the group of beneficiaries.
Shuras and Jirgas engagement in informal dispute resolution also serves to increase their indulgence in corrupt practices. In the BatiKot district, the woluswal reported majority of disputes involving security, economic or community interests to be first dealt in by local shuras and elders and such cases sought legal recourse only as a last option. The woluswal noted community based dispute resolution mechanisms to be not always constructive and held that mostly shuras and elders settled disputes to serve their personal interests and for preventing people from taking recourse to formal court settlements. There were reservations expressed by the DCC shura member on the question of current shuras effectively performing their functions in relation to dispute settlement. He argued that council members and elders fail to settle dispute in the light of justice requirements, instead demand cash as a security from rival groups, and take power of attorney from the disputants. They distribute the cash and in this way have a poor influence over the public. Though formal institutions indulgence in corrupt practices was denied by DCC shura member, but conceded that corruption can hinder proper functioning of district departments when officials start taking bribes for discharging their responsibilities. Such a department may get stigmatized and no one can attribute any fairness from it. These observations throw some light on the perception of fairness enjoyed by formal and semi or informal institutions in Bati Kot district. While there were reservations expressed over the role of shuras and informal Jirgas to be biased in some of their judgements, there wre lesser complaints against the formal judicial or district structures. This is perhaps due to the fact that almost 80 % of the cases are resolved through informal mechanism in Bati Kot and therefore, these bodies get more frequent opportunities to indulge in malpractice than the formal judicial structures.
Financial issues handled under patronage based influences have impacted adversely the functioning of institutions, such as DDAs. It is reported that in distribution of DDA fundings, provincial governors in some instances, unduly favoured some districts over others.  The result was that unused funds relapsed to central government, creating slowdowns in implementation of capacity and development related projects in districts. In other instances, delays were created by opposition of informal actors and structures at the district level (tribal, religious leaders, businessmen and landlords) who perceived of DDP reforms to be hazardous to their interests. Other reports cite DDA project selections (in development projects) influenced by Afghan Parliament members to benefit their constituencies. The case of public private partnership in service provision, while paying dividends especially in the health sector, has nevertheless been criticized on a number of grounds. The NGOs often work in isolation and in want of coordination with district level service delivery institutions and as such avoid state monitoring of their activities. There are other biases, such as choosing districts to work for their relative peaceful conditions rather than on need base and hiring professionals at higher pay scales than could be afforded by the state. Therefore, depriving the state of expertise of valuable manpower, downgrading its service provision potential and resultantly negatively affecting the legitimacy of state building process in public eye.
The judicial department of Bati Kot presents an interesting study of the interplay of formal vs. informal, the legal plurality of the statutory, Shariah and customary law, the improvement of formal court system and the utility of the informal in dispute resolution. The Qazi primary court Bati Kot in an answer to the question of retention of duality of law by 2004 constitution, held the view that Section 3 of the Afghan constitution provides that no law shall be made that is repugnant to the injunctions of Islam, therefore, as a first step statutory law is enforced and only in case of non-provision by law that justice is done in accordance with the Hanafi school of jurisprudence. This implies that the judge consider statutory law an extension of Islamic Shariah law, because under the constitutions no law shall be enacted against the injunctions of Islam. Then statutory becomes Shariah because it does not violate the Islamic precepts. It also suggests that the Qazis at the district level are significantly aware of the supremacy of statutory law and accept it as such because of their conformity with conformity with injunctions of Islam. This perception of prevalence of statutory in comparison to customary law is even stronger for the DCC shura, who stressed the prevalence of statutory law over customary law, on the basis of constitution being a written document provided laws for dispute settlement.
Despite the acknowledgement of supremacy of statutory law, there is also recognition among the judicial personnel of Bati Kot about the importance and relevance of customary law in dispute settlement at the community level. The Qazi quoted Civil Law Section (2) to emphasize that where statutory law was missing and Shariah was silent, then judges are allowed to take recourse to customary law provided it did not violate statutes or legal orders. But there is a simultaneous awareness about the negative aspects of customary law and how these clash with the constitutional rights. DCC shura member referred to Baad (a cultural tradition where women are exchanged for dispute settlement) and stressed that only in some (civil nature) cases, customary law may be honoured. Implying that statutory law needed to be followed in serious criminal cases, such as, murder and when there is a danger of gender rights infringement. The Qazi called some customary practices un-Islamic, such as, baad, forcible marriage of girls, stopping girls from acquiring education, marrying girls on bride payments, etc., but stressed that these are decreasing with the passage of time as education is becoming common. He also stressed that only those aspects of customary law can be utilized that are not in conflict with Shariah or statutory laws. Such statements reflect judge’s acceptance of the legal plurality culture of Afghanistan, but at the same time show their concern over the manipulation of such laws to the detriment of some sections of the society.
The realization of significance of statutory law notwithstanding, only about 20 % of the disputes are registered with the formal legal process in Bati Kot district. One reason is that formal courts may be too remotely located for rural people to reach and get their disputes settled. In Nangarhar, estimated 90 % of civil and 70 % of killings are settled through Jirga or fueds without involving the formal authorities. Nixon, mentions corruption, and lack of qualified judges to apply both Hanafi and Jafari jurisprudence for reasons that discourage people to take recourse to formal court system. But use of formal court system is a question of availability too. The Qazi in Bati Kot held that since Afghanistan was an Islamic country and its judicial system was in conformity with Islamic Shariah, therefore, people expect that all civil and criminal cases could be settled through official judiciary and courts. This is a testament that the question of availability of formal court system is a very relevant issue. The findings of a study on linkages between traditional and formal local government bodies in provinces of Kunduz, Nangarhar and Uruzgan, suggest that such interaction and its success was highly context specific, dependent on strong political will on both sides and required clarity in their roles of justice provision. The local resistance to approaching formal court system resulted from privacy norm in family disputes, fears of losing materially in land disputes and concerns over penal punishments in cases of criminal ones. But again, the locals also entertained reservations over referring both family and criminal disputes to even community shuras.    
The Huqooq department chief in Bati Kot cited more practical concerns, such as time factor; people shy away from formal system because these take more time in deciding on cases than the Jirgas which decide in a shorter time and on the basis of compromise between parties. He further mentioned two problems in the effective enforcement of formal legal decisions-lack of security and biases in favour of one of the parties during dispute settlement. The district saranwal (prosecutor), while insisting all criminal cases should be decided by formal courts in the light of state’s criminal laws, agreed that since majority of cases were settled outside formal court mechanisms, it was proving less burdensome on the district’s formal judicial capacity. For improving formal judiciary’s service provision, Qazi stressed Judge’s impartiality in dispensing cases, clean perception among the public, decision over cases in a fixed time period and formal recording of all decisions. On improving the performance of community based dispute resolution mechanisms, he suggested official recording and recognition of their decisions by formal court system, when it did not violate Islamic Shariah, dispute resolution by elders in an impartial manner and their appointment in the council with disputing parties consent, so that they would honour its decisions. These mature assertions imply that the judicial staff was well aware of the deficiencies of the formal and the informal dispute resolution mechanisms. The principle of impartiality is well understood in formal court dealings and the weaknesses of the informal in practicing anti-Shariah judgments in the informal bodies are also duly criticized.
This section argued that the informal is pervasively influencing the formal in sub-national administration, including Bati Kot. There were several manifestations of that and in many examples, their linkages served the goals of state building. But this happened in specific conditions and when the goals of both formal and informal were complimentary rather than conflictual. For example, the instances where Bati Kot district elders cooperated with district administration in forwarding state building goals of extension of health, educational and security services to the local population, formal and informal worked in tandem to promote state building objectives. But in cases, where powerful groups influenced appointments and interfered with district administration functioning, the formal informal goals were non-complimentary and harmed the attainment of desired objectives. In such cases, their linkages worked to harm the state building process, especially in patrimonial appointments and biased dispute resolution by formal and informal bodies.

Why the Scope of Informal increases at the Sub-national District Level?

As formal administration trickles down to sub-national levels, it gets thinner and the thinner the administration gets, the more there is emphasis on the role of informal actors and structures in local governance. The various formal rules and regulations concerned with sub-national governance, such as the SNGP, give a wide space to the informal by not only recognizing their role but also their utility in managing governance at the sub-national level. It provides for the district council to have regular consultation with shuras and Jirgas, greater community control over development funds, their planning and budgeting, information sharing with local community structures, ensuring community participation in management of natural resources and effective complaints handling by the formal administration to satisfy community complaints.
As for the question of what makes the district head perform functions, which are not expressly provided by law, it can be argued that historically and by function of geography, the system of governance has followed a decentralized trend in Afghanistan, where the peripheral districts and provinces were in many respects independent in the conduct of their governance functions. The long civil war, wherein local commanders managed to develop a hold over illicit trade in narcotics, minerals etc., gave them the economic wherewithal to legitimize their power. In post 2001 period, many have been appointed governors, which empowered them to monopolize appointments in their districts and in some cases, provide even salary and equipments to government employees. The slow and ambiguous reform implementation in public sector, especially in the appointment of qualified personnel, meager salaries and low resources for problem solving has further strengthened the de facto control over formal state structures.
Not only as a function of history, but the various rules and regulations give very wide scope of functioning to some district authorities, especially the district woluswal, which in turn increases his engagement in informal means of governance. The district woluswal as the focal person is entrusted with the responsibility of handling the executive, administrative, security related, economic planning and development and social responsibilities of the district. The nature of his powers and responsibilities take up a good 15 pages in the SNG Policy, including besides the above, coordination among district line departments and its council for planning and administration, narcotics control, promotion of Islamic virtues, liaison with civil society groups, maintenance of law and order and promoting gender related policies in the district.
The persistence of informal especially in the case of district appointments despite attempts at streamlining the same along formal lines may also be attributed to past governance practices or legacies. One instance is when Provincial Governor’s or wali’s consent is sought before appointing relevant district governors. The SNGP by declaring the district governor’s post as that of a civil servant proposes appointments through examination. And though the Bati Kot woluswal had been appointed through a system of examination, however, even he considered wali’s consent necessary by logic of being a political boss of the province. This is seemingly contradictory to efforts at promoting merit based system for woluswal’s appointment. But at the same time, it is also reflective of past legacies continuing into the present system, because under previous regimes, appointment of district and provincial governors had been an executive prerogative. Another form of informal influence in appointments is witnessed within the district itself. The district governor is officially not empowered to meddle in appointment of district line department heads, but as reported by Bati Kot woluswal, his consent was viewed favourably when appointments are made in filling district line department heads. Again, not specifically empowered to undertake transfers or removals of public officials at the district level, Bati Kot woluswal described enjoying the power of requesting change of district officials, who were not (in his opinion) discharging their duties in accordance with rules and request instead for more capable staff in their place.

Conclusions

To conclude, this paper argued that conflict societies are characterized by informal, fragmented and traditional governance structures, such as Jirgas and also informal practices, such as patrimonialism, clientelism and patronage politics. Paucity of knowledge on the part of state builders on such institutions and their working leads to the introduction of technocratic exercises that either fail to take hold in the society, or lead to informal creating linkages with and influencing the technocratic to its benefit. Depending on their incompatibility or utility to one another, the formal/ informal interaction may be termed as accomodationist; functional or complementary; dysfunctional or competitive; and substitutive.
In Bati Kot district, strong linkages were found between the formal and the informal. It had various manifestations: woluswal as the district gatekeeper performed functions including dispute resolution, which are not informed by law; district shuras, including the DDA and the DCC, engaged in dispute resolution functions, informally communicated decisions and directives of the government to the people and helped the district police maintain security in their areas; community elder’s were involvement in securing peace by providing help to the district police; elders participated in development functions through support to educational programmes, especially for girls, and communicated to the public information on health related government projects and stressed on the people to avail of them; primary court judge or Qazi, though not formally empowered to do so, referred cases to the Jirgas and shuras for settlement, especially civil cases; and Shura’s (DCCs) judgment on disputes were registered with the primary court and used by its judge as a reference in future cases.
The study of whether formal/ informal interactions and linkages serve the state building purposes in a positive manner or works instead to harm or inhibit it, provide a complicated picture in the Bati Kot district. The case of CDC’s functioning at village level in Bati Kot show the functional or complementary form of formal/ informal relationship. This is because these CDCs have integrated community elders into the task of identifying development needs of their communities and in using the funds to carry out the development tasks. These enjoy a good reputation for being able to reach the grassroots community levels and initiating development projects with rural elder’s help and participation. Another functional and complementary example is that of district health and education departments engaging the community elders in supporting the cause of education and in resolving district health problems by communicating to the people, information from the government’s side about diseases, their prevention and cure. The District Education Officer, even reported a positive role of elders in supporting girl’s education in Bati Kot and in placing requests for schools on behalf of the locals to the concerned authorities. The elders also helped out the district police in improving security in Bati Kot.
The interplay of formal with the informal also influences negatively the goals of state building in Bati Kot. It is paradoxical. When top down fails to get assimilated in bottom up, ills are generated, such as, rent seeking, corruption. But such ills may also be generated when it gets assimilated. The case of patronage based appointments among lower grade officials is one example of informal negatively influencing the formal. The officials at Bati Kot complained of undue external interference in the working of district administration, which was negatively affecting their working. The linkage between the formal and the informal in the judicial sector was also resulting in corruption and relationship based influences on dispute settlement, especially by the shura/council members. There were also reservations expressed against the role of even community based structures, such as the council of elders (Jirgas) for being biased in favour of one party against the other. This implies that the general impression about their impartiality may not stand true in dispute resolution issues. The formal and the informal in short are locked in a struggle for control and in such a contestation, the informal at times (in specific contexts and under appropriate policies) helps to serve the state building purposes and on others, it badly complicates the state building goals.

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Interviews

Interview based on written questions from Bati Kot district District Development Assembly (DDA) head, October 5, 2011.
Interview based on written questions from Bati Kot district Education Officer, September 14, 2011. 
Interview based on written questions from Bati Kot district Health Officer, September 15, 2011.
Interview based on written questions from Bati Kot district Community Development Council (CDC) head October 11, 2011.
Interview based on written questions from Bati Kot district Huqooq department head, September 25, 2011.
Interview based on written questions from Bati Kot district woluswal (Governor), September 9, 2011.
Interview based on written questions from Bati Kot district DCC shura member and Malik, September 18, 2011.
Interview based on written questions from Bati Kot district male resident, October 9, 2011.
Interview based on written questions from Bati Kot district Qazi (judge) of primary court, September 13, 2011.
Interview based on written questions from Bati Kot district Police Chief, September 12, 2011. 
Interview based on written questions from Bati Kot district Saranwal (Public Prosecutor), September 14, 2011.