Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Normally I don’t provide lengthy background information on the people I interview, since it’s readily available on the internet, but Kimberely Motley’s testimony was so powerful, I thought it would be a disservice to this trailblazer’s journey to not share her story. Formerly from Milwaukee, Wisconsin, Kimberely Motley grew up in a poverty-stricken neighborhood marked by high crime rates. Her interest in law was inspired after her father’s efforts to receive disability support were denied following a car accident and failed attempts by numerous lawyers. After working as a Public Defender for five years, she came to Afghanistan as part of a State Department program to conduct rule of law work in 2008. She now spends six months out of the year working in Afghanistan to uphold the oath she took to provide access to justice for all, no matter who or where they are.
When we spoke, it was clear from the passion in her voice, that Kimberley Motley’s dedication to practicing law in Afghanistan and thereby helping youth, women, foreigners, and others caught up in the Afghan legal system was limitless. Her humility to continuously seek advice and learn about Sharia law and Afghan culture from the Afghan legal community and scholars has also set her apart from others. Moreover her courage to continue practicing, despite threats to her life, has given her the rare distinction of engaging in rule of law reform by actually working in the system she’s seeking to change.
[Sadly, due to technical issues, I wasn’t able to record our conversation, but I’ve provided a summary below. Enjoy!]
You have had the rare distinction of both working to improve the legal system and practicing law in Afghanistan. Can you talk about the rule of law programming you first did when you came to Afghanistan?
I began in 2008 with the State Department’s Justice System Sector Program and I trained Afghan defense attorneys. I didn’t come here with the intention of practicing in Afghanistan, but I talked to many people, who didn’t have an attorney or their attorney’s weren’t advocating well on their behalf. Then there were others who weren’t able to do basic things like invoke their right to be silent. Because of the conversations I had with these people, I slowly started taking cases here. No one else is doing it. I first worked as a public defender in Wisconsin and as a professional, I wanted to do this. For the first 9 months, I took the cases of internationals. After learning the system and getting more and more comfortable with it, I began expanding. Now I have a legal services and consultancy firm. We provide legal services, but we also practice the law and represent clients. I think I’m still the only non-afghan to go to court.
What new observations have you made about the Afghan legal system, its actors, and how it works now that you’re practicing in the system?
The international community really misunderstands the legal system. They are very well intentioned, but supporters and funders lack a true understanding of the Afghan legal system. We spend millions of dollars, but there’s a lack of understanding about the Sharia law system, the jirga’s, etc. People think there is no system here, but Sharia law is the law within the justice system and yet, Sharia law is given less credibility within the different rule of law programs.
Many donors focus on high-level reform, but there are very basic things that donors can do like provide electricity to courts during business hours or chairs for people to sit down in court. Instead of blaming the Afghans for cultural differences, rule of law practitioners should read up on Sharia law and learn how they can improve their programming. They should talk to different Sharia experts, Mullahs, and continually learn.
There’s a lot of work being done by international organizations to link the formal and informal justice systems in Afghanistan. How do you feel this is working in practice? What can be improved?
There is no formal system here. Just because you have a building, it doesn’t mean there is a formal court system. There is a lack of understanding about the legal system here and attempts to link the two systems are misplaced. I work within the informal system and the international community needs to spend more time understanding this system, instead of trying to change it.
There are a high number of juveniles incarcerated or detained in Afghanistan. Do you know how much emphasis (if any) is placed on youth in efforts to link the formal and informal justice sytems?
There does not appear to be any focus on youth that I can tell and more attention needs to be placed on them. Youth are more likely to become radicalized in detention centers and they are the most easily influenced within the population.
In 2010, you authored a report with Terre des Hommes on the Juvenile Justice System in Afghanistan. The report came 5 years after Afghanistan adopted a Juvenile Justice Code. Since that time, many organizations have provided technical support for juvenile judges, police, social workers, prosecutors, and others on the Code, children’s rights, and international standards. In what ways have you seen this kind of support impact the way the juvenile system works in practice? Do you see any cultural changes or shifts in how juveniles are perceived by justice sector actors?
I haven’t seen the impact of the trainings. As a part of my consultancy firm, I work a lot with the juvenile legal system. I did the research and every interview in that report. Judges and others rely heavily on it and because they know me, they know it is credible. At one point, the justice sector support program didn’t want to work on youth. The Italians are the biggest supporter of juveniles. After the 2010 report, I went back and followed up on the research and interviews and created a sentencing guideline. This has been used as a manual for juvenile judges. In the US, I would be opposed to a sentencing guideline, but it works and is needed here. Part of the problem with rule of law work, is that we don’t know when to let go of certain notions, but it’s important to adapt to the environment you’re working in.
To read the sentencing guideline, click here.
What other lessons learned would you like practitioners, donors, and organizations to take from your experience?
If things are wrong in the legal system, it’s okay to say that, instead of politely dancing around the issue. For example there are gross human rights violations in Afghanistan, such as how women are treated after being raped or after running away. While I do want to help the Afghans, as co-signers to many international conventions, we need to think whether it’s reasonable to provide funding when these human rights violations continue. Often times, the embassy won’t respond to human rights violations, until there’s a big news story about it. Then maybe there will be an effort for three weeks and the issue will disappear again.
We should take time to understand the legal system, especially if you’re going to build the capacity of the legal system.
If the playbook isn’t working, then you should be allowed to change it. The US has created too much bureaucracy within its embassy and while people are well intentioned, there’s no flexibility to change how things are done. We focus so much on training; we don’t focus enough on mentorship.
We should also not be ashamed of being American with American ideas. There are good things we can bring. I bring strong advocacy skills and it works. As a result, I am able to get over 90% of my clients released. Another example is our docket system. I have to go to the court every day just to ask whether the case will be heard today. Judges don’t have a calendar that lists when a case will be heard. There is no docket system in place. With that in mind, we also should be listening. There are many things that we can also learn from the Afghans.