When changes were approved back in 1995 that enabled village elders in rural areas to handle small-scale legal matters, it was hoped the move would greatly improve the functioning of Kyrgyzstan’s justice system. But, according to a new report by the Eurasia Foundation, the system of village courts has a mixed record: while it widens access to the justice system for the rural poor, it has significant flaws, including no means to enforce rulings.
Known as aksakal courts for the Kyrgyz “white beards” who run them, the councils comprise between five and nine community elders, elected for three-year terms. They provide free, non-binding mediation – valuable in a judicial system that is otherwise deeply corrupt and out of reach for the rural poor, according to the report, released earlier this month.
“The rural underclass is … dependent on the aksakal courts because they cannot easily access other governmental institutions,” often located in distant provincial centers, says the report. Also, the cost of using the state court system is high, making informal negotiation sensible for parties involved in local disputes, such as over property or livestock. “They also serve a useful purpose by reducing the backlogs in cases of overburdened courts through offering mediation services. It may seem counterintuitive to recommend investing resources in these institutions, but it is important to address the needs of those who rely on aksakal courts.”
Nevertheless, because members have no mandate to enforce their judgments, their influence is declining, according to the report’s author, Azita Ranjbar.
“The most pressing legal issues in rural areas involve unregistered marriages and property, which disproportionately affect women, particularly their ability to obtain child support and property in cases of divorce. Aksakal courts do not have the authority to issue documents, and they are therefore unable to offer much assistance in these types of cases,” Ranjbar told EurasiaNet.org.
The courts also can run into trouble when considering cases in which traditional Kyrgyz values clash with the country’s penal code. This means the courts usually are of little help to women facing abusive domestic situations.
Take, for example, bride kidnapping – a practice, though illegal, that is nevertheless a frequent occurrence in Kyrgyzstan. Legally, police and courts can only get involved if the abductee herself presses charges, something that is unusual due to social pressure In such cases, the aksakal courts must wrestle with a dilemma: “The practice of bride kidnapping is often justified through tradition and, in these types of cases, how should aksakals take custom into account without violating national law?” the report said.
The problem is underscored by some aksakals’ conventional attitudes. Several male council members Ranjbar interviewed said they believe a woman must ignore abuse in the interest of the traditional family structure. (Aksakal court members are predominantly male, but Ranjbar found women on all eleven courts she surveyed).
“If a man drinks too much and hits his wife, we do not send him to the police because the next day the wife will ask ‘why did you send him there?’ They will reconcile their difference, if we solve it here. If he does not stop being abusive, I will talk to the man again. I support the child’s rights. The child cannot be raised properly in a broken family. I will tell the husband to stop drinking,” said a male aksakal court member in the southeastern province of Naryn.
“If the woman wants a divorce, I will tell her that her future is uncertain and to stay in the marriage,” said a male member of an aksakal court in Talas Province, in the northwest of the country. “Our main goal is to unite families. The worst situation that can happen is divorce. We would never recommend a divorce. If I recommend a divorce, maybe the same thing will happen to me.”
These attitudes may sound anachronistic, but for rural Kyrgyz with limited access to the formal justice system, Ranjbar believes the aksakal courts still play an important role.
“If there are significant barriers to accessing government institutions, the aksakal court becomes the most viable option for villagers with limited resources,” she said. “Aksakal courts are unable to resolve many of the conflicts in their communities, but they can play important roles in referring these cases to relevant institutions.”
