A law unto herself
The elders had never experienced anything like it. They had gathered for a jirga – part of Afghanistan’s informal justice system in which the leaders of a village convene to settle people’s disputes – but rather than the usual all-male council there was a woman in the circle, and an American woman at that. What’s more, she was leading proceedings. “They took a little bit of convincing,” remembers Kimberley Motley, the woman in question – but the only practising foreign defence lawyer in Afghanistan is nothing if not persuasive.
The jirga was the second to meet to resolve the matter of an outstanding debt between Taj Mohammed and his neighbour. In 2014 Mohammed had fled the fighting in the country’s southern Helmand province and moved his wife and nine children to a refugee camp on the outskirts of Kabul. When his wife and one of his sons fell ill, Mohammed borrowed $2,500 for medical expenses from his neighbour. Neither his wife or child survived and he was left with a debt he was unable to pay back. The initial jirga ruled that the only way to settle the debt was for Mohammed’s daughter Naghma to marry the neighbour’s 19-year-old son. She was six years old. It was a decision that, according to Motley, broke Taj’s heart but delighted the groom-to-be. “He was super-excited to get this little girl,” says Motley with disdain. “He’d say to Taj: ‘You’re wasting your time getting her an education – when she’s with me she won’t be in school any more.’”
“They were going to more than triple my salary. I had three kids, so I thought ‘why not?’”
Motley heard about the case and offered to represent Naghma. She managed not only to get the elders to hold the second jirga, but to let her preside over it. “We reversed everything,” she says. “The debt was satisfied [on hearing of the case Virgin CEO Richard Branson contacted Motley and offered to pay what was due] and all parties agreed that what they did was illegal, that they would allow their daughters to marry who they want to and that their children have the right to education.” It was an incredible result orchestrated by Motley, although Naghma’s gratitude was short lived. “She’s actually a little mad at me,” says Motley with a laugh. “A few months ago, she needed to have her tonsils out and it was me who took her to the doctor. She was really cross because they don’t give you ice cream, like I said they do in America. She’s probably over it now.”
Sitting on jirgas, citing the Afghan constitution, dealing with the ire of sore-throated would-be child brides: it wasn’t supposed to be like this. Motley was only in Afghanistan for the money. In 2008 she was a former beauty pageant winner-turned-lawyer working in the public defender’s office in Milwaukee, Wisconsin. The pay wasn’t great and Motley found herself approaching 30 with student loans to pay off and a young family to support. So when the offer came in to join a Department of Justice-funded programme to train defence attorneys in Afghanistan, she took it. “They were going to more than triple my salary. I had three kids, so I thought ‘Fuck it, why not?’” she says. “I expected to go there for a year, make some money, come home.” That was 11 years ago.
Before leaving for Afghanistan Motley had to complete a cultural sensitivity course in the US. “That training was just ridiculous,” she says. “The tutors were solely white American men – there were no Afghans. We were taught that a woman is not supposed to shake the hands of a man, that a woman shouldn’t even make eye contact, that you have to wear a headscarf at all times. The reality wasn’t like that at all.”
With the course complete, Motley left US soil for the first time and headed to Kabul. “I was there to train these people who’ve been practising law in the country for over ten years in how they could be better Afghan lawyers, after having been in the country for a week and with no experience of their justice system. I just thought that was so absurd,” she says. “I was just turning up and reading from a binder and so I thought, ‘I want to start educating myself on what this legal system actually is.’”
Eager to learn more, she asked her supervisor when they would be visiting a court and was surprised to learn that in the four years the programme had been running not one of the trainers had ever been to see a trial. They’d barely left the hotel where the training was conducted. Motley soon rectified that, sitting in on a three-judge tribunal at the national security court. “They brought in this elderly man with a bag over his head and shackles on his arms and his legs,” she remembers. “He looked more like a hostage than a defendant. I was thinking, ‘This is not cool.’”
The defendant, who didn’t have a lawyer present, was a taxi driver who had been stopped by police for carrying a group of men with guns. He said they were strangers who had got into his taxi but the prosecution claimed they were associates and that he was a terrorist. “The first thing the accused said was, ‘If I’m a terrorist, bring the guy before me who accused me of being a terrorist,’ not realising he was invoking his legal right to confrontation,” says Motley. “The judge ignored this and pointed out that the man had signed a confession. The guy replied with: ‘They beat me to sign that confession.’ He was trying to show his bruises and the judge pounded on his table, and said, ‘Enough! Don’t disrupt me.’ That’s how they translated it. Five minutes later they convicted him of being a terrorist. I believe he got eight years.”
“They agreed that their daughters could marry who they want to and that all children have the right to an education”
Motley was shocked at the lack of process, the lack of evidence and the lack of a defence lawyer, to which the accused was legally entitled. “I was a month and a half into [my time in] the country and I just felt sick,” she says. After the hearing, Motley approached the judge to raise her concerns. “I asked ‘Why was he found guilty?’ And the judge’s answer was basically ‘He was found guilty because he’s guilty.’ It felt like the judges thought that I, as an American, should be happy that they were being tough on terror.”
Determined to see every aspect of the legal system, Motley’s next stop was the prisons. “I visited Pul-e-Charkhi, the largest prison in Afghanistan,” she says. “It didn’t really cross my mind that there were English-speaking foreigners locked up in Afghan prisons, but I found them there.” A number of the inmates had written letters detailing their cases and how they felt wronged by the justice system. When Motley approached them they tried to give her the letters. Initially she refused. “I didn’t want to get into trouble,” she says. “And then I remember one guy looking at me and saying, ‘Please help us, no one is helping.’ And I was like, ‘Shit’. So I snatched the letters, and stuffed them in my backpack.”
The combination of what she read in the letters and her experience in the courts made Motley feel that she could do more in Afghanistan than read from a binder in a conference room. “It got my wheels turning,” she recalls. “I thought, ‘Maybe I can help them.’ I didn’t even think about it as a business at that point in time. I just wanted to help them because it seemed wrong.”
She returned to the prison and emerged with two of the letter writers – Bevan Campbell and Anthony Malone – as clients. Soon she was the only foreigner with a licence to litigate in Afghanistan’s courts. Both Campbell and Malone had chequered pasts, but Motley argued that this did not affect their right to a fair trial. Campbell, a former major in the South African air force turned Afghan security contractor, had been sentenced to 16 years for allegedly smuggling six kilos of heroin through Kabul airport – he maintained that he believed it was protein powder that had been given to him by a friend. Malone, meanwhile, a former British paratrooper accused of kidnap and torture offences in the UK, fled to Afghanistan where he was later jailed for owing local businessmen money. Motley quickly educated herself on the details of Afghan law – she likens the process of digging up useful local laws to archaeology – and secured the release of both men. Campbell was released having served six years. Malone returned to the UK where he was sentenced to eight years for his earlier offences.
After finishing her obligations to the training organisation, rather than returning home Motley set up her practice in Kabul. “Everyone – apart from my family – said, ‘You shouldn’t be doing this. You don’t know what you’re doing,’” she says. Motley remained determined. “It seemed that I had a real responsibility. Why go to law school if I’m not going to allow myself to be in this situation?” She argues that it was her first clients who were taking the real risk. “It’s a big gamble to go with a non-Afghan lawyer, let alone an American woman, representing you when your liberty is at stake. If it didn’t work out for me then I could just get a plane ticket and leave. They didn’t have that option.”
Motley’s wins kept coming – she cites a 90 percent success rate – and she soon had a wide range of clients, from multinational companies, who she charges, to Afghan women accused of moral crimes and children such as Naghma, whose cases she mostly takes pro bono. In her 11 years practising in Afghanistan Motley has assisted in the return of two Australian children taken to the country illegally by their father, helped a 12-year-old child bride successfully take her abusive husband and in-laws to the supreme court and secured a presidential pardon for a rape victim who was sentenced for adultery, the first pardon for a so-called morality crime in the country.
These successes, built in part on Motley’s ability to cite Sharia law and arcane aspects of the Koran in defence of her clients, have not come without their fair share of danger. Motley has had a grenade thrown into her office, which failed to explode. She tells a story of how she spent a prison riot trapped in a security hut watching Sesame Street. She was also in the Serena Hotel when it was raided by Taliban gunmen in March 2014, an attack that left nine people dead. The incident shook Motley and she now lives and works out of an undisclosed location. “Only a handful of people know where I live,” she says. “Not because I don’t trust them, but because anyone can be compromised.” Despite the separation and the security risks, Motley feels at home in Afghanistan. “I think I am a lot more comfortable in Kabul than most people would be because I grew up in the projects, in a bad neighbourhood, so I have this innate street sense,” she says.
In recent years Motley’s client list has expanded. She has represented defendants in Bolivia, as well as Malaysia’s former deputy prime minister, Anwar Ibrahim, and Cuban dissident artist Danilo Maldonado – a case that saw her arrested when she attempted to hold a press conference outside the National Capitol building in Havana. She keeps coming back to Afghanistan, however, and her latest case could be her biggest to date.
Fawzia Koofi is one of Afghanistan’s most prominent female MPs and women’s rights activists. Elected to office in 2005, she became the country’s first female deputy speaker. In August 2018, two months before Koofi was to seek a widely predicted re-election, the electoral complaints commission disqualified her from standing, accusing her of links to a private armed militia and of possessing illegal weapons. Koofi strenuously denies the charges and Motley has taken the case to clear her name.
“When you’re a popular woman, they try to crucify you,” she says. “The electoral commission have nothing to substantiate their claims.” Motley has launched criminal charges against three people within the commission and is attempting to get Koofi’s status reinstated before her successor is sworn in – a process that is being delayed while accusations of corruption during the October 2018 election are being investigated. The stakes couldn’t be higher. “As a member of parliament, you are provided with security by the government. Once they take her security away, she and her daughter are a lot more exposed,” says Motley. “I fear her being assassinated, frankly.” Koofi has not let the case hold her back. In February 2019 she joined peace talks with the Taliban in Moscow. As the only female present she was determined to ensure that women’s rights were not discarded during negotiations.
Motley sees the treatment of Koofi as a worrying sign that Afghanistan still has a long way to go. The country is in a perilous position. President Trump has been vocal about his desire to withdraw remaining US troops in the near future. Meanwhile there are two competing tracks of peace talks: Russia and the US are backing separate negotiations with different stakeholders. Both include the Taliban but, so far, exclude the Afghan government, which the Taliban has refused to meet. “I think some things are headed in the wrong direction,” says Motley. “But I am optimistic. I’ve seen a lot of people do amazing things in Afghanistan. There are a lot of smart and strong people here that love their country and want to fight for it, and I do think it’s a country worth fighting for. It’s a country worth protecting. The fact that Afghanistan has allowed me, as a foreigner, to come in and practise law is incredible. They could’ve kicked me out of here years ago.”
Until they do Motley continues her work. Refusing to wear a headscarf, asking for meetings with men, shaking them by the hand, looking them in the eye. It’s as though she didn’t listen to a single word her cultural sensitivity tutors said.
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