A headscarfless foreigner is shaking up the Afghan legal system. With her unique approach, attorney Kimberley Motley is winning court cases that have major human rights implications.
“My motto is: There is no box. No inside the box, no outside the box. That box only exists in our heads; it is where you allow others to curb your freedom. I choose to live without a box.” These words are uttered, via Skype, by criminal defense lawyer Kimberley Motley. Her motto may sound like the rhetoric of a coach or inspirer, but if anyone can lay genuine claim to not accepting restrictions from anyone or anything, it’s Motley.
In 2008, Motley went to Afghanistan on her own, leaving her husband and three children back home in the US. She had been asked to work for the Justice Sector Support Program, a legal capacity building program for the Afghan government. Among other things, she was to train Afghan lawyers. Motley had never traveled outside of the US before. Initially she accepted the position for the money.
At that time she was working as a poorly paid public defense attorney. With the salary that came with this new job, however, she could pay off her student debt, and her family would have the means to leave the crime-ridden environment of Milwaukee, where she herself had grown up, and move to North Carolina. That was reason enough for her to take this dangerous step.
Once in Afghanistan, Motley quickly became disillusioned with the training program. There was hardly any partnership with the local people, for example. Let alone that they were studying the way the Afghans approach things or developing a justice system to fit the local culture, something she had expected and would like to see. So she went out to investigate for herself.
She visited courts (“resembling crack houses”) and prisons, and spoke with local attorneys, prosecutors and judges. Motley saw that many people were being thrown into prison after trials with no substantial evidence—and without any defense at all. Women often ended up in jail for “moral crimes” such as running away and adultery. Some prisoners never even knew what the verdict was.
The Motley Method
Motley then decided to start her own firm in Kabul. She made quite an impression there, as a foreigner, a woman and a Korean-African American. But maybe even more impressive are the kind of cases she takes on, and the way she fights for her clients. She defended Gulnaz, a young woman who was raped at the age of sixteen by her cousin’s husband, but who the court viewed as a perpetrator rather than a victim and so convicted her of adultery with violence.
After refusing to marry her rapist, Gulnaz was given an even heavier sentence. She had become pregnant and gave birth to a daughter in prison. Motley took the case to the Supreme Court and managed to reduce the sentence to three years. She then submitted a petition to then-President Hamid Karzai for presidential pardon, which he granted in 2011. A unique achievement.
According to Motley, the secret to her success is that she works within the existing legal system. From the inside out. She makes use of local Afghan laws and Islamic law, citing the Koran when appropriate. That is why she does not see herself as a human rights lawyer who relies on international treaties and conventions, but as a criminal defense lawyer.
She established that this inside-out method works when she defended British former army major Bill Shaw. In late 2010, he presided over a convoy heading for the British Embassy in Kabul. The convoy was stopped by the Afghan police, who confiscated all of the material. Shaw paid a release fee to get it back, then was jailed and convicted for bribery.
Motley took on the case, made an orderly and factual plea and lost. She tried again, but this time with a radically different approach: she visited the judges involved in the case every week and ‘fed’ them her arguments. She studied the Koran. She also studied how the informal Afghan legal system works.
For example, it is customary to convene a jirga in disputes: a council of Afghan tribal leaders with the aim of reconciliation. She learned to ‘not plea, but preach’. Her personal approach caught on: with the second lawsuit, she secured Shaw’s release.
Toughened in childhood
Motley does not wear a headscarf. She discovered that men, in particular, take her more seriously without it. She also behaves in other ways that are considered masculine by Afghan standards. She will shake hands with men and look straight at them: “That commands respect”. Over time she has become increasingly principled about not wearing a headscarf.
“In Afghanistan, most women do, yet 85 percent experience some form of abuse or mistreatment. So don’t tell me that a headscarf affords women so much respect. I, as a Western woman, have a responsibility to not wear one. Afghan women support me in this because they know that I can plead their case with fewer personal consequences than they would suffer in a similar situation.”
In every interview, she is asked the question: ‘Are you never afraid?’ She usually responds with some irritation. She talks about growing up in a rough neighborhood in Milwaukee and how that environment full of drugs, crime and poverty toughened her up. In the documentary Motley’s Law, which was made about her in 2015, she compares herself to Wonder Woman.
Now she says, “Even if you feel fear you can’t say it, it undermines your authority. Clients hire me not only as a lawyer, but also as their protector. Some of them say, ‘If we lose, I won’t feel like living anymore’. I can’t show weakness in that kind of situation. Imagine you are incarcerated in an Afghan prison and your lawyer lets it be known that she is afraid or has doubts, would you like that? And they can read it from my body language, so I can’t even admit it to myself.”
Nevertheless, the fear is definitely there. When Taliban gunmen carried out an attack at the Serena Hotel in Kabul in 2014, where Motley was staying at the time, she could feel how the tension was taking its toll. She took some extra time off to be with her family, spent a lot of time with her music (she once wanted to be a DJ), and started writing her book, Lawless.
The writing was therapeutic, she says. “I now see that taking on such a large volume of lawsuits as I had at the time also helped me deal with everything that came my way. It allowed me to ignore things. When I was busy, I didn’t have time to be afraid.”
Motley distinguishes between justice and justness. The first is an illusion, she says, and the second is what she is fighting for. She offers the example of a family she represented in court, whose daughter had been murdered by her husband and uncle. The men were sentenced to fifteen years’ imprisonment: a good result. But after that, the mother returned to Motley with the request that the men be transferred to another prison. Because there, she admitted frankly, she could arrange to have them killed.
“That was justice to her. But justice is in the eye of the beholder. What people really want is to go back to before the terrible thing happened to them. But that’s not possible. Therefore, no punishment will ever be good enough.” So Motley isn’t fighting for justice, but for justness. In her book, she describes it as ‘the imperfect but realistic outcome that suits an imperfect situation’.
Motley now represents clients on every continent, except Antarctica—“but that will follow too”. She tells me about a big case of hers: Fatou, a woman from Guinea, was hired at the age of sixteen to work as a cleaner in China. At least that’s the story. At a stopover in Kuwait, her passport was taken away and she was forced to work as a slave in housekeeping. When the BBC was making a documentary about human trafficking and tried to ‘buy’ a maid via the 4Sale app, the journalists found Fatou.
This brought her situation to a resolution. Fatou is now back in Guinea and Motley took on her representation. She also contacted 4Sale, Apple and Google with the request to withdraw the app from the market, but received a negative response from all three. Which led her to start a lawsuit against the criminal activities in Kuwait as well as against the tech companies. “They’re making a profit on human trafficking and they don’t even care!” she says.
‘Human rights economy’
This is how things often develop: the case of an individual leads to a global criminal defense case with far-reaching consequences. Motley is working on a handful of them. She would like to take on more, but these kinds of trials are expensive and she uses her own funds to finance them. “It can take years before an outcome is reached. But taking these cases to court is what matters.”
It is a first step toward the ‘human rights economy’ that she is fighting for, an economy in which everyone treats each other with respect. Despite everything, she remains hopeful.
“Look at Afghanistan: the country has granted me a new visa time and time again.” That shows, she says, that there is open-mindedness and respect for her work. Moreover, she sees progress. “When I was training Afghan lawyers all those years ago, I still had to work hard to convince them to even be in court during a trial, and to stand up for their client.
What they generally had been doing previously was, at most, to find out the verdict afterward and communicate it to the people they represented. In 2019, I was asked by a group of Afghan lawyers to come and give a talk on DNA evidence. Can you imagine? I find it almost incredible.”
Want to know more?
- Motley’s Law, a documentary by Nicole Nielsen Horanyi
- Lawless, A Lawyer’s Unrelenting Fight for Justice in a WarZone, by Kimberley Motley
Text Brenda van Osch Photography Clay Banks/Unsplash.com