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AFGHANISTAN

Human Rights Issues

  Overview
Death penalty
  Torture/Ill-treatment
Arbitrary detention
  Fair trial
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  Refugees

18.08.2008 - Source: Independent

Article on the situation of women being jailed for escaping violent attacks at home and having illegal sexual relations; most of them are rape victims as the legal system does not distinguish between victims and those who have chosen to run off with a man [ID 24581]

Document(s): Open document

11.03.2008 - Source: US Department of State

Most women have limited access to the judicial system ("Country Report on Human Rights Practices 2007") [ID 24101]

"Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system. Local family and property law were not explicitly discriminatory toward women, but in parts of the country where courts were not functional or knowledge of the law was minimal, elders relied on Shari'a and tribal custom, which generally was discriminatory toward women. Most women reported having limited access to justice in tribal shuras, where all presiding elders were men; women in some villages were not allowed any access for dispute resolution. Women's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favorable to women."

Document(s): Open document

02.2008 - Source: Womankind Worldwide

Report on situation of Afghan girls and women seven years after the Taliban regime (security situation; violence against women; women's political and civil rights; legal framework) ("Taking Stock Update: Afghan Women and Girls Seven Years On") [ID 25157]

Document(s): Open document

12.2007 - Source: UN High Commissioner for Refugees

According to the Constitution, the state has the responsibility to support and promote gender equality and women’s rights ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22660]

"The Constitution of Afghanistan sets forth equal rights and duties before the law. Pursuant to Article 44, the State has the responsibility to “devise and implement effective programmes for balancing and promoting education for women”. A National Action Plan for Women in Afghanistan was launched in 2005 setting out goals to be implemented by 2010. It focuses on identified priority areas for the promotion of gender equity, i.e. health, education, legal protection and economic empowerment. The latter was reaffirmed in the Afghanistan Compact, which foresees its full implementation by the end of 2010 and which is expected to be passed by Parliament in 2007. In addition, gender equality and women’s rights are recognized as critical issues in the ANDS. As a result of the attention to gender equality, including affirmative action in some areas, female participation in Parliament and the public sector has increased and women’s organizations are growing in membership and presence in urban areas."

Document(s): Open document

12.2007 - Source: UN High Commissioner for Refugees

Limited participation of women in social, economic and political spheres; de jure and de facto discrimination of women and lack of awareness regarding women’s rights ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22739]

"Women’s ability to protect themselves is also affected by their limited participation in the social, economic and political spheres, by an overall lack of awareness regarding women’s rights, by traditional values, and de jure and de facto discrimination. The latter is further aggravated by ongoing conflict in parts of the country. Women active in civil or political spheres brave violence and intimidation, including death threats."

Document(s): Open document

12.2007 - Source: UN High Commissioner for Refugees

The judicial system fails to protect women and does not provide justice to them; women and girls are often imprisoned for adultery and for committing moral crimes, such as running away from home; male offenders, particularly in regard to adultery, enjoy much lighter sentences than women ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22742]

"A recent report of the Office of the High Commissioner for Human Rights indicates that throughout Afghanistan the judicial system is failing to protect and provide justice to women. Women and girls are arrested and imprisoned for committing moral and uncodified crimes, including for perceived misbehaviour such as running away from home. Women are also arbitrarily detained and/or convicted of adultery when reporting crimes of a sexual nature, denied a fair trial and judicial guarantees. Women are often returned to male offenders when reporting violence. Sentencing by judges of females convicted of sexual offences such as adultery is often disproportionately harsh as opposed to male offenders who often are released or enjoy much lighter sentences."

Document(s): Open document

11.2007 - Source: Austrian Centre for Country of Origin and Asylum Research and Documentation

Jirgas and shuras: Judgements are most often made at the expense of the rights of individuals; rights of women and children unrecognised ("11th European Country of Origin Information Seminar; Vienna, 21 - 22 June 2007; Country Report; Afghanistan") [ID 21953]

"Estimated 80-90% of Afghans seek justice in the traditional jirgas and shuras because formal justice institutions are either non-existent, non-functional or lack legitimacy in the eyes of the people. Although the informal mechanisms of dispute resolution can function fairly well in many civil cases, they lack all due process guarantees when it comes to criminal cases. Their judgements are most often based on restoring the harmony of the community at the expense of the rights of the individuals. Women and children are especially vulnerable in this regard: Rights of women and children are virtually unrecognised in the informal justice mechanisms and women are most often not represented in the jirgas or shuras."

Document(s): Open document

14.05.2007 - Source: Al Jazeera

According to the recently adopted Afghan constitution men and women have equal rights; in reality, this is far from the case ("Afghanistan's jailed women") [ID 20277]

Document(s): Open document

21.09.2004 - Source: UN General Assembly

Some women allegedly held for crimes committed by husbands or fathers ("Report of the independent expert of the Commission on Human Rights on the situation of human rights in Afghanistan A/59/370") [#28465][ID 1479]

"Private confinement of women
62. Another abhorrent situation throughout the country has to do with the confinement of women in the custody of tribal elders. Because of the absence of detention facilities for women in the districts (there are only three detention facilities for women in the country), women found to be guilty of acts that may not constitute legal offences are confined to the personal custody of tribal leaders and others. These women are sometimes forced into slave-like conditions outside the reach of the law and are reportedly subject to sexual and physical abuse. The charges brought against them are reported to arise in large part out of allegations of “immoral conduct”, which does not, however, constitute a legal violation. In addition, some cases allegedly involve crimes committed by spouses and fathers for which the women are forced to accept responsibility. The independent expert has notified the President, the Attorney-General, the Minister of the Interior, and the Chief Justice of the Supreme Court of this egregious situation, all of whom have promised to look into it."

Document(s): Open document

08.01.2004 - Source: Human Rights Watch

Afghanistan's constitution contains new human rights provisions and mandates better political representation of women ("Constitutional Process Marred by Abuses") [#18582][ID 1306]

Document(s): Open document

14.11.2003 - Source: EurasiaNet

Advocates for women and religious freedom worried about gaps in Afghanistan’s draft constitution; the constitution asserts Islam as the state religion and bans any law "contrary to the sacred religion" ("Afghan draft constitution worries civil-society advocates") [#17717][ID 1307]

Document(s): Open document

21.10.2003 - Source: Integrated Regional Information Network

Province of Khost: lack of resources and a web of cultural barriers continue to deprive Khowsti women of their basic social and political rights ("Ultraconservatism and lack of resources hamper change for Khowsti women") [#16954][ID 1308]

Document(s): Open document

06.10.2003 - Source: UN General Assembly

Women victims and defendants being denied access to justice; very few prosecutions of perpetrators of crimes against women ("Report of the Special Rapporteur of the Commission on Human Rights on violence against women, its causes ad consequences, on the situation of women and girls in Afghanistan (A/58/421)") [#17532][ID 1310]

"9. The high level of discrimination against women in Afghanistan is reflected in the criminal justice system. According to information received, women victims and defendants are being denied access to justice and are discriminated against by both the formal and informal justice systems. A lack of gender sensitivity on the part of the police and judicial officials further compounds the intensity and diversity of the injustices experienced by individual women. Male judges and prosecutors generally display a lack of sensitivity and understanding about issues that affect the lives of women, including incidents of sexual and physical abuse. There are reportedly very few prosecutions of perpetrators of crimes against women. A multi-pronged approach will be necessary to remedy such a widespread and persistent problem, including the empowerment of vulnerable women through free legal advice and counselling, the training of judicial personnel and the empowerment of the Afghan Women Judges Association, which was founded in March 2002. Most important, however, is the urgent need to take measures to ensure that impunity for perpetrators of violence against women is not tolerated within the criminal justice system. During the past year, there have been encouraging initiatives in training and capacity-building programmes for judges and lawyers. These are no doubt modest but important steps towards the establishment of a rule of law and an accessible justice system in Afghanistan."

Document(s): Open document

06.10.2003 - Source: UN General Assembly

Women and girls subjected to human rights abuses as a result of the practice of jirga ("Report of the Special Rapporteur of the Commission on Human Rights on violence against women, its causes ad consequences, on the situation of women and girls in Afghanistan (A/58/421)") [#17532][ID 1311]

"16. Women and girls are also subjected to human rights abuses as a result of the practice of jirga, an informal judicial mechanism, that applies tribal law and traditional norms in resolving disputes and conflicts. Jirgas deal with a variety of cases brought before them, ranging from disputes over land and water to murder, blood feuds and all forms of “disorderly conduct”, among others. The objective of the jirga ruling is to restore communal harmony in accordance with established conventional norms, which often rest on patriarchal hierarchies that are discriminatory with regard to women and youth. For example, a common method used by jirgas to end hostilities between the parties (i.e., families) involved in a conflict is to impose the payment of compensation. This can take the form of the guilty party providing the family of the victim with a young girl or girls to compensate for the grievance or damage caused. Depending upon the nature of the incident, the resolution of the conflict may also involve an exchange of girls between the two families. Such methods of conflict resolution or compensation for damages, which more often than not involves a marriage between members of the conflicting families, not only aim to restore “justice” but also to establish alliances among the hostile parties. However, according to international law, such practices violate the prohibitions against slavery and discrimination and also constitute torture or cruel, inhuman or degrading treatment. There is no evidence of any effective State action to prevent such abuse, rescue the girls, or prosecute the perpetrators."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Prosecutions of girls and women for Zina crimes; in all cases involving girls and women accused of Zina widespread violations of the right to a fair trial documented ("Afghanistan: Re-establishing the rule of law") [#15047][ID 1261]

"In many parts of Afghanistan, there is a strong emphasis on prosecuting girls and women for adultery, “running away from home” and for engaging in consensual sex before marriage. Under Afghan law, adultery is a criminal offence carrying a maximum prison sentence of up to ten years or, where certain evidentiary requirements are met, the imposition of the Hadd punishment of stoning.80 There is no basis for the crime of “running away from home” in the statutory law. Judges informed Amnesty International that the offence is based in Islamic law. Judges stated that for a girl to be found guilty of “running away from home”, she does not necessarily have to be found to have engaged in sexual activity. A girl or woman may be found guilty of “running away from home” where it is demonstrated that she has absconded from either her family or spouse. In the absence of a statutory law basis for “running away from home”, there is no prescribed minimum or maximum sentence. Adultery, “running away from home” and unlawful sexual activity are referred to as “Zina” crimes in Afghanistan. Although Amnesty International did find a small number of cases of men accused or convicted of Zina crimes, the organisation noted that the criminal justice system places disproportionate emphasis on the prosecution of women for Zina crimes.

In other regions there is evidence of families initiating the prosecution of relatives for Zina crimes. For example, Amnesty International documented one case involving an 18 year old woman who had refused to marry her cousin in defiance of her family’s wishes. The girl had informed her family that she was in love with another man. However, in response to her resistance to marry her cousin, her father approached the police and facilitated her arrest. The woman was subsequently forced to undergo two separate virginity tests and a pregnancy test and was detained accused of Zina. Commenting on the case, a representative of the AIHRC expressed serious concern over the charges and the validity of the results of the virginity tests. It is reported that at the first court appearance, one month after her initial detention, the judge stated that the woman “should be stoned”.

In all the cases involving girls and women accused of Zina, Amnesty International observed widespread violations of the right to a fair trial. In particular, girls and women were subjected to extended periods of pre-trial detention and not given any opportunity to prepare or present a defence. Of particular concern was the lack of concern for the age of, and support for, child defendants. In addition, in cases documented that had resulted in convictions, Amnesty International noted a failure on the part of the police and prosecutors to effectively investigate the allegations and to present evidence and witnesses in court. The only evidence that existed in the majority of cases was the results of virginity tests."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Tendency within the Afghan criminal justice system to criminalize female victims of crime ("Afghanistan: Re-establishing the rule of law") [#15047][ID 1262]

"An examination of the circumstances surrounding the cases of girls and women accused of Zina crimes, in particular their family background, highlights the tendency within the Afghan criminal justice system to criminalize female victims of crime.
For example, Amnesty International delegates interviewed a 14 year old girl who had been convicted and sentenced to two years’ imprisonment for Zina crimes. The girl, who had been forcibly married at the age of 12, “ran away” from her abusive husband and was then forced into prostitution. The girl was being detained in the same cell as the women who had been convicted of pimping her. When Amnesty International delegates asked the judicial and prison officials about the case, they stated that the girl had not willingly engaged in prostitution. However, despite the authorities’ recognition that the girl was in fact a victim, judicial officials gave no indication that they had any plans to review her case.
Another case involved a 13 year old girl who was detained pending trial for Zina. The girl stated to Amnesty International that she had been given to drug dealers by her fiancé who was indebted to them. She explained that she had subsequently been arrested with the drug dealers and accused of having unlawful sex with them. The prison authorities indicated that they were aware of this situation. Amnesty International was unable to find any evidence that her fiancé who had sold her, or the drug dealers, were in detention.
The criminalization of women victims of crime stems to a great extent from the manner in which Zina crimes are enforced. A lack of gender sensitivity on the part of the police and judicial officials further compounds the injustice being done to women and girls. Male judges and prosecutors who spoke to Amnesty International delegates displayed a lack of sensitivity and understanding for issues that affect the lives of women, including sexual and physical abuse. Moreover, in court proceedings and conversations related to cases involving women in Afghanistan, a number of judges made discriminatory remarks and sometimes even humiliated women. For example, during a divorce proceeding observed by Amnesty International delegates, a judge mocked a woman who claimed that she had been physically abused by her husband. After the woman was given the opportunity to speak in court, the judge laughed at the woman and ordered her to remove her veil. When she would not, the judge attempted to forcibly remove the woman’s veil, clearly causing her public humiliation and distress."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Denial of access to justice for women ("Afghanistan: Re-establishing the rule of law") [#15047][ID 1312]

"Women victims of crime are currently denied access to justice in Afghanistan. Amnesty International observed that there are very few prosecutions for crimes against women, including rape, violence against women in the family and forced and underage marriage of women and girls. The cases which do reach the criminal justice system, almost always do so where a woman or girl has the assistance of a male relative or supporter who is in a position of authority or is otherwise able to approach the police, prosecutor or courts on their behalf.

Violence against women in the family There is a failure to address and adequately tackle violence against women in the family. The Afghan Criminal Code contains no provision that clearly criminalizes violence in the private sphere.In addition, even in serious cases, the police and courts do not treat violence against women as a criminal offence. As a result of these factors the only reported cases where the courts consider violence against women in the family is during divorce proceedings before a civil court.
In two divorce proceedings observed by Amnesty International delegates, women claimed that they had been physically abused by their husbands. However, in both of the cases, the judges failed to view the physical abuse allegations as giving rise to any form of criminal liability on the part of the husband. In one of the cases, the judge ordered the wife to return home to her husband and “come to an agreement with him”. The judge stated that if they had not come to an agreement within three days that they should return to the court to decide whether a divorce should be granted. Amnesty International observed that reconciliation of partners is the preferred method used by the court in cases of violence against women in the family and that women are routinely sent back to an abusive spouse.
Moreover, it appears that even in divorce proceedings, violence against women in the family is not always seen as appropriate grounds for granting a divorce. Amnesty International delegates were informed that injuries sustained must be perceived to be serious by the judges in order for them to consider granting a divorce. In one divorce case, it was reported that a woman was beaten in the street by her husband, and that witnesses supporting her claim appeared in court. However, the judges reportedly stated that as her arm was only lightly injured, and not broken, there were no proper grounds for a divorce. Some judges interviewed by Amnesty International delegates stated that the practice of using any form of physical violence against a woman, violated the Sharia. However, the failure to criminalize the practice or offer any form of support to women victims of violence makes it almost impossible for women to bring cases before the courts. Medical professionals interviewed by Amnesty International stated that the inability of women to secure divorces from abusive husbands has led to a high suicide rate among women subjected to violence in he family."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Women and children, who are most in need of protection of the formal court system, subjected to human rights abuses ("Afghanistan: Re-establishing the rule of law") [#15047][ID 1313]

"Amnesty International is concerned that those who are most in need of protection of the formal court system, especially women and children, are being subjected to human rights abuses as a result of decisions made by non-judicial mechanisms in the absence of clearly recognised procedures which conform with international human rights law. Amnesty International has documented a number of cases that demonstrate that women and girls are being subjected to serious human rights abuses as a result of informal justice mechanisms. In particular, the organisation is concerned about reported human rights abuses that have occurred as a result of the involvement of informal justice mechanisms in the adjudication of murder cases.
In Mazar-e Sharif, Jalalabad and Herat, judicial officials, detainees and some members of local jirgas reported that when murder cases were resolved by the jirga they did so by ordering that the alleged perpetrator provide the family of the alleged victim with a young girl or girls, usually below the legal marriage age, in order to compensate for the alleged crime. It was reported that the girl, who is ‘exchanged’, is then forcibly married to a male member of the victim’s family. In one case documented by Amnesty International, a family member of a murder suspect stated that she had been coerced into providing the family of the alleged victim with two young girls as a means of providing redress for the alleged offence.85 Amnesty International is extremely concerned that this Afghan customary practice, known as “Bad”’, violates the prohibitions against slavery and discrimination and also constitutes torture or cruel, inhuman or degrading treatment.
Amnesty International is also concerned that some members of the international community are actively legitimising the work of jirgas who are reported to have utilised the practice of Bad. For example, Amnesty International spoke to a UNAMA political affairs officer in Mazar-e Sharif who had been working closely with members of a local jirga which had ordered the exchange of women in a number of cases. When Amnesty International asked the UNAMA political affairs officer whether he was concerned about this practice and asked whether UNAMA was taking any steps to oppose it, he responded by stating, “I don’t deal with women”.
This highlights not only the lack of gender sensitivity displayed by some UNAMA officials, but also demonstrates the lack of concern on the part of UNAMA with human rights abuses resulting from non-judicial mechanisms.
Amnesty International is also concerned that Afghanistan’s informal justice mechanisms are not representative of society and that as a result certain groups are not able to bring their community problems to them. The jirga and the shura throughout Afghanistan are exclusively comprised of men. As a consequence, women are unable to approach these informal mechanisms without the support and assistance of a male family member. There are also indications that women suffer discrimination when they do take cases relating to inheritance, property and marriage to them. The inaccessibility of the jirga and shura to women also indicates a problem of impunity in relation to crimes against women."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Failure to establish the family and juvenile courts appears to reflect a wider lack of concern for the protection of vulnerable groups in Afghan society and, in particular, women ("Afghanistan: Re-establishing the rule of law") [#15047][ID 1314]

"Outside of Kabul, the Provincial Courts are in operation in some provincial capitals. For example, Provincial Courts have commenced work in the capitals of Kandahar, Kunduz, Herat, Nangarhar, Kabul, Balkh, Parwan, Badakhsan, Paktia, Farah, Logar, Badghis, Parwan, Logar and Wardak provinces.
However, in many of these provinces, the Primary Courts have yet to be established. For example, in Mazar-e Sharif, Jalalabad and Herat only a very small number of Primary Courts are working. As a consequence, these Primary Courts and the Provincial Court are attempting to deal with the caseload of up to ten Primary Courts.

Amnesty International recognises that logistical and financial constraints may have hindered the establishment of some specialized courts. However, in the areas visited by the organisation, it was evident that apart from the Family and Juvenile Courts, all other specialized courts, including Public Security and Commercial Courts, had been established. Amnesty International is concerned that the failure to establish the Juvenile and Family Courts stems from the reluctance, on the part of the Supreme Court, senior Afghan judges and the international community, to recognise and prioritise the work of these courts. The failure to establish the family and juvenile courts appears to reflect a wider lack of concern for the protection of vulnerable groups in Afghan society and, in particular, women."

Document(s): Open document

14.03.2003 - Source: International Crisis Group

Report focused on gender policy in post - Bonn Afghanistan; provisions in new constitution, access to justice for women ("Afghanistan: Women and reconstruction") [#11474][ID 1315]

Document(s): Open document

14.03.2003 - Source: International Crisis Group

Steps taken to improve legal condition of women ("Afghanistan: Women and reconstruction") [#11474][ID 1316]

"According to Shahjehan Begzad, an official in the Ministry of Justice, that ministry has taken steps to improve legal protections for women. She cited in particular an amendment to the labour law that entitled women public servants on maternity leave to continue receiving a daily stipend of 60 Afghanis (U.S.$1.20), a significant sum in a context where many civil servants receive approximately U.S.$40 per month. The larger task of reviewing laws for consistency with treaty obligations, including the newly ratified CEDAW, rests with the Judicial Reform Commission. In addition, the Afghan Independent Human Rights Commission has hired Fatima Gailani, an Afghan woman activist and authority on Islamic law, to review with judicial officers laws and procedures they follow with women."

Document(s): Open document

14.03.2003 - Source: International Crisis Group

Access to justice for women mainly through communal institutions, absence of family courts is area of primary concern ("Afghanistan: Women and reconstruction") [#11474][ID 1317]

"For most Afghan women, as for men, the primary forums for dispute resolution remain communalinstitutions – a reflection both of the historically limited reach of the state and the increased importance of solidarity groups in areas where formal governance structures have broken down. Even where courts function and are theoretically accessible, financial constraints, lack of familiarity with legal process, mobility limitations, and social imperatives to settle disputes within the community encourage women to seek justice through traditional mechanisms. There are positive incentives as well:
“Women know how to lobby influential men, such as village heads or mullahs”, says a gender specialist who has done extensive fieldwork. “There are sociocultural means for doing this sort of thing —individual relations, rather than through ‘knowledge of system’”.
Afghan women who approach courts do so mainly for divorce, child custody, inheritance or other matters that are commonly categorised as family law.
Most Afghan women lawyers interviewed by ICG see this as the area of law most urgently in need of rehabilitation and reform. A primary concern is the absence of functioning family courts. Established under the Najibullah administration and retained by the Rabbani government, they were dismantled by the Taliban. Family courts were, however, the judicial institutions with which women were most familiar and where they were most likely to encounter other women as judges."

Document(s): Open document

14.03.2003 - Source: International Crisis Group

ICG: Family law (marriage, divorce, child custody, inheritance law) ("Afghanistan: Women and reconstruction") [#11474][ID 1318]

"Family law is itself largely a codification of Shari’a and Hanafi jurisprudence (fiqh). Few Afghan women lawyers are interested in challenging the Islamic basis of the civil code, but many contend that custom and restrictive interpretations of Shari’a operate to the detriment of women. Inheritance is a case in point. Under the civil code a woman inherits oneeighth of her husband’s estate. “We must consider the real situation of women at present”, said a senior governmental official. “Shari’a has said one-eighth, but it hasn’t said ‘not more than that.’”
According to a senior government official, concepts of equity and social justice should also govern child custody. Under the civil code, a divorced woman is entitled to custody of her male children below the age of seven and female children below the age of nine; older children remain with their father in the event of a divorce. “If a woman had older children and was divorced, she was kicked out of the house, without rights to inheritance, possessions and property, without considering if she had a father or brother”, the official said. “The next constitution should have a clear article on this”.
Deficient record keeping also militates against justice for women in court. The great majority of marriages and divorces are not recorded, and in the absence of records, courts are likely to accept a man’s testimony. During a recent visit to the Kabul women’s prison, for example, members of the Afghan Independent Human Rights Commission interviewed a woman who had been detained for adultery because she had been unable to prove the dissolution of her first marriage. According to the Commission, her husband had divorced her orally (a form of divorce known as talaq and sanctioned under Shari’a) seven years earlier and then emigrated to Iran. She had remarried but upon return her first husband accused her of adultery while telling her privately he would withdraw the charge if she paid him."

Document(s): Open document

14.03.2003 - Source: International Crisis Group

Woman detained for adultery because she was unable to prove oral dissolution of her first marriage ("Afghanistan: Women and reconstruction") [#11474][ID 1319]

"Deficient record keeping also militates against justice for women in court. The great majority of marriages and divorces are not recorded, and in the absence of records, courts are likely to accept a man’s testimony. During a recent visit to the Kabul women’s prison, for example, members of the Afghan Independent Human Rights Commission interviewed a woman who had been detained for adultery because she had been unable to prove the dissolution of her first marriage. According to the Commission, her husband had divorced her orally (a form of divorce known as talaq and sanctioned under Shari’a) seven years earlier and then emigrated to Iran. She had remarried but upon return her first husband accused her of adultery while telling her privately he would withdraw the charge if she paid him."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Land Rights of Women are inferior ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567][ID 1321]

"Women, as a whole, have inferior land rights. This is to such an extent that surveys in Afghanistan, unlike in most countries, rarely note the breakdown of landholding by gender (and nearly as rarely address the role of women in farm labour). In legal terms, constitutional and state law may be interpreted as permitting women to own land, and Shariat endorses this through its provisions for widows and daughters to inherit at least some share of land. Customary practice permits this to be realised mainly as an exception rather than as a rule. While ownership of land by widows does exist, daughters on the whole surrender their rights to their brothers, particularly when they marry. The objective is less to deprive a sister than to prevent land being lost to another family through her — a time-old concern of landpoor peasant farmers. In day-to-day life, one gender specialist argues, a rightful share to the product of labour is a good deal more important to rural Afghan women than owning the means of production itself. Certain provisions for this are allegedly also provided for in religious law.68 Religious law also disallows sale of houses or farms without the support of all adult members of the family.
Setting aside the evident subordination of even religious law to customary practice in this sphere, it is of note that at no time during the now long history of support for women's rights in Afghanistan, has women's land rights been a rallying point. This has been reserved, generally, for the promotion of female access to education and work opportunities, a development first officially actively pursued by King Amanullah and his wife, Queen Soraya in the 1920s, and variously taken up since by Prime Minister Daoud during the late 1950s and again with a vengeance by the communist government of 1978-1979.
In the interim, women are slowly beginning to more forcefully activate the rights they posses under religious law. Widows, in particular, are most likely to be at the forefront of this effort. They exist in very large numbers following years of conflict. Some have shown they are not content to accept landlessness. How far they will be supported remains to be seen. While female-headed households are not necessarily landless, this group represents another body of women learning to live independently. How far they will succeed in securing land also remains to be seen. Many such women now live in urban areas and their main concern is shelter, not farms."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

Constitution contains an equality-before-the-law provision that does not differentiate between men and women - the legal system nevertheless does ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224][ID 1322]

"75. Whilst the 1964 Constitution contains an equality-before-the-law provision that does not differentiate between men and women, the legal system nevertheless does. Many aspects of Islamic family law as applied in Afghanistan accord differential rights to men and women. A Civil Code promulgated in 1977 did, however, introduce some significant reforms.12 The new Civil Code repealed the law of marriage of 1960 and reformed several aspects of Hanafi family law. According to Dariz, under the 1977 Civil Law women are now permitted to choose a husband without needing the prior consent of their guardian, a divorce pronounced by a husband while intoxicated is no longer recognized as valid, and it establishes a minimum age of 15 years for a female to enter into a valid marriage. The legal capacity to marry is 18 years for boys and 16 years for girls. There is a registration requirement for all marriages and unlike the provisions of the 1960 Marriage Law non-registration does not affect the marriage’s validity. The practice of polygamy has not been outlawed but has been regulated by the 1977 Civil Code. In order for a husband to enter into a second marriage he must prove that there is no fear of injustice to any wife, he must be able to provide the basic necessities for all the wives, such as food, clothing, housing and health care, and a lawful reason must exist for the second marriage, such as the first wife being barren or sick with an illness requiring difficult treatment. A court can refuse to register a marriage that contravenes any of these conditions and an aggrieved wife can file a suit for divorce. Further, the 1977 Civil Code allows a woman to stipulate a right to divorce should her husband take a second wife irrespective of any compliance with the three conditions outlined above.

76. The right of divorce of women continues to be restricted to a judicial divorce whilst a husband can divorce his wife through the extra-judicial pronouncement of a divorce either orally or in writing. The grounds for judicial separation include the husband suffering an incurable disease, his failure or inability to maintain his wife, his absence from his wife without reason for more than three years or his imprisonment for ten years or more, in which event the wife can ask for a divorce after the first five years imprisonment.

77. It appears that the Islamic law in respect of inheritance and custody of children continues to be governed by Hanafi law with certain exceptions. For instance, it is possible for a court to extend the age for the transfer of the custody of children from mother to father by an extra two years, if the extension serves the benefit of children. It appears that the 1977 Civil Law also established a family court but none was in operation at the time of writing.

78. In actual legal practice the provisions of the 1977 Civil Law no longer appear to be applied. The demise of governmental institutions across Afghanistan means that marriages are generally no longer registered. This would render them void under the 1977 Law. In practice, however, unregistered marriages are regarded as valid. The withering away of the 1977 Civil Law has reintroduced largely unreformed Hanafi family law and customary law into the sphere of family law. There appears to exist a large degree of confusion over the exact rights of women and their legal status. In June 2002, there were about 30 women confined in Kabul jail. Some of them were accused of criminal offences but the majority were, according to the Law Section of the Ministry of Women’s Affairs, now headed by Professor Mahboba Haqoq Mal, who has succeeded Mrs. Sima Samar, detained for a variety of offences related to family law such as refusing to live with their husbands, refusing to marry a husband chosen by their parents, or for having run away from either the parental or the matrimonial home.

79. It appears that these women have no access to lawyers, have no information on their rights, if any, and are generally left in jail until their respective relatives intervene. The most astonishing aspect of my findings was the profound uncertainty surrounding the legality of their detention. Even the female lawyers attached the Ministry of Women’s Affairs were unsure about the rights of women.

80. There is no doubt that the legal position of women has improved since the demise of the Taliban, at least in the metropolitan areas of Kandahar, Mazar-e-Sharif and Kabul: women are allowed to work, to move freely and to pursue education. Female students are now registered at the Law Faculty, are employed mainly in administrative functions in courts, in the Offices of Public Prosecutors and the Ministry of Justice. A dedicated Ministry for Women’s Affairs has been created.

81. However, even in the legal sphere the situation remains highly unsatisfactory. The legal status of women is uncertain, as are their rights under both the 1964 Constitution and Islamic family law. The outgoing Minister for Women’s Affairs, Mrs. Sima Samar, has recently been charged with blasphemy though it is not known whether these charges are being pursued. Irrespective of the fate of this particular charge, her case must serve as a reminder that women who stand up for their rights take very real risks even in the post-Taliban legal order of the safe haven of Kabul.

82. The legal problems faced by women are compounded by severe health problems caused by a shortage of health facilities and an inability to provide for women’s physical and emotional needs, domestic violence, and sexual abuse. The long period of confinement of women under the Taliban means that many women cannot compete successfully for jobs with men and are consequently economically disadvantaged. Most women continue to wear the burqua even in Kabul, in some cases prompted by fear rather than choice.

83. The improvement of the status of women is closely linked to the status of Islamic and customary values in Afghanistan as well as their economic, social and political position in society. Any change will have to take place in the context of all these factors. As far as the legal status of women is concerned what is urgently needed is a thorough investigation combined with a programme of education and training. Despite many apparent discriminatory provisions, Islamic law, if progressively interpreted, could nevertheless lead to an improvement of the legal position of women. This will require research and education. Professor Haqoq Mal’s seminar paper contains the following observation: ‘We know our country is a traditional society so we cannot ignore our traditions and customs and so it is not possible to do all these things but I am sure that with patience and tolerance we can change the life of women in our country and if God is willing we’ll make a difference in the life of Afghan women in all possible ways and endeavours.’"

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09.05.2002 - Source: Human Rights Watch

Human Rights Watch: Abortion up to third month of pregnancy legal ("Taking Cover: Women in Post-Taliban Afghanistan") [#6893][ID 1324]

"Since January 2002, Afghan women can obtain a legal abortion up to the third month of pregnancy if a woman's health is in danger. However, the process involves obtaining certificates from three different doctors and permission from the Health ministry. "Abortion Legal in Afghanistan in Early Pregnancy," Agence France Presse, January 15, 2002."

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