Afghanistan: Fatwas, including issuance authorities, legal status, and enforcement (2014-July 2015) [AFG105245.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Overview

In correspondence with the Research Directorate, two researchers affiliated with the Afghanistan Analysts Network (AAN), "an independent non-profit policy research organization" that works to better inform policy in Afghanistan (AAN n.d.), who both have extensive research experience in the country, stated that a fatwa is a "religious legal opinion" (Researchers 7 July 2015). In correspondence with the Research Directorate, a professor of anthropology at Bennington College in Vermont, who has conducted over five years of research in Afghanistan, stated that the word fatwa "roughly translates to edict and is a religious declaration made generally by a respected religious scholar" (Professor 29 June 2015). According to the Professor, fatwas are issued in order to better understand "more contemporary issues" that may not be easily interpreted using the traditional teachings of the Koran (ibid.). In correspondence with the Research Directorate, a representative from the Afghanistan Independent Human Rights Commission (AIHRC), an independent government body responsible for the monitoring and protection of human rights in the country and for investigating rights violations (Afghanistan 2005, Art. 2, 5), similarly stated that fatwas are issued "on those matters that aren't met or addressed in laws, especially in Sharia law" (AIHRC 28 June 2015). The researchers explained that there are two types of fatwas: the first are legal opinions on "mundane affairs," such as divorce, family issues, and the amount of religious taxation (zakat) to be paid on a "given business"; the second type are legal opinions on political issues (Researchers 7 July 2015).

2. Issuance and Enforcement of Fatwas

According to the researchers, fatwas issued on "mundane affairs" are usually issued by "someone who attended a dar ul-ifta (specialized religious school for fatwas) and who is then called a mufti (someone who can issue a fatwa)" [1] (ibid.). The same source stated that with regards to political issues, a fatwa does not need to be issued by a mufti (ibid.).

Sources report that there is no specific government fatwa-issuing authority in Afghanistan (ibid.; Associate Director 29 June 2015). According to the researchers, official religious bodies such as the Ulema Council [Ulama Council, National Council of Religious Scholars, National Ulema Council, Shura-ye Sartasari-ye Ulama-ye Afghanistan] [Afghanistan's largest religious authority (Afghanistan 19 Jan. 2015)], the Supreme Court, and the Ministry of Religious Affairs will usually issue their religious opinions on topics such as the dates of Ramadan and Eid holidays and which TV shows should be banned for being "un-Islamic" (Researchers 7 July 2015). The same source stated that these fatwas are legally binding (ibid.). Similarly, the AIHRC representative stated that the Supreme Court is the "fatwa authority of Afghanistan" and that fatwas issued by the Supreme Court are legally binding, though they are "rarely issued" (AIHRC 28 June 2015).

In correspondence with the Research Directorate, the Associate Director of the Afghanistan Pakistan Regional Program at New York University's (NYU) Center on International Cooperation, which aims to use research and analysis to inform policy on international cooperation (NYU n.d.), similarly stated that issuing fatwas is one of the duties of the Supreme Court in Afghanistan, but that fatwas are "not legally binding in Afghan law" (Associate Director 29 June 2015). The Professor explained that

technically the fatwas of the ulema council should be legally binding. The issue is that the government often does not have the legitimacy or the authority to enforce such rulings in many parts of the country. In these areas, mullahs or other religious scholars associated with the insurgency might actually have the best opportunity to issue fatwas that are enforced. (Professor 29 June 2015)

The Professor added that, more commonly, the community and local elders enforce fatwas, "occasionally using local militias if there is [a] threat of violence" (ibid.).

According to the Associate Director, any Islamic scholar can issue a fatwa to the point that sometimes there is a "war of fatwas" (Associate Director 29 June 2015). The researchers, however, indicated that, even though opinions on current affairs, or social, economic or political issues made by mullahs or clerics are sometimes considered as fatwas, these comments are nothing more than their personal opinion and are not legally binding (Researchers 7 July 2015). However, the researchers added that "politically, it will be difficult to resist a fatwa if issued by an influential body" and that the success of a fatwa depends on the "popular influence and social status of the issuer" (ibid.). Similarly, according to the Associate Director,

any fatwa may claim to be a legally binding interpretation of Shari'a, but the state is not obligated to enforce it. … Whether a fatwa is enforced depends on whether someone with enough power to enforce it decides to do so. (Associate Director 29 June 2015)

According to sources, how a fatwa is publicized depends on who issues it: for example, fatwas issued by religious scholars or clerics are announced during the Friday service (Researchers 7 July 2015; Professor 3 July 2015) or are posted at their mosques (ibid.). Fatwas issued by the Ulema Council are widely publicised throughout mosques (ibid.).

Sources indicate that religious scholars and insurgent groups such as the Taliban [and Hezb-e islami, the second largest insurgent group in Afghanistan (Researchers 7 July 2015)] also issue fatwas (Professor 29 June 2015; Researchers 7 July 2015; Associate Director 29 June 2015). Sources report that the Taliban has its own fatwa-issuing authority (ibid.; AIHRC 28 June 2015). According to sources, some mullahs affiliated with the Taliban sell fatwas (Associate Director 29 June 2015; Professor 3 July 2015). Sources report that fatwas issued by the Taliban are not considered legally binding by the government, and fatwas issued by the government are not considered legitimate by the Taliban (ibid.; AIHRC 28 June 2015). The AIHRC representative added that the Taliban has its "own judicial system [that issues] fatwas and brutally enforces [them]"; including targeted and extrajudicial killings (ibid.).

3. Treatment of Persons Subjected to Fatwas

According to the Professor, the treatment of persons subjected to a fatwa depends on the issue at hand: "[s]ome basic fatwas against TV satellites, for example, could just result in dishes being pulled down. In other minor cases, it might be enough to pay a fine to the local mosque. In more extreme cases, of course, fatwas can call for the death of the offender" (Professor 29 June 2015). Similarly, the AIHRC representative indicated that

[i]f the fatwa is issued by the Supreme Court, then people consider it as a legal issue and there will not be [many] reactions. But, if the fatwa is issued by any self-claimed competent scholar (those who are claiming that they are competent to issue [a] fatwa) then the reaction of the people will be different. It means that it can be harsh, such as stoning, which happened some years ago in [the] Kunduz province of Afghanistan, and can be less harsh … such as whipping, which had happened in the Ghor province. (28 June 2015)

The researchers indicated that, "[i]n general, there is no 'rule of law' in fatwas. Often it is up to the followers of a certain scholar or mullah, to take the 'law' (in form of the fatwa) into their own hands. That create[s] insecurity for someone who is subjected to a fatwa" (Researchers 7 July 2015). Sources, however, indicate that the more known a scholar is the more likely a fatwa will be enforced (ibid.; Professor 29 June 2015). Radio Free Europe/Radio Liberty (RFE/RL) reports that Afghanistan is a "deeply religious and conservative country [where] religion is often above the law" (RFE/RL 22 July 2013). It also indicates that Islamic leaders "enjoy vast influence," though death-sentence fatwas are "not common" in the country (ibid. 31 July 2013).

4. Instances of Fatwas

On 31 July 2013, RFE/RL reported that Afghan police arrested a mullah from the village of Kukchail in the province of Badghis, after a woman was publicly executed in accordance with a fatwa that he had issued (ibid.). The article indicates that the woman had been shot dead by her relatives for allegedly committing adultery (ibid.). Additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

On 22 July 2013, RFE/RL reported that a local Ulema council in the district of Deh Salah, in the northern province of Baghlan, issued an eight-page fatwa banning, among other things, women leaving their homes without a male companion, women going to clinics without a male escort, and the sale of cosmetics, as well as ordering women to abide by "strict dress codes" (ibid. 22 July 2013). The article indicates that "many residents" from that district disagreed with the edict and one resident is quoted as saying that the fatwa is "just an excuse to crack down on women" (ibid.). RFE/RL further indicates that Abdul Rasul, the district mayor, who had taken steps to shut down cosmetic shops as a result of the fatwa, was shot dead by a shopkeeper on 6 July 2013 who refused to close down his business (ibid.). Additional information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] To become a mufti, an alim ("a higher religious 'clergyman'") must usually take a one-to-two year course after graduating from the conventional madrassa or Islamic university (Researchers 7 July 2015). According to the researchers, due to the fact that Afghanistan does not have a "known dar ul-ifta," most of its muftis come from Pakistan (ibid.). The same source also reported that some of the alumni from these specialized schools set up local madrassas for fatwa training (ibid.).

References

Afghanistan. 19 January 2015. Embassy and Permanent Mission of the Islamic Republic of Afghanistan in Vienna, Austria. "National Ulema Council Expresses Support and Solidarity with the Afghan National Security Forces (ANSF)." [Accessed 16 July 2015]

_____. 2005. Law on the Structure, Duties and Mandate of the AIHRC. [Accessed 16 July 2015]

Afghanistan Analysts Network (AAN). N.d. "Who We Are." [Accessed 16 July 2015]

Afghanistan Independent Human Rights Commission (AIHRC). 28 June 2015. Correspondence sent to the Research Directorate by a representative.

Associate Director, Center on International Cooperation, New York University (NYU). 29 June 2015. Correspondence sent to the Research Directorate.

New York University (NYU). N.d. "About." Center on International Cooperation. [Accessed 21 July 2015]

Professor of anthropology, Bennington College. 3 July 2015. Telephone interview with the Research Directorate.

_____. 29 June 2015. Correspondence sent to the Research Directorate.

Radio Free Europe/Radio Liberty (RFERL). 31 July 2013. "Afghan Mullah Arrested over Fatwa to Kill Woman for Adultery." (Factiva).

_____. 22 July 2013. Frud Bezhan. "Afghan Religious Leader Approves of Restrictive Edict on Women." [Accessed 23 June 2015]

Researchers, Afghanistan Analysts Network (AAN). 7 July 2015. Correspondence sent to the Research Directorate.

Additional Sources Consulted

Oral sources: The following were unable to provide information for this Response: an independent analyst on Afghanistan; an assistant professor of international affairs, Columbia University; an associate professor of South Asian and Islamic studies, Emory College; a professor of international affairs and law, Syracuse University College of Law; a professor of Islamic studies, Harvard University; a professor of law and Islamic legal studies, Harvard University.

Attempts to contact the following were unsuccessful within the time constraints of this Response: Afghanistan- Embassy in Ottawa, Ministry of Justice; Afghanistan Research and Evaluation Unit; a professor of criminology and criminal justice, University of South Wales; a professor of international law, University of California-Davis School; a professor of Islamic studies, Australian National University; a professor of political development in Afghanistan, Boston University; a professor of South Asian studies, Columbia University; Transparency International.

Internet sites, including: Afghan Zariza; Afghanistan- Ministry of Interior Affairs, Office of the President, Supreme Court; Afghanistan Times; Amnesty International; Arman-e Melli; British Broadcasting Corporation; Counterpart International; ecoi.net; Human Rights Watch; International Crisis Group; Freedom House; Institute for War and Peace Reporting; IRIN; National Public Radio; North Atlantic Treaty Organization; Pajhwok Afghan News; Tolo News; United States – Agency for International Development, Commission on International Religious Freedom, Department of State.