a-4031 (ACC-AFG-4031)

Nach einer Recherche in unserer Länderdokumentation und im Internet können wir Ihnen zu oben genannter Fragestellung Materialien zur Verfügung stellen, die unter anderem folgende Informationen enthalten:
Ist es im Jahr 1996 möglich, dass die Mutter nach dem Tod des Vaters alleinverantwortlich für ihre Kinder ist, oder geht die Obsorge für die Kinder automatisch an einen männlichen Verwandten, z.B. Onkel, über?
Familienrecht ist bei Sunniten und Schiiten unterschiedlich geregelt, und selbst innerhalb dieser islamischen Glaubensrichtungen gibt es unterschiedliche Interpretationsschulen. Grundsätzlich wird zwischen der Sorgepflicht für ein junges Kind (zwischen sieben Jahren und der Pubertät) unterschieden, die der Frau zufällt, und der Erziehungspflicht für ältere Kinder, die dem Mann, oder bei dessen Unfähigkeit, dem Großvater, zufällt. (Nasir, 2002, S. 189). Das tunesische Familienrecht sieht auch ein Sorgerecht der Mutter bei Tod oder Rechtsunfähigkeit des Vaters vor. (Nasir, 2002, S. 187)
Leider konnten wir bisher keine Informationen über die Regelung des Sorgerechts für Witwen in Afghanistan, und insbesondere im Hazarajat finden. Mehrere Dokumente beschäftigen sich mit dem Sorgerecht nach der Scheidung:
"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”." (ICG, 14. März 2003, S. 21)
"On civil rights, the Women’s Committee members explained that parents share parental authority over children of the marriage. In divorce cases, which are extremely rare, custody of children goes to the man. Marriages in Hazarajat are usually arranged by the families, but in better-educated circles it is normal for both men and women to choose their own marriage partners.
The delegation’s independent sources, including UN sources, broadly confirmed the above information on the position of women in Hazarajat. However, they also pointed out that illiteracy is a huge problem among both sexes, with educated women forming a very small minority in Hazara society." (DIS, 1997, S. 65/66)
In einer Zusammenfassung des islamischen Familienrechts vom Jänner 2004 findet sich ein Hinweis auf Voraussetzungen für das Sorgerecht einer Mutter, allerdings wiederum im Fall einer Scheidung:
"8.1 - Requirements of a Mother Custodian
To have physical custody, most juristic schools maintain that a mother must not be married to a stranger (a non-relative) or to a relative who is not in a prohibited degree of relation to the child. The Shias, however, prohibit a mother from retaining custody if she marries any other man as long as the child's father is alive and eligible for custody. While only the Shafii and Shia schools require a mother to be Muslim in order to have physical custody over a Muslim child born to a Muslim father, the Hanafi school considers denouncement of Islam (apostasy) a sufficient ground for denying a mother who was previously Muslim her right to custody. Jurists of the other Sunni schools generally only require that the mother raise the child in the Islamic faith. However, the Sunni schools maintain that a mother loses her right to custody if there is reason to believe that she would influence the child's religious beliefs so as to compromise his or her Islamic upbringing. Examples of this would be the mother taking the child to church, teaching the child the articles of another religion, or performing the rites of another religion in front of him or her. Certain other requirements also must be satisfied for a mother to have custody, such as the requirement that the mother not house the child in a home where he or she is disliked.
8.2 - A Mother's Right to Physical Custody
In recognition of an infant's need for female care, all the juristic schools give first preference to a mother's claim to physical custody of her young child provided that she satisfies all the requirements for a female custodian. After divorce during the period of the mother's custody, she is generally entitled to receive custody wages from the father to help her maintain the child. However, the period of female custody ends once the child reaches a certain age of custodial transfer. The Hanbali and Shafii schools do not distinguish between girls and boys regarding the duration of female custody. The Hanbalis maintain that the female custodian should have custody from birth until the child reaches the age of seven, at which point he or she may choose between parents. The Shafiis allow female custody until the child reaches the age of discretion and may choose either parent as custodian. The Malikis rule that female custody of a boy shall last until he reaches puberty, and for a girl until she marries. Under the Hanafi school, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mother's custody of her daughter ends. Most maintain that the mother's custody ends when the girl reaches puberty, set at either nine or eleven years of age. However, others allow the mother's custody to last until the girl reaches the age of womanhood." (Uhlmann Umhani, Jänner 2004)
Konnte eine Frau im Jahr 1996 in Afghanistan Großgrundbesitzerin sein und ist sie berechtigt, Teile ihres Vermögens selbstständig zu veräußern?
Laut einem Bericht der Afghan Research and Evaluation Unit (AREU) vom März 2003 über die Entwicklung des Landrechts in Afghanistan erlaube das afghanische Recht grundsätzlich, dass Frauen Landeigentum besitzen. Dies sei auch durch Scharia-Recht unterstützt, dass Witwen und Töchter als Teilerbinnen von Landeigentum vorsehe. In der Praxis sei dies jedoch eher die Ausnahme als die Regel: während Witwen durchaus Landeigentümerinnen sind, würden Töchter ihre Rechte zumeist an ihre Brüder abtreten, insbesondere, wenn sie heiraten.
“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. 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.” (AREU, März 2003, S. 30-31)
Laut International Crisis Group würden Frauen ein Achtel des Grundbesitzes ihres Ehemanns erben.
“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 one eighth 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.’” (ICG, 14. März 2003, S. 21)
In einer Untersuchung von Geschlechterrollen in der Landwirtschaft in fünf Dörfern erwähnte AREU, dass Witwen weitergehende Rechte am Grundbesitz zugestanden würden als unverheirateten oder verheirateten Frauen:
"It is worth beginning by noting that when this report mentions “households” owning land, what is largely referred to are men in those households owning land. Women in the villages studied are rarely considered to jointly own the land and few females inherit land from their parents in practice, though under Shari’a law they have property rights. Thus, whilst unmarried and married women may have access to the produce from the land for consumption, they rarely own this very valuable asset. Where this appears to differ, however, is when a woman is widowed. It appears that in all of the villages studied landed widows do have certain rights over the land. Several widows involved in the study were sharecropping out4 their land,  mostly to male relatives, and receiving what appeared to be the correct share of the crop. It does not appear that these women have full rights of ownership, however, as they are not permitted to sell the land, as it will be passed onto their sons or male relatives. Much further investigation is needed to find out what rights women do have over land and what these rights mean for them.
The ability to “own” or at least manage land may also be linked to marriage systems. Most of the married women in the villages were born in those same villages. They had been married to men who were born in the same village, often members of the same natal kin. This endogamous marriage system may make it easier for women to hold onto land, as even if they return to their natal home following widowhood, they will still be residing in the same village. By contrast, in areas where exogamous marriage is practiced, in countries such as India (for the most part), it is often more difficult for women to maintain some control over the land and even less likely that they will inherit from their parents, as they will move away upon marriage." (AREU, April 2004)
Über Erwerbstätigkeit von Frauen berichtete die dänische Einwanderungsbehörde (DIS) nach einer Erkundungsreise im Jahr 1997, dass trotz erheblicher Einschränkungen unter den Taliban es zumindest Witwen erlaubt sei, etwa Kleider am Bazaar zu kaufen und ihn ihren Dörfern wieder zu verkaufen:
"As stated above, the Taliban’s basic view is that a woman’s place is in the home, with the male being the primary breadwinner. As the Governor of Kandahar told the delegation, they are aware of the need for female doctors and nurses, but whether and, if so, to what extent access is to be allowed to other further education courses requires closer consideration. Asked whether the Taliban would, for instance, permit a woman to keep a shop in the bazaar, the Governor answered that no doubt they would not. The delegation enquired specifically about the situation for the many war widows and their chances in society. The Governor replied firstly that the late husband’s family have a duty to look after his widow, secondly that she can remarry and lastly that widows are able, for instance, to buy clothing in the bazaar and resell it in the villages. A new marriage cannot, however, be contracted until the death of the former husband is firmly established, which in a country where many men are killed in military action may give rise to problems.
On employment opportunities for women in general, several Taliban sources, including the Deputy Governor of Jalalabad, said that women are allowed to work in the fields and at home, e.g. as carpet-weavers or for that matter as schoolteachers at home-run schools." (DIS 1 Juli 1998, S. 63)
Das US Department of State berichtete für das Jahr 1998, dass “Mullah Omar […] also affirmed women's limited rights to inherit property under the Taliban's interpretation of Islamic law.” (USDOS, 1998, 26. Februar 1999, Sektion 5: Women)
Über die Situation von Frauen speziell im Hazarajat berichtete die dänische Einwanderungsbehörde (DIS) folgendes:
"6. Position of women in Hazarajat
As stated earlier, the delegation only had a chance to visit Bamian in Northern Alliance-controlled territory. The area forms the core of Hazarajat, which as the name suggests is the homeland of the Hazaras, and political and military power there is held by Hezb-i-Wahdat. The situation for women in Hazarajat was discussed with a number of representatives of the authorities and independent sources, including UN sources.
Qurhan Ali Airfani, deputy head of Hezb-i-Wahdat, explained that women and men have equal rights in Hazarajat, including political rights. Women can thus become members of Hazarajat’s central governing bodies and a special Women’s Committee has been set up, reporting directly to Hezb-i-Wahdat’s Central Consultative Council, with the task of ensuring equality for women.
The delegation met two leading members of the Women’s Committee, both from an academic background, who confirmed that Hazara women enjoy political equality with men. They added, however, that women are under-represented numerically in all public authorities, chiefly because women have not traditionally received higher education in any numbers.
On schooling, the women reported that there is equal access to education for girls and boys, but with serious inadequacies in the school system generally. They estimated the illiteracy rate in Hazarajat to be about 90%. Bamian has eight girls’ schools and four mixed-sex schools. In some parts of Hazarajat, separate education of girls and boys used to be the custom, but the trend in recent years has been towards co-education. Children are usually taught together up to the age of nine. After that, they are segregated in separate-sex classes. Of the girls receiving education in Hazarajat at present, some are IDPs from Kabul and other parts of Afghanistan.
For further education, the women explained that Bamian has a university with four faculties. Admission requirements are the same for both sexes. Yet, out of the university’s 300 or so students at present, only 13 are women. The explanation given for this was that, as stated above, women have traditionally not been encouraged to go in for education. Most of the university’s current female students are in fact IDPs from Ghazni and Kabul.
On access for women to employment and participation in social life generally, the Women’s Committee representatives stated that there are female lecturers at the university, women and men have equal access to academic employment, women can run businesses, e.g. shops in the bazaar, they can buy and drive cars and they also work on a par with men in farming.
There are no restrictions on women’s freedom of movement or other special behaviour requirements. In accordance with custom, most women wear a chador (in the form of a headscarf covering their head) and some opt for further covering.
On civil rights, the Women’s Committee members explained that parents share parental authority over children of the marriage. In divorce cases, which are extremely rare, custody of children goes to the man. Marriages in Hazarajat are usually arranged by the families, but in better-educated circles it is normal for both men and women to choose their own marriage partners.
The delegation’s independent sources, including UN sources, broadly confirmed the above information on the position of women in Hazarajat. However, they also pointed out that illiteracy is a huge problem among both sexes, with educated women forming a very small minority in Hazara society." (DIS, 1997, S. 65/66)
Zu einer etwas anderen Einschätzung kommt Chris Johnson in ihrer Studie zum Hazarajat aus dem Jahr 2000:
"Even before the Taliban, women had relatively little autonomy in livelihoods. There are some examples of women hoteliers but these are the exception. Even in handicraft production, where women do all the work from spinning to final weaving or felting, men are responsible for the selling.
Agriculture is seen as a household activity in which both men and women participate, and women’s labour is crucial to the functioning of poor households. There is a customary division of labour, with men responsible for ploughing and planting, women for weeding, and men and women together for harvesting and for fodder collection. Though women are seen as necessary, they are also seen as subordinate. The overwhelming importance of attaining food security for men and women alike is reflected in the finding that women and men’s priorities are often the same (e.g. for irrigation development), though women do also express preferences for specific work on women’s livelihoods, for example training female BVWs and para vets.
Though little detailed work has been done on intra-household distribution, the information that does exist supports the thesis that in Hazarajat there is little gender-based discrimination in terms of food consumption or access to essential commodities — and in most households there is very little expenditure outside that required for essentials. Discrimination where it does exist is age-based, with adults doing without so children can get priority for scarce food. This fits with the findings of most health studies that there is no statistical significance between the nutritional status of male and female children. There are relatively few female-headed households as women who are widowed are generally taken care of within the extended family. Where such units do exist they are generally from the poor class (such as sharecroppers) and are recognised as vulnerable by the community and taken care of." (Johnson, März 2000, S. 20-21)
Der Verkauf von Grundbesitz
"Religious law also disallows sale of houses or farms without the support of all adult members of the family." (AREU, März 2003, S. 31)
"It does not appear that these women have full rights of ownership, however, as they are not permitted to sell the land, as it will be passed onto their sons or male relatives." (AREU, April 2004)
War es im Jahr 1996, ohne schwerwiegende Folgen, möglich sich in der Schule gegen den Islam zu äußern?
Diese Frage bedarf der Einschätzung eines/r ExpertIn. Leider konnten wir in den uns derzeit zur Verfügung stehenden Quellen keine Gutachten oder Stellungnahmen zu dieser Fragestellung finden. Laut Johnson (März 2000) haben die Taliban im Hazarajat teilweise weniger strikte Verhaltensregeln durchgesetzt als in anderen Teilen des Landes:
"Unlike in many other areas, such as Kabul, the Taliban have not imposed strict codes of behaviour in Hazarajat — girls still go to school, women still wear their traditional dress rather than burqas, Shia Muslims pray according to their traditions. Mostly informants interpreted this as recognition by the Taliban that they could not control the area by force, particularly over the winters, and so desire to avoid provoking resistance. There was, however, a feeling that it might not last, that the Taliban were now having to concentrate on Massoud and that they might become stricter in Hazarajat if they gained military control of the whole country:
“They want to destroy the opposition but they recognise that they don’t have enough power and so they have to negotiate.”
Whether or not this turns out to be true this perception is indicative of a certain wariness on the part of the local population." (Johnson, März 2000, S. 5)
GesprächspartnerInnen des Danish Immigration Service bezogen sich im Herbst 1997 auf Ghazni als ein von den Taliban kontrolliertes Gebiet:
"An international NGO operating in Afghanistan and wishing to remain anonymous said that the situation is also difficult for Hazaras in Ghazni, which it put down in large part to the Governor, who was described as a real hard-liner. […]
According to the same sources, the present Minister for Justice, Turabi, is especially notorious for his zeal in enforcing the rules. A particularly (in)famous occurrence reportedly took place in Ghazni in September and October 1997, when a Taliban force led by Turabi in person set up a checkpoint across the main road from Kandahar to Kabul and then began carrying out beard inspections. The operation lasted for about ten days, during which time a total of around 7 000 were detained for up to four days because their beard was too short or had been trimmed.
[…] The delegation also discussed the position of the Hazara population with various Taliban spokesmen. As stated earlier in section 4.H, confronted with reports of protection problems for Hazaras in Taliban-controlled territory, the Repatriation Ministry representative in Herat said that they were untrue and emphasized that Hazaras can live in Taliban-controlled territory without any problem, e.g. in Ghazni." (DIS, 1. Juli 1998, S. 21-23, 72)
Radio Afghanistan berichtete am 11. April 1997 von einem Besuch eines hochrangigen Taliban in Ghazni Provinz (Radio Afghanistan/BBC Monitoring, 11. April 1997). Laut Amnesty International soll Ghazni im April 1995 von der Taliban kontrolliert worden sein (AI, April 1995, S. 1). 

Diese Informationen beruhen auf einer zeitlich begrenzten Recherche in öffentlich zugänglichen Dokumenten, die ACCORD derzeit zur Verfügung stehen. Die Antwort stellt keine abschließende Meinung zur Glaubwürdigkeit eines bestimmten Asylansuchens dar.

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