Afghanistan
afghanistan
Map source: Human Rights Watch

Population of Women: 15,049,500 (UN Statistics Division)
Life expectancy of women: 44.5 years (World Bank 2005)
Adult illiteracy for women: 85.9% (71.9% urban/ 91.9% rural) (Afghanistan Independent Human Rights Commission) 

 

Contributed by: Carolyn Cairns, Darin Foster and Pam Duncan, Volunteers, Alliance for International Women's Rights; Mehmet Konar-Steenberg, Meg Daniel and Mary Ann Archer, William Mitchell College of Law; and Lily Troia.
  
last updated 7 September 2007
 
 
 
 
 
 
 
Ethnic Composition
 
The Afghan population is divided into numerous ethnic groups.  Because a formal census has not been conducted in nearly thirty years, precise statistics concerning the size of various ethnic groups are not available.  The largest ethno-linguistic group is Pashtun, followed by Tajik (including Farsiwan and Qezelbash).  Smaller groups include the Hazara, Uzbek, Aimak and Turkmen.  Pashto (35%) and Persian (Dari) (50%) are the dominant languages; however, more than 30 other languages are spoken.  More than 99% of the people are Muslim--between 75-90% Sunni and 10-15% Shi’a.
 
Recent History
In 1989, rebels funded and trained by the U.S. overthrew the nine-year Soviet occupation of Afghanistan, after which various rival groups vied for control.  In 1996, the Taliban consolidated power in most areas of the country and seized control of the capital, Kabul. The Taliban imposed a version of Islamic Sharia law that barred women from attending school, working or leaving the house without a male escort, prevented them from seeking medical help from a male doctor, and forced them to cover themselves from head to foot.
 
The Taliban also provided a haven for Osama Bin Laden and other al-Qaeda figures. In the wake of al-Qaeda’s terrorist attacks on the United States on September 11, 2001, NATO forces led by the United States invaded Afghanistan and deposed the Taliban in November 2001.
 
In December 2001, after the fall of the Taliban, leaders of various Afghan opposition groups met in Bonn, Germany and agreed on a plan for a democratic government. The constitution, adopted in 2004, restructured the government as an Islamic republic with three branches—executive, legislative and judiciary. The country is currently led by President Hamid Karzai, who was elected in October 2004. The parliament was elected in 2005; 28% of the delegates are women, 3% more than the 25% minimum mandated by the constitution.
 
Afghan Law
Author’s Note: Most existing Afghan civil law has not been updated or modified since the socialist period of the 1970s.  As in many Muslim countries, Afghan civil law co-exists with Islamic Sharia law, as well as tribal and customary law which is often used to resolve many conflicts in Afghan society. Understanding the proper balance between these varied bodies of law is highly complex.
 
Afghanistan’s recent history, continued state of political unrest and relative isolation from central authority make it difficult to determine how, or if, codified laws are implemented in practice. Thus, the following analysis may not necessarily reflect Afghan law as it is applied to resolve particular legal conflicts as they arise in Afghan society.
 
The Afghan Constitution of 2004
On 3 January 2004, Afghanistan adopted a modern constitution establishing the basic law of the country. The Preamble of the Constitution commits the people of Afghanistan to “observing the United Nations Charter as well as the Universal Declaration of Human Rights.” In addition, the Constitution clearly states that the country is dedicated to creating “a civil society void of oppression, atrocity, [and] discrimination.”
 
Chapter Two of the Constitution seeks to implement the Preamble’s declaration into practice. Article 22 holds that “the citizens of Afghanistan, man and woman, have equal rights and duties before the law.” Article 43 guarantees education to all Afghans and Article 44 imposes a positive duty on the government to “devise and implement effective programs to create and foster balanced education for women.” Article 54 recognizes the family as the “fundamental pillar of the society” and requires the government to adopt “necessary measures to attain the physical and spiritual health of the family, especially of the child and mother, upbringing of children, as well as the elimination of related traditions contrary to the principles of the sacred religion of Islam.” 
 
Despite the specific components of the Constitution referenced above, several provisions have the potential for contradictory interpretations. Specifically, Article 3 states that “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.” Read broadly, Article 3 has the potential to negate aspects of civil law in Afghanistan, including the Constitution itself.  Determining how the civil law of Afghanistan, which the Constitution itself labels an “Islamic Republic”, interacts with the religious tenants of Islam rests with the authority of the Justices of the Supreme Court. How the Court rules on such issues will likely impact the status and rights of women in the country.
Article 121 requires that, “at the request of the Government, or courts, the Supreme Court shall review laws…for their compliance with the Constitution.” Apart from the substantive issues raised by the Article, there is a significant procedural question as to how Article 121 will interact with Article 3. This raises the query as to whether Article 3 requires the Court to use the tenets of Islam as criteria of constitutionality or to declare a law unconstitutional if the civil law contradicts sharia law.  Furthermore, the Constitution does not outline how the Court is to determine the content of sharia, what sources of law the Court is to use, and by what methodology it is to derive the law from those sources. At this time, these issues are open for interpretation.
 
These discrepancies present a significant challenge with respect to the rights of women. Depending on how future governments and courts interpret the Article, it is possible that Article 3 could be exercised as an override of the country’s international obligations and other Articles of the Constitution. Attempts to codify and “modernize” various aspects of family law, marriage law, and criminal law could meet with similar obstacles.
 
In order to insure that the rights provisions of the Constitution are properly implemented, Article 58 requires the state to maintain an Independent Human Rights Commission (IHRC) which is to preside over claims of human rights abuses and refer cases to the legal authorities as it deems appropriate.
 
The IHRC was created pursuant to the Bonn Agreement of December 5, 2001, and it currently operates outside the formal governmental structure. The IHRC clearly states that one of its primary goals is “to promote, ensure women's rights and monitoring the situation of Women in Afghanistan and also make efforts to eliminate/reduce the discriminatory attitudes towards women in Afghan society.” The Commission aims to promote women’s rights through outreach, education, and investigation of rights violations. More information regarding the role of the IHCR can be found on its website.  
 
Criminal Law
Despite the current Afghan government’s efforts to update the country’s civil and criminal legal codes, as of May 2007 the official Penal Code dates from 1976. Furthermore, it appears that the Penal Code will generally be superseded by sharia law, as the Code expressly states that it is only applicable when the criminal conditions of sharia law are not met.
 
The Code, which is a mixture of socialist jurisprudence and ancient Islamic practice, does not contain any explicit prohibitions against rape, sexual harassment, or any other crimes against women. The Code’s treatment of married women and mothers, while affording them with special protected privileges simultaneously refuses to recognize the most basic violations of a woman’s rights.
 
Family and Marriage Law:
Apart from the Penal Code, the Afghan Civil Code provides insights into the legal status of women in Afghanistan. Additionally, the fundamental attitude of Afghan law towards sexual activity is best expressed in the Civil Code, which is also a product of the 1970’s socialist period. Article 60 of the Civil Code defines marriage as “a contract which legalizes intercourse between a man and a woman….”
 
The Code’s marriage provisions contain numerous provisions that discriminate against women.
 
The minimum age of marriage is lower for women (sixteen years) than men (eighteen years) (Article 70); and, while Muslim women are not allowed by law to marry non-Muslim men, Muslim men are permitted to marry any believer in “Divine Books” (i.e., Muslims, Christians and Jews) (Article 92).  A similar provision of law allows for the annulment of a marriage where the man converts to Islam and the wife refuses to follow suit. (Article 133).
 
One of the most glaring inequalities concerns the issue of divorce. The Code affords the husband a unilateral right to divorce the wife for any reason, or for no reason, at any time. (Article 135). The husband may issue a “returning-divorce” three times, and only after the third such divorce does the husband forfeit the right to re-marry the wife. (Article 147).
The Civil Code also addresses the issue of polygamy. Article 86 of the Code provides men with a right to take multiple wives. In theory, this right is curtailed when there is fear of “injustice between the wives” or if the man does not have the financial means of providing each of his wives with “food, clothes, a suitable house, and medical treatment.”  However, should the husband violate these provisions, the Code does not offer a wife any form of recourse.  If a man cannot provide these things he may exercise his right to divorce, while the offended wife may not insist on a divorce unless an anti-polygamy clause is included in the couple’s marriage contract. (Article 88).
 
The Civil Code does provide certain rights to married women, most of which address the “marriage portion,” or mahr (payment of maintenance and support, and other economic rights), paid by the groom directly to the wife.  Afghan civil law addresses the issues surrounding payment of the mahr in detail and clearly states that, upon payment, the mahr becomes the property of the wife.  Further, she may independently exercise ownership power over this property (Article 110) and cannot legally be compelled to place any part of her marriage portion at the disposal of her husband or any other person. (Article 114).
 
The Civil Code also provides the wife with the right to demand that the husband provide a suitable residence for the family. (Article 115).  If the husband cannot meet these demands, the wife has the right to leave the husband’s residence and return to her family, although she would not have the right to divorce the husband.
 
Additionally, an Afghan wife also has the legal right, provided by the Code, to demand maintenance from the husband. Such maintenance includes a right to be provided with suitable food, clothing and medical treatment, in proportion to the financial means of the husband. (Article 118). If the wife “does not submit to conjugal affairs”, however, she loses her right to maintenance.
 
Tribal and Customary Law in Afghanistan
While the Civil Code exists on paper and Islamic sharia law is increasingly important in religious circles, for most Afghan citizens the only true “law” is that which comes from centuries-old local customs. While this unofficial law is derived from the historical practices of particular tribes and thus varies from region to region, commonalities create a broad outline of Afghan tribal law that make a general discussion worthwhile.
 
Conceptually, Afghan tribal law stresses restorative justice over retribution and punishment. Rather than seeking to jail or condemn a wrongdoer, tribal law strives to restore the balance of relations within the community. The primary consequence for women of this system of justice is their treatment as valuable property to be used as compensation in a variety of disputes.
 
The following section discusses how informal law is administered and how decisions are reached.
 
Tribal Procedure
While variations exist between different tribes and villages, the structure of a basic Afghan trial is similar throughout the country. For most local or village disputes, a council of elders and other respected men are called together in a jigra. The men of the jigra gather together in a private chamber, hear evidence from all parties and debate the issues. The discussion continues until the jigra reaches a collective decision.
 
Regardless of the particular offense, the decision of the jigra typically involves a formalized apology, known in the Dari language as “Nanawati,” on the part of the wrong-doer. The Nanawati varies depending on the offense, but generally requires symbolic acts of reconciliation, such as carrying the body of the victim, lying in the victim’s grave, the giving of money or women, or slaughtering a specific number of sheep. For example, the Nanawati for the abduction and murder of a married woman involves the giving of four copies of the Koran, four women, and a sheep to the family of the victim.
 
Nanawati demonstrates the core problem encountered when attempting to describe the place of women in traditional Afghan law.  Excluded from all legal decision-making, Afghan women are often treated as objects through which tribal law accomplishes its goals of reconciliation and promoting stability. 
 
Criminal Offenses
As in most societies, intentional murder is the paramount crime in Afghanistan. While some tribal customs allow for the execution of a murderer, typically punishment involves the payment of one or two girls from the family of the murderer to the family of the victim. Further, if the family of the victim chooses to pursue execution, the victim’s family may be required to give women to the family of the murderer as compensation for the execution.  Intended to promote good relations and kinship among the two hostile families, the exchange of women is still common in cases involving conflicts between villages and larger clans.
 
Punishments for crimes involving women are typically severe, but even where a woman is the direct victim of a crime, it is generally her father, husband, or brother that receives compensation for the offense.
 
Conclusion
This webpage contains only a brief outline of customary tribal law in Afghanistan; however, even this cursory discussion reveals the bifurcation between the law as expressed in the Penal and Civil Codes, and the law as it is actually experienced by many, if not most, Afghan women.
 
While the Constitution may speak of fundamental equality, the practical application of customary law often results in women’s objectification as valuable property. Simultaneously, women are often severely and brutally punished when their actions in any way tarnish male honor. Such legal and social attitudes have been deeply ingrained in Afghan culture for generations.
 
Conditions for Women
Generally
The situation for women in Afghanistan is severe and, despite the diminished influence of the Taliban, remains unchanged in most respects.  Decades of war have not only destroyed Afghanistan’s infrastructures and basic services, they have also contributed to the nation’s poverty and continued revocation of women’s human rights.  A lack of national security has further intensified the situation for women in Afghanistan, as women are unlikely to venture far from home and women’s rights activists are hampered in their efforts to reach victims.
 
Afghanistan has one of the lowest female literacy rates in the world; and, as female university graduates are not allowed to become teachers, access to education for young girls will continue to be limited, perpetuating these low rates of illiteracy.  As of 2002, maternal mortality in Afghanistan is the leading cause of death among women of reproductive age, a statistic due in part to women’s inadequate access to health care, exacerbated by such factors as restricted mobility and reduced numbers of female health care providers and facilities that treat women. “Maternal Mortality in Afghanistan: Magnitude, Causes, Risk Factors and Preventability” (Afghan Ministry of Public Health, CDC, UNICEF 2002).
 
The United Nations Millennium Development Goals (MDGs) formulated in September 2000 set minimum standards for all nation participants in the areas of human rights, education, development and poverty, peace and security, and protection of the environment.  Still at war at that time, Afghanistan did not participate in the formation of these initial goals.  In March 2004, Afghanistan endorsed the MDGs, but noted in its 2005 report on progress toward those goals that Afghanistan would define its MDG targets using baselines of 2002 to 2005 with 2020 as the projected date of attainment rather than using the baseline of 1990 with MGDs to be attained by 2015, as committed to by the rest of the international community.  The 2005 Report states that it is “unlikely” that Afghanistan will meet the 2015 target to provide universal primary education but “potentially” may reach it by 2020.  The goal of promoting gender equality and the empowerment of women received a similar prognosis with a notation that the state of “policy environment” with regard to women’s rights is “weak but improving.”  While none of the original MDG targets for gender equality address violence against women, new targets reflecting promotion of gender equality have since been added, including adoption of legislation that protects the rights of women and criminalizes all forms of gender-based and sexual violence.
 
It is important to note that Islamic ideology does not explicitly require or determine the subjugation of women; however, Afghan women’s status is grounded in a variety of factors, including “pre-Islamic patriarchal ideologies,” (see “Women’s Position, Role, and Rights in Islam,” by Dr. Zieba Shorish-Shamley). Afghan culture is said to be based on a code of honor, which is largely reflected in the expected behavior of women. (see “Millennium Development Goals, Islamic Republic of Afghanistan, Country Report 2005” (MDG Report 2005), at p. 41). “Gender has thus been one of the most politicized issues in Afghanistan over the past 100 years” and reform attempts have been condemned by some as “un-Islamic” and a threat to the “sanctity of the faith and family”.  Thus, while women’s rights were drastically diminished with the advent of Taliban control, it would be inaccurate to state that repression of the female class began with this contemporary movement.
 
Forced Marriages
Through its 4 March 2003 ratification of the Convention on the Elimination of All Forms of Discrimination against Women, Afghanistan is obligated to ensure both parties give free and full consent before entering into marriage and to legislate a specific minimum age for marriage (Article 16). Yet, Amnesty International reported in 2005 that although the Law on Marriage of 1971/1350 stipulates that marriage must be by free choice, this requirement is not effectively enforced. “Afghanistan: Women Still Under Attack—A Systematic Failure to Protect.”
 
It is estimated that 60-80% of all marriages in Afghanistan are forced marriages.  The term “forced marriages” references a range of practices, from the exchange of a female in marriage as repayment for a debt or to clear up a feud, to a family determining who a daughter should marry without her consent. 
 
Chapter 7 of the Penal Code addresses the crime of kidnapping and it proscribes higher punishments for the kidnapping of girls and women. Yet the Code exonerates “a person who carries off a girl, who is sixteen years or over, at her own will from her parents’ residence for the purpose of lawfully marrying her.” The ambiguity of the term “own will” would seem problematic in determining whether kidnapping had occurred under the Code.
 
Afghan civil law also prohibits marriage under the age of sixteen years for girls, yet an estimated 60% of marriages involve girls under the age of sixteen and midwives report treating pregnant mothers as young as twelve.  Child brides have double the pregnancy death rate of women in their twenties; and, babies of child brides are often born sick and weak in a country where over 20% of children die before the age of five. 
 
Although girls are now allowed to attend school, the likelihood that a girl who marries will attend school is remote.  A law passed in the mid-1970s prohibiting married women from attending school was upheld by the government in 2003 on the grounds that the law protected unmarried girls from learning about sex from their married classmates.  The law was not changed until 2004. 
 
Domestic Violence and Sexual Assault
There is only limited statistical data available on domestic violence in Afghanistan. A May 2006 study by UNIFEM entitled, “Uncounted and Discounted: A Secondary Data Research Project on Violence against Women in Afghanistan,” examined 1,327 cases of domestic violence provided by seventeen organizations between January 2003 and June 2005. The study found that more than 64% of the victims in these cases were married and that 82% of the perpetrators were family members, with more than a quarter of the cases involving sexual violence. The study concluded that in order to gain a full understanding of the scope and nature of domestic violence in Afghanistan, further data collection would be necessary.
 
Although rigorous statistical information is lacking, there are many anecdotal studies that explore the domestic violence problem in Afghanistan. In one study of collected interviews, Amnesty International found that in Afghanistan, violence against women within the family is widespread and includes deprivation of educational and economic opportunities, verbal and psychological abuse, beatings, sexual violence, and killings. From “Afghanistan: Women Still Under Attack—A Systematic Failure to Protect” (2005).
Contributing factors, such as a lack of access to education, early marriage and child-rearing, multiple pregnancies and a cycle of poverty, make Afghan women particularly vulnerable to domestic violence.  The Women’s Affairs Ministry of Afghanistan acknowledged in 2005 that despite the government’s stated efforts to assist women the number of abuse cases is increasing. Violence against women is largely unreported due to the associated stigma, potential for retaliation, and lack of avenues of redress or protection (see “Uncounted and Discounted:  A Secondary Data Research Project on Violence Against Women in Afghanistan,” UNIFEM, p. 31, fn 52.  May 2006).
 
While Afghan women have few independent rights in relation to domestic abuse, the Civil Code does provide a limited form of protection to abused wives. Article 183 provides that when “a wife receives any harm from intercourse with the husband” which “makes the continuation of intercourse between them impossible,” the wife can petition the court for an order of separation. Even where the harm claimed by the wife is not proven, if the husband and wife do not get along well, the court shall have a right to issue a separation order. (Article 184). Thus, these provisions offer some options for a wife attempting to leave an abusive husband.
 
As of September 2005, there were five women’s shelters in Afghanistan, four of them in Kabul, according to the Ministry of Women’s Affairs.
 
As mentioned previously, marriage is defined under the Civil Code as little more than a contract legalizing sexual relations, and the proper procedures for concluding the marriage contract are laid out with specificity throughout Articles 61 – 185. For a detailed summary of current marriage practice, see the Max Planck Institute’s Family Structures and Family Law in Afghanistan.
 
The Penal Code proceeds from the fundamental assumption that sexual activity is by definition illegal, criminal, and punishable. Only the marriage contract removes the criminal nature of sex. This understanding of sex disregards the element of consent that is imperative in classifying the crime of rape in most modern legal systems. In Afghanistan, outside of marriage, both consensual and non-consensual sex are equally punishable, while within marriage, both types of sex are equally permissible.
 
Chapter 8 of the 1976 Penal Code addresses issues of “Adultery, Pederasty, and Violations of Honor.”, with “adultery” being the only punishable crime.  Article 427 of the Code states “a person” who commits adultery shall be punished by a period of long imprisonment, implying that both parties to the sex act will be considered to have violated the law.  However, as the Code lacks a specific violation regarding rape, in practice, the law often transforms female victims of rape into criminals themselves. Amnesty International reports that large numbers of women are imprisoned across Afghanistan for committing “zina” crimes, which may loosely be understood as “sex crimes.” These crimes include such things as adultery, engaging in sex outside marriage (whether consensual or otherwise), and running away from home.
 
Removing the element of consent creates a definitional paradigm that, in part, prevents women from reporting rapes because of the justifiable fear of being treated as criminals themselves. Furthermore, the rape victim may be pressured by her family to marry the perpetrator to preserve the family honor, particularly if he is in a position of power. The Afghan Independent Human Rights Commission revealed that in the most extreme cases, victims of rape and sexual assault are murdered by their own families in an attempt to preserve the family honor.
 
Trafficking
The U.S. Department of State’s 2006 report on human trafficking describes Afghanistan as a source country for women trafficked internally and to Iran, Pakistan and Saudi Arabia for forced labor and sexual exploitation. Women are also “exchanged” internally for forced marriages to resolve disputes.
 
The report notes that Afghanistan lacks specific anti-trafficking measures and relies on kidnapping and other criminal laws to prosecute these offenses. The report concludes that despite increased efforts, the government of Afghanistan “fails to comply with minimum standards for the elimination of trafficking.”
 
Sexual Harassment
In 2006, the U.S. Department of State noted that although there was no law specifically prohibiting sexual harassment in Afghanistan, sexual harassment of Muslim women was not generally viewed as socially acceptable. 
 
Additional Sources:
Afghanistan’s Legal System and its Compatibility with International Human Rights Standards, Dr. Martin Lau, International Commission of Jurists Report.