Violence Against Women in Afghanistan
Afghanistan
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Population of women: 14,038,500/29,117,500

Life expectancy of women (at birth): 45 years
School life expectancy for women: 5
Women's adult literacy: 12.6% (CIA World Factbook 2000 estimate)
Unemployment of women: 9.5%
Women engaged in economic activity: 33%
 
Source: UN Statistics Division, Social Indicators, updated June 2011  
  
last updated 18 May 2011

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 (42%), followed by Tajik (27%) which includes Farsiwan and Qezelbash. Smaller groups include the Hazara (9%), Uzbek (9%), Aimak (4%), Turkmen (3%), and Baloch (2%). Afghan Persian (Dari) (50%) and Pashto (35%) are the dominant languages; however, more than 30 other languages are spoken. More than 99% of the people are Muslim--80% Sunni and 19% Shi’a. Source: CIA: The World Factbook, 13 January 2011 (statistics from July 2010 estimate).

 

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 an extreme version of Islamic Sharia law that allowed for enormous human rights violations against women. Under the Taliban regime, women were barred from attending school, working or leaving the house without a male escort, prevented from seeking medical help from a male doctor, and forced to cover themselves from head to foot.

 

The Taliban also provided a haven for Osama Bin Laden and other al-Qaeda figures, in exchange for financial and political support. 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 at a United Nations-sponsored conference in Bonn, Germany and agreed on a plan for a democratic government. The constitution, adopted in 2004, restructured the government as the Islamic Republic of Afghanistan, with three branches—executive, legislative and judiciary.

 

The country is currently led by President Hamid Karzai, who was elected in October 2004. Of the 8 million Afghans who voted, 41% were women. Hamid Karzai won reelection in 2009. This election had 15.6 million registered to vote, with 35% to 38% female voters. The parliament was elected in 2005; 28% of the delegates are women, 3% more than the 25% minimum mandated by the constitution. Source: U.S. Department of State, Background Note: Afghanistan, 6 December 2010.

 

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 are 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.” Source: Supreme Court Afghanistan, The Constitution of Afghanistan, 3 January 2004. 

 

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. Source: Supreme Court Afghanistan. 

 

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 encounter similar obstacles.

 

To ensure that the rights provisions of the Constitution are properly implemented, Article 58 requires the state to establish and maintain the Afghanistan Independent Human Rights Commission (AIHRC) which is to preside over claims of human rights abuses and refer cases to the legal authorities as it deems appropriate. Source: AIHRC, 6 June 2002.

 

The AIHRC was created pursuant to the Bonn Agreement of December 5, 2001, and it currently operates outside the formal governmental structure. The AIHRC 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 advocacy, training and education, and investigation of rights violations. Source: AIHRC, Women’s Rights Unit.

 

Sharia Law

 

The Constitution of Afghanistan states that no laws can contravene sharia law, the holy law of Islam. Many violations of women’s rights in Afghanistan are also in violation of sharia law. In verse 124 of the Holy Koran, Al Nisa, it declares that “there is no distinction between male and female.” Verse 12 of the Holy Koran, Al Hujurat, also affirms the equality of men and women. Source: UNAMA, Harmful Traditional Practices and Implementation of the Law on Elimination of Violence Against Women in Afghanistan, 9 December 2010.

 

Criminal Law

 

Despite the current Afghan government’s efforts to update the country’s civil and criminal legal codes, as of February 2011 the official Penal Code dates from 1976. Furthermore, it appears that sharia law will generally supersede the Penal Code, as the Code expressly states that it is only applicable when the criminal conditions of sharia law are not met. Source: ACE, Afghanistan Penal Code Dari7 October 1976.

 

The Code, which is a mixture of socialist jurisprudence and ancient Islamic practice, did not contain any explicit prohibitions against rape, sexual harassment, or any other crimes against women until the enactment of the Elimination of Violence Against Women (EVAW) law in August 2009. The purpose of EVAW is to end “customs, traditions and practices that cause violence against women contrary to the religion of Islam”. It strengthens many areas of women’s rights and for the first time, various forms of violence against women are criminalized, including rape. However, there remain challenges to its incorporation and many perpetrators continue to go unpunished. Source: UNAMA, 9 December 2010.

 

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…” Source: Lexadin, Civil Law of the Republic of Afghanistan5 January, 1977.

The Code’s marriage provisions contain numerous provisions that discriminate against women. However, the EVAW law does address some of these disparities.

The minimum age of marriage is lower for women (sixteen years) than men (eighteen years) (Article 70) and Article 71 allows for girls of 15 to be married only with the consent of their father or the court. Marriage under age 15 is never legal and the EVAW law reinforces this provision; girls married under the age of 15 have the right to cancel the marriage upon request. Whoever marries a girl under the age of 15 will be imprisoned for a minimum of 2 years (Article 28 of EVAW). Other discriminatory provisions in the civil code include that 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). Source: International Development Law Organization (IDLO), Simplified Booklet on the Elimination of Violence Against Women Law, 2010.

 

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). However, if a woman seeks divorce, she must secure the approval of her husband and produce witnesses in court to testify that the divorce is warranted.

 

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 by three provisions that must be met for a man to take multiple wives. A man must ensure that “the marriage will not cause injustice between the wives,” he must have the financial means of providing each of his wives with “food, clothes, a suitable house, and medical treatment,” and his first wife must be suffering “from an incurable disease or be unable to bear children.” Under Article 37 of the EVAW law, failure to meet all three provisions results in imprisonment for a minimum of 3 months.

 

The Civil Code provides certain rights for 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 mahrbecomes 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 the 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, many Afghan citizens recognize as 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. A consequence for women of this system of justice is their treatment as 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 wrongdoer. 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. Source: International Legal Foundation, The Customary Laws of AfghanistanSeptember 2004. Violent offenses against women should be prosecuted as crimes.

 

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, typical 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 between 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. Crimes should not be perceived as offenses against a family, but as offenses against a woman’s personal integrity. 

 

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

 

Overview

 

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 infrastructure 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 access to education for young girls continues to be limited, perpetuating these low rates of illiteracy. As of 2009, the maternal mortality rate in Afghanistan is the second highest in the world, with over 1,600 maternal deaths per 100,000 births, a statistic due in part to women’s inadequate access to health care and exacerbated by such factors as restricted mobility and reduced numbers of female health care providers and facilities that treat women. Source: UN News Centre, 26 January 2009.

 

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 as noted in its 2008 report on progress toward those goals, Afghanistan defines 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. National consultations found that 2020 gives a more “realistic chance of meeting the targets,” in view of the country’s late start on the MDGs. The 2008 progress report on the goal of promoting gender equality and the empowerment of women found that progress was considerably delayed, in part due to the country’s “low starting point.” The targets to reduce and/or eliminate gender disparity in education, economic areas, and elected governance bodies are indicated as “difficult” to achieve (2-5 years behind target). The target to reduce gender disparity in access to justice is indicated as achievable (0-2 years behind target). 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. Source: UNDP, Millennium Development Goals Annual Progress Report 2008.

 

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.” Source: Shorish-Shamley, Zieba, PhD, Women’s Position, Role, and Rights in Islam. Afghan culture is said to be based on a code of “honor,” which is largely reflected in the expected behavior of women. Accordingly, gender has long been a highly politicized issue, making reform attempts difficult, especially when the reforms are seen as a threat to Islam or traditional family life. 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.