Afghanistan’s Women Law Network

Women’s Right in Afghanistan continue to be marred by ambivalence, impunity, weak law enforcement and corruption. Women’s rights in Afghanistan are under threat, especially as foreign troops prepare to leave.

Under the Taliban rule, the situation of women in Afghanistan worsened and was described as one of the world’s worst.  Taliban imposed the strictest possible form of Sharia, holding the Afghan society hostage under a barbarous system of gender apartheid. Women were forbidden from education. A ban was imposed on their right to vote, and also on their working outside home. They were forced to wear burqa, banned from treatment by male doctors, and publicly executed for ‘immorality’. Apart from terrorism, one of the major reasons for the allied force to attack Taliban in 2001 was related to the pitiable conditions of women in Afghanistan.

After the fall of the Taliban, the condition of women ameliorated. Restrictions on their access to education, employment, and healthcare were lifted. The Bonn Agreement – officially called the Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions – led to establishment of the first Ministry of Women Affairs (MoWA), and an Afghan Independent Human Rights Commission. The UN Security Council Resolution 1325 (2000) further recognized that participation of women and granting them rights and status was a necessary prerequisite for the reconstruction of Afghanistan. In 2003, Afghanistan unconditionally acceded to Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The landmark Afghan Constitution of 2004 ensured many basic rights for women, such as right to equality before the law (Article 22), right to education (Article 43 and 44),  and the right to work (Article 48). In 2008, a National Action Plan for the Women of Afghanistan (NAPWA) was implemented that called for the revision of the legislative framework and judicial system to guarantee equality and non-discrimination enshrined in the Constitution and international human rights conventions . In August 2009, a significant legislation pertaining to women’s rights was passed, officially referred to as law on Elimination of Violence Against Women (EVAW). Among its objectives, the law lists “fighting against customs, traditions and practices that cause violence against women contrary to the religion of Islam,” and preventing and prosecuting violence against women.

Although this Law was enacted in 2009, awareness of its specific provisions remains low, even among its duty-bearers. Data collected by the United Nations Mission to Afghanistan (UNAMA) and the Office of the High Commissioner for Human Rights (OHCHR) during 2010-2011 show that the Afghan Government’s implementation, including by police and prosecutors, was limited and that much greater efforts were needed to improve enforcement. Cases were rarely filed and the prosecution of perpetrators of VAW under the Penal Code led mostly to acquittals. It is apparent that customary law and tribal justice continues to be relied upon and that the Government has moved too slowly in better protecting women from violence. Nevertheless, UNAMA and the OHCHR found that there was starting to be some adoption of the EVAW Law, if uneven, and there had been prosecutions and even convictions in several provinces.

Recently, there were was a new draft law for women introduced for women in Afghanistan.  However, the law has met with widespread criticism from all quarters. In January 2014 Afghanistan’s parliament approved changes to the country’s criminal code that would prevent relatives of alleged abusers from testifying against them. Legal experts say this would have a chilling effect on prosecutions involving violence against women, where relatives are often the only witnesses.

The issue was buried in about 100 pages of Afghanistan’s new criminal code – labeled Article 26. While it did not specifically mention women or domestic violence, Article 26 in its original version barred a broad swath of “relatives” for acting as witnesses – an issue in a country where the bulk of violence against women is committed by or in front of family members, especially given how restricted freedom of movement is for many women. Under severe international pressure, modifications were made in the law. On 21 January 2104, On 21 January, the Afghan parliament approved revisions to the Criminal Procedure Code (CPC). This included contradictory articles 26 and 27 over the rights of relatives to testify in cases involving family members. Not allowing them to do so would make the prosecution of certain crimes such as domestic violence and child abuse extremely difficult. On 23 February, President Karzai signed the CPC bill, but issued a decree amending article 26. This made it clear that relatives could refrain from testifying, but could not be legally prevented from doing so. Moreover, under the pressure of the international community, a Presidential Decree 145, was issued on the occasion of International Women’s Day on 8 March by which 26 female inmates from Central Badam-Bagh Female Detention Centre in Kabul were released and approximately 100 female inmates had their sentences reduced. This included inmates sentenced for moral crimes.

The improvement in the status of Afghan women is largely contingent upon the upcoming elections.  Women have become particularly well-organized in recent years, nurtured by generous international funding for their organizations and causes, and requirements by donors that projects should be gender sensitive, with such measures as equal opportunity units, gender equality training and guaranteed employment of a percentage of women. Women have also become accustomed to some share of the power. Provincial councils are being contested with 20 percent of the seats set aside for women.

Certain policy recommendations seem apposite for the protection of women’s rights. The President, along with the various administrative wings, such as the Ministry of Women’s Affairs, Ministry of Justice, the Supreme Court, and the Office of the Attorney General should coordinate towards protecting women’s right and ensure the effective implementation of the EVAW law.  The international donors can play a major role in the upliftment of women by supporting government in implementing the National Action Plan for the Women of Afghanistan (NAPWA) and devise programs aimed at the implementation of EVAW law.

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