Access to Justice for Afghan Women

Equality Now, Women's Action 21.3, December 2004

Three years since the formal end of the war and the removal of the Taliban from power, the situation in Afghanistan continues to threaten the safety, security, and human rights of Afghan citizens, particularly Afghan women. Despite the significant advancements Afghan women have attained since the fall of the Taliban, including educational and employment opportunities for women and girls and the recognition of women’s political participation, the continuing state of insecurity in the country undermines women’s rights and safety. Lawlessness throughout the country is manifest in several forms. Local warlords and other insurgent forces exercise power outside Kabul through intimidation, force and violence. Drug trade has increased dramatically, with Afghanistan now producing 87% of the world’s supply of opium, according to the United Nations.

In this context and in the absence of a centralized, transparent and effective system of justice, women continue to suffer a range of human rights abuses. Women and girls are being trafficked into prostitution. They are being forced into marriage, often to settle family debts or disputes, and imprisoned for running away from forced marriage. Women trapped in abusive or forced relationships have been driven to suicide as a form of escape and hundreds of cases of self-immolation are reported every year. Given the lack of security and high levels of harassment, many women, especially those living outside the capital Kabul, feel compelled for their own safety to continue to wear the burqa.

The recent presidential elections in Afghanistan were heralded as a step forward in consolidating a new state built on the Afghan Constitution that was adopted on 4 January 2004. Article 22 of this Constitution provides: “Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan--whether man or woman--have equal rights and duties before the law”. Article 3 of the Afghan Constitution provides that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam”. It is critical that the Supreme Court ensures that its judgments harmonize these provisions of the Constitution rather than impose singular interpretations of the Koran that are harmful to women and do not respect the constitutional right to equality between men and women. The realization of this right, and women’s access to justice in Afghanistan, have to date been severely impeded by the Supreme Court, headed by Chief Justice Fazul Hadi Shinwari. Originally appointed by former President Burhanuddin Rabbani, a conservative chief of the Northern Alliance, Justice Shinwari was later reconfirmed by President Karzai under the transitional administration in June 2002.

Although as Chief Justice he is the guardian of the rights enshrined in the Constitution, Mr. Shinwari has made several attempts to ban women from singing and dancing in public. In November 2004, the Supreme Court issued a ban on cable television channels, particularly condemning films from India showing scantily-clad women singing and dancing in musicals. Mr. Shinwari has suggested that women should cover their bodies entirely, exposing only their faces and hands, and he has stated that a woman cannot travel for more than three days without a mahram, a husband or a male relative she cannot legally marry. He has also stated that adulterers should be stoned to death. During the campaign for the presidential elections in October 2004, Mr. Shinwari attempted to have a presidential candidate removed from the ballot for suggesting that women and men should have equal rights in marriage and divorce.

Thirteen_year_old Nahida Hassan became a symbol for Afghan women and girls who were raped during the two decades of war. When a commander and twenty of his troops broke into her Kabul apartment, killing her 12_year_old brother and gunning down her other male relatives, Nahida understood she was the target. To avoid being sexually savaged, she leapt from the sixth_floor window to her death. Today, there is a shrine on the spot where she fell. "Everyone knew who the commander was. But no one dared touch him," said the girl's 64_year_old grandfather, Mohammed Hassan. The commander enjoyed the protection of his party, whose fundamentalist cleric leader, Burhanuddin Rabbani, headed the government at the time and, more recently, the Northern Alliance, which holds key positions in the new interim administration. Jan Goodwin, THE NATION, April 29, 2002

In the transitional administration, Mr. Shinwari appointed scores of judges at all levels, all of whom are male and many of whom do not meet the requirements set forth in Article 118 of the Constitution, which call for “a higher education in law or Islamic jurisprudence” and “sufficient expertise and experience in the judicial system of Afghanistan”. Many of Mr. Shinwari’s appointments serve on the Supreme Court, which now has a reported 137 members and possibly more--a number that far exceeds the 9 justice positions authorized by the Constitution--and many hold even more extreme views than Mr. Shinwari regarding the subordinate position of women. One Supreme Court judge was reported to have stated very recently that it was impossible for men and women to have equal rights. It is this same Supreme Court that is charged with ensuring compliance with the Constitution and its guarantee of equal rights for women.

Under the Constitution, the President appoints all members of the Supreme Court, and nominates its Chief Justice, for a term of ten years, subject to the approval of the House of Representatives. On 9 October 2004 President Karzai was re-elected, and on 7 December he was inaugurated as President. Elections for parliamentary seats had originally been scheduled to take place concurrently with the presidential elections but were subsequently postponed until April or May 2005.

The repeated efforts of the Supreme Court to restrict the rights of Afghan women are contrary to international law, as well as Afghanistan’s own Constitution. Compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Afghanistan ratified in March 2003, is mandated in Article 7 of the Constitution. Article 2 of CEDAW requires all states parties to “establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.” Article 119 of the Constitution sets out the oath members of the Supreme Court must swear before taking up their posts, which includes supporting justice in accordance with the provisions of the Constitution. Such legal protection cannot be achieved if those charged with administering justice do not agree with its basic precepts regarding equality for women.

With an untrained, inexperienced judiciary and continuing uncertainty over the sources and application of law, there are very real fears regarding the rule of law and access to justice in Afghanistan. Given recent decisions by the Supreme Court and statements by individual judges, including Mr. Shinwari, reflecting a lack of commitment to women’s equality, the rights of women in particular risk being further undermined. On 24 November 2004, the Afghan Civil Society Forum, whose partners include the Afghan Women’s Network, an umbrella group of women’s organizations in Afghanistan, issued recommendations to President Karzai in an effort to open dialogue between the first elected president and the people on the future of Afghanistan. Among the prime requests was for action to establish security and to enforce the rule of law, with specific reference to a “sound and responsive legal and judicial administration system/structure.” For the rule of law to apply, the Supreme Court must be constituted and operate in accordance with the provisions of the Afghan Constitution.