Rights & Freedoms

A War with no End in Sight: The backlashes regarding Afghan women’s rights (amended)


A man cuts off the nose and lips of his wife. He does this because his wife refuses to give him her jewelry to buy drugs, and he does it in front of the couple’s children. This happened on 13 December in Herat, and rightly so, the incident received considerable media and civil society attention. The woman, Setara, and her children are now safe and taken care of. However, this and other extreme cases of violence we read about in Afghan and international media (find snapshots in text and annex) are only the tip of the iceberg. Most cases still go unreported while human rights activists warn that violence against women remains rampant. Sari Kouvo and Wazhma Samandary (with input by Ehsan Qaane and Christine Roehrs) update about the past year’s backlashes on issues relating to violence against women. They come to the conclusion that the current trajectory of the discussion is empowering the conservative forces in Afghan society, confirming to them that the ‘tide is turning’ and that women’s rights can again be renegotiated. 

This text has been amended on Monday, 17 February, when the palace spokesperson Aimal Faizy announced news regarding the controversial amendments to the criminal procedure law.

Over the past years, AAN has reported several times on issues relating to violence against women in Afghanistan. This has included reporting on attacks on non-governmental women’s shelters (see here and here), the back and forth about the Elimination of Violence Against Women law (EVAW law) that remains in legal limbo (see here and here) and on some of the cases that have been successfully prosecuted using the EVAW law (see here).

In this dispatch, we will take a closer look at recent legal and policy controversies concerning violence against women. Our analysis shows that although there is important mobilisation against violence against women, there is also a backlash. Afghanistan remains a country where violence against women is—if not permitted—condoned.

Over the past year, some disasters were narrowly avoided. The government did not close or take over the non-governmental women’s shelters. Such an action might have resulted in the women living in the shelters being returned to their families to continue to face violence – or even be killed. Also, parliament did not abolish the Elimination of Violence Against Women law, an action that would have undone much of the progress made over the past years to implement the law and to create structures within prosecutors’ offices and the police to deal with such cases. However, as several shelter providers and women’s rights activists told AAN when these debates unfolded: the fact that the government has questioned the ‘morality’ of shelters and that parliamentarians have claimed that the EVAW law is against Afghan culture and Islam will not be forgotten.These criticisms stick. It is powerful officials broadcasting them, which ‘confirms’ to the conservative forces in Afghan society that the government only promoted women’s rights to please the international community. It also demonstrates that the tide is turning and women’s rights can again be renegotiated. 

Legalised flogging and stoning “not decided yet”

The most recent legal controversy was the attempted reintroduction of stoning as a punishment into the Afghan Criminal Code. The issue was first raised by Human Rights Watch (HRW), which reported that the Criminal Law Working Group (CLWG) within the ministry of justice (that is reviewing the Afghan criminal code) had considered reintroducing stoning as a punishment for so-called moral crimes including adultery. As the current Afghan Criminal Code came into force during the reign of President Muhammad Daud in 1355 (1977 in the Gregorian calendar), its review is long overdue, particularly its synchronisation with many of the new specialized laws, including the EVAW law, that cover criminal offences. The CLWG is divided into four sub-working groups, and of these, one is responsible for ensuring that the criminal code complies with Sharia. On 29 November 2013, AAN reviewed a working paper allegedly drafted by members of the Sharia working group summarising Sharia law punishments (Investigation of Crimes and Sharia and Traditional Punishments – Section of Huddud and Qesas – General Sentences). According to Article 15 of this paper, “the person who commits adultery can be punished by stoning to death if he/she is married.” It also mentions “flogging with 100 lashes if he/she is not married”. According to article 32 of the same paper, the stoning should be done in public (for media reporting, see here). The head of this sub-working group, Rohullah Qarizada, told AAN on 2 December 2013 that he and his colleagues had not attempted to reintroduce flogging and stoning as punishments for moral crimes. They only wanted to explain Islamic law terms such as huddud (1) and qesas (2) to international colleagues. However, he continued that it was “not yet decided if these punishments should be included in the Criminal Code,” which indicates that the possibility still exists.

Another legal change that, by its consequences, could be equally disturbing is the changes in the draft Criminal Procedure Code that limits questioning of relatives as witnesses (see a Human Rights Watch press release here) which is significant as many cases of violence against women happen within the family, making relatives key witnesses. Sources from the Office of Administrative Affairs confirmed to AAN that the parliament has sent the draft on to be presented to the president.

There has been considerable anger over the amendmends to the law. Many women’s activists were outraged and planned to ask the president not to sign until the text was changed. Catherine Ashton, High Representative of the European Union for Foreign Affairs and Security Policy, in a statement from 10 February, phrased it like this:

If the draft law is passed, it could be used to stop the relatives of alleged abusers from appearing as prosecution witnesses in court. This would be a serious backward step in the justified and legitimate struggle for the rights of women and girls in Afghanistan. I urge the Afghan Government to amend the language of Article 26 of the Criminal Procedure Code to avoid any misinterpretation, clarify their commitment to human rights and ensure consistency with international standards.

Karzai, however, according to his spokesman Aimal Faizy, is “well aware of the critiques” and decided on Monday, 17 February, at a cabinet meeting “that the legislation must be changed”. “We are not going to allow any such law to come into force unless the necessary amendments were made”, Faizy told AP news agency. He added that there “may have been issues” with how the area in question – Article 26 – was translated into English. 

As media has covered the actual changes in the law quite sweepingly, it is indeed worth looking at the details here.

The principle to ‘protect’ relatives from testifying against family members in front of court is not new – it was already part of the ‘old’ Criminal Procedures Law from the Afghan year 1344 (or 1965). Article 227, paragraph 3, says in general that a court “can ask anyone to hear their testimony” and that it has the right to “force him / her / them appear at court – however, this 1344 version of the law identified a caveat in Article 237, saying that “wife and husband have the right to refuse being questioned against / about each other”. It also expands this principle to “secondary relatives”, for examples “father and grandfather, mother and grandmother)” (ussul) as well as “son, grandson, daughter, granddaughter (foro)”. But: Article 237 also states three exceptions from this caveat –  in fact enabling prosecutors to question relatives. Firstly, they can be questioned “if the witness or one of the relatives of the accused is the / a victim” (de facto addressing domestic violence). Secondly, relatives can be questioned “if a relative was the one to inform about the crime in the first place”. Thirdly, relatives can be questioned “if there is no other evidence to serve as proof”.

The (currently valid) interim criminal procedure code adopted in 2004 by presidential decree No 115 keeps this approach (in its Article 54), only removes the third exception (relatives can be questioned if there is no other evidence to serve as proof). This still does leave two opportunities for prosecutors to force relatives to appear as witnesses in court.

Compared to these provisions, the new version of the law as developed by the ministry of justice lacks the above mentioned exceptions – leaving the ‘protection caveat’ for relatives untouched. Why the ministry of justice chose to change the previous provisions is so far unclear, however, the new Article 26 states that “the relatives of the accused cannot be questioned as witnesses”, period, no further exception. This is also a significant difference to the international standard saying “relatives cannot be forced to testify” and as such a much broader caveat.

The specific Dari used for this article however, does indirectly leave one other option open: the one that a relative voluntarily offers to testify – although this is not explicitly spelled out; it is rather implied in the passive construction of the Dari sentence (see footnote 3). AAN’s Ehsan Qaane who listened to the parliamentary debates on the issue, believes that the intent of the majority of lawmakers was indeed that relatives should have the opportunity to testify against perpetrators in the own family if they wished to do so.

Presidential spokesperson Aimal Faizy confirmed this on Monday, saying about the future character of the law that it “will not bar any relative or any family member to testify against each other or another member of the family. It will be up to them. They will have the freedom.” Nevertheless, such regulations could still severely impair prosecution of domestic violence as in many cases the pressure within the family to protect their own and the family’s honour might prevail over a relative’s urge to publicly seek justice for a female victim of violence.   

A list of killings and torture-like violence

The earlier controversies around the shelters and the EVAW law already clearly show that there is a conflict between the proponents of women’s rights and conservative forces. This discussion empowers those in Afghan society who would like to see harsher punishments for people committing ‘moral’ crimes, and it condones the use of such punishments by the informal justice system. For example in 2012, in the Jaghori district of Ghazni, mullahs gave Sabira, a 15-year-old girl accused of adultery, 100 lashes. Sabira claimed that she had been raped but was nevertheless punished – without any investigation. A similar case occurred late November 2013 in Baghlan but involved officers of the Afghan Local Police (ALP). They arrested and killed a young unmarried couple that had eloped because their families did not approve of the relationship. The killing had had been agreed upon by the girl’s father who was also an ALP member and helped with the killing. Jawid Basharat, the spokesperson for Baghlan’s provincial police chief, told AAN that all four perpetrators had been arrested; prosecution was underway.

Over the past months, AAN has monitored additional cases of violence against women reported in Afghan media, which certainly add to the bleak picture. The cases listed below represent a mix of torture-like violence, usually committed by husbands and often in cooperation with other family members, but also cases of killings and retaliation for adultery and rape, starting with the latest.

Sar-e Pul, 23 January 2014

A man allegedly beheaded his wife, Bibi Maldar, in Sar-e Pul province with the help of his sister and brother. Nasima Arezo, the provincial head of Women Affairs in Sar-e Pul, told AAN that the incident happened in the village Lerk, Sancharak district. Nur Habib Nur, the police chief of the province, told media that they had arrested two people involved in the murder, but that the husband of the victim had escaped (see here and here). Nasima Arezo told AAN that “this year we have more cases of violence against women than the previous year, but that this does not mean that the number of cases increased – registration has increased.” On the positive side, she said, women’s awareness regarding their rights and opportunities to protect or defend themselves had also increased. In 2013, her department noticed more women coming in to register claims or ask for protection.

Faryab, 21 December 2013

In the Khwaja Sabzpush district of Faryab, a man allegedly strangled his wife, Fatima, after she had complained to the police about being threatened by her husband. The husband had become addicted to drugs when working in Iran, and Fatima had gone to the police because he had threatened to kill her with an axe if she did not give her jewellery to him so that he could exchange it for more drugs. Her husband was detained. However, Fatima withdrew her original complaint, possibly because of pressure from her in-laws. She was killed a few days after the release of her husband.

Uruzgan, 18 December 2013

Police officers found the dead bodies of two women in a desert in the Deyak area near Tarinkot, in the centre of Uruzgan province. The women were identified as Firoza, a police officer, and Malalai, a headmaster in a school in Tarinkot. According to Uruzgan officials, the families of the two victims had tried to keep their death a secret and had not reported it to the police due to ‘cultural and traditional problems’. According to Abdullah Hemat, spokesperson for Uruzgan’s governors, “these women first have been strangled with a rope and then they were shot.” It is not clear yet if or how the deaths of the two women are related. No one has been arrested, and the police investigation continues.

Baghlan, 17 November 2013

A teenage boy raped a seven-year-old girl. The day after the rape, the girl’s family took revenge. Two female relatives of the girl went to the boy’s house and lured the boy’s 15-year-old sister out of the house. Two men raped her. The boy, the two women, and the two men have been arrested. The head of the Baghlan department of women’s affairs told AAN that this was one of more than 60 cases the department had followed last year.

Cases ‘solved’ ad hoc, lack of follow-ups

UNAMA’s most recent annual report on the implementation of the EVAW law notes that although there has been a gradual increase in reporting on cases of violence against women (28 per cent or a 650-case increase in 2013), the incidents that are reported “represent only a small percentage of thousands of incidents of violence against women throughout the country” (p 4). Reasons for under-reporting include “social norms and cultural restraints, discrimination against women (leading to wider acceptance of violence against them), fear of social stigma or exclusion and, at times, fear of reprisals and threat to life”.

The report also highlights that most cases that are reported are still reported to the ministry of women’s affairs, suggesting that there is a reluctance to deal with cases of violence against women through legal avenues (p 3). Most of the cases that are referred to the police are in the end still solved through mediation via local shuras or jirgas or directly with the families (p 4). The mediation done by police, but also by departments of women’s affairs, prosecutors and others to whom cases were referred, was often done on an ad hoc basis and “failed to discourage violence against women”. There is also a lack of systematic follow-up and monitoring of cases that have been mediated (p 5). As the case of the two young lovers killed by their families (see above) shows, taking a family’s word that no harm will come to a woman – or a man – is not enough.

The attention to violence against women by Afghan media – and also the attention that proposed policy and legal changes are getting – is positive. It shows that there is an on-going debate about these issues in Afghan society. While seeking more information about the cases from government officials and civil society in Kabul and the provinces, AAN encountered many individuals showing genuine concern for the women and girls they were working with. However, they are balancing on a thin line. With each comment from a government body that can be interpreted as condoning violence or each case that again puts the blame for the violence on the girl or the women, the efforts to eliminate – or at least reduce – violence against women are sent backwards.

 

ANNEX

More cases of violence against women as reported in the Afghan media in the past ten weeks alone

Takhar, 27 January 2014

The dead body of a woman was found in the Baharak district of Takhar province. According to Abdul Khalil Hafiz, the spokesperson for the chief of police in Takhar, the identity of the victim could not be determined and the reason behind her murder remained unclear. He added that the body of the woman was sent to a hospital for further investigations. Takhar officials claim that since the beginning of the Afghan year in March 2013, 12 women have been killed in Takhar.

Kunduz, 27 January 2014

Two women, aged 18 and 22, were murdered in the Cheldochtaran area of Kunduz province. Sayed Sarwar Usaini, the spokesperson for the police chief, confirmed that the two women were killed while home alone. The perpetrators escaped. Further details on the cases were not available.

Maimana, Faryab, 4 January 2014

A man, Mohammad Khan, allegedly killed his wife, Rabia, and her mother after she had complained to her family about her husband beating her. The case is currently under investigation by the attorney general’s office.

Kabul, 3 January 2014

Laila Haidari, a social worker and civil society activist supporting drug addicts, was beaten severely by unknown men at her house. Police officers took her to a hospital. The perpetrators were arrested; the case is being handled by the attorney general’s office.

Badghis, 16 December 2013

In the Aab Kamari district of Badghis, a man killed his wife, Bibi Gul, with an axe and escaped. The police chief of Badghis confirmed the event to reporters of the Bokhdi news agency. More details on the case were not available.

Herat, 13 December 2013

A man cut the nose and lips of his wife, Setara. He allegedly did this because she refused to give him her jewellery to trade it for drugs. Setara first received treatment in the Herat provincial hospital but was then transferred to Turkey. Setara’s children were placed in an orphanage in Herat, but civil society activists worked to allow them to now stay in a shelter in Herat, together with Setara’s mother and sister.

Balkh, 17 November 2013

A 17-year-old woman, Shakila, who had been married eight months, was injured severely when her husband, Najmudin, shot her in the face. She had faced violence throughout her short marriage. When the husband was caught by police a few weeks later, he claimed that Shakila shot herself. The case is under investigation. 

 

(1) Huddud are fixed penalties for certain serious offences such as amputation of the right hand for theft and 100 lashes for fornication.

(2) Qesas describe the law of equal retaliation, punishing a person for injuries intentionally inflicted on someone else. In the case of murder, for example, it means the right of the heirs of a murder victim to demand execution of the murderer.

(3) A passive construction: ashkhas-e sail-ra ne-metawan menhaiss-e shahed maured-e estejwab qarar dad, meaning “the below mentioned persons cannot be questioned as a witness”, meaning they cannot be forced from another party, but can choose to do it themselves.

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Thematic Category: Rights & Freedoms