Afghanistan’s lower house of parliament, the Wolesi Jirga, has been failing to reach a consensus on a law that would protect children’s rights for almost four years. The legislation is aimed at ensuring children’s rights are implemented in government ministries and bodies in a wide range of areas, from protecting children from abuse and malnutrition to ensuring they have access to education. Such protections would seem relatively uncontroversial. Indeed, most MPs in the Wolesi Jirga support the law. However, a small group of MPs, mostly religious scholars and/or with a jihadi background, continue to block its ratification. They say the definition of a child as under-18 contravenes sharia law. As MPs have now returned from their winter recess, the law is likely to come back before them again, AAN parliamentary reporter, Rohullah Sorush, here unpacks the debate around the child rights protection law.A boy carries a bag of grass on his shoulder on the outskirts of Mazar-e Sharif. MPs have been debating a law designed to protect children’s rights with the question of ‘Who is a child?’ causing controversy and delay. Photo: Fashad Usyan/AFP May 2019
How old is a child?
More than half the countries in the world take 18 as the threshold of adulthood, when a child assumes the legal responsibilities of an adult, ending the legal control and responsibilities of parents or guardians. The UN Convention on the Rights of the Child defines a child as someone under the age of 18. While Islamic jurisprudence tends to define adulthood by the onset of puberty, many Muslim majority countries have set separate legal ages for adulthood, including Saudi Arabia, which passed a measure in 2008 to make 18 the age of adulthood. (1) The age of adulthood, known in legal parlance as the ‘age of majority’ is commonly separate from the minimum age of marriage and other legal ages, including driving age, voting age and the age at which you can run for political office. So, for example in Afghanistan, the law would not change the legal minimum age for marriage, which is currently 16 for girls and 18 for boys. (2)
Defining a child as being under 18 is actually a relatively minor element of the legislation before the Afghan parliament, although it is foundational, in terms of who it will apply to. The legislation is very broad, covering rights to intellectual and mental development, protection against any forms of physical and mental abuse and even access to information, and freedom of speech and expression. The law also deals with how these rights would be safeguarded. It envisages a national commission chaired by the second vice president to oversee the implementation of the law and make sure ministries and NGOs coordinate. (3) In addition, the law provides for the establishment of a technical committee under the Ministry of Labours and Social Affairs (4) to actually implement the law.
There is no doubt that millions of Afghan children suffer from lack of protection and access to their rights in many areas: many cannot go to school or access health facilities and there is one of the highest rates of acute malnutrition in the world. Afghan children are also employed in some hazardous forms of labour, including carpet weaving and mining and also face many forms of abuse from bacha bazi (the sexual abuse and keeping of boys) to forced early marriages, especially for girls. The law would strengthen existing laws regulating to these issues and demonstrate that the state deems child protection important.
While a majority of parliamentarians support the law covering all under-18s, a minority of house members oppose this and have succeeded, for the last three years, in blocking passage if the legislation by repeatedly rendering the house inquorate. Their opposition is solely about the definition of a child; they do not address any of the substance of the law.
Background: the first parliamentary stand-offs
The lower house has had four sessions about the child rights protection law. The cabinet first approved a law for parliamentary review in September 2016, but the first parliamentary debate was only on 9 December 2017, with three others following in 2018. In each of these sessions, there was disagreement and chaos about just one article, the age and definition of a child, which the law says is anyone under the age of 18. MPs with strict religious and jihadi background such as Qazi Nazir Ahmad Hanafi (Herat), the then chair of the Legislative Affairs Commission, Abdul Sattar Khawasi, then MP from Parwan and Malwavi Shahzada Shahid, then MP from Kunar, opposed this definition. Khawasi, for example, said the Islamic definition of adulthood should be used and cited article three of the constitution which he paraphrased blocks “any law opposing Islamic sharia.” He said that a child should be defined as “someone who has not attained maturity,” by which he meant puberty. Hanafi agreed, threatening to leave the session unless the definition of a child was amended. With 118 MPs present, the law would probably have passed, but five MPs intentionally left the house. As a result, a quorum was lost, and the session ended without conclusion.
When the law was debated on three more occasions in 2018, on 11 April, 28 May and 10 November, each time this group of MPs clashed over the definition of ‘child’. Other MPs who defended the law, included Aziz Jalis (Sar-e Pul), who made a plea to the house not to “misuse Islam” to block the law, reminding parliamentarians of the law’s intent:
Afghan children are very vulnerable. They face different types of violence. They suffer casualties in war. They are deprived of their rights to education. They are forced into labour, recruited into armed groups, become addicted to drug and are trafficked. (see here)
MP Qazi Nazir Ahmad Hanafi pointed to the United Nations Convention on the Rights of the Child (see here) which includes a caveat for national laws: “Article 1 of the Child Rights Convention approved by the general assembly of the United Nations says that a child is someone younger than 18 unless under the applicable law to the child, maturity is attained earlier.”
Former MP Fawzia Kufi, from Badakhshan, acknowledged the caveat about the domestic laws of a country, but went on to note:
All our domestic laws, the ones which came to the parliament and we approved, as well as those which have not come to the parliament, define a child as someone younger than 18. For example, the law preventing a child from being recruited into military service and the juvenile code say a child is someone younger than 18. In addition, the electoral law and the law assessing the [criminal] violations by children, all say a child is anyone under 18.
However, Hanafi was adamant and proposed the following amendment of article 3 of the child protection law: “A child is anyone who is under eighteen, unless signs of puberty appear earlier or maturity is attained earlier.”
In April and May, the sessions ended without a quorum (see here and here). In the third session, in November 2018, a vote was held, with the speaker at the time, Abdul Rauf Ibrahimi requesting green cards to be raised in support of the language proposed by the Women’s Commission and red cards for those who agreed with the definition by Qazir Nazir Ahmad Hanafi and the Legislative Affairs Commission. The house did so and the video shows that a majority voted in favour of the Women’s Affairs Commission’s definition, which says a child is anyone younger than 18.
However, the vote was again blocked, after Mirdad Khan Nijrabai, then secretary of the house, from Kapisa, refused to count the cards, despite a request from the speaker to do so. It was clear that the secretary was supporting Qazi Nazir Ahmad Hanafi and other MPs opposing the Women’s Affairs Commission. Speaker Ibrahimi failed to use his authority to insist on a count, lacking the will or the ability to assert control. The session descended into chaos; many MPs left the house and the session closed without resolution. Fawzia Kufi accused Ibrahimi of inefficiency and said, “We have discussed the child rights protection law for several months and presented it in the general session many times, but today, the Administrative Board did not announce the results of the vote.”
An old controversy in the new parliament
After the repeated failure of the lower house to approve the law, the government demanded its expedition and so President Ghani passed the law by decree 362 on 5 March 2019. (5) On 13 April 2019, that decree was sent to the Lower house.
The author was present in the Wolesi Jirga when the Women’s Affairs Commission presented the president’s decree to the general session on 9 December 2019. The same arguments were once again rehearsed, with the Women’s Affairs Commission insisting that all the other applicable laws in Afghanistan consider the age of a child to be below 18, listing them as:
The penal code, the juvenile code, the citizenship law regarding acquiring citizenship, the electoral law regarding the valid age for voting, civil servants law and the convention on the rights of the child.
However, MP Qazir Nazir Ahmad Hanafi, representative for the Legislative Affairs Commission again asserted his demand for an amendment: “The Counter-Narcotic Commission, the Internal Security Commission and the Legislative Commission want to add one phrase, which is ‘unless signs of puberty appear earlier’… By adding this phrase, the earth does not go to the sky or the sky does not fall to the earth.”
He queried the existing laws cited by the Women’s Commission, such as the penal code, which he said was not yet approved and the citizenship law which he said was not relevant since it was about the salahiat (competence) of a child. MP Hanafi repeated his demand that a child is recognised as an adult as soon as signs of puberty are evident, with MPs supporting Hanafi, once again, threatening to boycott the session and break the quorum if his amendment was not accepted.
Hanafi claimed, “All Islamic jurists have one definition for a child’s age and the signs of puberty.” However, some MPs pointed out during the debate that there are differences of opinion between both the four Sunni schools of jurisprudence – Hanafi, Hanbali, Maliki and Shafi’i – and between them and Shia thinking regarding the definition for a child and the signs of puberty, as MP Abdul Qayum Sajjadi, from Ghazni, said, “The Islamic jurists do not have a joint or single perspective about maturity.” (6) Further, when some jurists talk about maturity or puberty, they imply not only physical maturity, but also maturity of the mind. For example, a religious cleric told AAN that “For religious obligations, one needs to have signs of puberty. However, puberty has a broad meaning that consists of maturity of mind, emotional, social and economic maturity.”
Sajjadi suggested that the dissenting MPs were confusing two issues, the Afghan constitutional requirement for laws to be compatible with Islam and the main thrust of the law at hand:
The child rights protection law mostly focuses on the defence of civil rights [masoniat huquq-e tefl] and the support of children. Offering children younger than 18, some immunity and protection, does not oppose Islamic sharia. We need to differentiate civil rights immunity from sharia obligations. If we support and protect anyone younger than 18 based in their civil rights immunity, it is not against Islamic sharia.
Ghulam Hussain Naseri, an MP from Kabul, agreed: “There is no discussion regarding the sharia obligations in this law. You need to decide if you want to support children’s interests or deprive them of their rights within the framework of civil law.”
Nasiri told AAN that “MPs, who oppose the law, base their argument on article 3 of the constitution, which says no law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan. However, this is a general provision. The Supreme Court has sent a letter confirming that this law is not against Islam.” This letter from the Supreme Court has not been made public, but its existence and contents were also confirmed to AAN by two other MPs, Mariam Sama, from Kabul and Raihana Azad, from Daikundi.
The 9 December session again ended in chaos. The administrative board of the house decided to put the law to a vote. Karim Attal, Secretary of the House said there was a quorum, but he did not actually count the MPs. So, while the administrative board confirmed there were 148 MPs present, which was a quorum, this was open to question. Speaker Rahmani said that MPs should be allowed to vote according to their conscience and put the child rights law to a vote. Once again, some MPs left the house, with Mirdad Khan Nijrabi and Rayis Abdul Khaliq (both from Balkh) ushering other MPs out of the house with them in order to break the quorum. There were three red cards, but the rest of the house voted in support of the law. As soon as it was announced that the law had been approved, the three MPs who had voted against the law, along with one of their fellows who had come back in surrounded the speaker, protesting that the house had been inquorate and the vote should not have taken place. However, Raihana Azadtold AAN: “There was a quorum. Some MPs left the session during the voting process. Leaving the house during the voting is against the rules of procedure. If the MPs who left were included, there was a quorum.”
After the law was approved, MPs, who opposed it, gathered later at MP Mirdad Khan Nijrabi’s house, with speaker Rahmani in attendance. He was pressured to review the vote. Another attendee was Kochi MP Parwiz Arabzada, who, on 14 December, cited the after-hours meeting to challenge the speaker in parliament, “At the meeting at MP Nijrabi’s home, you said you would review [the vote]… Broadcast Monday’s session from the Wolesi Jirga TV to all the MPs now. If [it shows] the quorum was reached, we will accept it. Otherwise, we will not.”
In response, Rahmani assigned a ten-member delegation led by First Deputy Speaker Amir Khan Yar to review the Wolesi Jirga TV archive and assess if there had been a quorum on 9 December 2019. (7) It seems the speaker was facing considerable pressure from the minority faction, according to one MP who told AAN that Rahmani “had to assign the delegation because the dissenting MPs told him they would call him a murtad (apostate) if he did not review the session that had approved the law.” Being named as an apostate is one of the worst ways to defame a Muslim, as well as being potentially dangerous: many Afghans believe the proper punishment for an apostate is death.
The delegation reviewed the archive of the session and reported to the house on 21 December that a quorum had not been reached that day. They said that, according to the Wolesi Jirga archive, the speaker had asked Karim Atal, the Secretary of the house, several times how many MPs were present, and Atal had declared that a quorum had been reached without, in fact, counting. The delegation said they had discovered that on the day of the vote, only 102 MPs had, in fact, been present and so the session had been inquorate. How the administrative board had miscalculated by almost a half was not explained. The first deputy speaker, Amir Khan Yar, said that the vote and approval of the child rights protection law had not been not valid and that the house would put the law to a vote again.
On 23 December 2019, the speaker instructed the delegation to conduct a further assessment to decide the fate of the child rights protection law within ten days. He told them to seek opinions from the Supreme Court, Ministry of Justice and Afghanistan Commission for Overseeing the Implementation of the Constitution regarding the one disputed article and report back to the house when MPs returned from the winter recess (on 7 March 2020).
As noted earlier, two MPs have told AAN that the Supreme Court has already offered its verdict, which is that there is no contradiction between the child rights law and sharia. MPs in favour of the law have also gained a supportive fatwa opinion from a mufti from the dar- ul efta, (an institution where religious rulings, or fatwas are issued). This may be sufficient to strengthen the hand of Speaker Mir Rahman Rahmani, who it seems would support the law, were it not for the intense pressure he is under from the dissenting MPs. However, it is difficult to judge if those MPs will accept the court’s decision, given their willingness to play with the rules of parliament. Meanwhile, second Vice President Sarwar Danish says that since the law was passed by decree, it is already active.
The attempts to get the child rights protection law through the Afghan parliament has been chaotic. The lower house has been unable to pass the law because it was deliberately rendered inquorate, with house officials refusing to fulfil their duties and count MPs’ votes because of partisanship, intimidation or mismanagement. The speaker in the last parliament, Ibrahimi, has come in for particular criticism for his handling of this fiasco. The Women’s Affairs Commission representatives have also been criticised for falsely reporting, 9 December 2019, that the house was quorate and declaring the law had passed, which video evidence of the vote later showed to be incorrect. The current speaker of the house, Mir Rahman Rahmani (of Parwan), will need to demonstrate that the house can manage its most basic task: taking a vote and accepting the result.
This episode has also shown up an inherent tension in the Afghan constitution which upholds both sharia and interpretations of it, and civil law. This can create contradictions between international laws and conventions which Afghanistan has signed, joined and ratified, and domestic laws and between domestic laws. Such tensions are evident in regard to the child rights protection law. Also, however, different religious understandings of what ‘adulthood’ is also complicate the matter. Afghanistan is not the only Islamic country grappling with competing legal benchmarks for adulthood. However, many other Muslim-majority countries, including Saudi Arabia, Egypt, Syria and Lebanon, have all recognised a child as anyone under the age of 18.
While other laws which have passed with the same MPs present in the house have defined children as younger than 18, the dissenting MPs say that this time they will take a stand. For example, Hanafi had said previously, “I do not care if the other laws define a child as younger than 18. This time, I will not let the law be passed if the definition is not amended.” These MPs’ only concern is that, they say, it is against sharia and article 3 of the Constitution. Their concern is not with the substance of the law; they do not believe, for example, that young people should have child rights protections taken away as soon as they show signs of puberty, for example, not having the right to education or not being physically abused. Parliament is now reduced to calling on the Supreme Court, the Constitutional Oversight Committee and the Ministry of Justice to try to resolve the impasse.
In one sense as well, those supporting this law are also acting ‘symbolically’, given how legal protections so rarely translate into action in Afghanistan. However, their hope is that if the law is passed by parliament, it would at least strengthen the arm of those wanting to protect Afghanistan’s children.
Edited by Rachel Reid, Thomas Ruttig and Kate Clark
(1) The Saudi Shura Council, an advisory body with functions similar to those of a parliament, passed the law on November 24, 2008, though it has not been ratified by the Saudi Cabinet.
(2) Article 70 of Afghan Civil Law sets the minimum legal age for marriage at 16 for girls, or 15 with a parent or guardian’s consent.
(3) Members of the National Commission on Protection of Child Rights are: the Minister of Labour and Social affairs as commission deputy, Attorney General, Minister of Justice, Minister of Finance, Minister of Interior, Minister of Women Affairs, Minister of Public Health, Minister of Information and Culture, Minister of Education, Minister of Higher Education, Minister of Hajj and Endowment, a member of the High Council of the Supreme Court, a member of the Independent Commission for Overseeing the Implementation of Constitution, Chairman of AIHRC, General Directorate of NDS, Director of Afghan Red Crescent Society, Director of General Statistics, General Director of Local Governance, Director of Human Rights and International Affairs of Ministry of Foreign Affairs, Head of Afghanistan Independent Bar Association, Head of Afghanistan Lawyers Association, a representative of Civil Society and Chairman of the Executive Board of Afghanistan Chamber of Commerce and Industries
(4) Technical Committee on the protection of child rights are: Deputy Attorney General, Professional Deputy Minister of Justice, Security Deputy Minister of Interior, Deputy Minister of Women Affairs Deputy Minister of Public Health, Deputy Minister of Information and Culture, Deputy Minister of Education, Deputy Minister of Higher Education, Deputy Minister of Hajj and Endowment, a member of the AIHRC, Chief of Police of Kabul Juvenile Appeal Court, a member of the Executive Council of Afghanistan Independent Bar Association, Deputy Director of Central Statistics Office, Head of the Child Protection Network of Ministry of Labour and Social Affairs as the secretary of the Committee
(5) Gazette number 1334, dated 20 Hut 1397 (11 March 2019).
(6) Maliki jurists believe puberty ends at 18 years for both girls and boys. Shafi’I believes puberty lasts until the completion of 15 lunar years for girls and boys. The founder of the Hanafi Sunni school, Imam Abu Hanifa, believed that puberty is 18 years for boys and 17 years for girls. Shia jurists believe puberty for a girl is 9 complete lunar years and 15 for a boy. Article 27 of Afghanistan’s Shia Personal Status Law regarding the signs of puberty or maturity says: “When a boy reaches the age of 15 or ejaculates and a girl sees the blood of her menstruation, they are considered to have reached puberty.”
(7) The delegation was made up of: Munawar Shah Bahaduri, Habib Rahman Sayyaf, Rayis Abdul Khaliq, Beg Sahib, Mawlavi Tarakhi, Nilofar Ibrahimi, Nazifa Zaki, Ghulam Hussain Naseri, Keberzani and Shahgul Rezai.
This article was last updated on 18 Mar 2020