The Law on the Elimination of Violence against Women (the EVAW law) was celebrated as a major step forward for women’s rights in Afghanistan when it was issued per presidential decree three years ago. It is now on the parliament’s agenda for debate. This is not necessarily good news for women’s rights, however, since a conservative majority in the house might water the law down or abolish it altogether. AAN’s Christine Roehrs and Sari Kouvo take a closer look at the looming parliamentary debate and the politics of women’s rights activism (with input by Ehsan Qaane and Wazhma Samandary).
Three years ago, President Hamed Karzai signed a decree enacting the Elimination of Violence against Women law; it was implemented shortly thereafter. On Saturday, 18 May 2013, it is due to be debated in parliament. Many Afghan laws passed as presidential decree are implemented without ever getting parliamentary approval, but if they are presented to parliament, it has the right to change and even abolish them.(1) At least one of the new drafts recently discussed by the Joint Commission of the lower house – it consists of representatives of the house’s 18 commissions and six parliamentary groups – and seen by AAN shows significant changes to the character of a law which was intended to protect Afghan girls and women. The current law criminalises 23 acts of violence against women, including child marriage, forced marriage and rape and specifies punishments. Now, human rights activists fear that conservative parliamentarians could succeed in damaging the law beyond repair.
The lower house’s Joint Commission first met to discuss the EVAW law, on 23 April 2013, three weeks ago. Among other duties, this commission prepares law drafts for approval by the wider plenum. The process had been set in motion by a request from the parliament’s Commission for Women’s Rights, Human Rights and Civil Society, headed by Fawzia Kufi who some months ago announced her candidacy for president and had already started an international campaign based on a women’s rights agenda.
The move upset other female members of parliament and women’s rights activists in civil society. For years, they had tried to keep the law away from parliamentary debate, rallying against several previous attempts to put it on the agenda. They feared it might not hold up to a parliament where conservatives hold a majority.
On 8 May, some prominent activists, among them MP Shinkai Karokhel, member of the directors board of the Afghan Women’s Network (AWN) Mahbuba Seraj and commissioner for women’s affairs of the Afghanistan Independent Human Rights Commission (AIHRC) Soraya Sobhrang visited the president, urging him to help take the looming debate off the parliament’s agenda. Yesterday, on 15 May, three days before the debate, 40 activists came together to discuss last minute measures. After a hasty session, they took off to try and persuade parliamentarians, particularly female ones, not to vote for changes. They were especially concerned about articles affecting child marriage, forced marriage and the marriage age (at 16 for girls, so far, and 18 for boys, as stipulated by the civil law), as well as rape, the beating of women and women’s access to work. In the afternoon, they met Fawzia Kufi once more, asking her again to take the topic off the agenda. ‘We were 50 women, among us 15 female MPs,’ said Nargis Nehan, director of the NGO, Equality for Peace and Democracy. ‘We told her we cannot afford a single change in even one of the articles and would hold her accountable if that happened.’ She said she hoped the joint pressure ‘gets Fawzi Kufi to rethink her decision.’
The Afghan Women’s Network has announced a press conference for today, 16 May, in the afternoon.
It had, indeed, been difficult enough to have the EVAW law developed in the first place. At least three independent – and competing – drafts of the law were presented to the Ministry of Justice between 2006 and 2008. It was then approved by Presidential Decree during the parliament’s recess. The law was published in the Official Gazette on 1 August 2009. Rumour has it that a trade off had been made between the president’s office and women’s rights advocates: the president would approve the EVAW law by presidential decree – and women’s rights advocates would back off in their criticism against the Shia Personal Status Law which included mandatory marital sex as well as limited ability to seek work, obtain an education or visit the doctor without a husband’s permission.
Child marriage not a crime anymore?
Until 7 May, altogether four meetings on the EVAW law had taken place in the Joint Commission, with varying members attending. Different drafts were discussed. They illustrated the broad range of opinions among Afghan parliamentarians about violence against women and the law that is supposed to protect them. The most drastic among the drafts, provided to AAN by one of the participants, shows changes that come close to effectively legalising violence against women.
This particular draft suggests that under-age marriage and forced marriage should no longer be considered or punished as crimes – something which has been a core achievement of the EVAW law. Suggested amendments also affect a woman’s freedom to work – making it dependent on her husband’s permission, her access to a shelter – these should be abolished altogether say the draft makers as they are contrary to Islam, and beating a woman should only be punishable by law if the woman has been seriously injured. Otherwise, as stated in remarks by MPs accompanying this part of the draft, the law could cause rather more violence than less as the enraged husband, coming back from jail after having ‘only slapped’ his wife, would potentially divorce or beat her again.
These views are familiar. Conservatives in parliament, among them the influential head of its Legislative Commission who strongly influenced the aforementioned draft, have repeated these sort of opinions for years. They consider wide parts of the law to be ‘against Sharia law’. Now, they will get the chance to adjust it according to their convictions.
Fawzia Kufi is convinced that the conservatives will not succeed. She told AAN that in a subsequent and, as she claimed, final meeting on 7 May ‘the core of the law’ remained untouched, particularly early and forced marriage remained ‘crimes’, and that even ‘many good additions were made, such as a definition of sexual harassment that was not there before’. An official version of the new draft was not available by Wednesday afternoon, though. This worries civil society members. ‘We don’t know what is going to be presented on the floor on Saturday’, they say.
Many women’s rights activists are deeply disappointed in Fawzia Kufi and her commission’s push to get a parliamentary debate on the law. The tone has been getting increasingly personal. There are accusations that Kufi is ready to gamble with the EVAW law because she was not one of its original drafters or that she was only doing it because passing the EVAW law would look good on her presidential candidacy ticket. ‘This was not the time to put the law on the agenda’, said Fawzia Amini, head of the legal department of the Ministry for Women’s Affairs. ‘Major efforts for women’s rights could be destroyed’, said MP Shinkai Karokhel. Heather Barr, Afghanistan researcher for Human Rights Watch, called the idea ‘insane’, adding that ‘there is no way that the law survives the debate in the parliament without being damaged or even turned into its opposite.’ ‘Why risk changes to an important law because of this formality?’ she asked.
It is hard to foresee what opportunities remain to restore EVAW law articles after potential changes and approval on Saturday. Women from the group of civil society and parliament that went to see President Karzai on 8 May and asked him to help take the law off the agenda said Karzai declined, but offered to look at the law again as soon as he received it for signature. They told AAN that the president assured them the ‘efforts made for the EVAW should not have been in vain’. The president has the right to veto laws passed by parliament by simply not signing them – but then they usually just go back to the lower house of the parliament for a final vote, with no opportunity to change content again – or, indeed, for a final rejection.
Other more indirect options(2) to influence the law once it has been approved – using the influence of the upper house, which has the power to change content before signing, or asking the Supreme Court to check on specific articles – depend very much on the president and where he will stand in terms of women’s rights. Hamed Karzai has proven himself to be at least divided on the matter.(3) It also depends on how much pressure the international community applies to protect a law it pushed hard for during the drafting phase and helped implement with significant amounts of money. So far, the international community has not moved publicly. There is talk about a joint statement of all directors of UN agencies coming out on the importance of the EVAW law.
Poor implementation and acceptance
Fawzia Kufi, meanwhile, this morning, 16 May, has confirmed she will not take the topic off the debate agenda again. ‘At this stage we are still planning for Saturday,’ she said, briefly mentioning a potential postponement to Monday as, ‘an important colleague from the commission’ was stuck in another province. She said she was hopeful she can interrupt the debate before the vote, ‘if the situation gets out of hand and men are standing up, claiming the whole law is against Islam.’ The women in the parliament did not trust their own influence, she told AAN, and instead have engaged in ‘negative competition’. ‘If each of the 69 female MPs persuaded only one man to pass the law, we’d already have 138 of 249 votes’, she said. She has been adamant that the law needs parliamentary approval and that she can get it approved. ‘Who knows who our next president will be or if he will keep the presidential decree intact?’ she asked. She also mentioned the ‘poor implementation and acceptance’ of the law and that the ‘prestige that comes with the parliamentary approval’ would help with that.(4)
The outcome of this debate is far from clear, though. In the plenary, any amount of articles, even of the Joint Commission’s latest version of the law, could be opened up for discussion again – and eventually changed. The law could also be rejected altogether. This would also abolish the original version issued per presidential decree in 2009. While the argument that a parliamentary approval could strengthen implementation and its acceptance of the law might be appealing, the debate could just as well have the opposite effect. If the implementation of the law has remained poor, said AIHRC commissioner Soraya Sobhrang, then this was not because it has not been approved by parliament but because, ‘there is not yet an acceptance of women’s rights among the people and members of the parliament.’
A debate that undermines – or abolishes – the law, would most likely also have a negative effect on women’s rights more widely. The women’s shelters, for example, continue to be in a fragile position after last year’s efforts to undermine them, both by the Minister of Women’s Affairs and the Minister of Justice (see AAN’s reporting here and here). A possible negative decision on the EVAW law or the change of the relevant paragraph in the law would likely either refuel the debate about the shelters or even enable their abolishment.
The stakes are high and the parliament’s decision is likely to set the tone for the women’s rights debate for the years to come.
(1) The Constitution of Afghanistan article 79 does provide the president with the right to pass laws by decree in case there is ‘an immediate need’. The law should then be presented to the parliament ‘within 30 days of convening its first session’. If the parliament then rejects the law, it becomes void. The Constitution does not foresee what happens to laws passed by Presidential Decree that are not presented to the parliament and, as of yet, laws passed by Presidential Decree do not automatically get onto the parliament’s agenda. Currently, eleven laws are being implemented without parliamentary approval, among them the counterterrorism law and the procurement law, also laws regarding smuggling or kidnapping.
(2) Apart from the veto, two options remain for the president to influence the law after its approval through the parliament. Both are rather indirect and depend on the president’s willingness to pull strings and call in favours. In the first option, the president asks the Supreme Court or the Independent Oversight Commission for the Implementation of the Constitution to check the provisions of the law. This process would involve looking at the Constitution’s articles 3 and 7 that intend to make sure that the state does not act against Islam and is according to international legal agreements signed by Afghanistan – sometimes a contradiction in itself, though, particularly when it comes to women’s rights. The UN Committee on Social and Economic Rights has repeatedly criticised Afghanistan’s legal provisions regarding women, for example, that early marriage provisions have not been harmonised with international human rights standards.
If a law is considered to be contrary to Islam or to Afghanistan’s international legal obligations, it vanishes from the domestic law. The Supreme Court is known to have conservative views on issues addressed in the EVAW law. It, for example, issued statements that if a girl runs away from home, this should be treated and punished as a crime if she left with anyone other than a legal intimate. On the other hand, the president has influence on the Supreme Court as the current head is serving only an acting role.
The president’s second option is to seek to influence the content of the EVAW law as soon as it is out of the lower house and goes into the upper house (one step before it reaches him). The upper house has the right to make final changes to a law. The president appointed one third of the upper house’s members. Here again, it depends on how important the president considers the law and the protection of women.
(3) One prominent example was when he embraced the Ulema Council’s ‘Code of Conduct’ in March 2012, a set of guidelines that for example allows husbands to beat wives under certain circumstances and does not allow women to travel without a male guardian or mingle with strange men in places like schools, markets or offices. At that time, many understood this as a gesture to reach out to the Taleban (see our analysis here).
(4) UNAMA assessed the implementation of the EVAW law in 2012. From the report ‘Still A Long Way to Go – implementation of the EVAW law in Afghanistan’ some telling numbers: ‘For 16 provinces where UNAMA was able to gather detailed information from police, prosecutors and city courts on application of the EVAW law, 470 reported incidents of violence against women were registered with ANP and prosecutors. Of the 470, prosecutors filed indictments in 163 cases of which 100 indictments resulted in conviction at trial (61 per cent). 72 of the 163 indictments filed (44 percent) in these cases relied on the EVAW law. Of those 72 indictments, 52 (72 percent) resulted in convictions at trial using the EVAW law as the basis for a finding of guilt. These findings suggest that prosecutions of cases of violence against women were more likely to result in convictions when prosecutors based their case in whole or in part on the EVAW law. The report noted progress in the registration and application of the EVAW law by prosecutors and primary courts compared to the previous reporting period. Prosecutors registered more reported incidents of violence against women and city courts issued more convictions using the EVAW law. Such progress is welcome and significant. However, when placed in the general context of 4,010 reported incidents of violence against women as recorded by the Afghanistan Independent Human Rights Commission for March to October 2012, the number of cases resolved through the judicial process and convictions using the EVAW law in the 16 provinces for October 2011 to September 2012 remained very low.’
This article was last updated on 9 Mar 2020