Afghanistan: Defending the Rights of Women in a Necropolis of Human Rights

The Taliban founded an authoritarian Islamist theocracy in Afghanistan a quarter-century ago that egregiously engrossed in methodical internal subjugation, deprivation of human rights to Afghan citizens. Consequently, the Taliban endured international isolation. Now, once again, they have ascended to power and captured Kabul on 15 August 2021 that received initially mixed indications whether the Taliban 2.0 regime will be a new incarnation this time. While the Taliban have desisted from massive retaliatory exterminations, their imperium has provoked a mass exodus and intensifying uncertainties over how they will deal with women, minorities, media, and socio-political disagreement that have been well-protected under the 2004 Constitution of the Islamic Republic of Afghanistan. There are several questions such as Will the Taliban execute their stated promises about the formation of an inclusive government? Will they respect the diversity of Afghanistan while guaranteeing services and jobs for all Afghan citizens, including women? Will they again establish a Sunni clerical totalitarian regime worse than the Iranian model? Will they abide by their counterterrorism commitments and work with the Western jurisdictions to ensure free economic aid flows or once again allow isolation? To what extent do the U.S. and its allies still impact the promises and prospects of the Taliban? However, in a troubled world, the human right to dignity and the right to human equality of all people have become more needed than ever before.

The answers to the questions hereinabove are fully available under the present 2004 Constitution of the Islamic Republic of Afghanistan that was adopted after the years of protracted conflict and whose fate, now, remains in limbo. It has envisioned the Afghan State as the Islamic Republic of Afghanistan in the Preamble. The National Assembly is the supreme legislative establishment in Afghanistan, consisting of two houses; a) the Lower House (Wolesi Jirga) and; b) the Upper House (Meshrano Jirga). The Wolisi Jirga includes 249 elected seats and is empowered to amend the Constitution’s provisions and makes the President accountable to the Wolesi Jirga. The Meshrano Jirga has 102 seats, including a third of presidential appointees, out of which 50% of the seats are for women. The judiciary’s highest court is the Supreme Court, which includes nine judges appointed by the President at the approval of the Wolesi Jirga for a term of 10-years. The Ministry of Justice has been empowered for new enactments and law reforms. The Bonn Agreement in 2001 has established the Afghan Independent Human Rights Commission (AIHRC). Thus, AIHRC is assigned by the Constitution to promote and protect human rights and investigate human rights abuses, including war crimes. The idea of diversity is protected under Article 4 of the Afghan Constitution; the nation of Afghanistan shall contain Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pachaie, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui, and other tribes. The majoritarian religion is Islam (Sunni); however, several other minority religions such as Hindu and Buddhism are also professed.

The existential peregrination of Afghanistan is sandwiched between once metropolis of civil liberties and present necropolis of human rights. Today, Afghanistan is jettisoned between Afghan domestic unilateralism narrative and global multilateralism narrative. Geopolitically, Afghanistan is located between South Asia and Central Asia, but it is part of SAARC (South Asian Association of Regional Cooperation)—an inter-governmental organization—bordered by Tajikistan, Turkmenistan, Uzbekistan, China, India, Pakistan, and Iran. The total area of Afghanistan is 647,500 sq. km, and more than half the landmass is mountainous, and it is shared in half by the Hindu Kush mountain range. The total population of Afghanistan is 38,928.34 (2020), and it is 40,003,062 (2021) with a growth rate of 2.40% (2021) and 25.75% (2019) live in urban centres. Afghanistan remains one of the poorest nation-states in the world, with a literacy rate of 36% (14% women and 43% men).

Legal Pluralism

Most legal systems in conflict and post-conflict countries consist of parallel and often contradictory social, economic, and political systems and regulatory mechanisms that are a potential source of future legal insecurity and social and political conflict, and Afghanistan is no exception. However, the Preamble to the Constitution stipulates that the Nation of Afghanistan observes the UN Charter and the UDHR (Universal Declaration of Human Rights). Therefore, Afghanistan is a party to a compendium of international instruments such as CEDAW (U.N. Convention on the Elimination of All Forms of Discrimination against Women) and U.N. Security Council Resolution No. 1325 to secure women’s rights. Moreover, the Constitution of the Islamic Republic of Afghanistan obligates the government to foster a peaceful and progressive society based on social harmony, human dignity, equality of justice, protection of human rights, the accomplishment of democracy, and preserving national integration and equality among all ethnicities and tribes. However, the Constitution also states that an explicit provision that no law “contrary to Islam” must not be interpreted imperfectly if the same is problematic for women’s human rights.

In Afghanistan, legal pluralism is based on several types of legitimating sources, including International law, State Law, Religious Law, and Customary Law. Traditional practices maintain social order, particularly in rural areas, where the State still has the only limited writ. Each village has its informal customs and processes for enforcing norms and resolving disputes. Therefore, community councils still act as the principal judicial system in the country, and almost 80% of disputes are settled outside the formal judicial system and without any legal documentation due to a lack of access to standard courts and trust deficit in them. Community councils are problematic as they reject anything construed as contrary to their creeds and convictions. As such, disputes relating to marriage, divorce, polygamy, and child custody can be poorly judged. In addition, these councils are dominated by men and have a patriarchal structure in which women are strongly under-represented. In a country where women symbolize family honour and are at risk of being considered goods and properties to be used and exchanged for this purpose, violence against women is widely tolerated at household, community, and national levels due to traditional justice mechanisms being unresponsive to women’s human rights.

Implementation with HRDA Constitutionalism

Implementation of human rights in Afghanistan is possible with Human Rights Driven Approach (HRDA) Constitutionalism. HRDA Constitutionalism invokes the application and appreciation of the Constitution of the Islamic Republic of Afghanistan where appropriately sufficient arrangements have been envisioned in the Preamble and Chapter-2 on fundamental rights in the context of women’s rights. International Human Rights Law (IHRL) Framework is one of the most significant devices for fostering women’s human rights but does not have pragmatic implementation at the grassroots stratum. The constitutionally guaranteed legal equality of women is time and again contravened with the retaining the discriminatory personal laws stemmed from Islamic hermeneutics based on customary laws that are further seconded by the Constitutional recognition of Sharia Law, for example, a woman walks out of an abusive marriage; therefore, the judicial authorities will be subjected to chastisements, despite the fact it does not have any basis in family law, civil law, criminal law or criminal code of Afghanistan. Unfortunately, these punishments are pronounced by the judicial officers as per their interpretation of Sharia law.

The promotion of women’s human rights can be accomplished by creating spaces for media campaigns, organizing conferences, encouraging the participation of NGOs, and sensitizing the common people about the human rights of women. Women’s organizations will have to work with AIHRC to have a regnant voice on crimes against women while generating parallel documentation of Optional Reports to the CEDAW Committee. Now, there is a necessity to reform the local laws in tandem with the international IHRL obligations of Afghanistan. Regrettably, Afghanistan does not have an appropriate system in place for a pragmatic enjoyment of women’s human rights in every walk of life that too in contravention of the constitutional protections.

Traditional Sensitivities & Islamic Councils

Primarily, Afghanistan is a traditional Islamic State in which HRDA Constitutionalism will have greater socio-cultural acceptability provided it is consistent with the applicable Sharia Law system. In this conspectus, appropriate modules can be taken from various other Islamic countries in the neighbourhood like Iran and Pakistan, where the situation is different and beyond. There is a pivotal issue of Islamic interpretations in Afghanistan that percolates from an absence of an accurate understanding of Sharia Law. Therefore, it is crucial to collaborate with Islamic scholars, particularly from the liberal Islamic democracies, to evolve the correct construction of Islamic views with the Afghan scholars on a wide range of subjects, including women’s human rights. Thus, a liberal and HRDA Constitutionalism-based elucidation of the Holy Quranic verses has to be commenced by Islamic scholars in Afghanistan. HRDA has to create a social balance between women’s family obligations and the rights of women. Such a premise would encourage and facilitate the training of women in the human rights discourse. It would also embolden women’s empowerment and provide requisite momentum to feminist movements in Afghanistan.  

The diverse challenges to women’s rights need to be addressed with carving out a pragmatic role for highly influential Islamic Councils. These are, in fact, women’s rights involved in the matters of polygamy, reproductive determinations, child custody & marriage, divorce, preferences for life partners. Traditionally, women’s rights in these matters have always been decided by the patriarchal fiefdoms in Afghanistan. There are reasons for such a sorry state of affairs, like the low literacy threshold among the Afghan population that led the people of Afghanistan to exclusively rely upon the religious clergy that has significantly shaped and influenced their way of life, including their personal affairs. The new political leadership can facilitate accessibility and coordination to NGOs and women’s rights defenders to sensitize the people in this connection. Therefore, religious scholars must be sensitive to women’s rights armed with liberal and harmonious construction of religious texts. These religious scholars can be the change-makers in bridging the contradictions between traditional sensitivities and Islamic beliefs that trample upon women’s rights in Afghan society. Thus, it is the Quranic human rights of women that the Afghan State must access, and it must respect the same.

Gender Representation in Judicial Routes

The Afghan Judicial System (AJS) does not adequately represent Afghan women judges; therefore, legal safeguards designed for their protection are often nosediving at the ground enforcement. The Supreme Court of Afghanistan does not have women judges, and the same is the situation within the local judiciary. Further, there is no female representation at the community level again due to the misconstruction of Sharia Law regarding the ability of women to make proper judgments. Now Afghan women judges and lawyers  are fleeing for safety and refuge as criminals convicted by them are out for reprisals. It shows an inherent and deep-rooted bias and ill-conceived preponderance of patriarchal and parochial tendencies against women, and AJS is not an exception. The pace of judicial and institutional reforms has been sluggish that added salt to injury. Afghanistan got a chance to codify, revise and develop its laws in conformity with international principles of IHRL immediately after the collapse of Taliban 1.0 in the late 1990s, but it could not do so. Until now, only a few courts premises and several training programmes have been developed in the provinces. Only one family court in Kabul and some courts have been created in the adjacent provinces. Such a lacklustre approach cumulatively resulted in a miserable level of public consciousness regarding new rules, regulations, and laws about women’s rights at all AJS and Afghan informal administration levels. Thus, women’s human rights cannot be realized in Afghanistan without the representation of women in the AJS.

Women’s Safety in A Fragile Transitional State

There is a lack of psycho-physical safety and socio-economic security for women’s NGOs and women’s rights defenders in all walks of life across Afghanistan. The modes of women’s sartorial presentation, socialization thresholds, economic engagements, and education exposure are the regnant determinant of honour in Afghan society and culture. The writ of the patriarchal chief runs and is responsible for protecting the family fiefdom’s reputation. By itself, these are stark tests and trials in expanding the scope of accessibility to HRDA Constitutionalism for sensitizing, educating, and devising programmes for Afghan women. The scarcity of understanding the nuances of justice and judicial institutions further impedes their access to public life mobility. However, Islamic councils and religious leaders have allowed few well-connected NGOs to operate to helping vulnerable women in the various communities. Despite all socio-economic trials and tribulations for Afghan women, there is a principal challenge of the rule of law and its application to traditional practices and informal justice systems for achieving justice. In the absence of formal AJS, informal justice systems have mushroomed in Afghanistan. The personnel presiding over them also head the local councils that are perceived as the primary source of traditional norms. Moreover, the lack of infrastructural facilities and logistical support has crippled their faith in the AJS has further deteriorated. The growth of the informal justice systems challenges the AJS, and its prevalence in the future remains a material question.

U.N. Security Council Resolution Principles

The U.N. Security Council Resolution 1325 stipulated fundamental principles, namely; protection, participation, and promotion of women’s human rights with the HRDA roadmap and women’s rights NGOs have been doing the work for their empowerment despite all odds as under:

-In the context of protection, women NGOs have been operational with the Ministry of Women Affairs (MWA) and the group ‘Women Living under Muslim Laws’ and other INGOs in training, empowering, and preparing the drafts for new laws of family, marriage, and crimes against women laws, etc. These NGOs and INGOs have also been pushing and encouraging gender mainstreaming within other new laws at household and community levels. Such laws are essential in ensuring the restoration of AJS to enable women to claim their rights. Moreover, the NGOs have been working with MWA to build women’s shelters, help centres for those enduring violence and confronting abuse, and address the women’s most basic health and economic requirements. Thus, the HRDA roadmap ensures protection by facilitating new legislation and socio-economic security for Afghan women enduring violence and promoting rights-based education.

-In the context of participation, the participation of women in decision-making bodies is a crucial step for securing their human rights. National and Global agencies have been working hard to establish women’s Shuras (Decision-Making Councils) among the tribal communities under the Afghanistan National Solidarity Programme. These Councils intend to re-boot those traditional structures already in place to ensure women’s participation in a pragmatic orientation. Moreover, there has been a multitude of initiatives from the NGO and political community to integrate the voices of women and promote their participation through different arrangements like the Women’s Political Participation Committee (WPPC) and the Afghan Women’s Network (AWN), etc. These arrangements not only revive a sense of solidarity and cooperation for women’s rights defenders, but they also build partnerships with female Members of Parliament at the national stage. Furthermore, there have been active campaigns for drafting women judges in the Supreme Court. Thus, the women’s rights movement has been advancing different advocacy mechanisms for law reforms and political participation at every stage of the AJS.

There is No Conclusion

It is axiomatic that Afghanistan represents an assortment of burning issues germane to HRDA Constitutionalism in defending women’s rights in a necropolis of human rights, particularly in conflict and post-conflict settings. Due to the fragile dynamics of the Afghan State and the legal pluralism that has followed, NGOs operating with HRDA Constitutionalism must consider several factors, including functioning in an Islam-driven system in a culturally sensitive trajectory. The participation of women in the existing AJS and their potential drafting in the new judicial arrangements need to be ensured with fair play. All the stakeholders must recognize the challenges of women’s safety. The implementation of women’s human rights and their integration within the local traditional decision-making institutions must be salvaged beyond the interference of the Afghan State. 

Dr. Nafees Ahmad
Dr. Nafees Ahmad
Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at],drnafeesahmad[at]