No justice for Afghan women

Even before the scars from a beating are able to heal many domestic violence survivors in Afghanistan are sent back home by local community leaders or government courts making them highly vulnerable to the cyclical violence.

More than 70 per cent of jailed Afghan women were put behind bars for escaping their homes even though this is not a crime under Afghan law. Forced marriages, domestic violence and child marriage were some of the motives that drove these young girls and married women to flee their homes.

The audacity to hope that freedom from this kind of violence was possible came from the Elimination of Violence Against Women (EVAW) Bill which was meant to protect women from this unending violence that both the family and community often condone in the name of tradition and culture. However, a rift between conservative and more secular members of the assembly resulted in Afghanistan's parliament failing to pass the law dealing a severe blow to progress made in women’s rights in the past decade.

The law, criminalising child marriages and forced marriages, existed as a presidential decree since 2009 and did not need parliamentary approval. The decision to seek parliamentary approval for the law, itself, had split women activists. Led by a potential presidential candidate, Fawzia Koofi, those who brought it to parliament  argued that this would protect from its potential reversal by any future president tempted to repeal it to satisfy hard-line religious parties.

Code of conduct

In 2009, president Karzai had passed the Afghan Shiite Personal Status Law which contained gravely regressive rights infringements for Shiite women with the support of radical clerics and conservatives amongst the political elite, simultaneously opening up a debate on cultural rights versus women’s rights. In 2012, he endorsed a ‘code of conduct’ issued by an influential council of clerics which allows husbands to beat wives under certain circumstances.

The activists who opposed the need for parliamentary approval were concerned that this could potentially open it to being amended, weakened or even repealed thereby putting hundreds of women’s lives on the line. The EVAW law also bans ba’ad the traditional practice of exchanging girls and women to settle disputes. It makes domestic violence a crime punishable by up to three years in prison and protects rape victims from facing criminal charges for adultery. Those blocking the legislation argued that parts of it violate Islamic principles and encourage ‘disobedience.’ Some even suggested that removing the custom of prosecuting raped women would lead to social chaos, as women, safe in the knowledge that they could claim rape if caught would freely engage in adultery. Keeping the legal age for women to marry at 16, the existence of shelters for domestic abuse victims and the halving of the number of wives permitted to two were the other provisions that faced opposition.

Traditional dispute resolution (TDR) mechanisms  continue to be used to settle 80 per cent of the disputes around violence against women. In the form of shuras and jirgas, these are hearings by tribal elders but also include the Taliban’s justice system and judgments handed down by religious leaders. One would recall several cases in India as well where panchayat members have decreed that rape survivors marry their rapists for the sake of the family and community’s honour. Not surprisingly, many see TDR, often entrenched in patriarchal structures, as adversely affecting women’s rights.
Constitutional provisions that reserve seats for women have ensured that Afghanistan's parliament has more than 60 female lawmakers. And yet, the fierce opposition to the law highlights how tenuous women's rights remain even today.

Besides, the enforcement of the law, too, remains weak as only a small percentage of reported crimes against women were pursued by the Afghan government. Even though the EVAW law was far from perfect for many women’s rights advocates -- as it fails to clearly define an ‘honour crime,’ central to the various crimes against women -- it has nevertheless protected hundreds of women and has been a source of accountability.

In late 2010, tribal elders from a district in the southern province of Khost banned the practice of ba’ad. Seven other districts followed suit. This was significant as not only did it help dispel the myth that any assertion of women's rights is a ‘western imposition’ but simultaneously illustrated how tribal elders can be used as effective allies to help tackle violence against women in the country.