Introduction
Well before international intervention began, Afghanistan had signed international conventions that protected human rights. In 1948, Afghanistan voted in favour of the Universal Declaration of Human Rights. Then, in 1983, Afghanistan ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Finally, in 1994, Afghanistan ratified the Convention on the Rights of the Child (CRC).Post-Taliban Afghanistan has been shaped by the ratification of other international instruments protecting human rights, specifically women’s rights, reaffirming the importance of a further equitable development of Afghan society. In 2003, Afghanistan was the first Muslim country to ratify, without reservations, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 2 of CEDAW explicitly refers to the obligations of signatory states to reform or develop a constitution that reflects national principles of equality and non-discrimination. Therefore, states must strive:
To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle. (1)
In 2004, the principle of equality was reaffirmed through Article 22 of the Afghan Constitution: Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan - whether man or woman - have equal rights and duties before the law. (2) Article 2 of CEDAW also stipulates that the legislative framework of the signatory states should be revised in light of CEDAW’s provisions. States are asked:
To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women. (3)
Strategies and action plans supporting the implementation of the principles enshrined in the Afghan Constitution have subsequently laid a promising foundation; all sectors of Afghan society, financially supported by the international community, are able to invest in the complex job of rebuilding the country, with one of the objectives being to secure Afghanistan’s new commitments based on existing or emerging national laws.
Gender equality is a cross-cutting theme of one of the three pillars of the Afghanistan National Development Strategy (ANDS). Through the Governance, Rule of Law, and Human Rights pillar, the country formally stresses the importance of reviewing national legislation to suit the new context:
The Government will strengthen its capacity to protect the human rights of all Afghans through the development, ratification and enforcement of legislation that is consistent with Afghanistan’s international obligations, such as: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). (4)
The National Action Plan for the Women of Afghanistan (NAPWA), created by the Ministry of Women’s Affairs of Afghanistan (MoWA), clearly focuses on the need to reform laws in order to eliminate discriminatory practices:
All laws will be reviewed to bring them into conformity with the Constitution. Laws that are discriminatory against women - especially unfair laws on citizenship, marriage, divorce, property and inheritance - will be amended or abolished. Violence against women and harmful traditional practices, such as forced and early marriages, will be criminalized. (...) In light of protection of the girl child against early marriages, compulsory registration of birth and marriages will be made part of the legal reform agenda. (...) The Government will comply with its obligations to international human rights treaties, most notably CEDAW and the Convention on the Rights of the Child (CRC). (5)
Over the past three years, Rights & Democracy has been directly involved in the reform of family law in Afghanistan. Through our fieldwork and research work, a number of questions, reflections and lines of analysis were raised that needed further discussion. To this end, four authors have reflected on a series of questions that are central themes of this book: the evolution of reforms in 20th century Afghanistan; the participation of civil society in the legislative process in the post-Taliban era; the marriage contract and registration of marriages; and the gap between the theoretical discourse and practice with regards to protecting the rights of women.
In the first chapter, “Family Law in Afghanistan: Reflecting on the Past to Understand the Present and Prepare for the Future,” Cheshmak Farhoumand-Sims analyzes the societal context in which family law and the marriage contract were reformed throughout the 20th century, and the challenges for their implementation prior to 1979. The research reveals that the context in which these legal documents were drafted - under foreign influences and subjected to the opposition of a very traditional Afghan society towards reforms - are not so different from the resistance encountered in Afghanistan today.
In “Reforming and Drafting Laws in the Post-Taliban Era: The Role of Coalitions,” Alexandra Gilbert presents an overview of the drafting and revision of the Shia (6) Personal Status Law (SPSL), the Elimination of Violence Against Women Law (EVAW) and the Sunni (7) Family Law (SFL). She also highlights the dynamics that have emerged among the three main coalitions during these revision processes, and their impact on the laws affecting women’s lives.
In “The Marriage Contract: Process and Recommendations for its Implementation,” Ana Hozyainova tracks the evolution of the marriage contract and the status of marriage registration in present-day Afghanistan. A large part addresses challenges and perspectives for compulsory registration of the marriage contract, the current debate within Afghanistan among stakeholders involved, and the lack of incentives to further promote its use and its implementation.
Finally, in “From Words to Inaction: The Disconnect between Theory and Practice,” Heidi Kingstone explores the perception of Afghan and international stakeholders regarding women’s rights and the laws that protect these rights. She highlights the disconnect between what exists on paper and the hard reality of Afghan women seeking to access justice.
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Endnotes:
(1) United Nations. Convention on the Elimination of all Forms of Discrimination against Women, December 18, 1979, Article 15. Accessed at: www.un.org/womenwatch/daw/cedaw/text/econvention.htm
(2) Constitution of Afghanistan. Free translation. Accessed at: www.afghan-web.com/politics/current_constitution.html
(3) Convention on the Elimination of all Forms of Discrimination against Women, Article 2.
(4) Afghanistan. Afghanistan National Development Strategy, 2008-2013. Executive Summary, p. 8.
(5) Afghanistan. National Action Plan for the Women of Afghanistan (2007-2017), p. 42. This is the government’s main vehicle for implementing policies and commitments to advance the status of women.
(6) Shia: One of the two main branches of Islam, followed by about a tenth of Muslims.
(7) Sunni: The largest of two branches of Islam.
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This article is an excerpt from the publication "A Women's Place. Perspectives on Afghanistan’s Evolving Legal Framework", published by Rights & Democracy. The article and the publication as a PDF file is posted here with kind permission of Rights & Democracy.
Rights & Democracy is a non-partisan, independent Canadian institution created by an Act of Parliament in 1988 to promote democratic development and to advocate and defend human rights, as set out in the International Bill of Human Rights. In cooperation with civil society and governments in Canada and abroad, Rights & Democracy initiates and supports programmes to strengthen laws and democratic institutions, principally in developing countries.