Democracy and Pandora’s Box: Family Laws in Afghanistan

For women in Afghanistan, the promise of democracy seems not to include equality, nor protection from the potential of domestic violence. Here, the secretary general of Parliamentarians for Global Action explains the politics behind the proposed oppressive law regulating Shia marriages.

The general view in academic circles is that democracy should provide for enhanced civil, political and personal rights. But for the women of Afghanistan, the impending presidential elections scheduled in August 2009 are already beginning to restrict theirs.

In a bizarre twist and turn Afghan President Hamid Karzai’s government presented to parliament an amended Personal Status Law for the Shia community, about 15 percent of the Afghan population, and hurried the legislation through parliament in a month. He signed it prior to the March international summit on the future of Afghanistan in The Hague.

Concern about the law was already rising in Afghanistan, and the Finnish Foreign Minister and human rights groups conveyed the news to the delegations gathered in The Hague. With the world as audience, Secretary of State Hillary Clinton promptly confronted Karzai with the U.S. and other NATO countries’ disapproval, setting off a series of reactions and controversy that eventually led to him sending the law back to the Justice Ministry for review.

His government asserted that criticism of the law was misplaced. “We understand the concerns of our allies in the international community,” Karzai said during a televised press conference on his return to Kabul. “Those concerns may be out of inappropriate or not-so-good translation of the law or a misinterpretation of it.”

A review of the Afghan constitution adopted in 2004 shows that it is no misinterpretation. The law is a clear violation of Article 22 of the Afghan Constitution, which explicitly reiterates the equality of men and women before the law.

“The current provisions of this law support domestic violence and the impunity of its perpetrators,” said Zia Moballegh in an interview with the Globe and Mail. Moballegh is a senior program officer in charge of a family-law project run in Kabul by the Canadian-based international-aid and human rights group Rights and Democracy.

The Personal Status Law, in provisions that can sanction marital rape, makes it compulsory for a wife to have sex with her husband “at least every fourth night.” It also limits Shia women from leaving their home without the husband’s permission except for medical or emergency needs, and states that women must wear make-up and make themselves attractive if their husbands insist.

This law began as most religious codes do as a proposal in a magazine for Shia clerics in 2007. Its main proponent soon became Afghanistan’s leading Shia cleric Ayatollah Asif Mohseni, who circulated it to the Ministry of Justice.

Electoral politics was the main trigger to bringing this law out of the judicial closet. Some opposition figures accused President Karzai of attempting to curry favour with conservative Shia party leaders before presidential elections in August. The Shia community has represented one of the best-organised voting blocs since 2001 and is being courted by several candidates. The timing can also be connected to the NATO summit; a way of also showing the international community with which Karzai had begun to lose favor that he still holds some cards that they cannot completely control.

The initial approach taken by Afghan progressive politicians and rights activists was to ensure certain amendments would be included—essentially to “improve” the draft law. Afghanistan’s Human Rights Commission held a seminar to discuss it, according to a woman senator. UNIFEM also assisted in drafting advice. Several legal activists worked with the Justice Ministry on the drafts. It had also been through the Justice Committee of the parliament.

Members of parliament interviewed for this piece said they were surprised when the final draft was presented to parliament. Shahgul Rezaie, MP, from the Shia community in the lower house confirmed that while there are Shia members of the Justice Committee, they are all men, and other women members of the committee did not raise an alarm. “If there are no objections, a law can go through the committee process in one month, which is what happened,” she said. By the time it reached the parliament floor it was too late to get back amendments Afghan women activists were hoping for. The law was passed and sent for signature to the president.

The Shia marriage law has become a focus for the Afghan media as registration for presidential elections have started and the swing vote of the Shia community remains a prize. Earlier this week, dozens of Afghan lawmakers and officials condemned the legislation, saying it encourages re-Talibanization. Shinkai Karokhail, a woman MP who campaigned against the legislation, has said in the Afghan press, “it is one of the worst bills passed by the parliament. This law makes women more vulnerable.”

Joining the debate in interviews the cleric Mohseni shows hundreds of signatures and thumbprints by Shia supporters of the law and claims it is a liberal law. In an argument worthy of Oprah’s couch, he said a woman can refuse sex with her husband for many reasons beyond illness, including fasting for Ramadan, preparing for a pilgrimage, menstruating, or recovering from giving birth. He said many rural women are illiterate and would not be able to find work. Men are typically expected to provide for their wives and children. "For all these expenses, can't we at least give the right to a husband to demand sex from his wife after four nights?" he said.

Not all are convinced, including some courageous Cabinet ministers. Foreign Minister Rangeen Dadfar Spanta drafted a petition against the law that was signed by more than 100 officials and public figures, including six government ministers and 22 lawmakers. Spanta said he might have had more signatures but he wanted to get the petition on the record quickly.

There is some hesitancy on the part of Afghan women regarding the law. The minister of women's affairs did not sign the foreign minister’s petition; a spokesman for her office told the press she was waiting for the review to be completed before taking a position. Shahgul Rezaie, the MP, seemed disappointed and said, “the law had two parts, one part was an improvement, raising the marriage age, making men financially responsible; we can work to make part two better, but we need more time.”

In several interviews with Afghan legislators in preparation for this article, I was struck by how many were either not present when it was presented, or not aware that it had been passed. There were several who, after an embarrassed silence, asked not be interviewed. Others who spoke asked that they not be named.

Twenty-five percent of Afghanistan’s parliament is women legislators; the female portion of the lower house, which is elected, is 27 percent. With such strong numbers, it is astonishing how weak they are in terms of their ability to push women’s issues. One factor is the lack of basic security, underscored by the murder by the Taliban last week of Sitara Achakzai, MP. One Pashtun woman MP from the lower house told me, it takes all her time and energy to just keep in touch with her constituency and performing her public role in a conservative society.

The problem is also structural—the parliament has no Women’s Caucus, no internal mechanism for women legislators to cross party or ethnic lines in coalitions to discuss the gender impact of proposed laws and resolutions before they are tabled. The parliament relies on international agencies such as UNIFEM and NGOs to pull women MPs together on an occasional basis.

At Parliamentarians for Global Action’s Annual Meeting October 31, 2008 in Santo Domingo, Senator Rida Azimi proposed reviving PGA’s coalition of women’s caucuses around the world that had worked for the Beijing Conference. Its first project should be working with Afghan women MPs to form a Women’s Caucus.

As the Obama Administration considers the available toolbox to build democracy and development in “AfPak,” his regional envoy Ambassador Richard Holbrooke might consider helping to link a new Afghan Women’s Caucus with the recently formed Women’s Caucus in the Pakistan parliament. Such cooperation could help protect constitutionally guaranteed women’s rights in the beleaguered mountain towns and villages of the two countries currently under siege by Talibanization.