In Afghanistan, the legal system is comprised of three main categories namely the State Legal Codes, Islamic Religious or Sharia Law, and Local Customary Law. Unlike other states, where the state fully encompasses the legal power and eliminates all other forms of contenders for legal authority, the three sectors in Afghanistan have always struggled and In some periods the Islamic Law and Customary Law were dominant while in other periods the state strived to sustain the power and authority. (As cited in Zulfia Abawe Violence Against Women Policy Versus Practice)
The Afghan Constitution has emphasized on in several Articles and has bound the government to make and carry out programs fruitful for women’ rights as its national laws. (as cited in Mohammad Hussain Saramad and Latifa Sultani Violence against Women in Afghanistan)
Article 7 of the Afghan Constitution states:
The state shall observe the United Nations Charter, inter-state agreements, as well as the international treaties to which Afghanistan is a signatory and the Universal Declaration of Human Rights.
Article 22 of the Afghan Constitution states:
Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.
Customary Law
Barfield (2003) The law is means in which local communities resolve disputes in the absence of the state or religious authority. It is based on a common cultural and ethical code that generates binding rules on its members. Communities use this code to resolve disputes, evaluate actions for praise or blame, and to impose sanctions against violators of local norms.
According to Gang Enforcing the customary laws within a community has been perceived to be the best dispute resolution mechanism to maintain stability and social order despite the chaos surrounding the country during the last three decades. (As cited in Zulfia Abawe Violence Against Women Policy Versus Practice)
Barfield (2003) While systems of customary law are found universally throughout rural Afghanistan, their specifics vary widely and often idiosyncratically.
Islamic Religious Law (Sharia)
Islam is a peaceful and merciful faith that highly respects women. Unfortunately, however, an inaccurate perception exists about Islam and domestic violence.This incorrect perception paints Islam as a religion that condones abusive behavior towards women, (wise muslim women)
According to Pennington Most contemporary Islamic authors argue that the patriarchal interpretations of the Islamic sources by male writers, and interpreters have constructed a vast gap between human rights and woman; even it has portrayed Islam as an anti-woman religion.
Ali (2000) in various studies the words of the Prophet Muhammad and the Quran is the central sources from where Islamic law has been derived. While in most of the other studies, it transcends beyond these two specific sources to a broader set of five main sources
According to the Origins and Sources of Islamic Law, University of London, the five are listed below (As cited in Zulfia Abawe Violence Against Women Policy Versus Practice).
Quaran: According to Hassan, the Quran, is said to have the most weight as the foremost source on Islam, and considers human rights to be natural rights, or given to man from the dawn of Islam. Much of the text in the Qur’an is concerned with freeing human beings from the bondage of traditionalism, authoritarianism tribalism, racism, sexism, slavery and anything else, (as cited in Mohammad Hussain Saramad and Latifa Sultani Violence against Women in Afghanistan)
Hadith
This is the collection of the Prophet Muhammad’s statements and actions coupled with the statements and actions of his companions. It is further stated that Hadith is another major source of Islamic law, whereas it comprises practice and precedents set by the Prophet.
Ijma
This is an arabic term which means consensus. It is to reach consensus on a matter related to Sharia or of interest to Muslims by all Muslims of all times or all Muslims of a particular time, but an exception is always made for children and mentally disordered people.
Qiyas, represents the attempt to deduce, from earlier decisions, a rule that could be applied to a case not directly covered by either the Quran or Sunna but can include the examination of the totality of law in order to find a solution which is most closely in line with the general spirit of Islamic law.
Ijtihad this is the individual reasoning formed carefully by somebody learned in the law and it is not directly covered in the Quran or Hadith. When Qiyas fails to provide a solution to the case in point, then Ijtihad is being used, (The Origins and Sources of Islamic Law, University of London).
According to Wise Muslim Women ,the shari’a law has dominance in the Afghan legal system, both through legal provisions, the first provision in the Penal Code, as well as through practice as judges are more comfortable applying their own interpretations of shari’a law than they are applying statutory law. It is therefore importance to recognize that domestic violence runs contrary to many interpretations of Islamic shari’a law. in Afghanistan, the Islamic perspectives on domestic violence that allows equality between the sexes have been muted. Even though the Qur’an contains numerous verses implying that domestic abuse is frowned upon by the Prophet Muhammad, and a place of peace and equality in the home are keys to embracing Islam.
Factors That Perpetuate Domestic Violence
Thirteen years after the fall of the Taliban, women in Afghanistan continue to suffer oppression and abuse. A research by Global Rights estimates that almost nine out of 10 Afghan women face physical, sexual or psychological violence, or are forced into marriage. In the majority of cases the abuse is committed by the people they love and trust the most their families, (Aljazeera, 2015).
Domestic violence is commonly associated with Islam religion, most Islamic nation rely on the Shari’ah or the Divine Law which is based on the holy Quran which is the primary source in analysing issues. In any cases where guidance is not provided in the Qur’an, Muslims looked to the Sunnah Prophet and if answers are not still given then they would make their own reasoning based on their understanding of the Quran, Islam is a peaceful faith that highly respects women.
Holy Quran, Al Nisa Verse 124
And whoever does good deeds according to his capacity while he believes in Allâh and His Messenger, will be welcomed into Paradise. They will never be wronged, not even as little as the speck in a date stone. There is no distinction between male and female.
Holy Qur’an, Al Hujurat, Verse 31
In Afghanistan, many refuse to acknowledge violence against women as an issue, for various reasons one of it being that the women who have experienced violence or witnessed would be afraid to speak out for fear of being stigmatized by the public and her family.
Also, there is a perception that violence against women in the domestic sphere is a private affair that should be addressed within families and not revealed to outsiders. Reason being is that such public admissions will bring shame to the family. Violence against women is often disguised and denied within the family to retain honour and standing within the community.
According to Amnesty International (2005) reports that the complaints from victims of domestic violence are widely dismissed by the police as a private matter and victims are often advised, and sometimes pressured into returning to their abusive spouses and family”
Which is another reason of why domestic violence is still an issue in Afghanistan, women are reluctant to report violence because existing institutions are not equipped to take action and protect them. Reporting the crime may place the woman at greater risk. The crime itself may not be recorded or classified as a crime by the institution.
According to the United Nations Children’s Fund supported survey (2012) examined women’s attitudes toward domestic violence as part of a larger study on maternal and child health. Women were asked a series of questions posing scenarios, or reasons, under which a husband would hit or beat his wife. A staggering 92 per cent of women in Afghanistan feel that a husband is justified in hitting or beating his wife for at least one of these reasons: going out without telling the husband, neglecting the children, arguing with the husband, refusing sex, and burning the food. Seventy-eight per cent of women believe that going out without telling the husband is justification for beating, while 31 per cent think the same about burning the food. Women’s acceptance of wife beating in Afghanistan is much higher than in other countries in the Middle Eastern region.
The Guardian (2015) states in Afghanistan, the vast majority of women who experience domestic violence don’t seek a legal divorce, partly due to economic dependence on their husbands and cultural pressure to keep families united. As a result, only 5% of cases involving violence against women surveyed by the UN in a recent report ended in prosecution in a formal court.
Lastly, Gulsum Sediqi (2015) said the right of divorce is with the man, he can divorce her any time, without reason. But women can’t divorce unless her husband doesn’t give her food or clothes. If she is beaten, it has to be proven by two witnesses, and the process can take more than a year.
Women are not free to leave a marriage so freely so if they are in one of physical abuse they do not have the ability to eve nor fight back so she spends months and years being tormented, injured and so on, those rights are taken for them by both family and the society.
Law on Elimination of Violence against Women
The Law on Elimination of Violence against Women, enacted in August 2009, that criminalizes a particular harmful practice together with complementary principles of Sharia law. The Constitution of the Islamic Republic of Afghanistan in 2004 sets out the legal framework for protection and advancement of human rights, including women’s rights, and recognizes the need to eliminate traditions that are contrary to Islam, United Nations Assistance Mission in Afghanistan, 2010).
EVAW Law lists 22 acts considered to be violence against women, including abuse, harassment, beating, forced and underage marriage, and deprivation of property and inheritance. This law prevails if provisions of other laws contradict it. This means that the EVAW law must apply, even if other laws conflict or disagree with it.
The Constitution According to the EVAW Law
The following acts are considered criminal acts of violence against women under the EVAW law;
a. It is a crime to beat women or girls (Art. 23) even when no injury or disability results from the beating. Hitting, shoving, and slapping that do not cause bleeding or broken bones are also prohibited. Anyone who beats a woman including the husband, an uncle, parents or, parents-in-law may be sentenced for up to 3 month imprisonment.
b. Causing injury or disability (Art. 22) Abuse or beating of a woman or girl which results in her injury or disability is a crime and the abuser will be punished under the criminal law, with imprisonment of 3 months to 10 years depending on the severity and impact of the injury. Beatings causing injury or disability include cutting, causing defects or handicap, loss of one of the senses, harm or paralysis of a body part.
c. Burning or using chemicals or poisons to injure or intimidate (Art. 20) it is a crime for any person to burn a woman or spray chemicals or other harmful substances on her body causing injury, or to force a woman to eat harmful substances or inject such substances into her body. It is considered an especially serious crime to use chemicals or poisons against women and girls for the purpose of spreading fear and terror in order to prevent women from accessing their rights, such as their right to education or to employment.
d. women to burn themselves or commit suicide (Art. 21) it is illegal to mistreat women in ways that push them to burn themselves, swallow poison, or commit suicide. The punishment is more severe if the woman suffers injury or disability from these actions.
e. Sexual Assault and Rape (Art.17) Sexual assault and rape mean sexual acts with a woman or girl that is performed against her will, with force, or pressure. It includes sexual intercourse, as well as touching that violates the chastity and honor of a woman may be sentenced to up to 7 years in prison.
f. Sexual assault or rape is a crime when committed by anyone. It is a crime when it is committed by a stranger, or an acquaintance, or anyone who has influence and authority over the victim. Depending on the type of sexual assault committed, the perpetrator may be punished with sentences ranging from no more than 7 years to life in prison. In cases where the victim dies, the criminal may be sentenced to the death penalty.
g. Forcing a woman into prostitution (Art. 18); it is a crime to force a woman to sell her body or to have sex in exchange for payment or goods (for example, food, clothes, jewelry, and shelter or housing). The punishment for this crime ranges from 7 years in prison, to more than 10 years if the victim is under 18 years of age.
h. Humiliation, intimidation, and harassment (Art. 29-30) Cursing, intimidating, or humiliating a woman are considered degrading acts that can be punished under the law. Intimidating a woman means using bad, abusive, or insulting words or acting in ways to frighten or threaten her, for example threatening to beat or harm the woman or her children, or threatening to fire her from a job, or refuse to give her legal or medical services unless she performs certain sexual acts. Anyone who violates this part of the law may be sentenced to no less than 3 months in prison. A person who uses his position of authority to harass a woman may receive a longer sentence of at least 6 months in prison.
i. Isolating a woman from her family (Art.31); it is a crime to isolate a woman in the home, or from her relatives. For example, it is against the law to prevent a woman from visiting her parents or other close relatives. The offender may be sentenced to a maximum of 3 months in prison.
j. Forcing woman to drug addiction (art.32); No one may force or pressure a woman to take narcotic drugs, such as hashish, heroin, opium, or other drugs, that would cause her to become addicted to the drug. The punishment for causing women to become addicted to drugs is a maximum sentence of 3 months in prison.
l. Recording and publishing the identity of victims (Art. 19); It is a crime to record the identity of the victim of rape or forced prostitution (for example, to take a picture or use the name of the victim) and to publish or broadcast their pictures in the media, internet, or other public places which will damage their reputation.
Violence against Women
Central Intelligence Agency (2008) Violence against women is seen to be a prevalent phenomenon in Afghanistan a country with 15 million women and girls
In war-torn Afghanistan it is not the Taliban that poses the greatest threat to women it is their own families. Thirteen years later women in Afghanistan continue to suffer oppression and abuse. While under the Taliban women were banned from going to school and working. They were not allowed to leave their homes without a male relative. but despite the defeat of Taliban and influx of billions of dollars in development aid, many Afghan women are still living in terror, (Aljazeera, 2015).
Revolutionary Association of the Women of Afghanistan (2015) in recent days, cases of violence against the women have made headlines including beheading, immolations, gang rap, execution, exchanging of females, tortures and other acts of brutalities. Based on the statistics of the commission, 50 cases out of the 4,250 are murders, 40 sexual abuse including gang rap, 85 child marriages, 1,129 cases of tortures and 16cases of selling the women.
Wimpelmann (2015) says many of these incidents, even the gravest ones, are never reported. Violence against women is prevalent and the hidden figures are extremely high. The most serious cases often involve women who do not have the resources or support to actually go to the police to report the crime and some women are undoubtedly pressured by family members or prosecutors to withdraw.
United Nations Assistance Mission in Afghanistan (2010) reported that the preference of having boys rather than girls and valuing boys more than girls were revealed in the majority of interviews conducted from Afghans. This preference is premised on the basis of the notion that a girl marries and becomes the “property” of someone else, where a son brings a bride to serve and work for the family.
a. Domestic Violence
According to the United Nations Declaration on the Elimination of Violence against Women, (1993).
Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women.
The United Nations Declaration on the Elimination of Violence against Women, General Assembly Resolution, December 1993.
the family is often equated with sanctuary a place where individuals seek love, safety, security, and shelter. But the evidence shows that it is also a place that imperils lives, and breeds some of the most drastic forms of violence perpetrated against women and girls. Violence against women and girls continues to be a global epidemic that kills, tortures, and maims physically, psychologically, sexually and economically. It is one of the most pervasive of human rights violations, denying women and girls’ equality, security, dignity, self-worth, and their right to enjoy fundamental freedoms. Domestic violence is in most cases violence perpetrated by men against women. Violence against women is often a cycle of abuse that manifests itself in many forms throughout their lives, (UNICEF Digest, 2000).
Empirical Findings
According to star two (2015) December 2013 Setara’s husband lost control and attacked her with a rock and hit her unconscious. When she woke up he was cutting off her nose with a knife. As she fought back, he stabbed her chest, slashed her lips and continued to beat her until she lost consciousness again.
In Aljeezera (2014) Sadia was married to a militiaman and over the course of their two-year marriage Beatings were frequent. Two months into the first year of marriage her husband and his family stopped feeding and giving her clothes. They would shut all the windows and doors of the house and take turns beating and strangling her.
b. Forced Marriage
United Nations Assistance Mission in Afghanistan (2010) define the term forced marriage underlines all those marriages that have occurred on the absence of either one or both intending spouses’ consent. Exchange of girls to settle disputes, exchange of marriages, early marriages by force or child marriages, and forcing the widow to marry a relative of her deceases husband are forms of forced marriage in Afghanistan.
According to a 2008 report by United Nations Development Fund for Women, 70 to 80 per cent of Afghan marriages are forced it was found that often a woman’s free and informed consent was not given in many marriages.
Amnesty international (2005) Forced marriage, in contrast to arranged marriage, has been described as any marriage conducted without the valid consent of both parties and may involve coercion, mental abuse, emotional blackmail, and intense family or social pressure. In the most extreme cases, it may also involve physical violence, abuse, abduction, detention, and murder of the individual concerned.
Empirical Findings
According to News (2013) a young girl tells her story of how she got married at 10 while her husband was 14 at the time. She was forced into marriage early by her father because they were very poor and my father needed money. As the oldest girl she was sold off. she was also very afraid because she did not know the meaning of marriage and was very unhappy in this marriage. The only reason my husband’s family married their son to me was because they needed a servant and she got no education like other young girls.
c. Honour Killings
United Nations Assistance Mission in Afghanistan (2010) Where women are perceived as receptacles of honor, their opposition to family dictates about marriage often puts them at risk of brutal physical punishment. So-called honor killings recognize a man’s rights to kill a woman with impunity because of the damage that her immoral actions have caused to family honour.
Empirical Findings
In New York Times 2014, 18-year-old Amina had run away to a women’s shelter avoid to marrying a man her family had forcibly betrothed her to, and agreed to return only after her family had signed guarantees that she would not be harmed. Hours after she got into her family’s car, a gang of gunmen dragged her out of the vehicle and shot her to death, her brother and uncle later claimed. Everyone else was unharmed.
Also in amnesty international (2014) In May 2014, 10-year-old Brishna was raped by Mullah Mohammad Amin. Soon after, activists heard that male relatives had threatened to kill her and dump her in the river.