Rollbacks on Women’s Rights

When I think of the word rollback I always think of those old Wal-Mart adds that featured a western themed yellow ball slashing prices.  Those ads were incessantly annoying, but my dislike for them hardly compares to my vehement opposition to the rollbacks threatening women’s rights in Afghanistan.

On February 17th President Karzai sent draft legislation of Article 26 of the criminal procedure code that would seriously hamper progress on women’s rights in Afghanistan back to the Ministry of Justice for revision.  His order for the law to be redrafted is not a step forward nor is it an action the President could have neglected to take without being eviscerated by the international court of public opinion.  Still, the blocking of such damaging legislation is a big win for a nation such as Afghanistan.  The revision process will need to be watched to ensure women’s rights continue to be protected, but for now a major rollback of these rights has been defeated.

Afghan law gives women many rights, but, as with many Afghan laws, there is little enforcement.  The passage of the Law on the Elimination of Violence Against Women in 2009 made 22 types of violence against women including; child marriage, exchange marriage, rape, and physical abuse illegal for the first time in Afghanistan.  Since, there have been high profile cases such as that of Sahar Gul highlighting the slim implementation of the law.  Yes there were repercussions for Sahar’s family, who beat and burned her and broke her bones, but only when a foreign defense lawyer reopened the case and pushed for justice.  That justice: just a few years in prison.

One reason these cases are high profile is because they are disturbing.  Another is that very few cases come to the attention of the police and courts.  Ok, that second part sounds good.  This doesn’t happen very often.  Wrong, cases just like Sahar’s and worse happen on a daily basis.  Most simply go unnoticed.  The laws exist, but they aren’t respected.  Fathers and brothers go on brutalizing their wives and sisters, often with the participation of female family members as well.

Why don’t the women speak out?  Well most don’t know that there is a law protecting them.  Most women in Afghanistan are still confined to the home.  The only rights they know they have are the ones their men tell them about.  The ones who do know the law and their rights have no access to help.

A report by the UN Assistance Mission in Afghanistan published December 2013 show that women are reporting more of these incidents.  Reporting increased 28% last year, but indictments only increased 2%.  This huge gap highlights the fact that the courts aren’t enforcing laws protecting women.  Furthermore, it is evident that women don’t place much trust in reporting to the police.  In 2013, 1,019 incidents of violence against women were registered with the Ministry of Women’s Affairs, but only 650 were registered with the police and prosecutors combined.

This is a far from ideal situation, but at least the rights are enshrined in the Afghan legal code.  Yes enforcement needs to step up.  Yes women need to be taught their rights.  Yes women need to be empowered to seek justice.  These are huge challenges in a nation held hostage by the radically conservative.  Afghanistan cannot brag about the treatment of women nor their access to help.

What’s worse is that the Afghan Parliament passed legislation in early February that would have eviscerated whatever protection women currently have.  The legislation is a small alteration to Article 26 of the criminal procedure code: Forbiddance of Questioning an Individual as a Witness.  The proposed legislation reads under section (1) The following people cannot be questioned as witnesses: 4. Relatives of the accused.

It is a small alteration, but one with massive ramifications.  Most crimes against women are committed by relatives in the home.  This means the only witnesses to these crimes are relatives.  If relatives are flat out banned from testimony then there is no way to prove who the perpetrators of violence against women are.  According to lawyers working in Kabul, this law doesn’t just ban the testimony of relatives though, it bans the questioning of relatives.  This means the Afghan police, the Afghan army, and the attorney general’s office lose the authority to even question relatives about anything, let alone domestic violence!  It doesn’t matter if the Law on the Elimination of Violence Against Women stands, this tweak of Article 26 would make it irrelevant.

And guess what?  None of the women in Parliament raised an ounce of opposition to this legislation.  It swept through Parliament easy as can be.  This is not the first time the women of the Afghan Parliament have dropped the ball on women’s issues either.

Last year there was an attempt to eliminate the quota for female representation in Parliament.  Legislation that wiped out the quota passed through two committees with female members before making it to the Wolesi Jirga (the lower house of Parliament) where it passed easily.  No women raised the red flag.  In the Meshrano Jirga (the upper house) the quota was restored, but at a reduced percentage; 20% down from 25%.  The women in Parliament proved, at the very least, negligent on that occasion just as they have again watching this alteration of Article 26 pass so easily.

Attempts have also been made in recent months to strengthen the Law on the Elimination of Violence Against Women.  This was an admirable effort by the supporting MPs, but a bit misguided in such a staunchly conservative Parliament.  The conservative majority quickly blocked the improvements.

All these failures by Parliament to protect women’s rights have been publicly visible since last year.  This most recent legislation by the Parliament proves what many in Kabul already know.  Foreign donors have not responded to the clear intentions of Afghan politicians to rollback legislation on women’s rights.  Conservatives have been bolstered by the lack of action against them and aren’t waiting for the foreign presence to leave to kick-start their agenda.

The U.S. and its allies have largely left the Parliament alone on women’s issues.  True, many Embassies have been shocked into action by this most recent legislation.  There is a view that is amplified and perpetuated by conservatives though that laws protecting women are a Western imposition that have no place in Afghanistan.  Due to this argument many Embassies are lobbying the administration privately not to sign the alteration to Article 26.

It took a week, but the EU did finally denounce the legislation altering Article 26 through it’s foreign policy chief, Catherine Ashton.  She said, “This would be a serious backward step in the justified and legitimate struggle for the rights of women and girls in Afghanistan. I urge the Afghan government to amend the language of Article 26 of the criminal procedure code to avoid any misinterpretation, clarify their commitment to human rights and ensure consistency with international standards.

The U.S. has been comparatively quiet publicly on the proposed law.  Women for Afghan Women (WAW) is an excellent organization in Afghanistan that runs shelters for women.  Sahar Gul’s lawyer said that if these shelters did not exist Sahar would likely be dead following the trial that initially let her family off the hook for their abuses.  WAW has a petition going that they plan to send to President Obama and Secretary Kerry asking them to stand against the Article 26 legislation.  Now, a day after President Karzai rejected the legislation, only 749 people have signed.  WAW’s goal for signatures was only 1,000!  These numbers are pitiful.

On the same page, the petition site advertises other petitions on issues like abortion coverage bans and protecting social security that have tens of thousands of signatures.  These are obviously important issues affecting Americans directly, but this affront women’s rights in Afghanistan was poised to have much greater and more deplorable effects.  This is of course just one petition, but the overall response to this law change has been weak.

The New York Times did report on the change to Article 26, but it was buried in the article.  This is a part of the overall problem that the media hardly covers what is happening in Afghanistan during such a critical time.  Brazen rollbacks like this one while the U.S. is still present suggest that all the work done in the last 13 years is under serious threat.  Threat not from the Taliban, but from within Parliament itself.  This picture is made even more worrisome by the fact that most of the field of Presidential candidates primarily contains warlords and fundamentalists who largely share the view that a woman’s role is in the home.

Despite the somewhat dire picture of the future of women’s rights in Afghanistan there are plenty of people working to change that.  WAW and law firms in Kabul sent President Karzai a legal petition to veto the legislation effecting Article 26.  Their petition outlined how the law change conflicted both with the Afghan Constitution and Islamic Law.  Article 3 of the Constitution states that no law can conflict with the Holy Religion of Islam.  Chapter 4 verse 135 of the Quran says people must tell the truth, even if it is against family.  The verse says to “…stand out firmly for justice, as witnesses to Allah, even against yourselves, or your parents, or your kin, and whether it be (against) rich or poor; for Allah can best protect both…”

President Karzai has clearly listened to the petitions, to WAW and to the Embassies and governments that have lobbied against this draft legislation.  This effective response from civil society, albeit late in the 9th inning, gives some hope and it is not the only positive action on women’s rights happening today.

On February 19th the Afghan Civil Society for Elections (ACSEN) presented a list of women willing and able to serve as election officials in districts all over the country to the appropriate Ministries.  In the past female polling stations did not open due to a lack of female staff.  The authorities demonstrated a lack of interest or effort in recruiting for these positions, so this time ACSEN has stepped up to recruit women to work for this very important round of elections.  Once this civil society group presents its list of motivated women to fill this need, there can be no excuses for not opening female polling stations in this election.  There is a long way to go for women’s rights in Afghanistan, but recent activities hint at a movement that is willing to fight for their betterment.

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