Harmful Traditional Practices and Implementation of the Law on Elimination of Violence against Women in Afghanistan
Widespread harmful traditional practices – child marriage, giving away girls for dispute resolution, forced isolation in the home, exchange marriage and “honour” killings – cause suffering, humiliation and marginalization for millions of Afghan women and girls. Such practices are grounded in discriminatory views and beliefs about the role and position of women in Afghan society. Many Afghans, including some religious leaders reinforce these harmful customs by invoking their interpretation of Islam. In most cases, however, these practices are inconsistent with Sharia law as well as Afghan and international law, and violate the human rights of women.
UNAMA Human Rights' 57-page report Harmful Traditional Practices and Implementation of the Law on Elimination of Violence against Women in Afghanistan documents particular customary practices that violate the rights of women and girls throughout Afghanistan, describes the Government of the Islamic Republic of Afghanistan's response to these practices and makes recommendations to end such practices. Based on extensive research and interviews carried out in 2010 in 29 of 34 provinces of Afghanistan with women, men, Government authorities, religious leaders, women's rights and civil society activists and community groups, UNAMA Human Rights (HR) found that such practices are pervasive, occurring in varying degrees in all communities, urban and rural, and among all ethnic groups. The report found that such practices are further entrenched by the Government's inability to fully protect the rights of women and girls, highlighting the need to expedite implementation of the Law on Elimination of Violence against Women (EVAW law) which criminalizes many harmful traditional practices. The report notes that most harmful traditional practices are both crimes under Afghan law and inconsistent with Sharia law and cites the relevant article of the EVAW law that criminalizes the harmful practice together with complementary principles of Sharia law. Extensive discussions with a diverse range of Islamic legal experts informed UNAMA HR's analysis of the principles of Sharia law.
The role of religious leaders, community elders and traditional dispute resolution mechanisms in both perpetuating and eliminating harmful practices is also highlighted. The report presents findings on community perceptions of harmful practices to better inform the design and delivery of measures by the Government, religious leaders, communities and international donors to end such practices. In August 2009, the Government enacted the EVAW law which if fully implemented could end most harmful traditional practices. The EVAW law seeks to eliminate “customs, traditions and practices that cause violence against women contrary to the religion of Islam.” It makes illegal the selling and buying of women for marriage, forced marriage, marriage before the legal age, forced isolation, forcing a woman to commit selfimmolation, denying the right to education, work and access to health services among other harmful practices. The law prescribes preventive measures for seven Government ministries to implement and establishes a national High Commission for the Prevention of Violence against Women.
The EVAW law is a major step forward in the legal protection of women's human rights. At the same time, UNAMA HR notes several weaknesses in the EVAW law, such as the failure to criminalize “honour” crimes, clearly define rape to distinguish it from consensual zina (sexual intercourse outside of marriage, a crime under Islamic law) and the requirement that a victim initiate or maintain judicial action. Despite these concerns UNAMA HR together with most Afghan women's rights defenders believes that raising awareness about the current law and working for its full implementation now is urgently needed to protect women and girls while recognizing that revisions may be necessary to fully guarantee women's rights.
UNAMA HR found that law enforcement authorities often are unwilling or unable to apply laws that protect women's rights and that such inaction is one of the main factors that permit harmful traditional practices. UNAMA HR observed that although the police and the judiciary are becoming aware of the EVAW law, they require much more guidance and support from national-level authorities on how to apply the law. In many rural and remote provinces, communities and Government officials do not know about the EVAW law and it remains unimplemented.
UNAMA HR notes that harmful traditional practices are not consistent with the religious teachings of Islam, although certain interpretations of religious precepts are often used to justify some harmful practices. Islam has a central place in Afghanistan's
Constitution, and as the report documents, under Sharia law forced marriage, giving girls away to settle disputes and many other harmful practices are prohibited. UNAMA HR suggests that the Government take the lead in promoting a comprehensive interpretation of Sharia law that demonstrates how rights guaranteed in national and international law are consistent with, and complement, the fundamental teachings of Islam.
Giving away girls to settle disputes, under baad, is one of the most severe forms of violence against women in Afghanistan. UNAMA HR found that baad is practiced among communities throughout the country although it is illegal under Afghan law. Despite the occurrence of baad, many Afghan men and women interviewed expressed strong opposition to the practice. Women in Faryab province told UNAMA HR that a girl married through baad, “is never respected by her new family as they associate her with her male relative who committed the crime and accuse her equally of being a criminal.
The girl is treated like a servant as a means of revenge. Sometimes she is forced to sleep with the animals in the barn.” Through country-wide discussions and analysis of reported cases, UNAMA HR found that many marriages in Afghanistan are “forced” because a woman's free and informed consent was missing. Forced marriage in Afghanistan encompasses baad, baadal(exchange marriages), child marriage (by its very nature forced) and coercion of widows to marry a relative of a deceased husband.
The marriage of girls' before the age of 16, or under limited circumstances at 15 years is prohibited under Afghan law. Yet the marriage of very young girls is common across all regions and among all ethnic groups. No official figures are available but studies cited by UNAMA HR show that half of all Afghan girls are married before the age of 15. Although child marriage is widespread in Afghanistan, all Afghan men and women interviewed for this report identified child marriage as one of the most serious harmful traditional practices in the country.
The consequences of child marriage have been widely demonstrated to be lasting and damaging to the health, education and well-being of girls. Afghanistan has the worst rate of maternal mortality in the world and many deaths are of women who were married under the age of 16.
The high bride price families must pay to marry their sons was categorized by many Afghans interviewed as a harmful traditional practice. In the context of extreme poverty in Afghanistan, high bride price can lead to forced and underage marriages, the selling of girls and a high level of domestic violence. Men sometimes take out frustrations at being in debt or having to work for years to repay loans on their wives.
UNAMA HR found no justification in law or religion for customary restrictions on women's freedom of movement that violate women's rights. “I was warned not to work,” a female member of parliament told UNAMA HR, “because a female working outside the home is taboo; and is forbidden by Sharia. The salary I receive is haram (illegitimate) and I must stay at home.”
UNAMA HR documented incidents of “honour” killings, usually of women by one or several relatives who believe the victim has brought shame on the family. The perceived dishonour is often the woman's flight from a forced marriage or engaging in questionable conduct with a man. The report recommends amending the Afghan Penal Code to eliminate reduced sentences for perpetrators of “honour” killings.
Among the most tragic consequences of harmful traditional practices is self-immolation – an apparently growing trend in some parts of Afghanistan. The doctor in charge of Afghanistan's only special burn unit has described the main cause of self-immolation as forced marriage. “Young women married to old men, sold, swapped for sheep or even opium….Under pressure from abusive husbands and mothers-in-law they sometimes go to mullahs and community councils to ask for help, but even there they face humiliation and abuse.”
The police and judiciary often fail to enforce laws that respect women's rights and take a selective rather than impartial approach to administering justice. They often pursue cases where women are perceived to have transgressed social norms and fail to act when women report violence or in cases of child marriage claiming these are “private matters”. This situation is demonstrated by the large number of women detained in Afghan prisons for “moral crimes.” When social and cultural circumstances do not allow women and girls to oppose harmful traditional practices, or to escape violence, they sometimes run away from home. “Running away” is not a crime under Afghan law. Yet law enforcement authorities often arrest, jail and prosecute girls for running away, the charge is usually “intention” to commit zina (sexual intercourse outside of marriage). Several studies report that half of the country's female prison population (almost 300 women) is detained for “moral crimes.”
Police in Jalalabad, for example, arrested and detained a 17-year-old girl when they discovered her alone in a hotel room accusing her of intending to commit adultery (zina). UNAMA HR's investigation found that the girl had been forced to marry at the age of 13, denied an education, was ill treated by her in-laws and forbidden to leave the house even to visit her own family.
UNAMA HR documented some improvements in the Government's response to harmful traditional practices. State authorities sometimes supported girls who objected to their forced marriage. For example, in December 2009 in Nimroz province, a 12-year-old girl and her family opposed a marriage contracted to a 60-year old man when the girl was two-years old. Ten years later, when the man asked to formalize the marriage, the girl refused saying she had not agreed to the marriage and that she would not be a 70-year old man's wife. The family returned the money that had been exchanged and the police warned the man that he could not marry the girl by force.
UNAMA HR observed that some religious and community leaders perpetuate harmful traditional practices although such practices are inconsistent with the fundamental tenets of Islam. Many Afghan men and women interviewed for this report stated that the way to end harmful traditional practices is to provide religious leaders with training and education. They said that the moral voice of religious leaders could advise local communities that harmful practices discriminate against women and that such practices are not consistent with Islamic law.
Some religious leaders have spoken out in favour of women's rights. At a conference on International Women's Day 2010 in Jalalabad, 15 ulema members from Nangarhar province unanimously vowed to raise awareness against harmful practices in their teaching at mosques. UNAMA HR also found examples of religious figures condemning exchange marriages and high bride price.
Adequate implementation of the EVAW law requires a huge investment in building the capacities of law enforcement personnel and in providing services to victims. Convictions under the EVAW law can result in deterring perpetrators of violence against women. At the same time, the Afghan public should be informed about the law's existence and the practices it criminalizes. Awareness-raising about the negative social consequences of harmful traditional practices across Afghan society is also necessary. Civil society should be supported in monitoring, awareness-raising and advocacy activities.
UNAMA HR believes that little meaningful and sustainable progress for women's rights can be achieved in Afghanistan as long as women and girls are subject to practices that harm, degrade, humiliate and deny them their basic human rights. Ensuring rights for Afghan women – such as their participation in public life including in the current peace, reconciliation and reintegration process; their access to adequate health care; and equal opportunities in education and employment – require not only legal and constitutional safeguards on paper, but also, more importantly, adequate implementation. UNAMA HR calls on the Afghan Government, religious leaders, communities, civil society and international donors to take all possible measures to eliminate harmful traditional practices and fully implement the EVAW law without delay.