Afghanistan

National conference on women's rights, law and justice in Afghanistan

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INTRODUCTION
The first National Conference on Women's Rights, Law and Justice in Afghanistan, held on May 26 and 27, 200 in Kabul, provided an opportunity for Afghan women from a variety of backgrounds to explore progressive interpretations of Islamic laws and how women's rights fit into such interpretations.

Conference participants included individuals from eleven different provinces representing a broad range of professions, including legal, educational, media, government and non-governmental organizations.

Participants discussed ways in which women's rights are realized through legal means in a variety of Muslim countries. Inspired by these examples, participants in breakout sessions used their own experiences to look for general lessons and strategies to apply these lessons in Afghanistan. They discussed advocacy techniques; Muslim legal traditions and their impact on women's rights; traditional customs and practices and their impact on women's rights; and women's rights to development. These diverse sessions gave rise to recommendations on how to protect and promote women's human rights using both legal means and progressive interpretations of Islam. These recommendations, as follows, form a broad agenda for protection and promotion of women's human rights:

  • Women's rights are human rights, and government support is essential in achieving them,

  • Legal advocacy and prosecution are essential to ensure that the government upholds human rights,

  • Islamic values should protect women from human rights abuses such as trafficking, and domestic abuse,

  • Qur'anic concepts protecting women's rights can be realized through legal means.
SUMMARY OF CONFERENCE

On Monday, May 26 and Tuesday, May 27, the International Human Rights Law Group's Afghanistan Program hosted a conference in Kabul on women's rights and law in Afghanistan. Seventy-five women legal professionals and civil society members attended from Bamyan, Ghazni, Herat, Kandahar, Kunduz, Laghman, Logar, Mazar-e-Sharif, Nengarhar, Nimroz, and Parwan provinces, as well as from Kabul.

Following opening remarks by IHRLG's Belquis Ahmadi, the Minister of Women's Affairs, Habiba Sorabi, Human Rights Commissioner Dr. Sima Samar and Italian Ambassador Domenico Giorgi, open discussion panels were convened, following presentations of invited speakers.

Zainah Anwar, Executive Director of the Sisters in Islam, led the first panel, "Advocacy for Women's Rights within the Islamic Framework." Following her half-hour discussion, participants had the opportunity to talk with Ms. Anwar about how she has challenged the use of religion to subjugate women, and about her organization's work to promote progressive interpretations of Islam.

Dr. Sona Khan, Advocate for the Indian Supreme Court, led the second discussion, "Muslim Women and Law." Following her presentation, participants engaged her in discussions on women's rights in marriage, divorce and family law as viewed by the Qur'an and protected in secular courts. Dr. Khan also discussed her work on the landmark Shah Bano divorce case.

Sultana Kamal, Executive Director of Aino Salish Kendra, a legal services and human rights resource center in Bangladesh, led the third discussion, "Muslim Women and Leadership in Bangladesh." Participants discussed with Ms. Kamal her organization's work in serving the underprivileged in Bangladesh.

Dr. Hashim Kamali, Professor of Islamic Law and Jurisprudence at the International Islamic University of Malaysia, led the fourth discussion, "Customs and Practices Impacting Muslim Women: Focus on Afghanistan." Participants discussed with Dr. Kamali his views on patriarchal practices in Afghanistan, the Qur'an and its relationship to women's rights to equality and universal rights to education and employment.

Dr. Riffat Hassan, Professor of Religious Studies at the University of Louisville, led the final discussion, "The Intersection of Human Rights and Religion." Following the presentation, participants discussed the idea that the Qur'an's "concern is to free human beings from the bondage of traditionalism, authoritarianism, tribalism, racism, sexism, slavery or anything else that prohibits or inhibits human beings..."

On the second day, participants discussed these themes with the presenters, as well as with IHRLG's Women's Rights Advocacy Program Associate, Oury Traore, to discuss "Women's Rights to Development in Muslim Countries," and with Kate Eastman and Michelle Hannon from UNIFEM Australia to discuss "Advocacy and Litigation in Protecting Women's Human Rights in Other Nations."

At the conclusion of the conference, participants adopted the following declaration:

We will respect the best values and practices of Afghan culture and Islamic values and we will restore our rights within this framework. We will create support groups and ad hoc coalitions within our local communities in the various provinces and in Kabul that will advocate and raise awareness on the rights of women accorded in Islam. We will raise awareness on the challenges and opportunities of Afghan women through support groups and ad hoc coalitions to transmit the knowledge attained through this conference regarding the intersection of women's rights and Islamic law and culture. We will actively participate in the development of a new Constitution of Afghanistan and we will work to adopt articles ensuring that the human rights of women and children, especially girls, are respected and protected throughout society and supported by private and public institutions. We will take all necessary steps to ensure the new legal system and penal and civil codes eliminate all forms of discrimination, including trafficking, sexual harassment, domestic violence, forced, under-aged and over-priced marriages, and any other types of abuse, violence or human rights violation. We will make every effort to ensure equality before the law and equal protection of law for Afghan women. We will build coalitions with each other, make alliances and work together with like-minded groups in Afghanistan, such as the International Human Rights Law Group, human rights groups, NGOs, research institutions etc., to promote women's rights in all sectors of our society. We will promote co-operation and counsel between parents, local jirgas, provincial councils and legal professionals and other key elements of society to improve the status of women and children in their respective localities.

OPEN DISCUSSION

Throughout the day, participants had opportunities to discuss various issues with the panelists. The following is a transcription of those discussions:

First Session, Zainah Anwar

Judge Hamida Mehro: How have you overcome challenges in cases of violence against women both at work and in family? What obstacles and challenges did you face?

Ms. Anwar: We have established a committee to follow such cases and we have recognized violence as a crime. We still face problems by the state as well as by conservative religious leaders. We have sent letters to authorities and editors, we have called for laws to stop violence and we have raised awareness that Islam is not a religion of violence, but of equality and justice that entitles both men and women equal rights. We have used progressive interpretation of the Qur'anic verses. Women's groups have been attacked several times, we have been told many times by the fundamentalists and conservatives that male dominance in family is an absolute right of the man and that's a part of Islamic culture.

Najia Zewari: As a civil society organization, we have dealt with women's groups that hold two different attitudes. One is that they agree with strict interpretation of Islamic and religious orders and the other is that they are hostile towards Islam and religion. How did you cope with two extreme stances?

Ms. Anwar: Unfortunately, the majority of women accept the first attitude and that's why they fear risks that they would face if asking for specific rights such as right to divorce and they think that religion has not given them right to divorce. Therefore, I think a moderate standpoint could be established among them through sharing experiences and legal expertise. Women in Malaysia have proven more competent in academic institutions than men; however, men deem their roles weak. And what human rights groups of Malaysia do is inform people of their legal rights through one-month training courses to give them an idea that what happens in the Malaysian community is not correct and we should challenge it.

Malalai Osmani, Director of Association for Advocacy of Women of Balkh province: In Islamic societies, men have always had the leadership and have quoted Hadith and Qur'anic verses in support of their objections to women's rights to leadership and women's rights to certain rights related to family life, i.e., a husband should control his wife's freedom to mobility and should have full right to divorce if his wife does not submit to him. Will Muslim women from other countries support our struggle for our basic rights?

Ms. Anwar: There are vast networks of human rights groups working in various countries ready to make contacts with you and help you, provided you want their help.

Nader Nadery: National institutions fear that if they ask for help from international groups, they'd confront backlash from the conservatives. We see that, most of the time, national institutions are not able to use international networks. It is important to identify these networks. You need to go through several stages in order to address question of security and achieve your goals, create local support groups, national support groups and regional and international networks of like-minded Muslim women.

Humaira Ne'mati of Human Rights Commission: Can you name one or two countries with problems similar to those faced by women in Afghanistan on a daily basis? And what ways have women taken to overcome those problems? How do women in other countries deal with violence against women?

Nader Nadery: The issue of violence against women is not unique to Afghanistan. Other nations, Muslim and non-Muslim, have been through most of what Afghan women are going through. Progressive Muslim men and women have taken different approaches to overcome the problems.

Suraya Paikan: Do women hold high-ranking legal positions, such as the High Court in Malaysia?

Ms. Anwar: There are two kinds of courts in Malaysia. Civil court in which women have major roles and Shari'a courts in which no women are allowed to occupy any position. But, according to a recent decree, women can now enter Shari'a courts as well.

Alia Shams from Herat: Do all Islamic leaders have a positive attitude toward your activities and how do you manage to convince them not to create problems for you?

Ms. Anwar: Ulema often invoke controversies, but fortunately, new scholars with progressive thoughts now raise issues about women's rights and we can secure their support of human rights and involve them in the process.

Nafisa Kabuli: How do you justify equality of one man's witness with that of two women as proscribed by Islam and what are your accomplishments?

Ms. Anwar: This issue should be looked at with regard to the historical conditions of Islam. It was interpreted based on historical context of early Muslim communities in which women had not any significant political, social or cultural activities. Content and meaning of the Qur'an is that when a woman is witnessing in a court, another woman shall be there to confirm her. So men and women have equal rights in terms of witness.

Suraya Paikan: Does Islam allow shelters?

Ms. Anwar: Malaysia is a Muslim country and we have many shelters around the country. When we set up the first shelter, parliament protested and we were told that establishment of shelters disrupt family relations, but today no one opposes and all have accepted it as a reasonable and wise way of supporting victims of violence.

Shafiqa from Herat: In some families, when the girl leaves home and go to her relatives' houses, they would be beaten when they return to their homes. I think if they go to shelters and then come back to their families, they would be treated even worse. What is your view on forced marriage?

Ms. Anwar: Basically, marriage is a contract between husband and wife and compulsory marriage is illegal in most Muslim countries.

Second Session, Dr. Sona Khan

Najiba Hussaini from Judicial Reform Commission: Is there legal aid provided to those who cannot afford a lawyer in the judicial system of India? Khan: Yes, we have a section that defends them in courts. There are other sections as well, but state institutions would do better.

Huma Alizoy: I think we all agree that there is no conflict between Islam and civil laws, while some of our customary law is openly discriminatory against women and we should consider this in our future Constitution. The other thing I'd like to mention is that Mrs. Khan said Indian women shall read the Qur'an and find what rights have been accorded to them in Islam. And when they are informed, they would somewhat feel necessity of Shari'a courts to deal with their issues such as inheritance, etc. Does the secular system respond to their demands in terms of their rights and do you see reading Qur'an as indispensable and please explain implementation aspect of it?

Khan: About the traditions, they make a resource for our jurisprudence. The legislature controls law and it is to prevent customs not complying with law.

(Lunch break)

Third Session, Sultana Kamal

Najiba of Judicial Commission: Is there any specific law on harassment of women in Bangladesh and have any punishments been determined for it? Is it a crime?

Shahla Sediqi of Prosecutor's Office: Have your ideas and suggestions regarding women been presented during the Constitutional drafting process (if so, have they been implemented after being incorporated in the Constitu tion?)

Najia Ziwari: My question is about political participation of women. We are currently having a critical process, i.e., the drafting of the Constitution, and we want to ensure women's participation. Since Constitutions could not be changed very often, it's important for Afghan women to set their demands; a 20%, 30%, 50% etc participation of women and then struggle to incorporate it in law.

Fourth Session, Professor Hashim Kamali

Mahru Hamid: Most men prove their superiority based on "Rajalan Qawamun" (men are pillars of the society) verse of Qur'an. What is your interpretation of this?

Prof. Kamali: Qawamun has received an exaggerated interpretation and they expect absolute compliance of women. But the correct interpretation is that qawamun is the one who is breadwinner and therefore an appropriate stance shall be based on a progressive understanding of the content of Qur'an.

Nafisa Kabuli: Women have rights as much as men and there should be no discrimination against any of them. So why does a woman have the right to one dividend of inheritance and man has the right to two dividends?

Prof. Kamali: I didn't say there is not such provision in Qur'an. As in Surah 4 verses 12 and 13, half of legacy goes to men and the reason is that the husband, after marriage, and uncle, brother or father before marriage, are mostly responsible to provide for family members. In fact, man is obliged to provide for woman both before and after marriage. Provisions of Qur'an seem to follow conditions of their revelation time. Shari'a orders are based on good reasons. When the reason is cancelled, then Shari'a order would change.

Safia Sediqi: Why does a woman take an eighth part of legacy? And when the father has no son, why are grandchildren not entitled to legacy?

Prof. Kamali: Women are entitled to eighth dividend of legacy; while there are families in Afghanistan which have more than eight children, however, and eighth would not be enough.

Dr. Sona Khan: There is a law named Tanzil under which a son may receive the dividend of his father and this law is recognized in family rights cases in Egypt and some other nations. I hope such law be enacted in Afghanistan as well.

Saema Khogiani: Why are women believed to be short of wisdom? Why is there discrimination between the value of a woman witness versus the value of a male witness?

Prof. Kamali: That's not true. Prophet Muhammad himself consulted with Aisha Sediqa. So this discrimination is a fake Hadith and we should refer to Qur'an when facing such issues. This is a fake Hadith brought by Ebn-Aljawaz in 6th century. Any Hadith that is in conflict with the Qur'an is fake.

Fifth Session, Riffat Hassan

Fawzia Koufi: One of the scholars has indicated that women in the Muslim world widely suffer discrimination, while Islam is a religion of peace and justice and discrimination is not allowed in Islam. Why don't human rights activists and progressive Muslim scholars take a stand on those discriminatory laws implemented in the name of Islam?

Dr. Hassan: Discrimination exists in most Muslim countries where conservative religious leaders deny women's rights. Progressive Muslim scholars are now forming networks to address these issues.

Najiba Hussaini of Judicial Reform Commission: Human trafficking is a crime, if not in the Constitution, but at least in penal code should be included with a due punishment.

Suraya Paikan: What is the difference between trafficking and kidnapping, and what are their specific punishments and which would receive a heavier one?

Dr. Sona Khan: Heavy punishments have been determined in penal code for crimes of trafficking and kidnapping, which are at least 7 years for trafficking of those over age 18 and much heavier sentence including life sentence for trafficking of children.

Malalai from Mazar-e-Sharif: I have a suggestion on Nekahnamah. It shall be arranged by a court and it should be included there that no one can marry a girl below a legal age according to Islam. If the husband marries another woman, the first wife should have the right to divorce him.

Humaira Ne'mati: I am a human rights activist. I have an example for you; a mother has given birth to ten girls and tries to have a boy child as well. Her husband marries another woman, in order to prevent his legacy to go to his nephew. Please explain why such controversy happens in families where the woman is punished for not giving birth to a boy, while both girls and boys are equal in the Islamic viewpoint.

Dr. Hassan: Islamic schools have different prescriptions here. Hanafi doctrine does not recognize damage or harm, physical or psychological, as a basis for divorce and it has the strictest regulations on divorce among the four schools of Islam. Islamic countries, especially Middle East countries, have used Maleki doctrine in which damage to partners is a base for divorce. Therefore, if a woman is harassed so much on account of having not a son that she wants to break up, she can refer to a court where families of the husband and wife would judge whether the damage claim of the wife is correct or not. If they decide that the claim is just, then they would inform the court and the court would confirm the divorce.

Nafisa Kabuli: Man have no superiority over woman; so why can a man divorce a woman by repeating the word, divorce, three times without even having the consent of woman, and she has a conditional right to exercise her right to Khule?

Dr. Hassan: In my opinion, divorce doesn't make inequity, but the point is that divorce in countries like Afghanistan, Pakistan and India is exercised on the part of husband. A husband has to live three months under the same roof with the woman, when he says I divorced you (the woman) for the first time; another three months after he says that for the second time and for the third time, divorce would be legitimate and they should not live together any more.

Doctor Malika Paigham from Herat: Why is compensation for the death of a woman half of that for a man?

Prof. Kamali: Absolute equality of woman and man is proscribed. As Hanafis have said there is no difference between man and woman in terms of compensation and punishment. Qur'an says one human being is equal to one, but there are some discrepancies in different schools of Islam based on va rious Hadith.

BREAKOUT SESSIONS

Participants were divided into seven working groups to further explore the topics discussed on the first day.

GROUP ONE: The Intersection of Human Rights and Religion, Facilitator: Dr. Riffat Hassan

Participants discussed the definition of Islam and basic human rights, with particular emphasis on how similar Islamic concepts are to rights found in the Universal Declaration of Human Rights. Afghan women face many problems that have been construed as Islamic, including polygamy and forced marriage, but further study of Qur'anic concepts and development of legal awareness programs will help people realize that such practices are neither legal nor Islamic.

GROUP TWO: Advocacy for Women's Rights within Islamic Framework, Facilitator: Zainah Anwar

Participants focused on women's rights in situations of domestic violence and Islamic perceptions of such occurrences. After discussing the basic reasons for domestic violence, participants turned their attention to outlining an anti-domestic violence campaign. The group agreed the first step in combating domestic violence is raising public awareness that there is no place in Islam for domestic violence, as demonstrated by Qur'anic verses that discuss the passion, respect and mutual friendship between husband and wife. Examples of how Hadith and the Prophet treated their wives are also useful in understanding that there is no place for domestic violence between partners. Participants discussed developing a media strategy to promote this message, advocating incorporating domestic violence as a criminal act in the penal code, creating shelters to which women can go after being assaulted and establishing research and development centers on family/domestic violence.

GROUP THREE: Tradition, Customs and Practices Impacting Muslim Women, Facilitators: Ahmad Nader Nadery and Professor Mohammad Hashim Kamali

Participants in this group discussed traditions, customs and practices that impact Afghan women, such as exchange marriages and compulsory marriage of widows and children and how to combat such practices conducted in the name of Islam. On exchange marriage, the group decided that advocacy was needed to outlaw exchange marriage and establish strict punishments for perpetrators. Public awareness campaigns through media and mullahs could inform many Afghans about the negative social repercussions of exchange marriages and its un-Islamic nature. The international community could assist in this process by providing financial and technical resources to promote the judicial system, educate the scientific cadre and appoint competent, gendersensitive judges. Participants determined that establishing local women's councils could help inform the public of the negative effects of compulsory marriage. The state should also provide for the registration of all marriages.

GROUP FOUR: Empowerment of Women in Muslim Countries, Facilitator: Sultana Kamal

Discussing the empowerment of women in Muslim countries, this group resolved that work is needed to:

  • Raise self-awareness of women;

  • Raise public awareness of women in professional fields (legal, political, etc);

  • Maintain specific goals with diligence and tolerance;

  • Oppose violence and push to have the penal code recognize violence as a crime;

  • Study the means by which women have been oppressed in the past;

  • Incorporate the family in protecting the rights of women;

  • Create women's groups (unions and associations) for solidarity and support;

  • Assist women to become economically self-reliant;

  • Advocate for public programs that support women's education and health, incorporate women into the economy, and raise public awareness of women's rights;

  • Ensure that the government follows international conventions;

  • Promote state support of women's rights, considering their rights in the constitution and executive guarantee;

  • Contact influential persons and experts in pursuing goals;

  • Push for state funding of women's groups, and gain support of international women's organizations; and

  • Include women in rights campaigns from the ground up.

  • The group also discussed the need for increased security in Afghanistan, as all sustainable development work is dependent on security.
GROUP FIVE: Women's Rights to Development in Muslim Countries, Facilitator: Oury Traore

This group focused on two objectives during their discussion: raising the public's awareness of women's legal rights and achieving legal protection of the fundamental rights of women. This group thought of several ways to realize these objectives, including: a vast campaign through media; holding workshops; seminars, conferences and training courses to raise public awareness; including legal materials in schools' curricula; participating in the Constitutional Drafting Commission, the Judicial Reform Commission, and the Loya Jirga; working to achieve the economic independence of women by promoting the work capacity of women and creating job opportunities for women; and receiving the support of the international community through lobbying the government, sharing experiences, and offering financial assistance.

GROUP SIX: Human trafficking in Islam and International Law, Facilitator: Dr. Sona Khan

This group discussed Article 11 of the Islamic Declaration of Human Rights ("human beings are born free and no one is allowed to enslave, humiliate, or abuse others") as well as the definition of human trafficking as "forcing people through deception, compelling them to leave their family and community with illegitimate purposes (compulsory prostitution, sale, forced pregnancy, etc)." The group discussed types of trafficking, including for the purposes of transferring or selling drugs, sexual slavery (especially of children) and labor. They discussed solutions to trafficking in Afghanistan, including incorporating a specific definition of human trafficking in the law; punishments; raising public awareness of the problem through press and media; requesting assistance from international institutions (Interpol, border security); and preparing reports of lost people.

GROUP SEVEN: Advocacy and Litigation in Protecting Women's Human Rights in Other Nations, Facilitators: Kate Eastman and Michelle Hannon

Group Seven discussed the benefits of pursuing legal advocacy to protect women's human rights, as seen in other nations. These benefits include raising awareness about rights and law, removing fears of women when asking for their rights, and providing for peace and security. Participants identified strategies of women's rights advocacy, including combating detrimental customs (through mass media, education, and legal reform); supporting human rights decisions on the part of state and people; reforming one's own family, community, and oneself; establishing a CEDAW committee under the provincial women affairs directorate of the Ministry of Women Affairs. They emphasized the need to encourage the comparison of Qur'anic concepts and international declarations and treaties Afghanistan has adopted to prote