Protected by the law, yet subjected to discrimination

“The citizens of Afghanistan, men and women, have equal rights and duties before the law.” So says the Afghan constitution, but are women really able to access their rights?

My article for  www.fokuskvinner.no, May 2014,  "An overview of Afghanistan's constitutions and women place in the current constitution"

For decades, women’s rights activists in Afghanistan have fought and bled to improve the situation for women in the war-torn country. In several ways, their fight has been successful.

The current constitution (of 2004) forbids “any kind of discrimination and distinction between citizens of Afghanistan.” More recently, women’s rights were highlighted by all the presidential candidates—even the fundamentalists and those with linkages to insurgent groups such as Hezbe Islami and Taliban during the last election (5th April 2014).

But is it just for show? Or are women in Afghanistan really able to claim their equal rights?

Eliminating violence during summer recess

Violence exists in every country. In Afghanistan, violence against citizens and especially against women is still too high. Women have suffered greatly throughout the history.

In 2009, based on article 24 and 54 of the new constitution, women's rights groups, civil society activists, including female parliamentarians, and the Ministry of Women Affairs endorsed the law on the elimination of violence against women. The President ratified the law by legislative order (executive signature) while the parliament was on summer recess.

Article 24 states: “Liberty is the natural right of human beings. This right has no limits unless affecting others’ freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity.”

Article 54 adds: “Family is the fundamental pillar of the society, and shall be protected by the state. The state shall adopt necessary measures to attain the physical and spiritual health of the family, especially of the child and mother, the upbringing of children, as well as the elimination of related traditions contrary to the principles of the sacred religion of Islam.”

Despite the president’s signature, fundamentalist members of the parliament oppose women’s rights and especially the EVAW law (Elimination of Violence against Women). In 2012, a group of female parliamentarians met with the head of the legislative committee of the lower house to discuss the EVAW law. He challenged all the members of parliament and told them that if they brought this law to the plenary session, he would reject it and report it to be totally against Islam.

One of the disagreements concern marriages. The head of the legislative committee and other members believe that a girl should be allowed to marry at any age. The EVAW law, however, stipulated the minimum age to be 16, forbidding child marriages.

The EVAW law has yet to be finalized within the legislative procedure, but it is enforced by the president’s signature and is being implemented in Afghanistan’s courts.

No women in the Supreme Court

The political participation of women in the government is supported by the constitution (article 83), in the form of positive discrimination, especially in Parliament (lower house) where the new constitution preserves two seats for women from each province, equal to 25 percent of the 249 seats in the House.

The upper house (House of Elders) of the National Assembly has 102 members, one-third of whom are elected from provincial councils and one third from district councils from each province. The remaining one third shall be appointed by the President, as stated in part 3 of Article 84 “for a five-year term, from amongst experts and experienced personalities, including two members from amongst the impaired and handicapped, as well as two from nomads. The President shall appoint fifty percent of these individuals from amongst women.”

The National Development Strategy (NDS) of Afghanistan gives emphasis to the need for a 30 percent presence of women in the government and social services within the next five years.

However, in the judicial branch (Supreme Court), there is not a single woman—all nine members of the are men.

Afghan women’s rights activists are being modest in their demands. One woman in the Supreme Court is all they ask for.

In a meeting with women’s rights activists in 2012, the Chief Justice stated that he knew of qualified women that could serve effectively as a member of the Supreme Court.

President Karzai too has signaled his support. In meetings with women’s rights activists, he promised to think seriously about this issue and to discuss it with the Chief Justice. However, realizing that this was a sensitive issue which will have opposition from many fundamentalists and mullahs, he did not offer a firm promise of action.

Women’s rights on the agenda

During the latest election (5th April 2014), women’s rights were highlighted by all the candidates— even those who have a very fundamentalist ideology and still have links with insurgent groups such as Hezbe Islami and Taliban. A debate where presidential candidates had to specify their programs relating to the protection of women’s rights, was organized.

Sadly, despite all this progress, women's roles in policy making and the taking of important political decisions still seem symbolic rather than real. Equality for women in terms of the right to healthcare, education, work and legal protection is still perceived as western ideology, not yet accepted in Afghanistan at ground level.

Women are still suffering and have witnessed very harsh violence against many who have disobeyed male family members over the past few years.

Afghanistan has good, strong laws now, but they are not being implemented. The country needs to strengthen the rule of law and we have to hope that the next government, set to take over in August 2014, will give priority to the rule of law.

An overview of Afghanistan’s constitution from 1923-2014

It used to be the norm that whoever took power in Afghanistan designed a new constitution. In less than a century the country has experienced eight of these.

Background: the previous seven constitutions

After Afghanistan became independent in 1919, the reformist and talented young king Amanullah Khan (1919-1929) wanted to bring development to the county and modernize the system to control the king´s power by law. It was the first time that a king wanted to improve laws and supported positive reform and developments in the country.

First Constitution 1923

In April 1923, the young king called the Grand Assembly (Loya Girga) to approve Afghanistan´s first constitution. It contained 73 articles. Based on these guidelines, it was the first time the Afghan government ruled according to law and granted political rights to the nation, also allowing freedom for the media.

Second Constitution 1931

In 1931, after the fall of the Amani’s reformist government, King Nadir Shah called a Grand Assembly and approved another constitution with 110 articles. However, more importance was given to the king´s role, giving him uncontrolled power.

Third constitution 1964

During the reign of Zahir Shah, a third constitution was approved, granting political rights to the Afghan nation while once again allowing freedom for the media. This period is also called the decade of constitution-democracy.

Fourth Constitution 1977

President Sardar Dawood established the republic and put an end to the monarchy, as well as assigning a committee to work on yet another constitution.

Fifth Constitution   1978

This was approved by the Afghanistan People’s Democratic Republic (backed by the Soviet Union) with 68 articles including a declaration of equal rights for women and men.

Sixth Constitution 1986

President Najeebullah called the Grand Assembly to approve a new constitution under his presidency and this version was considered more inspired and forward-thinking than previous ones.

Seventh Constitution 1992

After the victory of Mujahedeen, the seventh constitution approved rule of the country by Islamic law. However, the country suffered from civil war so the constitution was not implemented.

Eighth (current) constitution 2004

In 2001, after the fall of the Taliban regime and following the Bonn conference on Afghanistan,  a new chapter of democracy began to unfold for Afghanistan with help and support from the international community,

Under the transitional government, President Karzai approved a new constitution endorsed by the Loya Girga, containing 12 chapters and 162 articles in 2004.

For the first time, women’s rights, civil society and freedom of media appeared at the top of the agenda for the government.

References:

Afghanistan constitution, 2004

Naderi, partaw / learning guidance for democracy

Naderi, partaw / learning guidance for constitution

Farhang, Mir Mohammad  Sediq  / Afghanistan history in the last five Century

https://archive.is/lRLLL#selection-539.0-635.17