Customary and Family Law: a Gender approach in Afghanistan

Transcription

1 Customary and Family Law: a Gender approach in Afghanistan BY XAVIERA MEDINA DE ALBRAND 1 1 Xaviera Medina de Albrand is a communication expert. She has been managing communications campaigns on social development related topics for the past three years in post-conflict, cross-cultural environments (Afghanistan, Pakistan).

2 Effectius 1. Background Afghanistan has near to fifty-five diverse ethnic groups, all of them practicing family customary legal systems (jirgas 2, shuras 3 or mookee khans 4 ). Afghan traditional systems preach principles of apology and forgiveness through sentences of poar - blood money -. This system is considered by the local population as a principle of restorative justice. The amendment aims to erase enmity between parties and restore peace to the village. However, women s rights seem not to be in accordance with this sort of precursors of reconciliation - i.e. in the Pashtun poar for murder, two virgin girls are given by the murderer s family to the victim -. Nevertheless, security issues, the presence of corruption and the physical absence of formal judicial institutions have reduced the formal judiciary system to an almost nonexistent option for many. Near to 90 percent of population, most of them in remote and rural villages, trust on customary law as a main access to justice. Until 1964, Afghanistan had a double legal organisation: the sharia 5 and state courts 6. It is with the 1964 Constitution that Afghanistan created a judicial structure headed by a Supreme Court. Even so, this constitution had not touched rural areas influenced by tribal leaders and so by customary laws. After the 1978 communist coup, new reforms concerning 2 A Jirga is a tribal assembly of elders which makes decisions by consensus, particularly among the ethnic group of Pashtuns (Afghanistan and Pakistan). 3 A Shura is an Arabic word for "consultation". It is believed to be the method by which pre-islamic Arabian tribes selected leaders and made major decisions. It is a word often used in the name of parliaments in Muslim-majority countries. A Shura, or reconciliation council, is generally headed by the Imam (Mollah) of the local mosque, accompanied by the Walkill, and one or more elder. The Imam is the person assigned by the village to be the link between the village and the government. The size and exact composition of the Shura will depend on the gravity of the dispute. A Shura can be held at the village, district or regional level. If a case is of little importance the Shura may consist of one Imam and two elders. In more important cases -- murder, adultery and land disputes over pasture rights -- the Shura may consist of 12 elders from different villages and different ethnic groups. The Shura generally meets in the mosque, but it can also meet in a Madrassa or even in the house of a neutral person. 4 A Mookee-Jamaat-Khana is the traditional tribunal of the Ishmaelite community. A number of districts in the northern region of Afghanistan (Badakhshan) are populated by followers of Karim Agha Khan, known as Ishmaelites. Generally, a Mookee-e-Jamaat-Khana will include three Mookees (religious leaders) and two to five elders. 5 Islamic law. Courts heard criminal, family and personal cases. 6 It handled commerce, tax and civil servant matters. [2]

3 Customary and Family Law: a Gender approach in Afghanistan land tenure and marriage met violent resistance from rural tribal leaders and urban Islamists and the following Soviet occupation ( ) had almost no effect on customary law in remote areas. Finally, the 90 s, after the end of the Soviet era, was a period heralded by a harsh application of sharia law by state courts consistent with the Taliban s pursuit of an Islamic state. Currently, the 2004 Constitution passed by Afghanistan s Loya Jirga (national assembly) is tacit on customary law. The new constitution forbids the adoption of laws which are not consistent with Islamic rudiments, and sharia permits the practice of customary law provided it does not interfere with those principles. The Article 3 of the 2004 Afghan constitution reads that in Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam. The terms beliefs and provisions are quite vague and could be prone to broad interpretations. It can arguably be a reference not only to the Sharia 7 in a strict sense but also to the fiqh and perhaps even to the doctrine of Islamic law. Since 2001, there has been some positive developments including Article 22 of the new constitution which guarantees equal rights for women: the introduction of a quota system to promote women s participation in parliament, the creation of the Ministry of Women s Affairs, the creation of the AIHCR (Afghanistan International Human Rights Commission) which aims to promote and protect women s rights and the approval for the national plan of action on women s affairs (NAPWA). These progresses have allowed women to promote their participation in political and civil affairs, but they still fight against obstacles to acquire basic rights. The predominance of patriarchal cultural beliefs, customs and practices, a lack of economic independence, a limited access to education, employment and health care, an absence in positions of power and authority and the absence of a judicial system which could 7 In English legal terminology the term Shari a may be used to refer to Islamic rules of law in general. In Islamic countries, the term may have a more specific meaning as the grand source of law. The Shari a is distinct from the fiqh, which refers to legal rules emanating from this primary source through interpretations. Shari a implies divine law and consists on two parts: God s own words (the Quoran) and the Sunna (the traditions of the Prophet Muhammed). In this sense the Sharia, referring to primary sources of law, is eternal and immutable. Fiqh, which literally means understanding, implies Islamic jurisprudence, refers to interpretations derived from and application of the Sharia in order to regulate people s daily activities. The interpretations are human products and so, they can be modified depending on factors such as time, circumstances and the understanding of the learned interpreter faqih (legislator). [3]

4 Effectius effectively combat impunity and enforce the law all contribute to Afghan women s vulnerability and marginalisation. Twenty-five percent of the Parliament comprises women; however, this presence is not necessarily translated into changes. There is not a unified vision of women s rights and many women Parliamentarians are also aligned with conservative factions. Moreover, while women may have a presence in the parliament, they are completely absent from other important groups of authority such as the clergy and as judges in the judicial system. To this, we should add a lack of trained justice professionals (i.e. lawyers, judges, administrators, prosecutors and other legal experts), the absence of physical infrastructure such as court rooms, long delays, the lack of protection in prisons and detention centers, and a failure to provide preventive and nondiscriminatory solutions has allowed a loss of public confidence, popularising the informal justice system. Therefore, tribal - traditional mechanisms of justice are often more accessible to the general public, women included. 2. Identity, Gender, Religion and Culture Conservative interpretations of constitutional texts have helped justify women s inequality by using references to religion and culture. The general interpretive approach is to insist that religious texts set out the range of women s rights claims. Thus, for example, limits on women s standing in both the formal and informal legal system are sometimes derived from The Quranic Verse has in this context been interpreted as saying and get two witnesses out of your own men and if there are not two men then a man and two women such as ye choose for witnesses so that If one of them errs the other can remind her This is often interpreted to mean that a woman s testimony requires corroboration and is not of equal weight to a man s testimony. Conservative parties also claim to preserve a space within domestic law that cannot be touched by international human rights norms. In that way, these [4]

5 Customary and Family Law: a Gender approach in Afghanistan critics of international law sometimes argue that international law is an imposition of Western values on Islamic faiths and culture. One of the most pressing and complex questions in women s access to justice concerns the extent to which the Islamic faith and culture prove to be necessarily antagonistic to women s rights. Some argue that Islam recognises women s rights to equality but that they have been misinterpreted over time. This reformist position relies on a particular interpretive move: it generalises specific Quranic pronouncements into broad principles, and then seeks to apply those broad principles into present socio-economic contexts. For this reason, it is necessary to analyse also the socio-political context where religious texts are being interpreted. For example, legal developments such as a woman s right to no-fault divorce are accepted by some women s groups but criticised by others. Even where legislative norms aim to protect women s rights, discriminatory interpretations represent another type of barrier to women s equality. The legal system does not carry an equal response to the interests of women. If a percentage of religious representatives suggest that Islamic teachings can in fact support generous inheritance rights for women, a conservative party chooses to adopt non good-hearted interpretations. It is usual that critics to the informal judicial system explain women s rights violations as a characteristic of this system. However, women also face discrimination in the country's formal institutions. Victims and defendants are often denied equal and fair access to justice because they are rarely permitted to register cases themselves, requiring a mahram (male relative) to register on their behalf. Additionally, many women do not want to bring their cases to the state courts because they are often chastised by other family members even other women- and the judicial system (police and judges) who criticise them for dishonouring their families by bringing a private matter in public. In fact, there is evidence to suggest that some judges even advise women that they should have taken the matter to a local arbitrator in order to protect the family honour. These actions cause great embarrassment for women and make them give up pursuing justice on their own behalf through the formal justice system. For many Afghans, resolving disputes involving women by working with strangers in government courts contradicts the customary practice of purdah (separation of the sexes). [5]

6 Effectius Family issues are treated as private matters and people avoid bringing them into public forums. Abuses are sometimes accepted as legitimate even by women themselves. Women who complain about their treatment in public are often stigmatised and isolated by their communities, particularly if they show their faith in court. An important point is to consider that a woman has various identities and gender can interact with other aspects of identity such as class, ethnic group, family and socio-economic status to produce important differences between women s experiences that belong to a wider context of discrimination. Women do not fall under a single identity category, but a combination of identities that produce substantively distinct experiences. In other words, gender on its own may not prove a barrier to justice; however, gender combined with lower social status, ethnic group, religious affiliation and others may produce its own dynamic of oppression. Xaviera Medina de Albrand Published as part of the Effectius Newsletter, Issue 8, (2010) [6]