European NGO Working Group on Women s Human Rights in Afghanistan Briefing for Rome Conference on Rule of Law in Afghanistan June 2007 The European NGO Working Group on Women s Human Rights in Afghanistan i welcomes moves from the Government of Afghanistan to promote the rights of women and girls in the country including: Adoption of a Constitution that guarantees women equal rights with men ii Ratification of the Convention of the Elimination of Discrimination Against Women (CEDAW) iii Ratification of the Convention on the Rights of the Child iv Formation of National Policy Frameworks to mainstream gender equity v Adoption of a National Action Plan on Peace, Reconciliation and Justice vi Adoption of a new Afghan Juvenile Code vii Approval of a new Marriage Contract (Nika Nama) by the Supreme Court viii Priorities & Recommendations on the Rule of Law in Afghanistan In preparation for the forthcoming international Conference on the Rule of Law in Rome, the working group has identified the following priorities to ensure women s and girl s human rights are protected and prioritised under the rule of law in Afghanistan: 1. Improve access to justice for women There is today little access to justice for women. Women are poorly represented within the police and formal justice sector institutions and women have little representation in the informal or traditional dispute resolution mechanisms. Women whose cases are referred to, or who seek justice in formal or informal justice mechanisms face discrimination, harassment and the judgements seldom take women s best interests into account ix. In line with the Draft Interim National Action Plan for the Women of Afghanistan x, we recommend that the Afghan Government s legal and judicial systems are reformed to guarantee equality and non-discrimination as enshrined in the Constitution, thereby enabling women to exercise their rights on equal terms with men. This should include the development of a gender sensitive and regulatory framework including inheritance, property and labour laws. In addition, it is crucial that the government promotes legal awareness of and on women s entitlements and that women s participation in law making, administration of justice and law enforcement bodies is prioritised. Such moves should include the appointment of more women judges to sit on all types of courts, including the Supreme Court, which interprets the Constitution and currently has no female judges on the Supreme Court High Council xi. 1
It is crucial that increased efforts are made to ensure all women have access to a fair and equitable justice system that offers them representation and participation and is based on codified law. 2. Develop and implement strategies to fight violence against women (VAW) Violence against women (VAW) remains a critical problem in Afghanistan where an overwhelming majority of women and girls are affected by physical, sexual and psychological violence xii. The UN Special Rapporteur on VAW noted in 2005 xiii that one of the principal causes of gender-based discrimination and VAW in Afghanistan is the lack of enforcement of the rule of law. There remains almost total impunity around forced marriage, honour crimes, sexual abuse and rape. Courts are failing to protect women under Afghan and international law, where cases of violence are unlikely to make it past resolution in a local jirga to the few official family courts and where women who report violence risk being tried under customary law and zina (sex outside marriage). Violence denies women and girls their most basic rights and undermines social and economic development and good governance by preventing women s participation in decision-making at all levels. Full support should therefore be given to initiatives to develop a new law on VAW; to build the capacity of the Afghan National Police to tackle the issue and receive cases, including supporting the recruitment of more female police officers; to develop new processes to document cases of VAW; and to provide safe houses for survivors of VAW throughout the country. It is essential to monitor and record VAW cases and to develop and implement new legislation and strategies to tackle VAW and to support survivors. 3. Create alternatives for women released from detention and prison The majority of women held in detention in Afghanistan have been detained or convicted for crimes against social mores, including elopement and adultery xiv. While women s detention centres have received some attention, little focus has been given to what happens to women who are released from detention. Many of these women end up returning to their families who may or may not accept them back and some end up in the few (five) functioning women s shelters in Afghanistan. Efforts are needed to develop reconciliation programs that enable women detainees to return to their families where possible and to develop innovative alternatives. 4. Implement the Marriage Contract An estimated 60 80% of marriages are forced in Afghanistan, with 57% of girls being married before the age of 16 and sometimes at ages as young as 6 xv. The practice of baad or exchange of girls or women in marriage as restitution for a crime, debt or dispute between households, communities or tribes remains widely practiced, particularly in Southern and Eastern Afghanistan. The lack of the rule of law and the strength of local power holders also contribute to the prevalence of forced marriages of all kinds. 2
Forced and early marriages have been cited as one of the main causes of women s and girls self-immolation, a growing phenomenon in Afghanistan xvi, and contribute to the deprivation of girls education, social mobility, civil participation, healthcare and self-determination. In early 2007, the Supreme Court of Afghanistan approved a new marriage contract (Nikah Nama), which has the potential to end child marriages and empower women s legal status. The contract calls for the registration of marriages and fixes the legal age of marriage for girls at 16, yet there is little awareness about, or implementation of this new legal instrument. It is therefore crucial that the Supreme Court in Afghanistan continues to support the Marriage Contract and that the Government takes increased steps to implement this instrument without delay across the country. 5. Ensure reporting to the CEDAW Committee CEDAW (Convention on the elimination of all forms of discrimination against women) was ratified by Afghanistan on 5 March 2003, when the government made a specific commitment to address women's human rights in public, political, social and cultural life; in law and practice; as well as in personal status laws, education, health and work. At this time, the Afghan government also made a commitment to submit national reports at least every four years on measures they have taken to comply with their treaty obligations, yet these have not been produced xvii. To ensure the Afghan government sustains and monitors its commitments to women s human rights, we recommend they ratify the Optional Protocol to CEDAW xviii and produce their first CEDAW report at the earliest possibility. 6. Ensure Freedom of Speech/Media We note the encouraging progress in the Media law recently approved by the Afghan Wolesi Jirga (as yet to be approved by Meshrano Jirga) to promote a pluralistic media in Afghanistan, and the provisions for free speech, the right of reply, and protection of journalists and sources. We also welcome the move towards more independent media regulation, the establishment of public service broadcasting, and the establishment of an independent governing body for the public broadcaster. However, the growing climate of fear and the continuing culture of impunity is limiting the space for free speech. Journalists, including women journalists, are limiting their movements in the country, they are self-censoring their messages and adapting their projects and programs towards a more conservative agenda. In addition, two female Afghan journalists were murdered in May/June in Kabul, highlighting their ongoing vulnerability. It is crucial that a comprehensive strategic plan for justice in Afghanistan takes into account the importance of freedom of speech and a free media as a basic pillar of a democratic society. In this regard, the Afghan government and its international partners should maintain special attention to safeguarding women journalists and women's news and radio programmes. 7. Reinvigorate the Action Plan for Transitional Justice In line with UN Security Council Resolution 1325 we recommend that the Afghan Government reaffirms its commitment to putting an end to impunity and to prosecute 3
those responsible for crimes against humanity; war crimes, including those relating to sexual violence against women and girls; and to exclude such crimes from amnesty provisions. We recommend the National Action Plan on Peace, Reconciliation and Justice xix is reinvigorated in Afghanistan and that war crimes are excluded from amnesty provisions. 8. Implement the Juvenile Justice Code We welcome the adoption of a Juvenile Justice Code by the Government of Afghanistan. However, its implementation remains a serious concern. Poor capacity within the Ministry of Justice s Juvenile Rehabilitation Department; inadequate access to justice for vulnerable groups, especially girls; and corruption within the judicial and police systems are all major obstacles in the fulfilment of child rights. While boys are penalised for a wide number of reasons, girls often are imprisoned for coming into conflict with social and traditional moral codes, which are themselves highly discriminatory against women and girls. Despite provisions for both open and closed rehabilitation facilities and the separation of children from adults within detention facilities, most children still get sent to adult prisons. Standards in such prisons are below international standards xx. Furthermore, only a couple of provinces have taken initial steps towards implementation of the new Code and there is a serious need to extend this initiative to other provinces. We recommend country-wide implementation of the Juvenile Justice Code and compliance with the provisions of the Convention on the Rights of the Child. Immediate action is recommended to ensure proper legal representation for children and for the removal of children from adult prisons to juvenile rehabilitation or community based rehabilitations facilities. 9. Gender mainstreaming We welcome the provisions to mainstream gender equity within the various sectors of the Government of Afghanistan s national policy frameworks, including the ANDS (Afghanistan National Development Strategy), the Afghanistan Compact and the NAPWA (National Action Plan for Women). However, it is crucial that the political will and resources are both provided to ensure such policies are implemented across each and every government department. We urge the Government of Afghanistan and international partners to prioritise their support to the gender mainstreaming process to secure commitment to gender equality by all stakeholders in the justice sector. i Formed by a group of BAAG and ENNA members in March 2007 with the aims of: Raising the voice of Afghan women and girls and women s local civil society groups at a European level; Sharing programmatic experience and knowledge ; Developing a common understanding of advocacy and support strategies to promote women s and girl s human rights; And building the capacity of local and international NGOs, donors and policy makers to better monitor, protect and promote women s and girl s human rights in Afghanistan ii http://www.moj.gov.af/pdf/constitution2004.pdf iii http://www.un.org/womenwatch/daw/cedaw/cedaw.htm iv http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/6fd35292b1b7b615c1257161 0024a8b7/$FILE/G0640739.pdf 4
v Including the Afghanistan National Development Strategy (NDS), the National Action Plan for Women (NAPWA) and the establishment of a Technical Advisory Group to monitor gender mainstreaming within rule of law working groups. vi http://www.aihrc.org.af/tj_actionplan_19_dec_05.htm vii http://www.moj.gov.af/juvenile.html viii http://www.irinnews.org/report.aspx?reportid=70684 ix www.womankind.org.uk/takingstockdownloads.html x Islamic Republic of Afghanistan I-NAPWA Executive Summary (2006) xi UNAMA, Afghanistan Justice Sector Overview (April, 2007) xii http://www.unama-afg.org/docs/_un-docs/_human%20rights/06aug14-unifem-uncou-and-discoueng.pdf xiii http://daccessdds.un.org/doc/undoc/gen/g06/108/06/pdf/g0610806.pdf?openelement xiv http://www.wunrn.com/news/2007/02_07/02_26_07/022607_afghanistan.pdf xv www.womankind.org.uk/takingstockdownloads.html xvi AIHRC (2006) xvii http://www.un.org/womenwatch/daw/cedaw/reports.htm xviii http://www.un.org/womenwatch/daw/cedaw/protocol/ xix http://www.aihrc.org.af/actionplan_af.htm xx UNAMA, Afghanistan Justice Sector Overview (April, 2007) 5