Protecting Women’s Rights in Afghanistan … And Making it Last

January 13, 2015
Palwasha Kakar and Melissa Nozell

Wazhma needed a lawyer. She could no longer stand the beatings her husband was inflicting in a marriage that she had not wanted in the first place.  As a third-year medical student, she knew she had rights and she wanted a divorce.  Hers was one of 11 cases that the Women Defense Lawyers’ Advisory Council took to court in Afghanistan over the course of a year.

After hearing testimony from Wazhma’s husband, a wealthy engineer from a prominent family, the judge was not sympathetic. How could she want to leave a life of luxury? Whatever ailed the husband could be treated, if only she would show more love towards him, the judge said.  When Wazhma said she could not, she was accused of having an affair.

Such common situations arise throughout many Muslim communities and were the subject of discussion by lawyers, judges, and Islamic scholars and their students at a seminar in Kabul on “Women’s Rights in Islamic Sharia Law,” held in October 2014. The seminar was organized by the Afghan group Justice for All Organization (JFAO) through USIP’s Rule of Law in Afghanistan project and the Institute’s Kabul office.

Access to education should not be dependent on the availability of a male relative, the student said.

The event brought together the core “three pillars” that constitute USIP’s approach to sustainably advancing women’s rights in conflict zones: political activists, legal advocates and religious leaders. The three-pillar model encourages engaging all these elements for lasting social change, particularly on legislation and its implementation.

The Kabul seminar was held at a particularly significant time, as western aid to Afghanistan decreases drastically, and new challenges begin to emerge. A May 2014 USIP Special Report, “Sharia and Women’s Rights in Afghanistan,” highlights the fear that many women’s rights activists have expressed -- the high risk that any progress made on this front in Afghanistan over the past decade might be reversed as the presence, funding and influence of Western donors declines. The seminar, the first in a series of three, was convened as a response to the findings in the report, as professionals and activists seek ways to most effectively advance women’s rights.

Violence against women

We represented USIP’s Religion and Peacebuilding Center for sessions focusing on women’s rights in Islamic constitutional law. Defense lawyers and women’s rights activists told us their biggest challenge was how to articulate women’s rights within an Islamic legal framework.

Through small-group brainstorming, we encouraged the participants, the majority of whom were women, to consider the resources available to them, and strategies that they could employ individually and collectively to protect women’s rights.

They emphasized the lack of information available to them on women’s rights in Afghanistan, including among judges and educated professionals. Without access to such knowledge, it is not surprising that the 2009 law on Elimination of Violence Against Women (known as the EVAW law) was applied to only 17 percent of reported cases in 2013, according to a December 2013 United Nations report. The study found that the majority of abuse cases were still not being reported, illustrating the need to raise the awareness of women on their rights and on the resources that are available to them.

Many of the seminar participants explained that implementation of the EVAW law and awareness of women’s rights was particularly lacking in the outlying provinces, where illiteracy rates are high. In addition to educating women in those areas on their rights, there’s a need to better inform community leaders, including religious scholars, as well as lawyers and judges.

The participants were enthusiastic and the debate passionate. One female law student stood up suddenly as her professor spoke, challenging his support of mahram, the custom of restricting a woman from traveling without a male relative alongside. Access to education should not be dependent on the availability of a male relative, the student said. So even the seminar discussions illustrated the obstacles the participants faced as Afghans, as women, as aspiring lawyers, and as judges and scholars.

Concrete steps

The participants shared their own insights and ideas on action they could take to guarantee that women’s rights would be upheld in Afghanistan, in all provinces. The following are among the steps that they declared they would take:

  • Encourage community gatherings of both men and women in outlying areas to discuss women’s rights by holding meetings in their neighborhoods and with local leaders.
  • Convene peer groups of lawyers and judges, religious leaders, activists and scholars at the local and regional levels and between sectors.
  • Collaborate with each other as judges, lawyers, scholars, legal supporters and educators to teach women about their rights in Islam.
  • Organize events on university campuses throughout Afghanistan to highlight the rights of women and how those are secured in an Islamic legal system.
  • Work with khatibs, religious figures who give the sermon at Friday payers, to raise awareness of women’s rights in Islamic terms, encouraging men to understand and respect women’s rights, beginning in their own homes.

The next two seminars in the series will continue to focus on strengthening the knowledge and other skills of lawyers, judges and religious scholars to work towards achieving women’s rights. Specifically, the next seminar will examine women’s rights and family law, and the final installment will address the ratification and implementation of international conventions on women’s rights in the Afghan context.

In the case of Wazhma’s request for a divorce, the Women Defense Lawyers group worked to find a solution by engaging all the players who had a stake in the outcome, based on local traditions.  The judge did not want to grant her tafreek, the term in Islamic law for a divorce initiated by a woman in a process that requires a judge’s approval. Neither would her husband give her talaq, a type of divorce that requires only tha a man repeats the word three times to his wife before it goes into effect.

By meeting separately with local judges, defense attorneys, religious leaders and members of Wazhma’s own family, the Women Defense Lawyers representatives were able to convince the court, in legal and religious terms, that Wazhma’s case was valid. Her request for a divorce was finally granted.

The aim of the USIP-supported seminar series and the broader program around it is to ensure that such instances in the future will not require educating the judge about the law and its sharia justification. The capacity of the defense lawyers and judges also will be developed sufficiently that they recognize and can protect women’s rights from the start of a case.

The seminar series provides a platform for discussion and an opportunity to bring together community leaders and legal and religious scholars who are already working to support women’s rights. The discussions also provide the tools, such as accurate religious vocabulary, that they can take back to their own communities and apply in ways that empower women like Wazhma and ensure that their rights are being recognized.

January 13, 2015