As we know, the Taliban regime, took control of Kabul in August 2021. The Taliban has said that under the Taliban’s newly established government, women in Afghanistan will enjoy rights within the confines of Islamic law or Shariah law. Arguments and reports show that when the Taliban controlled Afghanistan previously, they had enforced a stringent rule, prohibiting women from working outside the home or leaving the house without a male guardian, banning girls from attending school, and publicly whipping those who disobeyed the group’s morality code. Hence, from this article, we are looking at understanding the history of laws and remedies available to women, the present and the future.
1. Status of Women during Soviet Rule (1979- 1989):
During Afghan- Soviet war the soviet forces abducted afghan women. The abduction of Afghan women was the Soviets’ final terror weapon against the mujahideen. In the absence of their men, soldiers flying in helicopters would scan the fields for women working in the fields, land, and kidnap them. In Kabul, Russian soldiers would also kidnap young girls. They had the power to commit excesses in the name of security. Rape was their main intention and sometimes women would even be killed. And women who returned home were frequently labelled as dishonoured for the rest of their lives.
2. Status during Taliban Rule (1996 – 2001):
The Taliban, whose name means “students” in Pashto, first appeared in 1994 in the Kandahar region of southern Afghanistan. Mullah Mohammad Omar in September 1994 in his hometown of Kandahar with 50 students founded the group. Within months, 15,000 students, often Afghan refugees, from religious schools or madrasas joined the group. On 3 November 1994, the Taliban in a surprise attack conquered Kandahar City. Before 4 January 1995, they controlled 12 Afghan provinces. In a bid to establish their rule over all Afghanistan, the Taliban started shelling Kabul in early 1995. On 26 September 1996, the Taliban prepared for another major offensive. The Taliban entered Kabul on 27 September 1996 and established the Islamic Emirate of Afghanistan.
On 7 October 2001, less than one month after the 11 September attacks, the US, aided by the United Kingdom, Canada, and other countries including several from the NATO alliance, initiated military action, bombing Taliban and Al-Qaeda-related camps. The stated intent of military operations was to remove the Taliban from power, and prevent the use of Afghanistan as a terrorist base of operations. So in total Taliban ruled from 1996 to 2001 before the U.S military invasion. The US dislodged the Taliban regime and established a transitional government in Afghanistan. But after 20 years the U.S army pulled back from Afghanistan in 2021.
During the 1990s, the Taliban not only enforced harsh social restrictions on women, such as the wearing of burqas, but also severely limited their access to health care, education, and employment. It made it illegal for women to go out in public without a male, thereby starving widows and their children. Women were also barred from holding jobs, including working as doctors for other women. With public executions, stonings, lashings, acid attacks, and sexual violence, the previous administration terrorised Afghan girls and women’s minds and bodies.
3. Status during Afghan Government Rule (2001 to 2021):
Post 2001, since the time Taliban administration fell, Women were given positions of ministers, governors, judges, police officers, and soldiers in Afghanistan, and in fact Afghan parliament had a higher female representation than the US Congress. After the fall of Taliban, the number of girls enrolled in primary and secondary education had increased. Afghan women were working more than ever before, with women starting enterprises in various fields. Women became more visible in many areas of society, including media, medicine, and law enforcement. While the burqa was worn before the Taliban, it was not mandatory as it was during Taliban rule. Women have played an increasingly important part in politics as well since 2001.
However, several problems were reported still. Afghan women who dared to speak up for their own or other women’s rights risked their lives. Women were regularly assaulted for being visible outside the home, travelling without a men (chaperone), for having connection with foreigners etc. Domestic abuse, sexual harassment, and rape were all common forms of violence against women and girls in Afghanistan. Despite increased public awareness of these concerns, it appears that the Afghan government failed to take effective steps to prevent gender-based violence, investigate crimes, prosecute perpetrators, and ensure the safety and access to justice and assistance of victims.
The rates of rape and sexual assault in Afghanistan were high both in the home and in the workplace. 17% women have experienced sexual assault nationally. The figure could be more than this because instances of rape in Afghanistan are underreported because of social stigmatization, limited understanding of legal definitions and protections, and fear of being doubly victimized within the state justice system.
4. Laws in Afghanistan on sexual harassment
Since 2001, the Afghan government made many legal and institutional advancements in support of human rights, particularly women’s rights. Afghanistan is also a signatory to various international treaties such as Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), discrimination (employment & occupation) convention 1958 etc. In Afghanistan, the current legal environment system consists of three incoherent sources of law: the state legal code, customary practises, and Islamic sharia law.
The present Afghan Penal Code, which dates from 1976, punishes both men and women for rape and sexual assault, but it made no mention of harassment or sexual harassment. Hence, The Elimination of Violence against Women (EVAW) Law, which was brought into by presidential decree in 2009, was the first legal measure in Afghanistan to address this issue.
The law covered – forced and early marriages, polygamy, harassment of women and other violence against women. The major issue with this act was that the definitions of the key terms were missing or were unclear. However later, a regulation supporting the EVAW act was drafted to explain the key terms and definitions of the act like harassment, hostile action, verbal harassment, organisation, nonverbal harassment etc. under this law, assaulting a woman is punishable by three to five years in prison. For the first time, it made child marriage a criminal offence, punishable by two to five years in prison. Forcing an underage girl into prostitution is also punishable under the EVAW Law with a sentence of 10 to 15 years in jail. Additionally, as per UNAMA (United Nations Assistance Mission in Afghanistan ) Report, under law, all government ministries are required by law to form a to investigate internal harassment accusations and promote suitable resolution.
However, the government did not take any significant steps to enforce the law. Only a small percentage of accused were punished. The vast majority of instances resulted in no action or were addressed through mediation so that cases can be settled and reconciled between parties as women were continuously pressured either to settle or to withdraw their case. EVAW law was considered as un-Islamic, and even though the law was approved by the president in 2009 it was never approved by the parliament till the year 2016. Many judges and lawyers believe that this statute is unconstitutional as it violates Article 79 (Legislative decrees, after endorsement by the President, shall acquire the force of law. Legislative decrees shall be presented to the National Assembly within thirty days of convening its first session, and if rejected by the National Assembly, they become void) of the Constitution of Afghanistan. Therefore, in 2016 a new legislation was enacted dealing with the same issues which was Law on the Prohibition of Harassment against Women and Children, 2016. This law was passed by both the houses of parliament as it was in line with Sharia Law but has never been explicitly approved by the President. Parliament dissolved on 15th August 2021 after almost all government officials fled the country. Currently Taliban has said that Islamic laws will be followed and not democracy. The validity of these laws therefore, with Taliban taking over is yet to be seen.
5. Monitoring and reporting of sexual harassment
AIHRC (Afghanistan Independent Human Rights Commission) which is a national human rights institution in Afghanistan which works to promote, protect and monitor human rights and investigates human rights abuses. According to the AIHRC, 85% of women and children have been harassed in some way. Women who stepped outdoors alone or worked outside the home were frequently harassed, with groping, catcalling, and being followed. Threats were occasionally aimed towards women in public positions or their families.
UNAMA identified 271 cases of sexual and gender-based violence in Afghanistan in 2020, 18 of which were confirmed as conflict-related sexual violence, impacting nine boys, five women, and four girls.
However, the law’s implementation and enforcement appear to be limited. Given the history and lack of stability, it also appears that it has been difficult for the population to effectively access legitimate justice systems and report concerns.
Sexual violence continues to be underreported owing to the fear of reprisals, stigma, the absence of services and ongoing security concerns. In many cases, husbands, family members, police, lawyers and judges discourage women from taking legal action. Many women report sexual assault via abusive vaginal examinations, or “virginity tests”, during court procedures. The virginity examination is a routine part of criminal proceedings when women are accused of moral crimes, including sex outside of marriage.
Comparatively speaking, in India this investigation method prevailed until it was disregarded as violation of women’s privacy under Article 21 of the Constitution of India. Two- finger test has been criticised by the Courts in India in many instances.
In 2002, in the case of Surajit Singh Thind vs Kanwaljit kaur, Punjab and Haryana High Court held that allowing medical examination of a woman for her virginity amounts to violation of her right to privacy and personal liberty enshrined under article 21 of the Constitution. In 2013, the Supreme Court in Lillu @ Rajesh & Anr vs State Of Haryana ,held the two-finger test as unconstitutional, and the victim’s previous sexual experience should not be considered or taken into account when determining the consent given by the victim to the accused.
After this case, in 2014, the Union health ministry issued new rules for treating rape victims. Every hospital was required to provide a separate room for the victim’s medical and forensic investigation and the two-finger test, which was used on the victims, was also made illegal as it did not help in the investigation of the assault in a scientific manner.
Not only India, Pakistan also disregarded this methodology in the case of Sadaf Aziz v. Federation of Pakistan, Criminal Appeal No.251/2020. The Court held that virginity tests violate the female victim’s personal dignity and thus violate the right to life and dignity enshrined in Articles 9 and 14 of the Islamic Republic of Pakistan’s Constitution of 1973. However, the laws in Pakistan still mention about the virginity test.
In those countries where virginity test is still done, WHO is repeatedly asking the government to stop it. According to WHO the practise is a violation of the victim’s human rights, and it has both immediate and long-term negative implications on women’s body. Though Afghan women have time and again tried to speak against these laws, still they couldn’t find their way out of this.
The consequences for survivors can be devastating, especially due to rigid social norms. Survivors frequently experience stigma and rejection from family and community members, in addition to physical and psychological consequences. Because of these reasons, cases of sexual assault against women are likely to go unreported, and offenders are likely to get away with it. In fact the police men of the Afghanistan are also a part of this. Even when women approach government institutions with a request for service, government officials, in turn, demand as a quid pro quo. Women police officers are often asked for sexual favours in turn for promotion and are continuously harassed and sexually assaulted. When women police personals are not safe, how can the civilians be safe and trust police with their complaints.
6. Role of international organisations
All forms of discrimination against girls and women are prohibited by international treaties and conventions to which Afghanistan is a signatory. Afghanistan was the first Muslim country to ratify the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) without reservation. As a result, by ratifying CEDAW, Afghanistan has committed to achieving the Convention’s goals. This includes incorporating gender equality principles into its legal system, repealing and replacing all discriminatory laws, establishing public institutions and tribunals to protect women from discrimination, and outlawing all discriminatory acts against women by “persons, organisations, and enterprises.
Under International Law State responsibility can be invoked when a State fails to act for crimes or prevention of acts by non-state actors. It is governed by the principle of responsibility to protect. However, one is not bound by such Conventions. Though, Article 7 of the Constitution of Afghanistan acknowledges the duty to adhere to international treaty obligations.
To what extent can the international organisations interfere is the question. The United Nations national team in Afghanistan is made up of 21 UN agencies, funds, programmes, and offices, as well as UNAMA (United Nations Assistance Mission in Afghanistan), which was established by the Security Council in 2002 at the request of the Afghan government to help lay the groundwork for long-term peace and prosperity. The UN has not withdrawn from Afghanistan yet. UNAMA supports strategies and methods for fighting violence against women, including preventative and remedial processes for female victims of violence, through its Human Rights Unit. The future of Afghanistan depends on the acceptability of the Taliban regime by the global community and the UN. The UN and its members are keen that no Human Rights violation or misconduct is done by the Taliban.