Masuda Sultan

(WOMENSENEWS)–Afghanistan’s new constitution is a success for the country’s women. It deserves commendation for guaranteeing women what appears to be an equal rights clause, something that still eludes women in the United States.

But we should not be fooled by the celebratory headlines over the last few days. We cannot yet indulge in a comfortable sense ofAfghan women enjoying freedom and equal rights.There is still the problem of the country–and the new constitution–deferring to discriminatory application of religious law.

On Jan. 4, a constitutional loya jirga, or constitutional grand council, ratified a constitution that declares “any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan–whether man or woman–have equal rights and duties before the law.”

That language represents an incredible victory for Afghan women. In the draft constitution released in November 2003, women were not granted equal rights under the law. The draft gave equal rights to “citizens,” without guaranteeing women full rights of citizenship. It was almost silent on the subject of women’s rights.

When the constitutional loya jirga began its proceedings, the chair, Sibghatullah Mojaddedi, proclaimed to the assembled female delegates, “Even God has not given you equal rights because under his decision two women are counted as equal to one man.”

Outspoken Woman Upsets Meeting

On that occasion, Malalai Joya, a female delegate denounced the attendance at the meeting of people she accused of conducting the civil war that had killed tens of thousands of people in Kabul. This took guts on her part, because these are important figures in Afghanistan, many with national-hero status for their earlier role in resisting the Soviet occupation. Nonetheless, she called them “criminals who have brought these disasters for the Afghan people.” When she suggested that they be tried for their crimes against the Afghan people, the chair at first ordered her to be thrown out of the event. She wound up staying at the meeting, but she later had to go under the protection of the United Nations because of death threats made against her.

It is a remarkable accomplishment for the women of the loya jirga to overcome these inauspicious early events. The final constitution secures equal rights to women before the law. It also reserves for female delegates 25 percent of the seats in the Afghan version of the House of Representatives, twice as many seats as had been stipulated by the draft. It also reserves 17 percent of the Afghan version of the Senate.

As encouraging as all this may be, however, other sections of the document can undermine women’s rights.

One of those sections reads: “When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence.” Hanafi is one of the four main schools of thought in Islam. The Taliban interpreted Hanafi law to punish theft with amputation of hands and adultery with stoning. Some forms of Hanafi law give women’s testimony only half the value of men’s in certain court cases.

The final constitution could be used to implement Taliban-like Sharia law. Before the equal rights clause appears, Article III of the constitution states that in Afghanistan, “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”

Islamic Interpretations Left to Judiciary

The review of Afghan laws for conformity to the provisions of Islam will be left to the Afghan Supreme Court, consisting of nine judges who will be appointed by the president, with approval by parliament.

A commission appointed by President Hamid Karzai is currently reforming the judicial system, which is in shambles along with much of the rest of Afghanistan. This process is critical to the country’s future, because the battle for human rights will ultimately be waged in the Afghan courts.

According to the new constitution, these nine influential judges “shall have a higher education in law or in Islamic jurisprudence.” The reference to Islamic jurisprudence means that Afghan Supreme Court judges may have no training in law from an institution of higher learning. Their training may have come only from a village mullah, or local religious leader. In other words, judges held over from the Taliban era may remain in office, including those who have ordered women accused of adultery to be stoned. While Karzai may not appoint Taliban judges to the Supreme Court, it leaves an opening for extremist judges in the future. It also sends an important signal to the provinces where it will be more difficult to remove such judges from power.

Last year, Women for Afghan Women held its second annual conference in Kandahar, Afghanistan. It was a groundbreaking event. Forty five grass-roots female activists from all over Afghanistan–from varying ethnic backgrounds, literate and illiterate–gathered in a city where, only two years before, they could not have met without being imprisoned or even killed.

Conference attendees insisted that an equality clause–although necessary–would not be enough. They produced The Afghan Women’s Bill of Rights, a document that sets forth 20 demands, including equal pay for equal work and abolition of forced marriages, property and inheritance rights.

President Karzai proclaimed his support for the principles of the document, and announced that half of his 50 appointments to the constitutional loya jirga–the assembly that ratified the constitution–would be women. Members of the drafting commission welcomed our work and told us that all of the items in The Afghan Women’s Bill of Rights would be included in the draft constitution, except one item relating to minimum age of marriage, which they said would be resolved by legislation.

Despite these assurances, Afghan women repeated their demand that specific rights be provided for women in the constitution. We distributed The Afghan Women’s Bill of Rights throughout the country, fueled with the positive energy of our meetings. Unfortunately, the specific protections the women insisted on have not been included in the final constitution.

Implementation Will Be a Challenge

Implementation of a constitution–whatever its merits–in a country that has suffered 23 years of war and is marked by systematic violation of women is perhaps the most important challenge facing Afghanistan.

The first and most fundamental step in meeting this challenge is guaranteeing women security, especially outside Kabul.

Security remains the No. 1 concern. The former NATO chief and the United Nations have recently warned of disastrous consequences if adequate resources are not provided to expand peacekeepers throughout the country.

These warnings from high-level officials echo what Afghan women have been saying since the fall of the Taliban and must finally be heard.

Masuda Sultan is an Afghan-American and the director of programs at Women for Afghan Women, a grassroots organization based in New York City whose mission is to empower Afghan women and girls.

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