Remember the Women?
Though women were excluded from the Bonn process, they did seem to make strides in the first years after the fall of the Taliban. In 2004 a new constitution declared, "The citizens of Afghanistan--whether man or woman--have equal rights and duties before the law." Westerners greeted that language as a confirmation of gender equality, and to this day women's "equal rights" are routinely cited in Western media as evidence of great progress. Yet not surprisingly, Afghan officials often interpret the article differently. To them, having "equal rights and duties" is nothing like being equal. The first chief justice of the Afghan Supreme Court, formerly a mullah in a Pakistani madrassa, once explained to me that men have a right to work while women have a right to obey their husbands. The judiciary--an ultraconservative, inadequate, incompetent and notoriously corrupt branch of government--interprets the constitution by its own lights. And the great majority of women across the country, knowing little or nothing of rights, live now much as they did under the Taliban--except back then there were no bombs.
In any case, the constitution provides that no law may contravene the principles of Sharia law. In effect, mullahs and judges have always retained the power to decide at any moment what "rights" women may enjoy, or not; and being poorly educated, they're likely to factor into the judgment their own idiosyncratic notions of Sharia, plus tribal customary laws and the size of proffered bribes. Thus, although some women still bravely exercise liberty and work with some success to improve women's condition, it should have been clear from the get-go that Afghan women possess no inalienable rights at all. Western legal experts who train Afghan judges and lawyers in "the law" as we conceive it often express frustration that Afghans just don't get it; Afghan judges think the same of them.
The paper foundations of Afghan women's rights go beyond national law to include the Universal Declaration of Human Rights, the International Treaty of Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). All these international agreements that delineate and establish human rights around the world were quickly ratified by the Karzai government. CEDAW, however, requires ratifying governments to submit periodic reports on their progress in eliminating discrimination; Afghanistan's first report, due in 2004, hasn't appeared yet. That's one more clue to the Karzai government's real attitude toward women--like Karzai's sequestration of his own wife, a doctor with much-needed skills who is kept locked up at home.
Given this background, there should have been no surprise when President Karzai first signed off in March on the Shiite Personal Status Law or, as it became known in the Western press, the Marital Rape Law. The bill had been percolating in the ultraconservative Ministry of Justice ever since the Iranian-backed Ayatollah Asif Mohseni submitted it in 2007. Then last February Karzai apparently saw the chance to swap passage of the SPSL for the votes of the Shiites--that is, the Hazara minority, 15-20 percent of the population. It was just one of many deals Karzai consolidated as he kept to the palace while rival presidential candidates stomped the countryside. The SPSL passed without alteration through the Parliamentary Judicial Committee, another little bunch of ultraconservative men. When it reached the floor of Parliament, it was too late to object. Some women members succeeded in getting the marriageable age for girls--age 9--revised to 16. Calling it victory, they settled for that. The Supreme Court reviewed the bill and pronounced it constitutionally correct on grounds the justices did not disclose.
The rights Afghan women stood to lose on paper and in real life were set forth in the SPSL. Parliamentarian Shinkai Karokhail alerted a reporter at the Guardian, and the law was denounced around the world for legalizing marital rape by authorizing a husband to withhold food from a wife who fails to provide sexual service at least once every four days. (The interval assumes the husband has four wives, a practice permitted by Islam and legalized by this legislation.) But that's not all the law does. It also denies or severely limits women's rights to inherit, divorce or have guardianship of their own children. It forbids women to marry without permission and legalizes forced marriage. It legalizes marriage to and rape of minors. It gives men control of all their female relatives. It denies women the right to leave home except for "legitimate purposes"--in effect giving men the power to deny women access to work, education, healthcare, voting and whatever they please. It generally treats women as property, and it considers rape of women or minors outside marriage as a property crime, requiring restitution to be made to the owner, usually the father or husband, rather than a crime against the victim. All these provisions are contained in twenty-six articles of the original bill that have been rendered into English and analyzed by Western legal experts. No doubt other regressive rules will be discovered if the 223 additional articles of the law ever appear in English.
In April a few women parliamentarians spoke out against the law. A group of women, estimated to number about 300, staged a peaceful protest in the street, protected by Kabul's police officers from an angry mob of hundreds of men who pelted them with obscenities and stones, shouting, "Death to the enemies of Islam!" Under pressure from international diplomats--President Obama called the law "abhorrent"--Karzai withdrew it for review. The international press reported the women's victory. In June, when a large group of women MPs and activists met with Karzai, he assured them the bill had been amended and would be submitted to Parliament again after the elections.
Instead, on July 27, without public announcement, Karzai entered the SPSL, slightly revised but with principal provisions intact, into the official gazette, thereby making it law. Apparently he was betting that with the presidential election only three weeks away, the United States and its allies would not complain again. After all, they had about $500 million (at least half of that American money) riding on a "credible" outcome; and they couldn't afford the cost of a runoff or the political limbo of an interregnum. In August, Brad Adams, Asia director of Human Rights Watch, observed that such "barbaric laws were supposed to have been relegated to the past with the overthrow of the Taliban in 2001, yet Karzai has revived them and given them his official stamp of approval." No American official said a word.