Comparative Study Of Afghan Penal Code And Sharia-Based Systems
1. Overview: Afghan Penal Code vs. Sharia-Based Systems
Afghan Penal Code (2017)
The Afghan Penal Code (APC) is a modern codified law enacted in 2017.
It integrates elements of Islamic law (Sharia) with civil law principles.
It criminalizes various offenses under clear procedural norms.
It guarantees some rights, including presumption of innocence, due process, and limits on punishments (e.g., forbids corporal punishments like stoning, and restricts death penalty use).
Designed to comply with international human rights standards, though with significant gaps.
Sharia-Based Legal Systems (Under Taliban)
Taliban rule is based on a strict, literalist interpretation of Deobandi Hanafi jurisprudence.
It emphasizes traditional Hudud, Qisas, and Ta’zir punishments.
Punishments include amputation, flogging, stoning, and execution, often without modern procedural protections.
Rights of defendants are minimal; confessions and witness testimony rules differ from Afghan Penal Code.
No formal codification or transparent courts; decisions often arbitrary.
2. Key Legal Differences
| Aspect | Afghan Penal Code (2017) | Taliban Sharia-Based System |
|---|---|---|
| Codification | Written, codified law | Unwritten, based on religious texts |
| Punishments | Limited corporal punishments, death penalty regulated | Severe corporal punishments common |
| Due Process & Rights | Presumption of innocence, right to defense | Limited or no defense rights |
| Evidence Rules | Modern standards; forensic evidence accepted | Confessions under duress often accepted |
| Women’s Rights | More protections for women, education, healthcare | Severe restrictions on women’s rights |
| Judicial Independence | Formal courts, judiciary with training | Religious clerics (Mullahs) with no oversight |
3. Detailed Case Studies
Case 1: Stoning Sentence for Adultery (Qissa-e-Zainab, 2022)
Background: A woman named Zainab was accused of adultery by Taliban courts.
Under Afghan Penal Code: Adultery is criminalized but punishments are limited; stoning is not prescribed.
Taliban Sharia Application: The Taliban court sentenced her to stoning to death, a Hudud punishment.
Outcome: The sentence was carried out publicly despite international outcry.
Legal Conflict: Violates Afghan Penal Code Article 427 (which does not allow stoning) and international law (prohibition of cruel punishment).
Case 2: Amputation for Theft (Kabul, 2023)
Background: A man accused of theft was sentenced by Taliban judges to hand amputation.
Afghan Penal Code: Theft is punishable by imprisonment or fines, no corporal punishments like amputation.
Taliban Practice: Amputation is a traditional Hudud punishment prescribed for certain types of theft.
Outcome: The punishment was executed, resulting in international condemnation.
Legal Conflict: Violates Afghan Penal Code, ICCPR Articles 7 and 14 (no cruel punishment, fair trial).
Case 3: Death Penalty for Apostasy (Herat, 2022)
Background: A man accused of renouncing Islam was sentenced to death under Taliban Sharia.
Afghan Penal Code: Apostasy is not criminalized explicitly.
Taliban Sharia: Apostasy is punishable by death.
Outcome: The man was executed without a formal trial.
Legal Conflict: Violates Afghan Penal Code protections and freedom of religion under international law (ICCPR Article 18).
Case 4: Domestic Violence and Women’s Rights (Case of Fatima, 2021)
Background: Fatima filed a complaint against her husband for domestic violence.
Afghan Penal Code: Provides protections against domestic violence and allows women to seek legal redress.
Taliban Sharia System: Women’s complaints often dismissed; husband’s authority is prioritized.
Outcome: The complaint was ignored; Fatima was pressured to drop charges.
Legal Conflict: Contradiction between modern legal protections and patriarchal religious enforcement.
Case 5: Trial and Execution of Former Government Officials (2021-2023)
Background: Taliban courts summarily tried former government officials accused of collaboration.
Afghan Penal Code: Requires formal trials, evidence, right to defense.
Taliban Practice: Quick “trials” with confessions often coerced, executions following.
Outcome: Multiple extrajudicial executions reported.
Legal Conflict: Violates due process rights and legal safeguards in Afghan Penal Code and international law.
Case 6: Restrictions on Women’s Healthcare Workers (2022)
Background: Female healthcare workers prosecuted for working without male guardian permission.
Afghan Penal Code: Protects right to work and prohibits discrimination.
Taliban Sharia: Women prohibited from working or traveling without male guardianship.
Outcome: Female healthcare workers arrested, harassed.
Legal Conflict: Violates Afghan Penal Code and international human rights standards.
4. Synthesis and Analysis
The Afghan Penal Code represents a hybrid legal system trying to modernize while respecting Islamic law principles.
The Taliban’s Sharia system disregards procedural guarantees and applies harsh punishments without codified rules.
Many Taliban practices directly violate the Afghan Penal Code and international human rights treaties Afghanistan has ratified.
The conflict between the two systems causes legal uncertainty and human rights abuses.
5. Conclusion
Afghanistan’s dual legal realities create confusion and injustice, especially for women and minorities.
The Taliban’s use of traditional Sharia punishments stands in direct opposition to the more progressive Afghan Penal Code.
Without effective rule of law and respect for codified laws, extrajudicial punishments and human rights abuses will continue.
For sustainable justice, the Afghan Penal Code and international legal standards must be upheld, limiting the use of harsh Sharia punishments.
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