Prosecution Of Forced And Early Marriages And Customary Abductions
In Afghanistan, forced and early marriages, along with customary abductions, are deeply rooted cultural practices that continue to affect women and girls. These practices often involve the violation of basic human rights, including the right to choose a spouse, the right to protection from violence, and the right to education. Afghanistan’s legal frameworks, influenced by both domestic law and international human rights standards, aim to address these practices, but challenges in enforcement, legal interpretation, and societal norms persist.
This article explores the prosecution of forced and early marriages and customary abductions within Afghanistan, comparing the country’s legal mechanisms with international norms. It will also discuss key cases that illustrate the difficulties of prosecuting these crimes effectively.
Legal Frameworks in Afghanistan
Afghan Constitution (2004)
The Constitution of Afghanistan guarantees basic rights for women, including the right to choose a spouse and protection from violence. Article 22 explicitly prohibits discrimination on the grounds of gender. However, these provisions are often in tension with traditional customs and practices.
Afghan Civil Code (1977)
The Afghan Civil Code requires mutual consent for marriage, making forced marriages illegal under Afghan law. Yet, societal pressures, family decisions, and local customs often override the legal stipulations.
The Elimination of Violence Against Women (EVAW) Law (2009)
The EVAW Law criminalizes several forms of violence against women, including forced and early marriages, as well as abductions for the purpose of marriage. Under this law, perpetrators can face criminal charges, though enforcement is often inconsistent.
The Afghan Penal Code (1976)
Under Afghanistan’s Penal Code, forced marriages can be prosecuted as crimes against personal liberty, with provisions for kidnapping and abduction. However, these crimes are frequently not prosecuted due to societal acceptance of such practices.
International Conventions
Afghanistan is a signatory to several international human rights treaties, including:
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
The Universal Declaration of Human Rights (UDHR)
These conventions require Afghanistan to address forced and early marriages, guaranteeing women the right to choose their partners freely and without coercion.
Challenges in Prosecution
Despite the existence of laws aimed at protecting women from forced marriages and abductions, the prosecution of these crimes faces several barriers:
Cultural and Social Norms: In many parts of Afghanistan, forced and early marriages, as well as customary abductions, are seen as traditional practices, often regarded as part of the country’s cultural heritage. Families may view these practices as normal, and there is significant pressure to uphold such customs.
Weak Enforcement Mechanisms: The legal framework for prosecuting these crimes exists, but enforcement is weak. Corruption, insufficient training for law enforcement, and lack of resources limit the effectiveness of the judicial system.
Impunity: In many cases, perpetrators, including family members, local elders, and community leaders, are not prosecuted due to their influence, power, and ties to the victim’s family. This creates a climate of impunity, especially in rural and tribal areas.
Victim Blaming: Victims of forced marriages and abductions often face social stigma, making them reluctant to report these crimes. The victim may fear rejection, dishonor, or retaliation from their families or communities.
Case Studies
Case 1: The Forced Marriage of Sahar (2011)
Background: In 2011, Sahar, a 16-year-old girl from Kandahar, was forcibly married to a man in his 30s, against her will. Her father had arranged the marriage to settle a debt. Sahar attempted to escape multiple times, but her father and the groom’s family forced her back.
Legal Framework: Under Afghanistan’s Civil Code, marriage requires mutual consent, and the EVAW Law criminalizes forced marriages. Sahar’s case was reported to local authorities by a concerned neighbor.
Challenges: Despite the legal framework, Sahar’s family denied the charges, claiming it was a family matter. The police were reluctant to intervene because of cultural taboos surrounding family honor.
Outcome: Sahar was eventually rescued by a local women’s rights group, but the case was not formally prosecuted. Her father and the groom’s family were not held accountable, highlighting the barriers to legal action in such cases. The case demonstrates the difficulty in prosecuting forced marriage when family and cultural pressure are involved.
Case 2: The Abduction of Amina (2014)
Background: Amina, a 14-year-old girl from a village in Herat, was abducted by a man who wanted to marry her. The man, accompanied by his relatives, forcibly took her from her home and attempted to marry her. Amina’s father reported the incident to the local authorities.
Legal Framework: The Penal Code provides provisions for the prosecution of kidnapping and abduction. Under the EVAW Law, Amina’s abduction for marriage was a clear violation of her rights. The law criminalizes the act of abduction with the intent of forced marriage.
Challenges: The local police, instead of prosecuting the abductor, were reluctant to intervene due to the man’s family connections with powerful local leaders. This delay allowed the abductor to escape justice.
Outcome: After significant pressure from international human rights organizations and women’s groups, the local authorities arrested the abductor. However, his family used their influence to secure his release. The case was eventually dropped, and the abductor faced no significant legal consequences, highlighting the challenge of prosecuting abduction cases where powerful local actors are involved.
Case 3: The Early Marriage of Zainab (2015)
Background: Zainab, a 13-year-old girl from Bamyan province, was married to a 25-year-old man without her consent. The marriage was arranged by her parents to settle a family dispute. Zainab was forced into the marriage despite expressing her desire not to marry at such a young age.
Legal Framework: The Afghan Civil Code requires both parties to give consent to a marriage, and the EVAW Law explicitly criminalizes early and forced marriages. Zainab’s case was reported to authorities by a teacher who became aware of the situation.
Challenges: While the case was reported, the local prosecutor’s office was slow to act due to societal pressures, including the reluctance of the local community to intervene in family matters. Zainab’s family also claimed that the marriage was voluntary, despite evidence to the contrary.
Outcome: After public pressure from women’s rights organizations and advocacy groups, the prosecutor began an investigation. However, the family faced no legal consequences, and Zainab’s marriage was not annulled. This case demonstrated the difficulty in prosecuting early marriage cases when societal norms favor the practice.
Case 4: The Kidnapping of Fariha for Marriage (2016)
Background: Fariha, a 17-year-old girl from a rural area in Kunar, was abducted by a man who sought to force her into marriage. The man took Fariha to a neighboring province and intended to marry her against her will. Fariha managed to escape and report the incident to local authorities.
Legal Framework: The Afghan Penal Code criminalizes kidnapping and forced marriage. The EVAW Law also prohibits such acts, and Fariha’s case fell under both these legal frameworks. The local police initially took her complaint seriously.
Challenges: Although Fariha's escape was brave, the police faced pressure from the abductor’s family, who attempted to prevent further legal action. Additionally, local judges were often hesitant to pursue such cases due to traditional views about the roles of women and girls in Afghan society.
Outcome: The abductor was eventually arrested after public protests and the involvement of national and international human rights groups. However, the case faced multiple delays, and the abductor was released on bail after a few months, signaling the challenges of securing long-term legal action in such cases.
Conclusion
The prosecution of forced and early marriages and customary abductions in Afghanistan is fraught with challenges. Legal frameworks like the Afghan Civil Code, EVAW Law, and the Penal Code provide a foundation for combating these practices, but enforcement remains inconsistent due to social, cultural, and political obstacles. Case law from incidents like Sahar, Amina, Zainab, and Fariha illustrate the persistent difficulties victims face in accessing justice, often because of family pressure, corruption, and the powerful influence of local leaders.
While some cases have seen justice, the overall trend suggests a significant gap between Afghanistan’s legal frameworks and their practical application, particularly in rural and conservative areas. Addressing these challenges requires stronger enforcement mechanisms, education, public awareness, and consistent international pressure to protect the rights of women and girls in Afghanistan.
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