Women’S Rights And Access To Justice In Afghanistan
Women’s Rights and Access to Justice in Afghanistan – An Overview
Legal Framework:
Afghan Constitution (2004) – Article 22 guaranteed gender equality. It stated that "any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan, man and woman, have equal rights and duties before the law."
Elimination of Violence Against Women (EVAW) Law (2009) – This presidential decree criminalized many forms of violence against women, such as forced marriage, rape, and domestic violence. However, it was not passed by Parliament and faced inconsistent implementation.
International Commitments – Afghanistan ratified CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), committing to take steps to eliminate discrimination against women.
Obstacles to Justice:
Weak Rule of Law: Courts are often corrupt, male-dominated, and lack gender sensitivity.
Customary Practices: Many disputes are resolved by jirgas or shuras (tribal councils), which often ignore formal law and discriminate heavily against women.
Fear of Retaliation: Women pursuing justice face threats, stigma, and violence.
Lack of Legal Awareness: Many women are unaware of their rights under Afghan and international law.
Collapse of Legal Institutions under the Taliban: Since 2021, most women judges, lawyers, and prosecutors have been removed or have fled. Taliban courts do not apply the EVAW law or constitutional guarantees for women.
Case Law and Real-Life Case Studies
1. Farkhunda Malikzada Case (2015) – Mob Lynching and Failed Justice
Facts:
Farkhunda, a 27-year-old Islamic studies student in Kabul, was falsely accused of burning the Quran. A mob of men brutally beat her to death near a mosque, while police stood by. Her body was then set on fire and thrown into the Kabul River.
Legal Outcome:
Initial court proceedings sentenced 4 men to death and 8 others to lengthy prison terms.
However, on appeal, the death sentences were overturned, and many sentences were reduced or dismissed.
Several police officers were also tried for negligence, but most were acquitted.
Significance:
This case exposed deep flaws in Afghanistan’s criminal justice system:
Public trials were initially praised, but the quick reversal raised concerns about political manipulation and lack of judicial independence.
Women's groups demanded reforms but saw little institutional follow-up.
The case illustrated how public outcry can push legal action, but without sustained pressure, justice remains elusive.
2. Sahar Gul Case (2011–2012) – Torture and Forced Marriage
Facts:
Sahar Gul, a 15-year-old girl, was sold into marriage and brutally tortured by her in-laws for refusing to engage in prostitution. She was starved, beaten, and locked in a basement for months before being rescued by the police.
Legal Outcome:
Her in-laws were sentenced to 10 years in prison under the EVAW law.
In 2013, an appellate court released them due to "lack of evidence" and procedural issues.
The Supreme Court later ordered their re-arrest, but they were never effectively brought to justice.
Significance:
This case highlighted systemic corruption and failure in applying protective laws.
Despite clear evidence and media attention, the legal system failed to deliver justice due to political pressure and weak prosecution.
It showed the difficulty of enforcing EVAW law when higher courts are not held accountable.
3. Brishna Case (2014) – Rape and Murder of a Child
Facts:
Brishna, an 8-year-old girl from Kunduz, was raped and murdered by a 22-year-old relative. The case shocked the nation.
Legal Outcome:
Public outrage led to swift action. The perpetrator was arrested, tried, and sentenced to death.
The President at the time, Ashraf Ghani, publicly supported capital punishment in this case.
Significance:
While the death penalty was carried out quickly, critics argued that the case was used for political gain.
The focus on capital punishment diverted attention from long-term reform for victims and prevention.
The case shows that justice can be swift when public and political pressure align—but this is the exception, not the rule.
4. Khatera Case (2020) – Attack on Female Police Officer
Facts:
Khatera, a young female police officer in Ghazni province, was attacked by Taliban gunmen who gouged out her eyes with knives. She survived and spoke out publicly.
Legal Outcome:
Despite international condemnation, there was no meaningful investigation or prosecution.
Taliban denied involvement, and local authorities claimed "family issues," a common excuse used to avoid prosecuting gender-based violence.
Significance:
This case reflects how women in public roles are targeted and denied protection.
It also shows the erosion of law enforcement's commitment to women’s safety even before the Taliban's return to power.
Female victims of political and gender-based violence rarely get justice, especially in provinces dominated by conservative forces.
5. Female Judges Forced into Hiding (Post-2021 Taliban Takeover)
Facts:
After the Taliban regained power in August 2021, dozens of female judges and prosecutors received threats from former prisoners they had sentenced (many of whom were released by the Taliban). Several judges went into hiding, while others fled the country.
Legal Outcome:
There were no efforts by Taliban authorities to protect female judges.
The judicial system was overhauled, and women were barred from working in legal roles.
Former judges like Judge Nazifa and Judge Anisa publicly spoke about the death threats they received, highlighting the collapse of legal protections.
Significance:
This demonstrates a complete rollback of access to justice for women—both as litigants and as professionals.
Women judges, once seen as a symbol of progress, were stripped of power and targeted for their past decisions.
The case signifies institutional collapse and loss of any gender-based legal recourse.
Conclusion
While Afghanistan once had a fragile legal framework aimed at promoting gender justice, the actual delivery of justice for women has always been highly inconsistent. Key obstacles include:
Lack of enforcement of protective laws (like EVAW).
Political interference and corruption in the judiciary.
Reliance on informal justice mechanisms that are biased against women.
Increasing restrictions under the Taliban regime, which now bars women from almost all legal, political, and educational avenues.
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