The Law and the Woman: A slice of Afghanistan

The Law is an Ass. Or at least that’s what literature’s most loved text’s Oliver Twist’s character, Mr. Bumble, said. When Mr. Bumble is informed that “the law supposes that your wife acts under your direction”, Mr. Bumble replies saying, “If the law supposes that ... the law is an ass—an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

When the Taliban was in its halcyon days as the self-assumed leader of Afghanistan, this was the ground reality for women, as their routine movements were stultified and brought to nought, unless a male accompanied them. Women were schooled, policed and bullied into obeying the obligatory norm.

And then down went the Taliban. But the law remained an ass in its implementation.

Is the Afghan Woman a Prisoner  of Law because she is who she is?
Picture sourced from www.komincents.wordpress.com

With that paradigm shift, much was believed in terms of a positive outlook for the women of Afghanistan, vis-a-vis their rights and their legal status. Almost as quickly, a law ran into place, taking the shape of an instrument that would plug a host of abusive practices that include within its ambit offences such as rape, forced marriage and the trading of women to settle disputes and the like. But now, the legal instrument is as good as non-existent, considering how scant the enforcement itself is, as a recent UN Report suggested. The report was a product of a joint study by the UN Assistance Mission to Afghanistan (UNAMA) and UN High Commissioner for Human Rights. It shows that the police, the judicial authorities and the governmental officials throughout the country have implemented the law inconsistently, and only in a small number of cases.

In 2009, Afghanistan’s Law on the Elimination of Violence against Women was passed, in the process lighting candles of hope amongst women across the country, as it showed signs of suffusing women with rights to counter abuses meted out to them. For the first time in the history of Afghanistan, abuses such as domestic violence, child marriage, abetting the suicide of a woman and the traffic in women were bridled under the rubric of the law as being offences. In the two years since the passage of the law, the number of crimes reported under the law was a miniscule sum. About 594 investigations involving crimes under the law were opened, as opposed to a resounding 2299 incidents that were registered by the Afghan Human Rights Commission. Of the 594 investigations, only 155 crimes had indictments filed in them.

                                             

Pictures sourced from www.unmultimedia.org/photo/

Why?

Because sometimes, the victims were forced to take back their complaints.

Because sometimes, the victims were forced to settle for mediation before traditional councils.

Because sometimes, the prosecutors didn’t go ahead with all the mandatory investigations for the violent acts meted out to the women complainants.

Because sometimes, the police ignored their complaints.

Because sometimes, women can’t complain because there is no government in their province, or the Taliban controls their province.

Because sometimes, the women were made the criminals themselves in the process.

Shocking, isn’t it?

Totally. But it’s also true.

In March this year, in Kandahar, when a woman reported that after her daughter was married off into a family, her in-laws used the girl as an unpaid servant, forcing her to have sex with visiting men. The poor girl set herself on fire in her room. Her mother took up cudgels for her deceased daughter, but the police simply recorded the complaint and remained inert- despite the fact that the law specifies that all cases where a woman is suspected of being driven to kill herself by self-immolation require investigation even without a lodged complaint.

Though in principle, the 2009 law should apply, many a prosecutor relies on the penal code, the Sharia law or even traditional dispute resolution methods. Most times, these resulted in acquittals and lighter sentences, or even women being penalized on “moral” grounds.

(Background) Seeba cries, worried for the health of her newborn, who is held by another inmate in the Kabul Female Prison and Detention Center. Seeba is serving a five-year sentence for allegedly having an affair. Over half of the Center’s inmates were detained for ‘moral crimes’, including running away. Afghan girls and women continue to face entrenched gender discrimination, forced marriage and domestic abuse.
Afghanistan, 2010 ©UNICEF/NYHQ2010-1890/Brooks

An example for this is the case of Gulnaz, a woman who was recently pardoned by the Karzai government after being imprisoned on charges of adultery that were totally false. Gulnaz was raped by her cousin’s husband when he found her alone at home when her mother and cousin had gone to the doctor. Though she kept quiet about the rape, the signs of a nascent pregnancy gave away. The authorities arrested her cousin’s husband, but not stopping with that, they arrested Gulnaz also- on charges of adultery. Gulnaz’s little daughter was born on the hard and cold stone floors of a Woman’s Prison. But even as she’s released, Gulnaz finds herself in a predicament where traditional law enforcement would mandate that she marry the man who raped her.

All of this begs the asking of a very pertinent question. Is tradition always going to trounce the law?

Afghanistan has a jirga, which is a grand assembly or a council that serves as a dispute resolution authority as opposed to a proper court. The jirga is largely parochial, confined and amply orthodox in its ways, as it attempts to maintain stability within the gamut of a tribe and its peoples, as opposed to implementing decisions based on the law. The members constituting the jirgas are “wise men”, but the knowledge of law and dispute settlement is conspicuous by their absence. When divorce, murder, suicide abetment and rape cases come before the jirga, preference is accorded to what is “morally correct” from the standpoint of the jirga’s warped perception.

Earlier this year, the jirga was to hear the case of two girls, who were raped by their own father and brother. But the jirga didn’t give them justice. It pardoned the men in a bid to offer the conflict the best resolution. And it executed the girls and the lawyer who helped them bring their case to the jirga.

Clearly, tradition will continue to trounce the law and the ethically accepted standards unless there is a change in the ethos. Women in Afghanistan have been passive in their submission to many an offence meted out to them- and it isn’t fair to blame them when their own society finds them so easy to be disposed off, and doles out the death sentence in a manner most devoid of compunction. The cultural disorientation that perceives women as nothing more than chattels is a product of the Taliban legacy, that women are unnecessary and unwanted temptations.

And until that paradigm shift in the legal implementation comes into play, as Mr. Bumble said, The Law will remain an Ass.

But the resilience the Women in Blue wield as a sheath beneath the canvas chadris that cover them, is easily the first step towards side-stepping the harsh culture, but is most certainly not enough. How much ever resilience they may wield is insufficient, if the exterior forces are exceptionally keen on striking them down. If there should be change in the situation, it must come from within. Patriarchal hegemony must give way to accommodate women. And above all, the men in Afghanistan’s society must be pragmatic and altruistic in their understanding of their religious dictates. Women must be respected- they are not unnecessary or unwanted temptations. Women are as much a creation of the Lord that created them, and as soon as this realization dawns on them, the social structure in Afghanistan would be able to overthrow the encumbrance of a faulty perspective of life and the role of women.

By Kirthi Jayakumar