11/13/2003

Bias Remains Under The New Law
By Masuda Sultan and Hannibal Travis,

AFTER MONTHS of debate and much anticipation, President Hamid Karzai has released Afghanistan's draft constitution. Unfortunately, it does not provide clearly for the human rights of Afghan women or mandate a change in laws used to oppress women in the past.

The Constitutional Review Commission and Karzai should be commended for doing their best to reconcile Afghanistan's traditions with human rights and international law. However, they appear to have been hampered by the danger that strong guarantees of women's rights would trigger opposition by the warlords, who by all accounts will dominate the constitutional loya jirga, or assembly. According to Human Rights Watch, warlords are making death threats to warn moderates and women against running as loya jirga delegates and can be expected to do the same in the debates on the constitution. In this context, the constitution's drafters were effectively forced to negotiate against themselves, watering down provisions for women's rights so much that they may remain inadequately protected for many years.

Afghan women say that some of the worst abuses of the Taliban continue, justified by discriminatory applications of religious law. Women across the country report that they are still being subjected to Taliban-like bans on their movement, education, and employment, bans that they were promised would end. Girls and women also continue to be forced into marriages, sold by their families to much older, often married men. An abused woman seeking a divorce is often arrested and jailed when she flees the home. Police typically refuse to release her unless she agrees to return to her family, even if it means a return to physical abuse. Adultery is a criminal offense, and honor killings go unsanctioned by the authorities.

During the height of the coalition bombing of Taliban targets, Secretary of State Colin Powell decreed that once the Taliban fell, "the rights of the women in Afghanistan will not be negotiable." But Afghan women know that without specific constitutional protection against the discriminatory laws and practices of the past 25 years, these violations are likely to continue.

Recently, 45 women leaders from across Afghanistan, including big cities and small conservative villages, participated in a Kandahar conference organized by Women for Afghan Women. The women drafted and unanimously agreed on a bill of rights for Afghan women to be included in the constitution. They presented the bill of rights to Karzai and the Constitutional Review Commission and made their case that the constitution must outlaw discrimination against women, forced and underage marriages, and the trading of unwilling women between families. They insisted that the constitution give Afghan women full rights of marriage, divorce, employment, education, voting, inheritance, and property.

In the draft constitution, however, women are not explicitly guaranteed equal rights with men, as they are in the constitutions of neighboring Muslim countries such as Tajikistan, Uzbekistan, and Pakistan. One member of the drafting commission has been quoted saying, "There are some things in which you cannot make women equal, such as in marriage, divorce, testifying in court, inheritance, and even leadership of the nation."

The draft also does not specifically outlaw discrimination against women, as do the constitutions of Muslim countries such as Pakistan, Bangladesh, Egypt, and Turkey. Instead, it guarantees equality and civil rights to "citizens," without stating that women are citizens. And the draft constitution does not require abolition of laws that allow the police and the judiciary to imprison women and girls for running away from forced marriages and abusive homes.

Worse, because its provisions barring warlords and war criminals from political office are extremely weak, the draft leaves the door open for the Taliban to retake power. There is no prohibition in the draft against Taliban or former Taliban occupying public office and imposing Taliban law, even though similar limits were imposed on Nazis, Japanese militarists, and other movements implicated in crimes against humanity. Taliban and warlords are banned from office only if they have actually been convicted of a crime, which few have been. The Afghan Independent Human Rights Commission will not be able to prosecute Taliban or other war criminals under the draft but must refer them to the courts, many of which are run by judges held over from the Taliban's reign.

The idea of Taliban running for parliament is no fantasy. In fact, coalition forces recently released the Taliban's foreign minister from custody, and prominent Afghan officials have already invited him and other Taliban to run for office in the upcoming elections, something that millions of Afghan women are still too afraid to do.

Masuda Sultan is program director for Women for Afghan Women. Hannibal Travis is an attorney in New York City.