Eurasia Insight:
AFGHANISTAN: IS THE OBLIGATORY SEX LAW POLITICALLY MOTIVATED TO BOLSTER KARZAI'S POLL HOPES?
Aunohita Mojumdar: 4/10/09

Following an international outcry, officials in Afghanistan have backtracked on legislation that would have drastically curtailed women's rights. While some international observers characterized the draft bill as an aberration in Afghanistan's democratization process, critics insist Afghan President Hamid Karzai's administration is willing to endorse discrimination in order to bolster its standing in conservative constituencies.

The Shi'a Personal Status bill would codify unequal marriage rights and duties for men and women within the Shi'a minority. Foreign critics have complained that the legislation would enable a husband to compel his wife to have sex with impunity, in effect engaging in action that in several Western states meets a legal standard of rape. The law would also lower the marriage age below the minimum enshrined in the civil law, currently 16 for girls and 18 for boys, allowing for the marriage of minors.

Women's rights activists say they have been agitating against the discriminatory provisions of the law since it was first drafted in 2007. They see a negative trend and fear that the bill is the beginning of a process that will see women's rights bartered in lieu of political deals and compromises, both during the upcoming presidential and parliamentary elections and in the larger process of reconciliation with the Taliban.

Female MP Shinkai Karokhail, who has been at the forefront of raising this issue within parliament, says the discriminatory provisions were by no means an aberration or oversight. "We have pointed these out in detail over the past two years. As recently as March, just before the bill got presidential assent, we had questioned why the bill contained these discriminatory provisions," she told EurasiaNet.

The bill has been passed by both houses of parliament and signed by President Karzai, thus completing three of the four stages for adoption of the law. However, it has still not been published, the last step before it becomes legally binding. Karokhail says the bill was passed in haste. "Different departments of the legislative process rushed through the bill. This was entirely for political reasons. Only four or five powerful people within parliament supported it, but not the majority," she asserted.

The perception that political machinations or a political deal were behind the bill is widespread amongst women's rights activists. "It has nothing to do with religion," asserts Wajma Frogh, the Country Director of Global Rights in Afghanistan. "It is political. Women's issues are being compromised for political gain."

Activists, however, are also aware that they have to tread cautiously so as not to be seen as discriminatory toward a religious minority group in Afghanistan. Karokhail emphasizes that the changes they are demanding in the Shi'a bill are similar to the safeguards they are seeking under the Sunni version of the law, which is still in the drafting process. Indeed, the fear is that if the discriminatory provisions of the Shi'a law are not overturned, it could set a precedent that would impact the majority Sunni community as well.

The swift reactions of international leaders -- including US Secretary of State Hillary Clinton and outgoing NATO Secretary General Jaap de Hoop Scheffer -- led Karzai to order a review. If anything in the legislation is found to contravene the country's constitution or Sharia law, the president said, "measures will be taken."

"We understand the concerns of our allies in the international community," Karzai told a press conference in Kabul. "Those concerns may be out of inappropriate or not-so-good translation of the law, or a misinterpretation of it."

The somewhat haphazard international reaction to the bill has, in part, allowed the government to shield itself. To date, there is no authoritative translation, preventing many organizations and international bodies from taking a firm, clear and public stand on this issue. In a statement issued early this month, UNIFEM Afghanistan made clear its concerns about the initial draft, noting that, "the question was raised as to whether the draft law was consistent with Afghanistan's own legal framework which includes the Afghan Constitution."

In the absence of a definitive version of the legislation, Karzai has some wiggle room to speak of "inappropriate" concerns based on incorrect interpretations. Some say his characterization that opposition to the bill emanated from the international community is misleading, since the most fierce and consistent opposition has come from Afghan women and Afghan groups. Local activists claim that the president's office and the Ministry of Justice have long been aware of the specific objections, as well as suggested amendments.

Bolstered by the international reaction, Afghan activists are still worried that the "review" will become an excuse for not taking action, and that the international community's interest in the issue will dwindle. "In the beginning we were a priority, and efforts were made to have the active participation of women in public life. Now we are no longer on the agenda of the government and international community," said Karokhail. "We are not being consulted on any major decisions. We are not being consulted on talks with the Taliban. There is a fear in our heart that the politicians will compromise our rights."

Rachel Reid, the Country Representative of Human Rights Watch, is worried that, as diplomats and government officials speak more openly about reconciliation with the Taliban, the bill portends a decrease in attention to women's rights. "In passing this law, Parliament and the president have behaved as though women's rights are expendable," she told EurasiaNet. "All of this makes the prospect of reconciliation with the Taliban deeply worrying if women's rights can be so easily abandoned and those who want to speak up for women can be so easily silenced. One has to hope that those international politicians who expressed outrage at the Shi'a family law will show the same commitment to women's rights when deals are being made with the Taliban."

Editor's Note: Aunohita Mojumdar is an Indian freelance journalist based in Kabul. She has reported on the South Asian region for the past 18 years.