<<previous  |  index  |  next>>

II. Background

Afghan women’s rights have been the flashpoint of conflict, debate, and successive attempts at either repression or reform for more than a century in Afghanistan. In the 1920s, King Amanullah introduced new criminal and civil codes, including a 1921 family code that banned child marriage, required judicial permission before a man took more than one wife, and removed some family law questions from the jurisdiction of mullahs. His wife, Queen Soraya, opened the first girls’ school in Kabul. These changes did not enjoy broad-based support and contributed to a backlash that led to King Amanullah’s overthrow.  During the reign of King Zahir Shah and Prime Minister Mohammed Daoud Khan, measures to introduce voluntary unveiling in 1959 had little impact on everyday practice but other reforms—such as introducing women’s right to vote in the 1964 constitution, and promoting women’s right to education and participation in political processes such as loya jirgas—enjoyed more success among women from the middle and upper classes.  

The Soviet-dominated Communist era introduced a number of sweeping and often compulsory social changes, including coeducational schooling, prohibition of forced marriages, and encouragement of women working, unveiling, and participating in government.  However, the communist government brutally repressed the country and disregarded engagement with traditional social and economic structures, alienating rural populations in particular. When the anti-Soviet mujahidin won control over the country, they brought back mandatory veiling of women in public and re-introduced many restrictions on women’s movements and freedoms.²  However, before the Taliban took power, by some estimates, women accounted for 70 percent of all teachers, 50 percent of all civil servants, and 40 percent of all doctors in the country.³

When the Taliban came to power in the 1990s, they imposed their harsh interpretation of shari’a law on the country, resulting in unprecedented restrictions and violations of women’s rights, including bans on education, work, and freedom of movement. The Taliban imposed harsh penalties on women for violations, including public lashings.⁴  The Taliban confined women to the home, denying them the ability to participate in public life. Women’s access to health care dropped precipitously because of restrictions on their movement and the requirement to use women-only hospitals and wards. Afghan women’s maternal mortality rates remain among the highest in the world, and, during the time of the Taliban, was estimated to be 1,900 deaths per 100,000 live births.⁵

Women and girls’ status in post-Taliban Afghanistan

Women’s and girls’ lives have improved since the overthrow of the Taliban in late 2001. Once confined to their homes, over one million girls are enrolled in school. Women and girls no longer confront Taliban-era restrictions to gain access to health care services. The Afghan government and NGOs have initiated several programs targeted at improving women’s status and public participation. Improvements in women’s and girls’ rights can especially be seen in urban centers such as Kabul, where security is stronger, infrastructure has improved, and the central government exercises firm control.

Still, many Afghan women and girls continue to struggle to exercise fundamental rights to health, education, work, and freedom of movement. Scarcity of data makes it difficult to assess the full scope of the situation or to monitor changes over time. Despite increased flows of international aid after the fall of the Taliban, poor security in many parts of the country, lack of infrastructure, and inadequate numbers of trained personnel have limited real change. For example, Afghan women’s reproductive health and mental health indicators are alarming. A 2002 study found that Afghan women’s maternal mortality rate stood at 1,600 deaths per 100,000 live births, and the eastern province of Badakshan had the highest rate ever recorded in the world at 6,500 per 100,000 live births.⁶  

Since late 2001, enrollment in schools has significantly increased, with over four million children in school.⁷ Despite this improvement, more than half of Afghanistan's children do not attend primary school. Approximately 34 percent of those enrolled are girls, but their drop-out rates are high. Of those attending primary school, only 9 percent go on to secondary school.⁸ While the government reports that over 80 percent of girls in Kabul attend primary school, in some provinces girls’ enrollment rates have shown little or no progress. Only one out of every one hundred girls in Zabul and Badghis provinces attend primary school.⁹ Increasing the number of female teachers is essential to increase the enrollment of girls because many families forbid their daughters to attend schools with male teachers. Security is also key—the Taliban and local military factions have attacked or burned dozens of girls’ schools in the past two years.¹⁰

Restrictions on movement and continuing security threats continue to affect women’s lives and in particular impede their ability to travel, study, and work.¹¹ Under the administration of the recently deposed governor Ismail Khan, women and girls in Herat had little freedom to engage in public life or to travel freely, at times even being subjected to virginity tests.¹² The continuing control of some areas by conservative military commanders, the social barriers imposed by some religious leaders, and the lack of effective control by the central government means that women do not have choices about traveling with mahram (close male relatives), wearing the burqa, or restricting their movements.¹³

Violence against women and the absence of effective redress for victims, whether through informal or formal justice mechanisms, is a pervasive human rights problem in Afghanistan. The practice of exchanging girls and young women to settle feuds or to repay debts continues, as do high rates of early and forced marriage.  According to a study by the Ministry of Women’s Affairs and women’s NGOs, approximately 57 percent of girls get married before the age of sixteen.¹⁴  The Afghanistan Independent Human Rights Commission (AIHRC), women’s activists, and NGOs point to domestic violence being a widespread problem for which there is still little public awareness, prevention effort, or response. Local commanders and their men have also been implicated in cases of sexual violence against women and girls.¹⁵

Women’s participation in the Bonn process

The first condition was that criminals not be there [at the Loya Jirga and in government]. But who were the big big people at the Loya Jirga? All the criminals, they were all there. I expected more changes for women’s rights. In the Loya Jirga, young women got up and said only a few words. Nobody said names, but people knew if such people [warlords] couldn’t participate in the Loya Jirga, the results of the Loya Jirga could have been better then they are now.
─Woman Constitutional Loya Jirga delegate, August 13, 2004

Afghanistan’s current political process is based on the December 2001 Bonn Agreement, an accord signed by representatives of the militia forces who fought with the U.S.-led coalition against the Taliban, representatives of the former King of Afghanistan, Zahir Shah, and representatives of various other exiled Afghan groups. Under the provisions of the agreement, an Emergency Loya Jirga (grand council) met in June 2002 to pick a two-year transitional government. At that meeting, Hamid Karzai was chosen as President of Afghanistan. A Constitutional Loya Jirga was then convened in December 2003 to approve a new constitution and governmental structure. The terms of the Bonn Agreement pledged to foster the political participation of women in the loya jirgas and the interim administration.

Women comprised approximately 12 percent of the Emergency Loya Jirga delegates.¹⁶ Intimidation, threats, and the participation of powerful commanders accused of war crimes marred the process. Many women participants felt they were prevented from giving any substantive input.  Only a few women were able to speak, and some reported their microphones were cut off after five minutes. In contrast, powerful mujahidin leaders, some of whom are alleged war criminals, were given half-hour-long speaking slots. Despite pressure to withdraw and vote for Hamid Karzai, Massouda Jalal, a physician and U.N. staff member from Kabul stood for the presidency at the Emergency Loya Jirga and went on to win 171 votes, second to Karzai's 1,295.  

Women participated with greater freedom in the Constitutional Loya Jirga.  Intimidation still figured strongly, however, and many observers accused military factions of preventing some individuals from standing as candidates, buying votes, and unfairly influencing the election of delegates.  Despite improvement compared to the Emergency Loya Jirga, many female delegates still faced threats and harassment during the proceedings, or censored themselves due to fear of retaliation upon return to their home communities. Human Rights Watch interviewed several delegates who left the country temporarily or delayed their returns home because of such fears. One woman said, “Many delegates were commanders who had killed a lot of people, who had weapons and money. The things that we wanted to say in the Loya Jirga─we were afraid to say them, because these [commanders] were sitting behind us.”¹⁷

In one of the most dramatic moments of the meetings, a young female delegate from Farah province, Malalai Joya, publicly demanded that former warlords be tried in national and international courts. Other participants tried to expel her from the assembly. Despite becoming a heroine to many Afghans, she has received numerous death threats.¹⁸

Human Rights Watch spoke with several women participants who subsequently faced retaliation in the form of harassment, dismissals from their jobs, and transfers to less desirable positions.  Because of the small number of female delegates from each province, they requested that we not publish their locations as their identities would be clear and they would risk further harassment. One woman delegate from northern Afghanistan reported: “After I participated in the Loya Jirga, I did not receive my salary for six months.”¹⁹  Another delegate was dismissed from her job as a teacher after the Emergency Loya Jirga.  Other women delegates said that local authorities and commanders directly harassed them through phone calls or in face-to-face meetings upon their return from the loya jirgas.

Women’s rights in the constitution

The citizens of Afghanistan – whether man or woman – have equal rights and duties before the law.
─Constitution of Afghanistan, article 22.

The Afghan Constitution of 2004 contains specific provisions guaranteeing certain women’s rights. Article 22 guarantees women’s equal rights and duties before the law. Article 44 states: “The state shall devise and implement effective programs for balancing and promoting of education for women, improving of education of nomads and elimination of illiteracy in the country.”²⁰  Analysts point to provisions in the Constitution barring any laws contradicting the beliefs and provisions of Islam, which could facilitate punitive adultery laws and could be used in efforts to block measures to protect women’s equal rights in divorce or inheritance.

The Constitution also guarantees seats for women in Afghanistan’s bicameral National Assembly. Approximately 25 percent of the seats in the Wolesi Jirga (House of the People) are reserved for women and the president must appoint additional women to the Meshrano Jirga (House of the Elders). The Constitution also obliges the government "to create a prosperous and progressive society based on social justice," and to "protect human rights."  The Constitution expressly requires the state to "abide by the U.N. charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights."  Afghanistan acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) without any reservations on March 5, 2003.²¹