February 17th Panel: Civil Rights For Women in Afghanistan

Delivered by Professor Katherine Franke at panel on the Global Consequence of the War in Iraq organized by the Columbia Faculty Peace Committee
February 17, 2003

My remarks tonite could easily fall under the title"meanwhile, back in Afghanistan."  There are lessons to be learned in what has gone wrong in Afghanistan, but unfortunately too many of them are being repeated in Iraq.

 Just weeks after the attacks of September 11th, the Bush Administration turned to the First Lady to deliver the weekly radio address to make the case that the invasion of Afghanistan was not a fight against Islam, but rather a fight to liberate the women of Afghanistan from terrorism.  "Because of our recent military gains in much of Afghanistan," she argued, "women are no longer imprisoned in their homes. They can listen to music and teach their daughters without fear of punishment. Yet the terrorists who helped rule that country now plot and plan in many countries. And they must be stopped. The fight against terrorism is also a fight for the rights and dignity of women."  George Bush, the man who occupies the White House, but whom I refuse to call President, told us in his 2002 State of the Union message "mothers and daughters of Afghanistan were captives in their own homes ... Today women are free." 

 The freedom women in Afghanistan enjoy today is a curious freedom indeed.  It is a freedom to be married at age 9 to a man 5, 6 or 7 times her age, and then be deprived of the ability to go to school by virtue of her new status as wife.  It is a freedom to walk the streets without being fully covered by a burka, but at the risk of being subjected to a virginity exam by agents of the Ministry of Enforcement of Virtue and Suppression of Vice - a ministry established by the Taliban, but retained by President Karzai under the new name Ministry of Religious Affairs.

 There is much to learn from the experience of women in Afghanistan.  First, about the use of women's interests as a fig leaf for imperial action by a hegemon like the U.S. - surely this is not the first instance of this particular utility of women.  Second, about the limits of law and rights in delivering practical freedom for oppressed people.  And third, that the rule of law can easily transform into rule by law when we assume an insufficiently critical posture toward law in general and rights in particular.   To borrow a notion from our colleague Gayatri Spivak, rights are something we cannot not want, but they should never be understood as a horizon in and of themselves.  Rather, at best they form a floor upon which a just society can be built.

 No one disputes the fact that life was quite awful for Afghan women under the Taliban regime - although, to be honest, in many regards the Taliban years were safer in significant ways for women that was the rule of the Mujahadeen and the current state of affairs.  But having used the best of the U.S. military to liberate the women of Afghanistan, what has been accomplished?

 First, and surely quite importantly, Afghanistan has a new Constitution adopted by the Loya Jirga just last month.  This is not Afghanistan's first constitution, nor presumably will it be their last - they have had five constitutions since 1931, and this one is not the only that was written with the substantial influence of occupying forces or imperial administrations.  On it's face, the Afghan Constitution is much more progressive than the U.S. Constitution.  It declares that "the citizens of Afghanistan - whether man or woman - have equal rights and duties before the law."  The Constitution mandates that each province must elect at least two women to the lower chamber of the National Assembly, and that the President must appoint a third of the Upper Chamber - a full half of whom must be women.  In addition, the State must devise and implement effective programs for balancing and promoting education for women.  

 The Constitution sets out important structural components of the new Afghan State: legislaive, executive and judicial branches, and demands that Afghan laws conform to four legal sources: the sacred religion of Islam, the Constitution, prior Afghan laws, and international covenants, laws and treaties to which Afghanistan is a signatory, including - the Universal Declaration of Human Rights and the Covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW) which they ratified without reservation in March of 2003.

 If rights could deliver everything they announced - this would be fabulous.  But of course, they can't.  On one account, rights operate as institutional supports for human action.  They operate as a shield that holds back the state and thereby carves out a zone, a space for human freedom unbound by governmental constraints.   This negative account of rights aims to create the enabling conditions for publics of various kinds to emerge and to thrive independent of governmental oversight.  A more positive account of rights, and one surely anticipated by the literal text of the Afghanistan Constitution promises to deliver substantive resources and compels the state to act in ways that compensate for injustices and inequities that are produced by those very publics and private orderings that the negative conception of rights is aimed at encouraging.  While the new Afghanistan Constitution, unlike the U.S. Constitution, is not limited only to negative rights, the positive rights it contains are practically meaningless where the state is extremely week, if not existent in most parts of the country, and is also without resources to deliver on the soaring rhetoric of its Constitutional text.  So I anticipate in Afghanistan, as in South Africa where there is also a magnificent Constitution, many of the substantive provisions in the Constitution will remain splendid baubles with little practical effect for quite some time.

 But even the negative rights in the Constitution should give us cause for concern.  Those rights, as I said, are designed to clear out space for various forms of human action independent of the state.  But what rushes in to that space in the absence of  healthy institutions of civil society are, typically, either the market or other powerful private actors - in Afghanistan's case - warlords and religious leaders of various stripes.  And this is exactly what is happening.   While President Karzai's transitional government may have some control in Kabul, outside Kabul the warlords and Mullahs rule.  While a Constitution is not a foreign idea to most Afghans, there is little "Constitutional patriotism" among many Afghan people - they don't think it matters, and they don't feel bound by it - and this is particularly true for the most powerful private actors.

 What is worse, without an independent judiciary that is committed to the underlying values of the Constitution, the document will mean very little.  With respect to women's rights, this is where the real rub can be found.  The current Chief Justice of the Supreme Court, Fazl Hadi Shinwari, was the former head of a Peshawar madrasa and a close associate of Abd Al-Rabb Sayyaf, who is the leader of a Saudi-funded ultra puritanical party in Afghanistan.

 Shinwari was appointed by former President Rabbani and reappointed by President Karzai.  As Chief Justice Shinwari expanded the Supreme Court from nine members to 137, none of whom are women, and all of whom, from what is known about them, have training only in Sharia law, but not Afghan or Western secular law.   The 1964 Constitution, under which he was nominally appointed, set a maximum age of 60 for Supreme Court justices, but Shinwari is believed to be over 80 years old.  The new Constitution, interestingly enough, sets a minimum age of 40 at the time of appointment, but no maximum age for Supreme Court Justices.  What is more, the new Constitution requires that Justices be trained in either Sharia or secular law, but not both.

 So what does this all mean for women?  Let's start with the Constitutional requirement of gender-based equality.  The Bonn Agreement signed in December of 2001 and that set out the terms of transitional state re-building in Afghanistan, instructed that the 1964 Constitution be the starting point for the new Constitution.  The 1964 Constitution contained good equality language, but was of little value to women because judges required that anyone seeking redress under its provisions had to demonstrate Afghan citizenship through production of a state-issued identity card which few women possessed.  There is no sign that this problem has been or will be alleviated any time soon.

 The Supreme Court is charged with interpreting and reviewing the compliance of all laws with the Constitution and with international treaties and conventions.  How is the Court to harmonize the twin requirements of gender equality and fidelity to Sharia?  The Constitution starts out with the admonition: "No law can be contrary to the beliefs and provisions of the sacred religion of Islam."  This language is regarded as a setback by obververs of the Constitutional drafting process - an earlier version required fidelity to the sacred laws of Islam rather than the broader, more easily manipulated term "beliefs and provisions of the sacred law of Islam."

 So one of the problems this sets up for women is this: if the law must conform to Islam and Sharia, which Sharia law?  Afghan codes and statutes enacted under  the 1964 progressive Constitution were codifications of the school of Sunni jurisprudence called Hanafi.  Yet the current judiciary adheres to a more conservative form of Sharia, including Pashtunwali - when it comes to family law matters, and the bulk of other legal problems that women bring to legal authorities.  These laws restricts women's property rights, allows the marriage of very young girls, and permits exchange of women to resolve disputes.

 Thus we now see the continued marriage of girls at very young ages, endemic domestic violence, including murder of girls who refuse to marry the men their fathers choose for them, use of girls as "deal sweetners" and as gifts in dispute resolution, and mass rapes of women and girls.  When women and girls go to the police to report instances of sexual violence they are met with incredulity and the attitude that they brought it on themselves.  Further sexual violence by police is quite common.  Amnesty International was informed that when women are arrested for adultery in Jalalabad, they face the risk of sexual abuse and transfer to different police stations where they are repeatedly abused.   One woman told Amnesty "If the commanders arrest a girl in a case of adultery when her case is going to the first district police station, they sexually abuse her saying you had relations with a man so you should with us also. Then they transfer the woman from station to station."

 In many communities, women are not allowed to leave the home without a male relative, and in some areas if they are seen with un-related men they will be administered a virginity test. The segregation of men and women is still strictly enforced, and given the shortage of female teachers, and the prohibition of co-educational classes, this has meant that many girls are not getting an education, despite the Constitution's mandate that the state take affirmative steps to assure women's educational rights.  Divorce remains extremely difficult for women to obtain. 

 Many of these practices are hold-overs from the Taliban, and will stubbornly resist change while there is a weak national government and strong conservative religious leadership.  Unfortunately, the current Afghan Supreme Court is making matters worse, not better.  On their own initiative they are intervening in social practices that they find sacrilegious.   A young Afghan woman attending college in California recently entered a beauty pageant wearing a red bikini representing Afghanistan, and the judiciary wasted no time speaking out against.  So too did the female Minister of Women's Affairs, announcing that  "No Afghan girl wants that kind of freedom."

 And just weeks ago the Chief Justice of the Supreme Court issued an "opinion" condemning a state run cable television's broadcast of and old video of a female singer - who was wearing a simple headscarf - who sang a traditional Afghan folksong about beautiful landscapes.  The Court expressed it's strong reproach for the government allowing such a thing to happen - "In the constitution there is an article that says things that go against Islam are not allowed" they wrote.  The Kabul cable TV station immediately declared a ban on the broadcast of women singing.  This intervention on the part of the Supreme Court went further - urging a ban on all cable TV and racy Indian movies quite popular on Afghan TV.

 Now, I cannot resist pointing out that this kind of incident is not unique to Afghanistan - and I don't want to exocitize the nature of women's oppression there.  The parallels to the public reaction to Janet Jackson's breast's presence at the Super Bowl are rather irresistible.  The Congress swept into action to deal with this horrible development, and even discussed imposing limitations on Viacom for allowing such scandalous and Un-American thing to happen.

 That the pace of reform for women's rights has moved as slowly as it has in Afghanistan, particularly in light its progressive constitution, cannot be entirely laid at the feet of the Supreme Court and sexist private actors.  The U.S. led transitional authority, the United Nations and some international NGOs bear some responsibilty as well.

 There has been little to no effort to pitch gender-based equality norms in an idiom that resonates with Afghan tradition.  Clearly the over-reliance on law in efforts at creating greater "freedom" for Afghan women resonates too closely with the general sentiment among many Afghans that the invasion and occupation of their country is colonial in nature.   The impression has been created that women's rights are being forced upon Afghan citizens by an occupying force of foreigners who have no sensitivity to local custom and seek to Westernize Afghan culture.  While Iran is no panacea for women's rights - There are important lessons to be learned from the women's rights movements in Iran - where advocates have done a much better job of articulating equality issues in a Sharia based vernacular - and thereby accomplishing important reforms in family law. 

 In addition, for the status of women to under go change requires significant infrastructure both governmental and within civil society, to make the law meaningful.  The Ministry of  Women's Affairs and the Afghan Human Rights Commission have not been given the support they need to translate international equality norms, like those contained in CEDAW, into something meaningful and lasting for women and girls in Afghanistan.

 There is much work to be done to improve the quality of life for all Afghans.  Yet the so-called coalition that led the military takeover of the Afghan government seems content with the idea that all the Afghans need is a Constitution and an election to set them on their way toward freedom - which freedom will spread through out the Islamic world.   The props of democracy and equality are never sufficient to build a more just society, and like in everything else this administration does, they are delusional that they can withdraw in short order being able to declare "mission accomplished."  This fact should have been brought home to George and Laura Bush personally when they met last year with a delegation of female Afghan governmental officials who attended computer and management courses in Washington at the invitation of the U.S. government.  A picture of one of the delegates, a female judge who was not wearing a headscarf when she met with the Bushes, circulated in the Afghan media.  She was immediately dismissed from her judicial post by Chief Justice Shinwari.