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Protect Afghan women

The National Law Journal
May 11, 2009

Thehe Afghan Constitution affirms a commitment to the Universal Declaration of Human Rights.

In the United States, women and their advocates mount battles for fair treatment on the job. The law generally supports these efforts, although enforcement can be problematic. On the household front, married couples decide for themselves how they wish to order their affairs; the state maintains a hands-off stance. But if, say, a man assaults his wife or tries to imprison her in the home, she can seek legal redress. In Afghanistan, by contrast, women belonging to the Shi'a minority (15% to 20% of a population of 30 million) do not have the "luxury" of focusing upon respect in the workplace and equitable division of family tasks. On April 15, confronting both vilification and physical attack, about 300 hardy souls marched in the streets of Kabul to protest new impositions on their lives, which range from the dreadful to the merely demeaning. This is Talibanism redux.

As a result of the Personal Status Law enacted by the Afghan parliament in February and signed by President Karzai in March, Shi'a men may force their wives to yield to intercourse, bar them from going to work or school and even demand that they wear cosmetics. Widely viewed as a ploy to attract Shiites' support in his upcoming re-election bid, the statute was passed in an atmosphere of strong pressure and scare tactics.

Specifically, the marital rape provision compels a woman submit to sex with her husband every four nights. Its proponents note in its defense that the law excuses her from this duty if, for instance, either party suffers from a sexually transmitted disease or the woman is preparing to go on a pilgrimage or fasting for Ramadan. Citing the husband's obligation to support his family, one cleric rhetorically inquired whether, "[f]or all these expenses," he should not at least enjoy the right to demand sex in return. The notion that proper Islamic wives should barter their bodies for financial gain is somewhat ironic, as the April 15 demonstrators were widely excoriated as "whores."

Restrictions on work and education flow from the fact that a husband may forbid his wife to leave the house except in emergencies. Many articles subjugating women to men give the former the status of chattel. The Organisation for Economic Co-operation and Development's 2009 Social Institutions and Gender Index ranks Afghanistan second only to Sudan among the worst nations for gender equality.

By contrast, except in the days of the Taliban (1996-2001), women's lives had been slowly improving; there are now more female members in parliament than in the U.S. Congress. In addition, the Afghan Constitution, adopted in 2004, holds "liberty and human dignity...inviolate" and bars gender discrimination. Yet by enjoining courts to apply Shi'a sharia law to Shiites in cases concerning "personal matters," the constitution sanctions an end run around its substantive guarantees with regard to members of this sect. No such evasion is consistent, however, with the many liberal covenants to which Afghanistan acceded in better times — most notably the Convention on the Elimination of All Forms of Discrimination against Women. Moreover, the constitution itself affirms a commitment to adhere to these instruments, the U.N. Charter and the Universal Declaration of Human Rights.

Given the virtual global consensus in favor of ending disparate treatment based on gender, evidenced by the near-universal outcry that followed enactment of this draconian statute, its supporters predictably blamed local protests on foreign influence. Nonetheless, world disapproval surely furnished a principal reason for the president's decision to remit the law to the Justice Ministry for further review. One can hope that this second look will give the government a face-saving means of backing off its retrograde course and rejoining the civilized community of nations.