Women’S Access To Justice Under Afghan Criminal Law
Women’s Access to Justice Under Afghan Criminal Law
1. Introduction
Access to justice for women in Afghanistan has historically been limited by:
Legal barriers: Incomplete or contradictory laws, gender biases in legal provisions.
Social and cultural barriers: Patriarchal norms, intimidation, and stigma.
Institutional weaknesses: Lack of female judges, lawyers, and security concerns.
Despite reforms, many women face obstacles in seeking justice, especially in cases of domestic violence, honor crimes, sexual violence, and child marriage.
2. Legal Framework
Afghan Constitution (2004):
Article 22 guarantees equality before the law and prohibits discrimination based on sex.
Article 54 obliges the state to support women’s rights in all spheres.
Afghan Penal Code (2017):
Criminalizes violence against women, including domestic violence, honor killings, and forced marriage.
Contains provisions on rape, sexual assault, and harassment.
Elimination of Violence Against Women (EVAW) Law (2009):
Addresses specific crimes against women such as forced marriage, beating, rape, and forced isolation.
Allows women to file complaints with police and prosecutors outside traditional courts.
3. Barriers to Women’s Access to Justice
Lack of awareness: Many women are unaware of their rights or the legal remedies available.
Social stigma and retaliation: Fear of honor-based violence or family reprisal prevents reporting.
Weak law enforcement: Police and judiciary often lack gender sensitivity; corruption exists.
Limited female legal professionals: Few women lawyers or judges to support female complainants.
4. Case Studies
Case 1: Gulnaz’s Rape and Subsequent Prosecution (2007)
Facts:
Gulnaz, a young Afghan girl, was raped by a relative. Initially, her family and local authorities tried to charge her with adultery, while the rapist was not prosecuted.
Legal Issues:
Afghan law historically conflated rape with adultery, often punishing victims.
EVAW law sought to separate these offenses.
Outcome:
International attention helped secure her release from prison.
The case highlighted the need for reform to protect victims rather than punish them.
Legal Significance:
Emphasized weaknesses in legal protections for rape victims.
Led to advocacy for stronger implementation of EVAW law and amendments in criminal law.
Case 2: The Case of Farkhunda Malikzada (2015)
Facts:
Farkhunda, falsely accused of burning a Quran, was brutally killed by a mob in Kabul. The incident exposed failures of law enforcement to protect women.
Legal Issues:
Failure to prevent mob violence and protect victims.
Challenges in prosecuting those responsible due to social acceptance of violence against women.
Outcome:
Several perpetrators were convicted and sentenced, but questions remained about enforcement and cultural change.
Sparked nationwide protests demanding justice for women.
Legal Significance:
Marked a turning point in public awareness and legal response to violence against women.
Highlighted importance of state protection under Afghan Penal Code and EVAW.
Case 3: Forced Marriage and Child Marriage Cases
Facts:
Numerous cases involve girls forced into marriage at young ages, often with family consent.
Legal Issues:
Penal Code criminalizes forced marriage and child marriage, but social acceptance impedes enforcement.
Families often prevent girls from seeking justice.
Outcome:
Limited prosecutions due to lack of complaints and social pressures.
NGOs have documented cases where girls escaped forced marriages via court orders.
Legal Significance:
Demonstrates gaps between law and practice.
Calls for enhanced legal aid and protective services for girls.
Case 4: Domestic Violence Prosecution Under EVAW Law
Facts:
Women file complaints against abusive husbands or relatives for physical or psychological abuse.
Legal Issues:
EVAW law provides criminal penalties, but police sometimes refuse to register complaints.
Courts occasionally encourage reconciliation rather than punishment.
Outcome:
Some successful prosecutions, but many cases drop due to intimidation or family pressure.
Increased use of female prosecutors and police officers in major cities.
Legal Significance:
Shows progress in legal framework but highlights enforcement challenges.
Emphasizes need for survivor-centered justice.
Case 5: Sexual Harassment in the Workplace
Facts:
Women working in government offices or NGOs report harassment but fear retaliation.
Legal Issues:
No comprehensive legislation addressing workplace harassment until recent years.
Criminal law provisions on sexual assault apply but often poorly enforced.
Outcome:
Some high-profile complaints led to dismissals or reprimands.
Legal reforms underway to codify harassment protections.
Legal Significance:
Reflects evolving recognition of women’s rights beyond physical violence.
Encourages institutional reforms in workplaces.
5. Summary of Key Legal Provisions Supporting Women’s Justice Access
| Law / Provision | Relevance to Women’s Justice Access |
|---|---|
| Afghan Constitution Article 22 | Equality before the law for women |
| EVAW Law (2009) | Defines and criminalizes violence against women |
| Penal Code Articles on Rape, Domestic Violence | Provide criminal penalties for offenders |
| Criminal Procedure Code | Provides for victim protection and legal remedies |
6. Conclusion
Afghan criminal law provides a framework for women’s access to justice, including protections against violence and abuse.
Implementation is uneven due to cultural, social, and institutional barriers.
Landmark cases like Gulnaz and Farkhunda illustrate the struggles and gradual progress in women’s legal rights.
Continued legal reform, capacity building, and social change are essential to ensure effective access to justice for Afghan women.
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