The ‘anti-women gag law’ in Afghanistan: the pitfalls of hasty conclusions

Open Democracy

More than one million people around the world have signed a petition against a new law in Afghanistan on the grounds that it offers the perpetrators of violence against women de-facto immunity. Referred to as the “anti-women gag rule”, the law has been denounced as the culmination of a series of belligerent attempts by the conservative government to undo the momentum in women’s protection initiatives over the last decade.  Yet in Kabul, there are few signs that the law was ever part of any such deliberate strategy, pointing towards the need for a more nuanced approach to the fault lines of gender politics at the dawn of post- NATO Afghanistan.

On Tuesday the 4th of February, the Guardian published an article titled ‘New Afghanistan law to silence victims of violence against women’. It stated that the new law would ‘allow men to attack their wives, children and sisters without fear of judicial punishment, undoing years of slow progress in tackling violence in a country blighted by so-called "honour" killings, forced marriage and vicious domestic abuse.’ The law in question was the new criminal procedure code, and more specifically article 26, which, the Guardian alleged, would ban the testimony of relatives of the accused and thus make the prosecution of violence against women almost impossible. News of the law, by then approved by both houses in parliament and  about  to arrive on the President’s desk for his final signature, led to activists declaring their exasperation about a conservative backlash, and their intent to mobilise  in order to prevent the President signing the law into force, calling upon western governments to honor their commitments to Afghan women by speaking out against the law. Shortly after the Guardian article, a petition circulated by the online campaign Avaaz had attracted one million signatures against the law.

International press coverage of the law has focused on what is now an established narrative: that the fragile progress of the last decade, carefully nurtured by western governments, is at risk of imminent reversal as these governments lose interest and conservative forces in Afghanistan seize on the chance to abolish the laws and institutions which have provided women with a measure of protection from domestic  abuse in the last few years. The near fatal blow administrated by conservative legislators to the Law on Elimination of Violence against Women( the EVAW law)  in parliament in the spring of 2013 marks  a key event in this story. Hailed as a landmark piece of legislation, the unwillingness by conservative MPs to approve the law, by then already in force for four years in the form of presidential decree, was interpreted as a sign of things to come. Now, with the parliament passing a criminal procedure code allegedly banning the testimonies of relatives, their agenda to cancel the progress of the last decade appears completed. Unless international pressure can persuade the Afghan president to veto the law in its current form, the major achievements in the field of women’s protection in Afghanistan look fated to disintegrate.

However, this is a narrative in need of some nuancing. Firstly, some of the gains of the last decade run only skin deep. Afghanistan’s 2003 ratification of the Convention of Elimination Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), remarkably without any of the reservations most other Muslim countries have made, appears to have been an act with little government buy in, at a time when there was neither an elected head of state nor a parliament. It took nine years and considerable donor efforts before the country submitted its first CEDAW report, an event which has seemingly generated limited interest within Afghanistan itself.

Likewise, some of the gender-sensitive, elaborate policy frameworks put in place, such as the National Action Plan for the Women of Afghanistan(NAPWA) was evidently largely written by external consultants, with limited bearing on government practice. And the EVAW law, which has gradually gained the status of a landmark accomplishment in international circles,  came into force as a presidential decree, and in contradiction with other legislation signed by President Karzai at the same time. As such, the presidential decree appeared more as an act designed to placate certain constituencies (women’s rights activists and western embassies) than a commitment to significant change. For four years, some female parliamentarians have attempted to get the law ratified by parliament, whilst others have opposed this strategy, arguing that insufficient support for the EVAW law in the legislative would mean that were it to be put to the vote, the law might be repealed rather than ratified. Thus, while the symbolic effect of the law and the efforts by women’s groups and international donors to disseminate and implement it have undoubtedly had some impact, its rather tenuous legal status can hardly be said to constitute a decisive victory. There are limits, therefore, to the impact of the legal and policy reforms adopted under western tutelage, both when it comes to the substantive  changes in women’s status overall, and specifically in the area which has been the primary  focus for both donors and Afghan activists; violence against women. This is to some extent because - ironically - whilst a great deal of energy has been put into the legal protection of women, activists and their supporters have been largely unable to make headway with the legislative process itself.

The notion that the new criminal procedure law represents a concerted attempt by conservative law makers and government officials to stall whatever momentum has been created is not at all clear. In fact, after the news about the parliamentary approval of the law broke during the first week of February, the substantial group of internationals involved in judicial reform in Afghanistan - UN personnel, diplomats and aid workers, together with Afghan justice officials, lawyers and civil society actors - found it necessary to scrutinize the law, organize numerous translations of it, and discuss at length its exact meaning and implications. To many, particularly many Dari speakers who can read the entire text in its original language, the law does not prohibit family members of the accused to testify in court but gives them the option to refuse to testify. Others concede that this is a possible interpretation, but argue that the wording is nonetheless ambiguous enough to allow for an interpretation to the effect that relatives cannot testify even if they wish to do so. 

At the centre of the controversy is chapter 5 of the law. While article 25 in this chapter¸ Testimony, explains that persons who have information about crimes can and should be summoned as witnesses, article 26; Prohibition of the questioning of witnesses (man’e estejwab-e shaahed) lists ‘relatives of the accused’ as one out of several categories of people who ‘cannot be questioned as witnesses’ (namitavan menhais-e shaahed mawred-e estejwab qarar daad). Yet, even if when read on its own, this provision indeed appears to ban relatives from testifying, article 26 goes on to say that prosecutors, justice officials and the court are obliged to inform the categories of people listed above of their right to silence. Article 27 further allows witnesses not to answer questions that could lead to their own or one of their relative’s prosecution.

Taken together, the most obvious meaning of the articles in chapter 5 is that relatives of the accused are given the right to refuse giving testimony, as opposed to them being prohibited from doing so. However, in the eyes of many officials, both international and Afghan, article 26 should nevertheless be amended in order to remove any ambiguity. Whether the parliament, or the Afghan government are willing to consider such revisions have been an open question for some time. Many have speculated that the government might consider it sufficient for the Supreme Court to issue a directive that the application of the law should not exclude relatives of the accused from providing testimony but instead give them the right not to answer questions as witnesses in court. An added complication has been that the Afghan government might be particularly reluctant to consider revisions coming from international quarters, not necessarily because they disagree with their content, but as a matter of principle in a climate of rapidly deteriorating  trust between President Karzai and his erstwhile western allies. At the time of writing however, reports were coming in that the law will not be signed by the president in its current form and instead will be sent to the Ministry of Justice for amendments.

In any case, and despite the flaws of the current text, no hard evidence has emerged so far to indicate that it represents a strategic attempt to dismantle the protection mechanisms for women erected since 2001. MPs present at the parliamentary commission meeting where the final version of the law was being agreed upon report that they were satisfied by their colleagues’ explanation that the law did not prevent the testimony of relatives.

There is little doubt that one of the flashpoints of current Afghan gender politics is over the rights and obligations of the government to protect women against family abuse. As elsewhere, there is a direct contradiction between the realities of patriarchal power and the possibility of women making independent claims against male guardians to an outside institution. No wonder then that the drive to increase government prosecution of violence within the family has been correctly perceived by conservatives inside and outside of parliament as a direct assault on male privilege. Their framing of women’s shelters as brothels, and of the EVAW law as a law ruining the basis of the family are attempts to cloak the reassertion of male power in a language of moral restoration. On their part, activists have correctly observed that compared to the early years following the 2001 invasion, putting in place reformist laws and frameworks have become increasingly  difficult.

But this is not exclusively because conservative forces are becoming stronger as western disengagement looms, but also because, pro-women’s rights actors find themselves increasingly immersed in Afghan domestic politics rather than operating in a parallel, technocratic universe underwritten by donor support and pressure. In other words, whereas the early years of the post 2001 period was a time of significant formal progress, the reversals of the last years are not necessarily a sign that the conservatives- who were always dominant in the parliament- are on the ascendance. It could equally be a sign that Afghan activists after years of being able to put in place progressive frameworks by stealth and under the radar screen are now starting to encounter reactionary forces and interests head on. 

While there is every reason to be vigilant about what is in store for Afghan women as the post-NATO political order in Afghanistan takes shape, it is nonetheless helpful to avoid an overly simplistic model of Afghan gender politics, one in which outcomes are reduced to a question of the amount of pressure the West is willing apply to halt a conservative resurgence. Firstly, many of the celebrated items of progress of the last decade have remained more symbolic than real, showing the limits of  the formal changes ushered in in large part by way of international lobbying. Secondly, Afghan domestic politics plays a key role in consolidating and sustaining change, and fortunately - while there are certainly plenty of misogynists in the country  to go around - not every event that takes place in Afghanistan, or in the parliament, for that matter, needs to be understood as part of a conservative upsurge

It seems unlikely, for instance, that the criminal procedure code, which has created a small storm around the world, was ever part of an agenda to deprive women of government protection. Rather the problem seems to be the unclear language of the law, open to multiple interpretations. Perhaps the international exasperation with President Karzai, whose overtures to hard line conservative  actors, including  the Taliban, are believed to be an attempt to secure his post-NATO survival, has been projected onto the entire Afghan political landscape. However, while there is a possibility that post-NATO Afghanistan will witness a political constellation with conservative gender politics as one of its pillars, this is not necessarily a given, and we must not read everything that happens into this logic. In this respect, it is interesting to note  that many of the presidential frontrunners; Ashraf Ghani Ahmadzai, Zalmai Rasool and Dr Abdullah, have adopted a rhetoric which is, if anything, more moderate than the positions expressed by the current president in recent years. In the same way that the 2001 invasion was misleadingly hailed as a definite moment of liberation for Afghan women, we should not fall into the trap of equating the NATO withdrawal with the certain demise of their rights.