Democracy: Always Good for Women’s Rights?

Shazia Z. Rafi

The general view in academic circles is that democracy should provide for enhanced civil, political and personal rights. But for the women of Afghanistan, the impending presidential elections are already beginning to restrict theirs.

The general view in academic circles is that democracy should
provide for enhanced civil, political and personal rights. But for the
women of Afghanistan, the impending presidential elections scheduled in
August 2009 are already beginning to restrict theirs.

a bizarre twist and turn Afghan President Hamid Karzai’s government
presented to parliament an amended Personal Status Law for the Shia
community, about 15 percent of the Afghan population, and hurried the
legislation through parliament in a month. He signed it prior to the
March international summit on the future of Afghanistan in The Hague.

Concern about the law was already rising in Afghanistan, and the
Finnish Foreign Minister and human rights groups conveyed the news to
the delegations gathered in The Hague. With the world as audience,
Secretary of State Hillary Clinton promptly confronted Karzai with the
U.S. and other NATO countries’ disapproval, setting off a series of
reactions and controversy that eventually led to him sending the law
back to the Justice Ministry for review.

government asserted that criticism of the law was misplaced. “We
understand the concerns of our allies in the international community,”
Karzai said during a televised press conference on his return to Kabul.
“Those concerns may be out of inappropriate or not-so-good translation
of the law or a misinterpretation of it.”

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review of the Afghan constitution adopted in 2004 shows that it is no
misinterpretation.  The law is a clear violation of Article 22 of the
Afghan Constitution, which explicitly reiterates the equality of men
and women before the law.

“The current provisions of this law support domestic violence and the impunity of its perpetrators,” said Zia Moballegh in an interview with the Globe and Mail.
Moballegh is a senior program officer in charge of a family-law project
run in Kabul by the Canadian-based international-aid and human rights
group Rights and Democracy.

The Personal
Status Law, in provisions that can sanction marital rape, makes it
compulsory for a wife to have sex with her husband “at least every
fourth night.” It also limits Shia women from leaving their home
without the husband’s permission except for medical or emergency needs,
and states that women must wear make-up and make themselves attractive
if their husbands insist.

This law began as
most religious codes do as a proposal in a magazine for Shia clerics in
2007. Its main proponent soon became Afghanistan’s leading Shia cleric
Mullah Asif Mohseni, who circulated it to the Ministry of Justice.  

politics was the main trigger to bringing this law out of the judicial
closet. The Shia marriage law has become a focus for the Afghan media as registration for presidential elections have started and the swing vote of the Shia community remains a prize. The Shia community has represented one of the best-organised voting blocs since 2001 and is being courted by several candidates. Some opposition figures accused President Karzai of attempting
to curry favour with conservative Shia party leaders before
presidential elections in August. The timing can also be connected to the NATO
summit; a way of also showing the international community with which
Karzai had begun to lose favor that he still holds some cards that they
cannot completely control.

The initial
approach taken by Afghan progressive politicians and rights activists to the original draft legislation
was to ensure certain amendments would be included—essentially to
“improve” the draft law. Afghanistan’s Human Rights Commission held a
seminar to discuss it, according to a woman senator. UNIFEM also
assisted in drafting advice. Several legal activists worked with the
Justice Ministry on the drafts. It had also been through the Justice
Committee of the parliament.

But in the end the amendments were left out of the version that was introduced to lawmakers. Members of parliament interviewed for this piece said they were
surprised when the final draft was presented to parliament without the amendments. Shahgul
Rezaie, MP, from the Shia community in the lower house confirmed that
while there are Shia members of the Justice Committee, they are all
men, and other women members of the committee did not raise an alarm.
“If there are no objections, a law can go through the committee process
in one month, which is what happened,” she said.   By the time it
reached the parliament floor it was too late to get back amendments
Afghan women activists were hoping for. The law was passed and sent for
signature to the president.  

Earlier this week, dozens of Afghan
lawmakers and officials condemned the legislation, saying it encourages
re-Talibanization. Shinkai Karokhail, a woman MP who campaigned against
the legislation, has said in the Afghan press, “it is one of the worst
bills passed by the parliament. This law makes women more vulnerable.”

Joining the debate in interviews
the cleric Mohseni shows hundreds of signatures and thumbprints by Shia
supporters of the law and claims it is a liberal law. In an argument
worthy of Oprah’s couch, he said a woman can refuse sex with her
husband for many reasons beyond illness, including fasting for Ramadan,
preparing for a pilgrimage, menstruating, or recovering from giving
birth. He said many rural women are illiterate and would not be able to
find work. Men are typically expected to provide for their wives and
children. "For all these expenses, can’t we at least give the right to
a husband to demand sex from his wife after four nights?" he said.

all are convinced, including some courageous Cabinet ministers. Foreign
Minister Rangeen Dadfar Spanta drafted a petition against the law that
was signed by more than 100 officials and public figures, including six
government ministers and 22 lawmakers. Spanta said he might have had
more signatures but he wanted to get the petition on the record quickly.

is some hesitancy on the part of Afghan women regarding the law. The
minister of women’s affairs did not sign the foreign minister’s
petition; a spokesman for her office told the press she was waiting for
the review to be completed before taking a position.  Shahgul Rezaie,
the MP, seemed disappointed and said, “the law had two parts, one part
was an improvement, raising the marriage age, making men financially
responsible; we can work to make part two better, but we need more

In several interviews with Afghan
legislators in preparation for this article, I was struck by how many
were either not present when it was presented, or not aware that it had
been passed. There were several who, after an embarrassed silence,
asked not be interviewed.  Others who spoke asked that they not be

Twenty-five percent of Afghanistan’s
parliament is women legislators; the female portion of the lower house,
which is elected, is 27 percent. With such strong numbers, it is
astonishing how weak they are in terms of their ability to push women’s
issues.  One factor is the lack of basic security, underscored by the
murder by the Taliban last week of Sitara Achakzai, MP, a leading women’s rights activist.  One Pashtun
woman MP from the lower house told me, it takes all her time and energy
to just keep in touch with her constituency and performing her public
role in a conservative society. 

problem is also structural—the parliament has no Women’s Caucus, no
internal mechanism for women legislators to cross party or ethnic lines
in coalitions to discuss the gender impact of proposed laws and
resolutions before they are tabled. The parliament relies on
international agencies such as UNIFEM and NGOs to pull women MPs
together on an occasional basis.

At Parliamentarians for Global Action’s
Annual Meeting October 31, 2008 in Santo Domingo, Senator Rida Azimi
proposed reviving PGA’s coalition of women’s caucuses around the world
that had worked for the Beijing Conference. Its first project should be
working with Afghan women MPs to form a Women’s Caucus. 

the Obama Administration considers the available toolbox to build
democracy and development in “AfPak,” his regional envoy Ambassador
Richard Holbrooke might consider helping to link a new Afghan Women’s
Caucus with the recently formed Women’s Caucus in the Pakistan
parliament. Such cooperation could help protect constitutionally
guaranteed women’s rights in the beleaguered mountain towns and
villages of the two countries currently under siege by Talibanization.

This article was first published by the Women’s Media Center.

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