[An often-invoked
customary offense that does not exist in written Afghan law is that of running
away from home. Even if the runaway girl is 18, legally an adult, courts still
frequently impose a jail term of one year, based entirely on customary law. In
fact, Afghanistan’s Elimination of Violence Against Women Act specifically
forbids prosecuting runaways. “There is no such crime as running away from
home,” said Shukria Khaliqi, a lawyer and legal program director at Women for
Afghan Women, an aid group that runs women’s shelters. “In some cases the
judges don’t even pay attention to Shariah law; they ignore that and they will
say to the girl, ‘It’s not Europe or the West here, it’s not up to you, it
doesn’t matter if you’re an adult or not.”]
By Rod Nordland
 |
Zakia and Mohammad Ali are fleeing threats of arrest
and death in Afghanistan as a result of their
marriage, which crosses cultural
boundaries.
|
KABUL, Afghanistan — An 18-year-old runaway named Amina agreed two
weeks ago to leave the women’s shelter in which she had taken refuge in
northern Afghanistan and go home with her brother and her uncle.
What happened next is
a cautionary tale for two young people from Bamian Province who eloped and are
still in hiding, even as some activists are trying to persuade them to turn
themselves in.
Amina had run away to
avoid marrying a man her family had forcibly betrothed her to, and agreed to
return only after her family had signed guarantees that she would not be
harmed. For good measure, her father and brother repeated their vows on video
camera at the Ministry of Women’s Affairs in Baghlan Province, and she left
with them.
She never reached
home. Hours after she got into her family’s car, a gang of gunmen dragged her
out of the vehicle and shot her to death, her brother and uncle later claimed.
Everyone else was unharmed.
Whoever was
responsible — the police blame the jilted fiancé’s family, but women’s
activists accuse Amina’s family of staging her killing — Amina became yet
another victim of an “honor killing” to absolve some sort of family shame.
Rubina Hamdard, a
lawyer at a coalition of women’s advocacy groups, the Afghan Women’s Network,
estimates that 150 cases of honor killing occur annually in Afghanistan, based
on statistics kept over the past five years. Fewer than half of them are
formally reported, however, and very few end in convictions.
It was just such a
possible fate that prompted the Bamian couple, Zakia, 18, and Mohammad Ali, 21,
to flee into hiding after they eloped in March, fearing that Zakia’s family would kill them because
she had refused her father’s choice of a husband.
Neither Amina nor
Zakia and Mohammad Ali did anything against the law — or, more specifically,
against two of the legal systems in effect in Afghanistan: the body of civil
law enacted over the past decade with Western assistance, or the classic
Islamic code of Shariah that is also enshrined in law. Both protect the rights
of women not to be forced into marriage against their will.
But in Afghanistan, an
unwritten, unofficial third legal system has remained pervasive: customary law,
the tribal codes that have stubbornly persisted despite efforts at reform. “In
Afghanistan judges stick to customary law, forget Shariah law, let alone civil
law,” said Shala Fareed, a professor of law at Kabul University.
Ms. Hamdard said: “In
any society it’s not just the law that shapes everything, it’s the behavior of
the judges, and how they interpret the law.”
But in many places,
judges are poorly educated — a majority do not have actual law degrees, and a
significant percentage have not even finished high school — a situation that
continues to exist, despite $904
million in “rule of law” funding from the United States alone
between 2002 and 2010, much of it earmarked to improve the judiciary.
Under customary
practices widely prevalent here, fathers have absolute power over their
daughters until they marry, when such power passes to their husbands. They can
marry girls off at birth, or at any age, with or without their permission,
often making them bartered goods to solve family debts.
An often-invoked
customary offense that does not exist in written Afghan law is that of running
away from home. Even if the runaway girl is 18, legally an adult, courts still
frequently impose a jail term of one year, based entirely on customary law. In
fact, Afghanistan’s Elimination of Violence Against Women Act specifically
forbids prosecuting runaways. “There is no such crime as running away from
home,” said Shukria Khaliqi, a lawyer and legal program director at Women for
Afghan Women, an aid group that runs women’s shelters. “In some cases the
judges don’t even pay attention to Shariah law; they ignore that and they will
say to the girl, ‘It’s not Europe or the West here, it’s not up to you, it
doesn’t matter if you’re an adult or not.’ ”
Despite the problems
with the courts, Ms. Khaliqi said it was possible, particularly in Kabul, where
judges were better educated, to win cases like those of Zakia and Mohammad Ali. She has been in touch
with them by telephone to persuade Zakia to let her take her case to court —
which would mean she would have to return to a shelter while the case was
decided.
Reached by telephone
in their undisclosed hiding place, Mohammad Ali said
the couple were unpersuaded. Zakia had already spent six months in a shelter in
Bamian, with no legal relief. “No one takes the law seriously in this country,”
he said.
Statistics suggest as
much. Of 4,505 cases of violence against women last year — which includes
issues like “denial of relationship,” or trying to prevent someone from
choosing their own husband or wife — less than 10 percent are resolved through
legal process, according to the latest report from the Women’s Ministry.
Nearly half of the cases were either dropped or settled out of court, often to
the women’s detriment. “We are safe where we are,” Mohammad Ali said. “Either
we leave the country or we stay in hiding.”
Zakia’s brother, Gula
Khan, 20, also reached by telephone, was unrepentant about the family’s threats
against his sister. “If we were men, we would have done something by now,” he
said. “She really dishonored our family. As they have ignored the law, we
should as well.” But he said that the family had no violent intentions against
his sister. “We don’t know if she is dead or alive,” Mr. Khan said. “If she is
dead, we want her body. If she is alive, we just want her back with us.”
In northern Baghlan
Province, Amina’s brother and uncle had said pretty much the same thing,
according to Uranus Atifi, head of the legal department of the women’s ministry
in Pul-e-Kumri, the provincial capital. Amina had run away from her family in a
remote village rather than obey her father and marry a man who she believed did
not care for her. Undercover police found her wandering in a bazaar in
Pul-e-Kumri, trying to find the women’s ministry, and brought her to a women’s
shelter.
When the police in
Afghanistan find unmarried women, even though legally adults, unaccompanied by
a close relative, the women are arrested and routinely subjected to a virginity
test by a forensic pathologist, another customary practice that exists outside
the law. Amina passed the test, and was not charged.
Ms. Atifi said she
only handed over Amina after meeting with her privately. “She didn’t want her
case to get bigger and create more problems for her,” she said.
But Ms. Atifi was
worried enough that she called Amina several times during her long car trip
home. She last reached her at 8 p.m. on April 21. “She told me she was all
right and they were still driving,” Ms. Atifi said. At 10 p.m., her cellphone
no longer answered. The next day, contacted by Ms. Atifi, the young woman’s
brother said that nine masked men had stopped the car, dragged his sister away
and shot her to death. Her family did not seem concerned enough to report the
crime, until the women’s ministry did.
