AFGHANISTAN: Afghan Law on Domestic Violence Testimony Limits Women's Rights, say Critics

Thursday, February 13, 2014
Toronto Star
Southern Asia
PeaceWomen Consolidated Themes: 
Sexual and Gender-Based Violence

A new draft law in Afghanistan that would limit testimony in domestic violence cases is drawing international outcry, with activists warning it is part of a broader trend toward rolling back women's rights in the nation.

Afghanistan's parliament last month approved changes to the country's criminal code that would prevent relatives of alleged abusers from testifying against them. Legal experts say this would have a chilling effect on prosecutions involving violence against women, where relatives are often the only witnesses.

As the law awaits final signature from President Hamid Karzai, a growing chorus of Afghan activists and of Kabul's Western allies alike are urging him to veto the legislation.

The issue is buried in about 100 pages of Afghanistan's new criminal code — labelled Article 26. While it does not specifically mention women or domestic violence, Article 26 bars a broad swath of “relatives” for acting as witnesses — an issue in a country where the bulk of violence against women is committed by or in front of family members, especially given how restricted freedom of movement is for many women.

In actual practice, legal experts say, it would mean that a woman cannot testify that her uncle raped her, that a mother who sees her daughter beaten by her father or brother cannot testify, that family members witnessing a young woman being forced into marriage by her father cannot be used in a prosecution, that a sister or brother who witnesses an honour killing cannot be questioned.

They say it would mean there would have been no short-term justice for Sahar Gul, a child bride who became the bruised and bloodied face of women's rights in Afghanistan when it emerged that her in-laws had kept her in a basement for six months after her arranged marriage, tortured her with hot irons and ripped out her fingernails.
Her in-laws were sentenced to 10 years in prison: an outcome that never would have been possible if Gul's relatives were unable to testify.

Kimberley Motley, who represented Gul, called the new legislation a “catastrophic nightmare for women's rights” in Afghanistan and goes against the nation's constitution and sharia law.
One rationale for Article 26 appears to be to prevent people from being forced to testify against relatives. However, when the upper house of parliament revised the wording to allow relatives to testify voluntarily, a parliamentary commission went back to the earlier broad ban.

Motley said while the rationale is unclear, one clear effect will be dissuading women from reporting that they are victims of crime.
“It's already bad enough — all the obstacles they go through to report a crime — and this law will make it nearly impossible for them to have the legal standing to even try to report a crime,” she said.

While Karzai's office has stayed silent on the matter, Justice Ministry official Mohammad Asharf Azimi said Tuesday that given the recent concerns raise by human rights organizations, a meeting will be held by “relevant authorities” on Wednesday to discuss Article 26. Azimi acknowledged there is ambiguity in Article 26 that needs more clarification.