Thursday, 1 October 2009

How Shia personal status law got on the statute book

The Afghanistan Research and Evaluation Unit has published a revealing study of the way in which the controversial Shi'ite Personal Status Law (SPSL) came onto the statute book.
A Closer Look: The Policy and Law-Making Process Behind the Shi'ite Personal Status Law is about how a law that was almost unmentioned by the national or international media until it was signed into effect in March 2009, suddenly became the subject of countless articles in the international media.
It was just as world leaders were meeting in London for the G20 conference that the implications of several clauses in the statute caused a furore and before long it was dubbed a "rape law" by the international media.
Journalists and commentators noted that the law required a woman to ask permission to leave the house except on urgent business, that she had a duty to "make herself up" or "dress up" for her husband when demanded, and a duty not to refuse sex when her husband wanted it.
There was plenty of criticism: "President Karzai should not sacrifice women for short-term political deal-making," said Brad Adams, Asia director at Human Rights Watch. "He is playing with fire. How will he be able to refuse demands for similar discriminatory laws from other communities?"
Afghan Women in parliament complained that the law was rushed through, aided by several prominent Shia leaders. Despite calls not to sign the law, President Karzai signed it in an apparent attempt to garner political support for his presidential re-election campaign.
The provisions of the SPSL directly contradict the Afghan constitution, which bans any kind of discrimination and distinction between citizens. Article 22 states that men and women "have equal rights and duties before the law." The law also contravenes the international Convention on the Elimination of All Forms of Discrimination against Women, to which Afghanistan is a signatory.
And there was another mystery about this law. Most Shias in Afghanistan are Hazaras, who have been renowned for their support for democracy and women rights. Hazara women in particular have achieved remarkable success: the first woman as presidential secretary; the first woman as the Women’s Affair minister; the first woman as governor and the first woman as the Independent Human Rights commissioner in Afghanistan.
Hazara women registered more then 58% of the women's vote in the previous presidential election and they presently have the highest literacy rate. Why should their community support such a retrogressive law?

One explanation is that the impetus for the law came from a group of Iranian-sponsored ulema - Shaikh Mohseni Kandahari, Sayyed Alemi Balkhi and others - who have little public support, but were considered vital to the election hopes of President Karzai.
The AREU report looks into all these issues and seeks to draw conclusions, although in a more guarded way. It says: "The SPSL highlights the persisting legacies of Afghanistan’s political past. It demonstrates the continued power of patronage networks and behind-the-scenes deal-making in Afghan politics, as well as the complex roles of powerful mujahiddin figures from the Soviet resistance era, like Abdul Rasul Sayyaf and Mohammad Asif Mohseni, who continue to dominate on the basis of allegiances."
The report also makes the point that the public was not involved in any way in the political process that led to the framing of this law. One of the key recommendations is that elected representatives should be more responsive to their constituents.
In the end, as a result of the international furore over the 'rape' provisions, in early July the Afghan ministry of Justice conducted a review of the SPSL that led to the omission of 12 articles and further amendments. On 9 July civil society groups issued a joint open letter to the President’s office arguing that the changes were ambiguous and many of their recommendations were not taken into account. The president nonetheless approved the revised version and the law was published in the Official Gazette no. 988 on 27 July 2009, effectively becoming enforceable as law.
This may not be the end of the matter, not least because the Sunni family law code is likely to be presented to Parliament in the next few months. Based on Hanafi jurisprudence, it is very likely to be subjected to various interpretations of religious law. Will the voice of women be heard in this debate?

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