Afghan Draft Constitution Provides Weak Rights Protections

While the draft constitution that was released this week does contain provisions guaranteeing human rights, equal rights, and non-discrimination for all Afghan citizens, it lacks language that women’s rights and human rights advocates had urged explicitly defining “citizens” as both women and men and leaves women’s rights in many areas vulnerable to interpretation of Islam.

The draft does obligate Afghanistan to abide by international treaties and covenants including the Universal Declaration of to abide by international treaties and covenants including the Universal Declaration of Human Rights. Presumably, this guarantee would extend to the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), which Afghanistan ratified in March of 2003.

One of the only two provisions mentioning women requires specific programs should be enacted for the balance and promotion of women’s education. The other mention of women is in the composition of the parliament. The Afghan president is required to nominate women to 50% of the presidentially appointed seats in the upper house of parliament. The president appoints one third of the delegates to the upper house. The constitution contains no other requirements for quotas or representation of women in government.

In an important victory, the Afghan Independent Human Rights Commission has been given constitutional status to monitor and observe human rights. It also is empowered to refer legal cases and assist in the defense of human rights in these cases. However, the ability of the commission to issue subpoenas and bring cases to court is not spelled out clearly.

While sharia law is not recognized in the constitution, the draft does say that no law, political party, or speech can go against the principles of Islam. Some experts have expressed concern that as a result the constitution enshrines Islamic law over individual rights and that interpretation of Islam will still be vulnerable to misuse by those judicial authorities who oppose human rights and women’s rights.

“There is no guarantee of freedom of thought, conscience, and religion in the draft constitution’s Bill of Rights. The draft threatens to institutionalize a “Taliban-lite” state where appointed judges are given the unchecked authority to ensure that all laws conform to their interpretation of the religion of Islam. Provisions protecting these freedoms are found in the constitutions of other Islamic countries. The people of Afghanistan deserve no less,” said U.S. Commission on International Religious Freedom (USCIRF) Chair Michael K. Young.

In addition, areas of law not covered by the constitution are left to adjudication by Hanifa law or the shia school of law for shiites. The implications of this provision for women and girls in the area of family law are especially grave.

The constitution will be debated and adopted at the upcoming loya jirga (grand council) next month.

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Afghanistan Constitution (in English) 11/03/03; Associated Press 11/03/03; Reuters 11/03/03; BBC News 11/03/03

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