Earlier this month, Article 26 of Afghanistan’s draft criminal procedure code, dealing with the testimony of relatives as witnesses to a crime, was approved by Parliament and sent to the President for his signature.
The provision titled “Prohibition of Questioning an Individual as a Witness” is currently reflected in a bill written in Dari, the official Persian used in Afghanistan. Translated into English, Article 26 of the draft stipulates that certain people cannot be questioned as witnesses and includes relatives of the accused. Apart from relatives, others covered by the prohibition are children, doctors and defence lawyers. Hence a plain reading of this provision implies that family members, among other defined groups, will be banned by law from giving testimony against accused persons.
Contained in Chapter 5 of the code (‘Testimony’), Article 25 (the preceding article) explains that persons who have information about crimes can, and should be summoned as witnesses. The succeeding Article 27 allows witnesses not to answer questions that could lead to
prosecution for themselves or their relatives. Yet, a stand-alone construction of Article 26 appears to impose a blanket ban on relatives from testifying. It goes on to say that prosecutors, officials and the court are obliged to inform the listed categories of their right to silence. The chapter is marred in ambiguity.
This draft bill has now been forwarded by the President to the Ministry of Justice for necessary amendment(s).
The manifest prohibition under Article 26 raises a few legal issues:
1. The scope and ambit of the term ‘relatives’ needs to be ascertained: (i) Who does it cover?
How does it apply to persons related to both the victim and the accused?
2. When a relative (or any other prohibited class of individual) actually does or attempts to give testimony against a related person: (i) Will this be merely a procedural infirmity, cured by striking off such testimony; or (ii) Will such a person be judicially restrained from providing evidence; or (iii) Will such evidence gathered during investigations be rendered
inadmissible in Court?
3. When the testimony is substantially material to the elements of the crime, can the Court still summon that witness or admit its evidence? And if not, how does this exception sit alongside Constitutional safeguards and guarantees within Shariah to facilitate justice?
In light of the above, Article 26 in its present form clearly violates Article 3 of the Constitution on the primacy of Shariah law and the foundation of Shariah (maqasid-al-Shariah) on discovery and justice.
Article 26 could also clash with certain provisions under Chapter Two (“Fundamental Rights and Duties of Citizens”) of the Constitution. For example, Article Twenty Two reads: “Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden.
The citizens of Afghanistan, man and woman, have equal rights and duties before the law.” Constitutional Article Twenty Four speaks of liberty as a natural right. The selective prohibition of certain categories from exercising a ‘right’ might be interpreted by a competent court as discriminatory, unequal and bad in law.
Since certain persons cannot be questioned as witnesses, these individuals will effectively be stripped off the right to testify and put forth evidence in a criminal case. Especially in circumstances where the victim herself is restricted from presenting the facts of her complaint, or essential eyewitnesses are silenced on account of familial ties, Article 26
becomes a serious violation of fundamental freedoms. The prohibition is an infringement of basic safeguards accorded to the citizens of a country within the protections of law and religion.
Read more here
By Deborshi Barat
Gaze lowered, wrapped in a veil, walking ten steps behind a man, walking in his shadow and in doing so becoming a shadow herself. — Mounira M. Charrad, Gender in the Middle East: Islam, State, Agency
Strategic Advocacy for Human Rights (Femin Ijtihad) won most outstanding contribution to volunteering for 2013. This was awarded by the Director of SOAS, University of London. This is the second University-based award we have won in the last few years.
Within Afghanistan’s Islamic family law, the right (of the husband) to discipline and the right (of the wife) to dignity and freedom from inhumane and degrading treatment coexists, albeit on parallel planes.
But certainty is expedient to the determination of whether the use or abuse of a husband’s right results in criminal and/or civil consequences. Not all injuries may immediately qualify for a judicial divorce. Courts may dismiss some cases, order mediation in others, or execute a divorce with varying civil consequences relating to mahr, compensation and child custody depending on the nature and frequency of harm.
The Court is bound to ask itself, in what circumstances does a conduct, or a series of conducts trigger the wife’s right to judicial divorce? And if on the basis of serious harm, how does that impact upon orders concerning compensation and child custody?
When the right of the wife to be free from harm is reduced to considerations over her behaviour, the discussion must be strictly situated within the following parameters: Does the situation represent the mischief (wife-beating) the legislature willed to correct? Is the interpretation of the law contrary to the Qura’nic and Prophetic intent? Considerations on the mode of beating, instrument used, nature and location of injuries, reasons for beating and the frequency of beating is concomitant to the question. In the event the injury is emotional or psychological in nature, similar inquiries into the manner and frequency and effects of the conduct on her continued well-being must be made. These inquiries must be contextualized into the husband’s history of violence.
Nonetheless, neither does the Afghan law nor Shariah require that the beating was life-endangering inf violence; if there were threats since the last attack, if the attack was planned, the chances of offending again, continuing threat to the health and safety of the wife and their children amongst others.
In contrary, under Shariah the test is so stringent that even small and simple injuries may de-legitimize the husband’s conduct. If the beating exceeds Shariah boundaries, the option for divorce to exit harmful cohabitation is hers to make. She should not be required to relive the experiences to demonstrate a near-death experience in order to exercise her right. If reconciliation is not achieved and she is still insistent, even if the cause is attributable to both sides or unascertainable, she should be granted a divorce as a matter of right (Art 188). A different application of the law will otherwise not logically sustain; a conduct deemed a crime under EVAW cannot in law fall short of satisfying ‘harm’ as a ground for judicial divorce under the ACC. Furthermore, it is problematic because for crimes attracting short-term imprisonment, a woman unable to obtain a judicial divorce is forced to endure her husband’s wrath once he is released from prison.
Click here to read the full paper
The central argument of this paper is that a re- interpretive approach to the Shari’ah can serve to counter the attitudes of conservative Muslims in relation to the inferiority of women that have become ingrained in Afghan society. Such an approach can also serve to challenge the notion that Islam sanctions domestic violence. It is contended that, in light of the continued perpetration of domestic violence in Afghanistan, adopting a grassroots approach that presents an Islamic viewpoint on the issue of domestic violence may ultimately serve to procure greater success than the entirely secular approach that has been adopted up until now. This approach may offer a solution to the de facto realisation of CEDAW General Recommendation 19 and the successful implementation of the EVAW Law.
Read Here: http://feminijtihad.com/2013/05/31/interpretive-approaches-to-shariah-and-domestic-violence-in-afghanistan/
By Natasha Latiff
Sharing Resources ranging from Inquiry Reports to bibliographies, videos, innovative projects, and reflective questions on prosecuting sexual violence and rape.
As advocates, activists, writers and lawyers, we must conscientiously monitor and evaluate our society and ourselves. Our goals should not just be that rape and sexual violence are prosecuted. But they are prosecuted for the right reasons. Our analyses must de-link women’s bodies as sites of men’s honour and tackle the manifold biases and assumptions that complicate rape cases. And we must do this carefully so as not to alarm the community who may believe that our defence of women’s autonomy is a promotion of “immoral” values.
A gender-competent articulation of law is the duty of lawyers in courts, journalists in the media and the activists in the community. Our analyses must be well-thought out, scrutinized by our own peers, packed and unpacked. If we omit questioning ourselves, our own strategies can backfire and reproduce other forms of gender-discrimination. What we say sets a precedent. So by our choices, we transform the way rape and sexual violence in conceptualized and prosecuted.
If it is not upon us, then upon whom; and if not now, then when — Hillel the Sage