Afghan women trapped in tribal court system

KABUL, Afghanistan — Sakina’s eyes are dark wells of despair that lighten only briefly when the 20-year-old mother looks at her nine-month-old son, Mirwais.

Mother and child are inhabitants of the Badam Bagh women’s prison in Kabul, Afghanistan. Here children born to inmates share their mothers’ sentences.

But it is not a life behind the walls of the prison that troubles Sakina most. It is the possibility that she may soon be released.

“They will send me to my father’s house,” she says, her voice barely above a whisper as she speaks to a reporter permitted a rare glimpse inside Afghanistan’s criminal justice system for women.

“He will kill me for sure. Then he will kill, or sell, my little boy, ” said Sakina, whose full name is being withheld by GlobalPost.

Sakina’s tale — one of Kafkaesque twists and turns inside the labyrinth of a criminal justice system that is stacked against women — reveals an Afghan society that has proven uniquely resistant to change throughout its tortuous history. Invaded in modern history by the British, the Soviets and now the Americans, generations of Afghans have endured occupiers and resisted their influences and attempts to establish a central government, leaving an informal legal system in place that dates back centuries.

Sakina’s imprisonment stems from her attempts to evade a uniquely medieval form of restitution practiced in tribal courts and known as ba’ad. It is Afghanistan’s version of restorative justice in which women and girls are bartered from one family to another as a way to settle a dispute.

In Afghanistan, there are essentially two legal systems that exist in parallel. One is the Kabul central government’s justice system which, despite years of funding from the US and the international coalition, is rife with corruption, widely discredited and virtually disregarded by the populace. The other track is built around traditional legal practices, including ba’ad, and the cases are heard by local, tribal courts.

The United States and the international community have recently begun working with these tribal courts after multiple surveys indicated that up to 90 percent of criminal and civil complaints end up in this informal justice system. Critics say these tribal courts have grounding in neither constitutional nor Islamic law, and that international efforts to support and reform them only legitimize an inherently misogynistic legal framework.

The structure of these courts is so completely dominated by men that the only way a woman can access them is through a male family member, who in many cases is the very tormentor she wants to complain about, as was the case with Sakina.

“This is very worrisome,” said Latifa Sultani, Coordinator for Women’s Protection with the Afghanistan Independent Human Rights Commission (AIHRC). “Tribal courts will never allow justice for a female victim.”

But these courts are, for now, a main focus of US efforts to improve access to justice for the citizens of Afghanistan. Faced with the exploding corruption and slow pace of reform in the state courts, the US Agency for International Development (USAID) has turned its attention to these local structures.

According to Roshan Sirran, the head of the Training Human Rights Association for Afghan Women (THRA), this is not good news for Afghanistan’s beleaguered females.

“In the tribal courts, the first sacrifice is women,” Sirran said. “Always. If there is a fight for land, for water, if there is violence, a girl can be given in ba’ad to settle these things.”

Parwin, 18, released from prison after two years in jail, poses for a portrait at a shelter run by women for Afghan Women in Kabul on October 12, 2011. Parwin was arrested by police in Jalalabad province and imprisoned after allegedly escaping from the home of her husband and 12 children. (Adek Berry/Getty Images)

Despite a decade of hard work and significant investment by the international community to improve the lives of women after the fall of the Taliban government, the problem of violence continues to grow.

Based on figures recently released by the Afghan government, 2,433 cases of violence against women were brought to the attention of the Afghan Independent Human Rights Commission (AIHRC) in the first six months of Afghan year 1390 (April-September 2011), more than double the number recorded for the same period in the previous year.

Sakina’s life hangs in the balance between this failing court system and the very real threat of violence. Her odyssey began under the Taliban, but the story of her arrest and punishment dates from the more recent era, when the presence of foreign troops and aid workers was supposed to be loosening the bonds that had imprisoned women under the brutal, fundamentalist regime of the Taliban.

Her story illustrates that, despite intense efforts devoted to reforming the justice system, Afghan women’s life of misery remains unchanged in many important respects and the injustices against them persist.

The tale is a long one, and illustrates the enormous, perhaps hopeless task that confronts those hoping to reform the Afghan justice system. In Afghanistan, justice, especially for women, is an extremely difficult concept to grasp. 

Sakina's Story

Sakina is in prison for the heinous crime of kidnapping. What makes her case a bit unusual is that the kidnapping victim was Sakina herself.

The problem began when she was just a small child, living in Nooristan province with her father, her stepmother, and two brothers who were nearly grown. Her mother was dead, and her father had taken another wife.

Nooristan is in northeastern Afghanistan, a province of mountains and trees. Its population is ethnically distinct from the rest of the country, with a minority of Pashtuns and Tajiks. Sakina herself is Pashtun.

When Sakina was five, one of her brothers eloped with his cousin’s wife, a grievous offense in Afghanistan: the penalty for adultery is death by stoning.

The couple was found and dragged back to the community, where a council of elders, a jirga, decided to spare the young lovers. They would be allowed to marry, but the price was a steep one: Sakina would be betrothed to her uncle, the father of the scorned husband.

To assuage affronts to honor, to compensate for financial loss, even to reconcile families of murderers and victims, jirgas often award a young girl to the affronted party in the practice known as “ba’ad.”

The rationale is deceptively benign: uniting two families by blood is supposed to smooth over the enmity, preventing feuds that often drag on for years, even into new generations.

But the reality is quite different. A young girl who is given in ba’ad all too often becomes the scapegoat for her new family’s grief and anger. They take out their rage on the helpless girl, who is usually wed to a male member of the new family, regardless of age or temperament.

In Sakina’s case, the match was more than inappropriate: she was a child of five. Her “fiancé” was 70.

Fortunately, the family did not insist on an immediate marriage. The wedding would wait until Sakina attained puberty. She and her family left Nooristan and went to live in neighboring Laghman province. Ten years later, the marriage was on — Sakina was brought back to Nooristan to marry her uncle, who was now over 80.

On her wedding day, desperate to avoid her fate, she ran away to her maternal uncle — her dead mother’s brother.

Hearing of her plight, the man thought of a remedy — why not marry Sakina to his own son, who was just 17, a much more suitable match? He called a mullah, the pair was blessed with the Koran in a ceremony known as “nikaa,” and they moved to Kabul, where they lived happily ever after.

At least for three and a half years.

By then Sakina’s father had tracked her down. He wanted her to leave her husband and come back with him to marry the octogenarian who was still insisting on his prize. When she refused, he called the police.

“This man kidnapped my daughter,” he said, gesturing at Sakina’s husband. The young man was arrested and hauled away.

Sakina, who was seven months pregnant, protested that she had not been taken by force, that she was the man’s wife. So, at the insistence of her father, she too was arrested. She shared her husband’s crime of kidnapping, even though she herself was the supposed victim.

“I don’t know how this can be,” she sighed, cradling nine-month-old Mirwais. “I worry about my husband, who is in Pul-e-Charkhi prison. I worry what will happen when they let me go. They have said they will send me back to my father’s house. But that is the end. If I do not marry that old man, he will kill me for sure.”

To advocates for women and supporters of a deeper reform of the legal system, Sakina’s story explodes the myth that women’s problems in Afghanistan began with the Taliban. She has been imprisoned, not by remnants of the fundamentalist regime, but by cultural traditions hundreds of years old.

If she is returned to her father’s house, and if he kills her, the prospects of justice for Sakina are slim. Honor killings are still worryingly common in Afghanistan, according to non-governmental organizations tracking the practice, and a daughter who disgraces her father by ignoring his wishes can expect little protection from the law.

Even the law on Elimination of Violence Against Women (EVAW) cites “mitigating factors” in certain types of killings; a man who murders an unfaithful wife or her lover, for example, faces a maximum of two years in prison.

Nor can she escape. No matter how abusive the situation in which a girl finds herself, she cannot leave it. Running away — “farar” — is a crime in Afghanistan. Badam Bagh, the female prison, is full of women whose only offense is “farar.”

Others have the dreaded charge of “zina” or “immorality” leveled at them. This is almost always shorthand for sex outside of marriage. Even if a girl or woman is raped, she can be imprisoned for “zina.”

The Great Leap Forward?

Much has been made of the progress in women’s rights over the past decade in Afghanistan. Following five years of harsh Taliban rule, even the slightest improvement was initially hailed as a great leap forward for Afghan women, who had been largely closeted at home, with no access to education, jobs, even medical care in many instances.

Now the streets of Kabul are swarming with small girls in black dresses and white headscarves, the uniform for Afghan state schools. One look at their shining, hopeful faces, the sound of their animated chatter and quick laughter are enough to convince most foreigners that the future is looking much brighter for Afghan women.

Majabin, 13, and Zalayha, 29, both wives of farmer Mohammed, 45, do work around their mud home, Afghanistan on June 7, 2006. Mohammed was offered Majabin as a debt settlement — or ba'ad — when a fellow farmer could not pay after a night of playing cards. (Stephanie Sinclair/VII)

But advances such as women in Parliament, female entrepreneurs, women’s rights activists and even a female provincial governor have been offset by the mounting evidence that negative practices such as ba’ad, domestic violence and honor killings have persisted to a significant extent in much of the country.

In 2001 to 2002, when hope ran high and illusions of transforming Afghanistan persisted among the international community, donors took on the task of reforming the justice sector. This difficult, but not insurmountable, undertaking was spearheaded by Italy.

The foreigners at the helm were intent on imposing a modern legal system on Afghanistan, one that was compatible with international standards, and would catapult the country into the 21st century.

But Afghanistan had other ideas. The country’s justice system was a complete shambles, having been overhauled at regular intervals throughout the 20th century and given different emphases and priorities with each iteration.

High Hopes, Low Results

Abdur Rahman Khan, the “Iron Amir,” had tried reforming the country in the late 1800s at the end of the British empire’s presence in Afghanistan; his efforts were followed by more radical changes in the 1920s. His grandson, Amanullah Khan, inspired by the Turkish reformer Kamal Ataturk, gave the country its first Constitution in 1923 and got himself tossed out by his countrymen for his pains six years later.

More cautious reforms followed; a new Constitution was adopted in 1964, heavily influenced by Egypt. President Daud Khan, who was courting the Soviet Union at the time, introduced another version in the late 1970s. The Communist rulers issued yet another Constitution in the 1980s, which owed much to socialist ideas and principles.

The Taliban, of course, introduced their own system, which drew its legitimacy from a strict interpretation of Sharia law.

Against the backdrop of all these upheavals, Afghans persisted in their own tribal law, as adjudicated by networks of local leaders – maleks, mullahs, and other notables.

A 2007 study by two Norwegian scholars put it succinctly:

“By the time the Taliban regime was overthrown, the old state apparatus was in ruins, and, with it, the formal system of justice that had developed since the late 19th century. In its absence, the informal justice system run by local mullahs, the ulama and tribal elders in accordance with customary and Islamic law was the principal mechanism for resolving conflicts and dispensing justice. “

But these tribal courts can be harsh when it comes to dispensing “justice” to women, as seen by Sakina’s fate.

Sakina can expect little relief from Afghanistan’s convoluted justice sector, neither from the tribal courts that traded away her life and happiness, nor the state courts that now keep her in prison.

During the brief happy period when she and her husband were in Kabul, Sakina had given birth to a daughter. The little girl died at birth. Sakina says she was sad at the time, but now, looking back, she is happy.

“I should have killed her myself,” she sighed. “Afghanistan is no place for a girl.”

Abdul Qayoom Suroosh, a Kabul-based journalist, contributed to this report.

This is Part One of a three-part GlobalPost Special Report titled "Life Sentence: Women and Justice in Afghanistan." Read Part Two and Part Three.

This story is presented by The GroundTruth Project.