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As violence against women in Afghanistan spikes to its highest levels since the fall of the Taliban government, the US has become an investor in the country's informal—tribal—justice system. In this 'Special Report,' GlobalPost tells the painful stories of women who have been subjected to the tribal courts' brand of 'justice': unfairly imprisoned, traded like property and often abused every step of the way. 

Afghan women trapped in tribal court system

Part One: Justice not an option for female victims.

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.

http://www.globalpost.com/dispatch/news/regions/asia-pacific/afghanistan/120306/afghan-women-trapped-tribal-court-system