Traditional local jirgas violative of human rights
KABUL (PAN): Traditional local jirgas that deal with complaints on social issues and disputes are violative of human rights in many cases and their decisions are illegal and contrary to Shariah, according to an investigation by the Independent Media Consortium (IMC) Productions said.
The OMC is a joint initiative of Pajhwok Afghan News, The Killid Group (radio and print media), Saba Media Organisation (Saba TV-Radio Nawa networks) and Hasht-e-Subh. This is the ninth of a series of investigative reports on corruption and human rights cases.
Nearly everywhere in rural Afghanistan disputes involving property, domestic issues and criminal cases end up before local elders and religious authorities. The decision of the jirga is binding. But interviews conducted in 17 provinces including Kabul, Herat, Kandahar, Ghazni, Daikundi and Khost revealed a little more than a third of the interviewees were critical of the traditional justice system and accused village elders of violating people’s rights, particularly women’s rights. Thirty of the 150 people interviewed were women.
Local Jirgas consent to baad, an outlawed form of tribal justice, said 50 interviewees. Under baad a woman, often a child, is given away into slavery or forced marriage to pay for the misdeeds of her elders. The government banned the practice in 2007.
However, earlier this year in Nangarhar province, a local Jirga in Sorkhrod ordered a woman who had remarried to give her 7-year-old daughter in baad to her late first husband’s family when the family raised objections to her remarriage. Tribal elders also ordered her new husband from Sorubi district to pay 200,000 Afs (3,460 USD) to the family.
Dr Nematullah Hamdard, the coordinator of civil society and human rights for the eastern zone, said the woman had lived as a widow for seven years.
“When we investigated the issue we found that the decision had been taken by a person who was a member of Nangarhar Peace High Council,” says Dr Hamdard who did not reveal the name.
IMC confronted Malik Nazir, provincial head of the Peace High Council in Nangarhar, with the facts of the case of baad. “I swear to God I don’t know about it,” he said. Baad was against Islam, he asserted.
In Parwan province Shah Jahan Yazdanparast, head of Parwan’s women’s affairs department, said they failed to stop a 9-year-old girl from being given in baad in Sorkh Parsa district. The girl’s sister, who was engaged to be married, fled to a woman’s shelter in Parwan after “unknown armed individuals” sexually abused her. Her fiancee’s family demanded compensation from a local Jirga. “The elders sat down and decided that her 9-year-old sister should be given in marriage to the boy,” said Yazdanparast. “As much as we tried to save the innocent child we could not,” she added.
There are innumerable cases of baad sanctioned by local Jirgas. In Andar district, Ghazni province, two sisters were given as payment in a murder case. “Two cousins, their fathers were brothers, fought and one of them was killed. The local Jirga discussed the issue for a year, and two months ago delivered the sentence. The murderers two sisters were given in baad to two brothers of the murdered man,” says Abdullah, a 25-year-old resident of Rashid Khel village. In addition the family was also ordered to hand over 20 jeribs of land, two oxen and two water pumps.
Article 25 of the Violence Against Elimination Law stipulates, “The person that gives or gets a woman in baad would be punished by a lengthy imprisonment no longer than 10 years.” The article also provides for the sentencing of any witness, lawyer, peacemaker and contractor in a case of baad. Further it states the marriage can be annulled on the request of the woman.
Religious scholar Mufti Shamsul Rahman Ferotan condemned the practice. “The two sides in the case may be satisfied, even the girl may not complain, but Islam rejects baad,” he said categorically.
Under the traditional justice system murderers have walked free, according to six interviewees, one each from Farah, Ghazni, Khost, Bamyan, Balkh and Nangarhar.
In Khost province’s Nader Shah Koot district, a man was forgiven for killing his daughter and a young neighhour who had asked for her hand in marriage.
The facts of the case were revealed to IMC by a woman who said she was a relative of the girl but did not want her name published. “The girl liked the boy who was a soldier in the ANA ((Afghan National Army) but her father was opposed to their marriage. The saved up his salary, and returned to the village. Somebody informed the girl’s father of his presence. He took out a pistol. He first killed the boy, and then returned home and killed his daughter,” she said.
According to the woman, the murdered girl’s father does not think he committed a crime in killing both the young people. No one in the boy’s family has demanded justice from either the government’s justice system or local Jirga. Abdul Wali Zadran, who has participated in local Jirgas in Nader Shah Koot, denied knowledge of the double murders. He believed decisions taken by Jirgas are always fair. “No illegal decision has been taken by the Jirga,” he said.
However, there may be justice for the two young people. Qudria Yazdanparast, commissioner at the Afghanistan Independent Human Right Commission (AIHRC), said an investigation into their killing was being conducted.
Nine interviewees in Farah, Bamyan, Maidan Wardak, Ghazni, Nangarhar, Samangan and Kunduz provinces said local Jirgas coerced girls into marriage. According to AIHRC’s figures, there were 103 cases of forced marriages and 61 cases of underage marriages in the first six months of this year.
Abdul Jamel, resident of Saleh Abad village in Qala-e-Zal district, Kunduz, said it was common for widows and under-age girls to be forced into marriage by village elders. According to him, a man who gambled away his money, was ordered by a local Jirga to give either his daughter or land to his creditor.
Razia Haidari from Noora village in the centre of Farah province and head of the Women’s Council said local Jirgas “mostly decide against Islamic law, particularly in forcing women and girls into compulsory marriage.” In her experience “when a woman wants a divorce in cases of extreme violence and abuse the local jirga forces the girl’s family to honour the marriage.”
Fawzia Nawabi, head of AIHRC’s regional office in the Northern Zone, shared the unfortunate case of a widow in the centre of Samangan, the provincial capital, who was forced to marry her 10-year-old brother-in-law. The case was recorded by the Commission. The woman said she pleaded with anyone who would listen saying her brother-in-law was like a son to her. But no one paid the slightest attention to her feelings she said.
The woman has taken her case to a local jirga also because she wants to undo the marriage, which was conducted against her will. Under the Sharia, a woman has to consent to the marriage. However, religious authorities and local elders are not ready to “judge” this case, Nawabi said.
Article 26 of the Elimination of Violence Against Women Law states a man who forces marriage on to a woman can be imprisoned for two years or more, and the marriage annulled under the law.
Mufti Shamsul Rahman Ferotan said forced marriages were not approved under Islam; widows have the right to choose their husband, and cannot be coerced into remarriage.
Three interviewees in Sar-e-Pol, Maidan Wardak and Bamyan said rapists were not punished by local jirgas.
Abdul Wahed, 20, from Shortapa district in Sar-e-Pol who submitted his replies in writing to IMC, said the Jirga ordered money to be paid to a girl who was sexually assaulted by a boy from his village last year. The girl’s family was not satisfied with the verdict, and filed a case in the government court, which has sentenced the rapist to death.
Abdul Matin Hamidi of Afzal Khel village in Chak District of Maidan Wardak, did not think it was unusual for rape to be condoned by village elders. A rapist in his district was fined 200,000 Afs (3,460 USD), which was given to the family of the rape survivor, he said. “It is a bitter fact that traditional law dominates in our country even though some of the decisions of local jirgas are contrary to Sharia.”
Tribal justice prevailed even in urban areas. In the centre of Bamyan city, a 14-year-old girl who was raped was compensated with “some money” by a traditional court, said Sharifa Azizi.
Religious scholar Ferotan was of the opinion the only deterrent to sexual abuse, particularly of children, was “heavy punishment”. “The aggressor should be hanged in public or his hand or leg cut off,” he insisted.
Biased against poor
Thirteen interviewees said members of local Jirgas who were always the most powerful in the village ruled in favour of the rich.
Abdul Jamel from Saleh Abad village in Qala-e-Zal district of Kunduz said the poor have no choice but to accept the decision. “Powerful people have influence in the village as well as district and province. Wherever we complain it would be no use,” he added.
Gulab Shah Bawar from Mazar-e-Sharif told IMC, his land was taken over by “powerful individuals”. “The government did not solve the problem. The elders gathered and decided that half the land would stay with us and the rest would belong to the other side.”
Parween Rahimi who is in charge of the regional office of AIHRC confirmed the charge of bias. In Parwan, a local commander, abducted a 15-year-old girl, and married her on the local jirga’s order. But the girl was beaten frequently, and she escaped to a shelter in Kabul. “But even the Attorney General’s (AG’s) office has not referred the case to Kabul,” Rahimi said. AIHRC has been pursuing the case.
Abdul Basir Azizi, the spokesperson for the AG’s Office in Kabul dismissed the charges of bias. “I reject entirely the charge that files are being delayed or not considered.” He insisted security and rule of law were priority for the AG’s Office.
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