Afghan Lessons: Culture, Diplomacy, and Counterinsurgency

Shia Family Law

128 thirty-two Shia Family Law On the morning of August 20, 2009, while everyone was following how the elections were going, I visited Sima Samar in her office. Sima Samar is a prominent figure in Afghan civil society. In 2002, during the Taliban rule of Afghanistan, she took refuge in Pakistan and then returned to take up office as deputy chair and minister of women’s affairs in the interim administration led by Karzai. Sima was considered a sort of Afghan Salman Rushdie by the more conservative circles because of her positions on defense of human rights and of women’s rights in particular . In this respect, her office was not so different from mine, guarded by security staff with machine guns and flak jackets. We’d met before, to talk of Afghan civil society, but that day I had something specific to discuss with her: the Shia Family Law, being enacted by Karzai and raising a real hornet’s nest in the international community. In actual fact, very few people in the West had read and studied the act, not least of all because several versions were circulating, all loosely translated , but the part relating to the husband and wife relationship was too similar to sharia law not to attract the attention of the international media. The law governed relationships within Shia families, which account for six million of the Afghan population of thirty-five million. It regulated divorce, inheritance, and minimum marriageable age, all issues that had been dealt with by customs until that time. However, a law that decreed that a woman could not leave the house without her husband’s permission , guaranteed child custody rights to a father or grandfather in the event of a separation, or contemplated marriage for very young women risked alienating Western public opinion, and citizens from the West already unhappy about how long their troops had been in the country. 32-2423-0 ch32.indd 128 6/3/13 1:56 PM Shia Family Law 129 Many Western politicians and government officials were asking what kind of country could this be, in which a woman’s right to equality, ratified by the constitution, was trampled on in this way. Above all, we wondered what on earth our soldiers were doing in a country issuing such laws. So the question was of direct interest to NATO, because it was likely to have a negative impact on the willingness of its members to deploy troops to the ISAF mission. The newly appointed Danish secretary general, Anders Fogh Rasmussen , requested clarification from Karzai and instructed me to investigate further the scope of this hazy legislation and its applicability. I’d spoken previously to the foreign and justice ministers. The former had already been very critical of the law’s earlier draft, a few months before, while the latter had been tasked by the president to revise the content and make it compatible with the Afghan constitution and the Universal Declaration of Human Rights, as well as other international conventions that Afghanistan had signed. Nevertheless, the fact was that Karzai had conceived the law back in February, in the run-up to the elections, as a form of barter with Shiite clergy, which would bring him the Hazara vote. So the possibility of seeing the act withdrawn was almost nonexistent. At the end of March global protests broke out on the sidelines of the international conference on Afghanistan at The Hague, followed by a protest organized by two hundred women in the streets of Kabul, which made Karzai promise a revision of the text, in close consultation with the international community. As usual, however, things went downhill, the law was enacted quietly, and now it remained to be seen if any amendments had been passed and how far they went. According to Sima, the law would be incomprehensible to a Westerner, but in reality the current text had been improved with respect to the previous year’s version, so that was a small step forward. She told me that the successful sanctioning of a law of this nature was already a step forward compared to the past, when things were decided by custom, and perhaps the current text was the best we could hope for at the moment. She felt some Western interpretations were based on flawed translations and the lack of an official version of the law in English. Some clauses, moreover, had to be taken in context, read in the light of...