Along the Banks of the Kabul River
Shah-e du Shamshira mosque in Kabul
Dispatch — She was a 27-year-old student of Islamic law and a devout Afghan Muslim. After praying at the Shah-e Du Shamshira mosque at the center of Kabul, Farkhunda Malikzada confronted the caretaker of the mosque about the practice of selling charms or tawiz, amulets containing Quranic verses and incantations. Like many other conservative Muslims, she believed they were superstitious and un-Islamic. As she admonished the caretaker and the confrontation escalated, he began shouting, “In the name of God, kill her! She has burned the Quran!” Within minutes, a mob of hundreds had assembled, and while the police stood idly by, Farkhunda was stoned, beaten, set on fire, and left to die on the banks of the Kabul River. Some of those present filmed the lynching on their mobile phones.
Violence is endemic in Afghanistan and modern political and legal institutions have faltered since the fall of the Taliban in 2001, but the brutal murder of Farkhunda – which took place just last March – was particularly shocking given the cultural understanding in Afghanistan that public violence toward women is taboo. Despite the outcry from within the country and abroad, a number of prominent Afghan officials and religious leaders immediately endorsed the murder, highlighting Afghanistan’s complicated relationship with Islam and shattering the cautious hopes of reformers, particularly women’s rights advocates. The official spokesman for the Kabul police characterized Farkhunda’s protestations as a publicity stunt with the aim of attaining U.S. or European citizenship, and during his Friday prayer sermon, Ayaz Niazi, the prominent imam of the Wazir Akbar Khan Mosque, said, “If someone disrespects the Quran, you cannot expect people to control their emotions and wait for judges to decide the punishment.” Mullah Hassam of the Bagh-e Bala mosque argued that mahkama—e sahrayi or arbitrary execution is the appropriate punishment for insulting Islam. Soon thereafter, an investigation by the Ministry of Hajj and Religious Affairs found no evidence that Farkhunda had burned the Quran, and concluded that she had been slandered.
I first read about Farkhunda while weighing the pros and cons of moving to Kabul to practice law. I knew about Afghanistan’s abysmal human rights record, and had read up on the fragile legal protections for women and girls, as well as the “moral crimes” they are often prosecuted for and the oppressive customary rules they are subject to. Nevertheless, I was stunned by the savagery of Farkhunda’s murder. Afghanistan has “entered a new period of instability in 2014” the reports read, but stonings were, I thought, a thing of the past.
Several friends and colleagues asked if I would be defending victims of human rights abuses in Afghanistan, particularly women, and strongly advised against it. I assured them that I would be working in the commercial sector, focusing on corporate law and taxation, and would remain far outside the controversial limelight. Free enterprise is the surest path to prosperity and human rights, I would tell them. And surely it is. But even though I am not an Afghan woman, and life in Kabul is comparatively easy for me, Farkhunda’s story affected me deeply and became a catalyst for deeper study into a troubled country.
Afghan Law
Afghanistan’s legal system has been shaped by the country’s multiethnic population and chaotic history, as well as its distinctive culture. Under the veneer of monotheism, it is actually a country of competing belief structures. Afghanistan is overwhelmingly Muslim, but it is also clan-based, and as such its two primary sources of law have long been customary tribal law and Islamic law. The current formal legal system – designed in Bonn after Allied forces and the Northern Alliance gained control of the country in 2001 – aims to blend both traditions within a constitutional order defined by civil codes and formal courts. The Constitution designates Islam as the religion of the state and stipulates that no law shall contravene its tenets and provisions. It also suggests that Hanafi jurisprudence – one of the four Sunni Muslim schools – should be used as a kind of gap filler, consulted when there is no provision in the Constitution or others laws regarding a particular issue. And while Islam has been used as a source of authority to unite Afghanistan’s disparate clans under the auspices of the government since the late eighteenth century to the present, legal authority has never been fully consolidated in the hands of the state. This is due in part to ongoing conflict, lack of infrastructure, and an overarching lack of state legitimacy, but also because of the prevalence and perceived authority of informal or customary law.
Within the informal system in Afghanistan, the ulama or religious leaders adjudicate disputes by employing common cultural and ethical standards that are assumed to conform to Islamic law. Most of these tribal leaders, who meet in shuras or jirgas – the main institutions that operate as mechanisms of dispute settlement – are untrained in the classical Islamic law tradition. In Pashtunwali, an unwritten ethical code with its own particular set of customs or urf, individual identity is inextricably linked to membership within a particular tribe, and the concept of nang or honor is paramount. Certain actions help to build one’s honor within the tribe while others negate honor and bring about shame. Namus or the practice of observing gender boundaries, for example, is routinely extolled as a virtue. Women abide by purdah or seclusion to maintain these boundaries since it is believed that a woman who is almost invisible to others cannot shame herself. These norms and others like them are not codified; urf assumes space within Islamic law. As such, the formal and informal legal systems operate in parallel with significant tensions between them.
During my first month in Kabul I met Kimberley Motley, the spirited American defense attorney who represented Farkhunda’s family at the initial trial. Motley is, in her words, on a “quest for justness,” which means using existing laws for their intended purpose: to protect. She keeps records of all legal proceedings, and insists that court officers, judges, and parties to the dispute sign off on them. Since the principle of stare decisis does not apply in the Afghan legal system, and judicial interpretation cannot be relied upon to clarify interpretive voids, Motley often relies on this self-made precedential system to argue her cases.
Forty-nine suspects were tried in the Farkhunda case at a trial noted for its unusual brevity. Motley wrote a petition for the family, in which she cited the Afghan Penal Code, the Elimination of Violence Against Women (EVAW) law, the Afghan Constitution, the Quran, a body of tribal law, and the International Convention on the Rights of the Child. She requested civil compensatory damages for the family and criminal punishment to the extent of the law for the perpetrators. Motley also demanded punishment for those who stood by and watched the murder. “To take good care of and protect women is one of the principles of Islam,” she wrote. “To allow society to ignore this obligation promotes anarchy and discord, and perpetuates further violence.”
In the end, four of the perpetrators were given death sentences and eight were sentenced to 16 years in prison for murder, assault, and encouraging violence. Nineteen more were sentenced to one year in prison for failure to protect, and 18 were acquitted. “The trial was about Farkhunda and her family,” said Motley. “But to some extent, this ordeal has also put the Afghan legal system on trial.” Critics contend that the rapid convictions were a result of public pressure, and came at the cost of serious failings in the judicial process. Motley, too, acknowledged that there were monumental flaws, but also noted that it was the most well run trial she has ever seen in Afghanistan. She added, “I hope the judges, police, and the wider community in Afghanistan have learned from this case and better understand that the laws exist to protect not oppress women.” Unfortunately, this seems not to be the case. Two months later, during a secret and unlawful hearing, the Appellate Court overturned the death sentences. Motley hopes the case will now be brought before the Supreme Court.
The Aftermath
In the aftermath of Farkhunda’s murder, the largest women’s protest in the Afghanistan’s history took place. Women poured onto the streets of Kabul to demand justice and an end to gender-based violence. Many decried the notion that “men are fundamental and women are secondary,” as declared by the Afghan Ulama Council in 2012, saying that such a concept exists in neither classical nor contemporary Islamic jurisprudence. One women’s rights activist said, “The men who killed and attacked Farkhunda were mostly those who have lived in Kabul and have grown up as boys in Hamid Karzai’s government. . . they learned how to wear jeans and look modern but their mentality towards women hasn’t changed.” This attitude, split between a yearning for modernity and fidelity to tribal custom and regressive norms, applies most visibly to issues affecting women.
The dissonance between customary practice, Islamic law, and the state legal code makes it difficult to use existing laws to effectively protect the rights of individuals or to hold accountable those who have violated the rules, norms, and customs of the existing constitutional order. Preventing tragedies like the murder of Farkhunda in the future depends, at least in part, on building and sustaining a robust legal system in Afghanistan. And because that legal system will develop within the strictures of Islam – a religion focused on jurisprudence – many believe change must begin with the ulama.
This essay was published as the second in a series of Dispatches from Kabul for the St. John’s Law’s Center for Law and Religion.
