How Afghanistan’s rape law got passed – Canadian report

‘All kinds of trade-offs go on behind the scenes, which is the way they’ve done politics for the last three decades’

An in-depth investigation into the murky process that led to the enactment of Afghanistan’s controversial “rape” law reveals a porous, dysfunctional and corruptible parliamentary system.

But the system is at least functioning, it shows, a fact Canadians should see as a sign of progress, says the Canadian development veteran who led the investigation.

Passed quietly in May, the legislation – it applies only to the minority Shia Muslims, which make up 10 to 20 per cent of Afghanistan’s 30 million people – requires, among other things, that women submit to sex with their husbands every four days with few exemptions. That has led to concerns that the law essentially legalizes rape within marriage.

“The parliament there has gone through a very normal growth process and it shouldn’t be expected to function normally,” said Lauryn Oates, an independent development worker who did the investigation for the Afghan Research and Evaluation Unit, an independent research group.

“There is political development happening along a spectrum. It’s happening slowly, but it is happening,” she said, adding: “There is extraordinary progress being made.”

Ms. Oates’s investigation into the law was based on 51 interviews with key members of parliament, academics and civilian stakeholders in Kabul during May and June. That was the same period Afghan President Hamid Karzai found himself in the midst of a political firestorm on domestic and international fronts for signing the legislation, officially called the Shiite Personal Status Law.

Ms. Oates set out to trace how the law moved almost undetected from the pages of a hard-line clerical magazine through Afghanistan’s two houses of parliament and onto the desk of Mr. Karzai, who said he did not read any of its controversial articles before signing it last March.

Shortly after he did, civilian development groups frustrated by the law’s contents and its unusual enactment – the normal parliamentary process was virtually bypassed – turned to embassy officials and international media. News of the law prompted protests and much political hand-wringing over how a bill so peppered with human-rights abuses was allowed to slip into force.

According to Ms. Oates’s investigation, the law’s passage was engineered by the Shia cleric Mohammad Asif Mohseni, a hard-line, Iran-backed mullah who has been working to increase his stature in Kabul’s Shia community.

He did it by making backroom deals with a small circle of MPs, chief among those being Abdul Rasul Sayyaf, a Sunni who was originally one of the biggest opponents to the law (the original concept of which was welcomed by the minority Shia community). Mr. Sayyaf is known as blatantly anti-Shiite. In fact, Human Rights Watch alleges he and forces under his control in the early 1990s were responsible for the mass killing and raping of Shiites and the burning of their homes.

Still, Mr. Sayyaf did an about-face in January and became the law’s lead advocate in parliament. Many who gave interviews to Ms. Oates suggested Mr. Sayyaf’s change of heart had to do with a deal struck with Mr. Mohseni. What Mr. Sayyaf got in exchange remains unclear.

“All kinds of trade-offs go on behind the scenes, which is the way they’ve done politics for the last three decades,” Ms. Oates said in an interview.

It was Mr. Sayyaf who spearheaded a confusing but pivotal parliamentary vote in the lower house in which members, many of whom later said they did not know what they were voting for, voted to issue an unprecedented advisory to the Supreme Court. It directed the court to apply the Personal Status Law even though it had not been formally enacted or debated.

Ms. Oates’s analysis shows it was this statement that really paved the way for the bill to glide through the upper house of parliament and into the orbit of Mr. Karzai, where it aligned with his spring mission to shore up votes for the looming presidential election. However, Ms. Oates suggested Mr. Karzai was not a pivotal figure.

“He [Mr. Mohseni] might have been able to do it without Karzai,” she said. “Mohseni is backed by Iran, he has financial resources and he just used his political connections,” she said.

Notable about Mr. Mohseni’s use of those connections, she said, is the fact that he went through parliament to make them rather than operating completely outside it to impose his agenda.

“It is significant that he sought to legitimize the law using formal state structures like the parliament,” Ms. Oates wrote. She said it shows there is democratic “buy-in among Afghans.”

“It’s happening indigenously and imperfectly,” she said, adding: “Despite all the challenges in this whole process, Canadians looking at this shouldn’t see this as a reason to give up on Afghanistan.”


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