Discrimination In Application Of Afghan Criminal Law
1. Case of Farkhunda Malikzada (2015) – Gender-Based Discrimination & Mob Justice
Facts:
Farkhunda, a 27-year-old Afghan woman, was falsely accused of burning the Qur’an by a mullah in Kabul. Without a trial or evidence, a mob brutally beat her to death and burned her body in public. The police were present and failed to intervene.
Legal Issues:
Violation of the right to due process.
Failure of state actors to protect the victim.
Gender discrimination in public perception and law enforcement.
Outcome:
Dozens were arrested, and some were sentenced.
However, many were later released or had sentences reduced.
The police officers who failed to act received minimal punishment.
Analysis:
This case exposed how gender bias influenced both public and institutional responses. Had the victim been male, the crowd and authorities might have acted differently. The systemic failure to protect women and the leniency towards perpetrators highlight discriminatory enforcement of criminal law.
2. Case of Shia Personal Law (2009) – Sectarian Discrimination
Facts:
The Shia Personal Status Law was passed in 2009 under President Karzai, which included controversial provisions, such as allowing marital rape and restricting women’s mobility without the husband's permission. Though not a criminal case in itself, the law’s application affects how criminal issues are judged among Shia communities.
Legal Issues:
Discrimination based on religion and gender.
Conflict between statutory law and constitutional rights.
Outcome:
Despite protests and international condemnation, the law was only minimally revised. Its enforcement led to discriminatory outcomes in criminal and civil cases involving Shia women.
Analysis:
This institutionalized a dual legal system where justice is not applied equally. For example, in criminal cases of domestic violence within Shia communities, defendants have claimed protections under the Shia law, leading to lighter sentences or acquittals.
3. Case of Bibi Aisha (2010) – Gender and Customary Law vs. Criminal Law
Facts:
Bibi Aisha, a young woman from Uruzgan province, had her nose and ears cut off by her Taliban-affiliated husband’s family after fleeing an abusive marriage. Her case gained international attention after she appeared on the cover of Time magazine.
Legal Issues:
Enforcement of customary justice over formal criminal law.
Gender discrimination in tribal adjudication.
Outcome:
The perpetrators were never effectively prosecuted.
Tribal justice was applied, ignoring Afghan criminal codes.
Analysis:
This shows how customary law, deeply rooted in patriarchal norms, overrides formal criminal law in rural areas. Women are disproportionately harmed, and perpetrators often go unpunished, highlighting systemic discrimination.
4. Case of Parwan "Moral Crimes" Prisoners (2012-2014) – Criminalization of Women
Facts:
In Parwan women’s prison, over half the female inmates were imprisoned for "moral crimes" like running away from home or adultery (often after being raped or fleeing abuse). These acts are not always explicitly criminal under the Afghan Penal Code, yet they were prosecuted.
Legal Issues:
Misuse of criminal law to enforce morality.
Gender-based discrimination and misuse of zina (adultery) provisions.
Outcome:
International outcry led to some presidential pardons.
No structural reform occurred; women continued to be arrested.
Analysis:
This case reflects how moral and cultural norms override legal definitions. Women, especially those seeking protection, were treated as criminals, a direct result of discriminatory interpretation and application of criminal law.
5. Case of Hazara Targeted Killings – Ethnic Discrimination
Facts:
Hazara individuals have been repeatedly targeted in sectarian attacks by extremist groups. In several such incidents, including the 2016 Kabul bombing of a Hazara protest and earlier targeted killings on highways, there was a lack of serious investigation or prosecution.
Legal Issues:
Failure to investigate and prosecute sectarian violence.
Ethnic discrimination in law enforcement responses.
Outcome:
Many cases remained unresolved.
Perpetrators often not brought to justice.
Analysis:
Discriminatory patterns in prosecuting crimes against Hazaras show institutional bias. Failure to uphold criminal law protections equally for all ethnicities undermines the rule of law and encourages impunity.
6. Case of Ahmad Wali Karzai’s Alleged Impunity – Political Discrimination
Facts:
Ahmad Wali Karzai, brother of former President Hamid Karzai, was accused of being involved in drug trafficking and corruption. Despite serious allegations, he was never prosecuted, reportedly due to his political connections.
Legal Issues:
Unequal enforcement of anti-corruption and criminal laws.
Political interference in judicial processes.
Outcome:
No charges were brought during his lifetime.
Analysis:
This case exemplifies political discrimination—where powerful individuals are shielded from criminal prosecution. The law is applied selectively, undermining public trust.
Constitutional and Legal Framework Violated in These Cases:
Article 22 of Afghan Constitution: “Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.”
Penal Code (2017): Provides general principles for criminal liability, equality, and legality.
CEDAW & ICCPR: Afghanistan is a signatory to these conventions, which prohibit discrimination.
Conclusion:
Discrimination in the application of Afghan criminal law is pervasive and takes multiple forms:
Gender-based (Farkhunda, Bibi Aisha, moral crimes cases),
Ethnic (Hazara killings),
Sectarian (Shia law application),
Political (Ahmad Wali Karzai's impunity),
Geographic and Tribal (rural customary practices overriding law).
These cases collectively show how criminal law, when applied unequally, becomes a tool of oppression rather than justice. Real reform would require structural legal changes, judicial independence, and the dismantling of parallel justice systems based on ethnicity, gender, or political power.
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