By Rehman Azhar
July 17th 2012
Lal Bibi is 18 years old and the youngest daughter in a Kuchi family, who are semi-nomadic herders. She and her family live in a tent in the outside the city of Kunduz and raise sheep for their livelihood. Unfortunate events brought her to limelight recently. Lal Bibi says that she was abducted and raped because her cousin offended a family linked to a local militia commander, Ishaaq Neezami. She says that Commander Nezaami’s men kidnapped her and took her to the home of one of his sub-commanders, Sakhi Dad where she was chained to a wall, sexually assaulted and beaten. Lal Bibi spent the ensuing five days in a dark room being tortured and repeatedly raped. According to her, this ordeal ended a week after her capture when she was dumped, bruised and battered, outside her home in a remote village in northern Konduz Province. She was taken to Kunduz hospital and subsequent medical examination proved that there was reliable physical evidence consistent with her account.
The case came to attention because of the involvement of personnel from Afghan Local Police, an American-financed program that aims to convert former insurgents into village self-defense forces, distinct from the existing national police force. During a meeting of the country’s National Security Council, President Hamid Karzai ordered the Interior Ministry to arrest the suspects in this case and disarm the police unit in Konduz. In a statement released on the same day, the Interior Ministry confirmed that two men had been arrested and that a “young woman” had been “harassed” and not raped. Commmder. Muhammad Ishaq Nezaami who disappeared shortly after the discovery of the incident was later arrested. One of the accused, Khodaidad says that they could not have raped the girl because a local cleric had married them and that the girl was given as ‘baad – the practice of trading women as a payment to resolve disputes between families, clans or tribes. Typically, when a girl is given in baad, it happens after the meeting of elders and consent of families.
The events occurred in Kuduz province that is one of the most turbulent in northern Afghanistan. The case brought to fore the problems facing the Afghan Local Police program. It is a favorite initiative of the NATO commander Gen. David H. Petraeus. Afghan police officials see it as an easy-on-the-pocket way to beef up their forces in remote areas. The ALP is trained by American Special Forces units in collaboration with the Afghan authorities and attached to the government through the Interior Ministry. The Afghanistan National Army and National Police are expected to expand to a combined 352,000 personnel by the end of the year, but even that force cannot cover remote. The ALP is supposed to cover this gap. But the forces of ALP have been involved in abuses over the years even before this incident. Bibi’s case is just the latest in a long line of incidents where more than 10 local policemen have been arrested and charged since 2010 on various accounts of abuse, ever since the launch of the initiative.
More importantly, the case is critical for Afghanistan’s law on Elimination of Violence Against Women (EVAW). President Karzai signed the new set of laws in August 2009, criminalizing violence against women, including rape, battery or beating; forced or underage marriage; practice of baad; humiliation; intimidation; and the refusal of food. Article 17 of the EVAW law specifically punishes rape with life imprisonment. The law also punishes the “violation of chastity of a woman that does not result in adultery with imprisonment of up to seven years.
Earlier Courts prosecuted cases of adultery and rape solely according to Articles 422-433 of the 1976 Penal Code that do not explicitly criminalize rape and were insufficient to deal with the matter. Article 427 of the Penal Code states that a person who commits adultery or pederasty shall be sentenced to long imprisonment and in case of aggravated conditions, such as deflowering a maiden; the strictest punishment will be meted out to the offender. Article 429 provided that the punishment for a person who, through violence, threat, or deceit, violates the chastity of another (whether male or female), or initiates the act, shall be sentenced to long imprisonment, not exceeding seven years. According to a report by the UN Convention on the Rights of the Child the laws were insufficient. The cases were dealt through Sharia law, which was interpreted in the local context and influenced by tribal customs. Although it was un-codified but it impeded successful prosecution of rape cases punishable by stoning to death or 100 lashes of the whip.
The accused in this case claims that he had married the girl. Nevertheless, forced marriage is illegal under Afghan law. In Afghanistan, marriage laws are based both on the Afghan civil code and on Sharia law that applies to issues not covered by the civil code. Marriage laws prescribe a minimum age of 16 for girls and 18 for boys, though a girl of a younger age may be married with the permission of her father or guardian. Consent to marry is explicitly required for individuals who are 18 or older. Under Sharia law, marriage is not valid without the consent of parties between ages 15-18, and the consent of both individuals is required, not just the guardians. Furthermore, Elimination of Violence Against Women (EVAW) bans forced marriages. In 2007, the Supreme Court certified a new official marriage contract that both parties must sign, but it has not yet been implemented widely. Moreover, Article 517 of the Penal Code states that someone who forces a girl or widow into marriage “contrary to her will or consent” shall be given a short-term prison sentence, the duration of which is not specified but is unlikely to be more than one year.
Some members of Afghanistan’s National Security Council argued that pursuing the allegations could tarnish the image of the Afghan Local Police that they view as vital to maintain security and keeping the Taliban at bay. There is more at stake in this case than just the sake of necessity of Afghan Local Police. This case is critical for the EVAW and Afghan political will to implement such laws. According to a United Nations Assistance Mission in Afghanistan Report in 2011Government’s implementation of the law, in particular by police and prosecutors, was limited and that much greater efforts were needed to improve enforcement. In many regions, police and prosecutors continue to refer cases of violence against women to mediation and traditional dispute resolution mechanisms that do not enforce the EVAW law or the Penal Code and failed to adequately protect the rights of women. Often these incidents go unreported. The case might set a precedent for Afghani women and its legal system to deal with these issues without recourse to alternative methods of justice and help Afghan society develop laws to counter sexual violence against women.
About the Author:
Azhar is a freelance journalist based in New York, United States currently pursuing a Masters Degree programme in International Law and Justice at Fordham University.