KARZAI SIGNS ANTI-WOMEN SHIA LAW

C O N F I D E N T I A L SECTION 01 OF 03 KABUL 000837 SIPDIS E.O. 12958: DECL: 03/06/2019 TAGS: KDEM PGOV AF PREL PHUM SUBJECT: KARZAI SIGNS ANTI-WOMEN SHIA LAW Classified By: Deputy Chief of Mission Christopher Dell for reasons 1.4 (b) and (d). ¶1. (C) SUMMARY. On March 19 President Karzai signed the Shia Personal Status Bill into law, regulating only the affairs of Shia citizens, a minority comprising about 15 percent of the population. Although the law has been in draft form for years, public backlash against the more extreme measures only peaked this week after international media publicized ultra-conservative and anti-women provisions regarding marriage, sexual relations, divorce, child custody, inheritance, freedom of movement, and bankruptcy. During Parliament's six-week handling of the legislation earlier this year, criticism of the bill was muted. Moderate MPs and civil society groups pushed through four changes to the 300-page bill, while most of the country's majority-Sunni politicians, including women, viewed the issue with disinterest, calling it a "Shia matter" that did not impact most Afghans. However, following the international outcry, reformist MPs and civil society groups are urging the Palace to reconsider Karzai's signature before the law is published in the government's official legal gazette. Some hope an extra-legal "Afghan solution" might return the law to Parliament or moderate the most outrageous provisions. Background -------------- ¶2. (C) The Shia Personal Status law is based on Article 131 of the Afghan Constitution, which guarantees Shia citizens the right to have family law disputes adjudicated under Shia law. During parliamentary debate, civil society actors worked with a few progressive MPs to modify four provisions of the bill to be more egalitarian towards women, including the removal of an article permitting "temporary marriages" similar to those that exist in Shia communities in Iran and Pakistan. The law as signed by Karzai, however, still contains several provisions that contradict the Afghan Constitution's guarantee of equal rights to men and women (see para 8 for descriptions of some controversial articles). Many Shia, however, see the new law as an important affirmation of their right to settle disputes under Shia law, and, for that reason, support the principle of the law, if not certain or even many of the specific provisions. ¶3. (C) There is some dispute as to how Parliament's Lower House passed the legislation. Although reformers' concentrated their opposition to just four articles in the 300-page bill, conservative Sunni MPs initially opposed supporting any legislation that created an alternate Shia jurisprudence. Mid-way through the debate, influential conservative Sunni MP Abdul Rassoul Sayyaf (Kabul, Pashtun) proposed that MPs vote to "confirm" the bill in full rather than vote to "pass" each of the bill's articles. Sayyaf argued that such a "confirmation," similar to tabling, would defer the decision on the proposed law's overall legality to the Supreme Court. With most Sunni MPs preferring not to spend time on Shia issues, the Lower House overwhelmingly voted to "confirm" the law in full on February 7 (most parliamentary votes are not recorded, but those present in Parliament said only four MPs voted against the measure.) The Upper House took the same approach two weeks later, sending the bill to the Supreme Court. After a quick blessing by the Supreme Court, Karzai signed the law last week, bypassing what many thought would be an article-by-article yes/no vote in each house of parliament, the standard procedure to pass legislation. ¶4. (C) The law's opponents have sharply criticized the speedy reviews undertaken by the Supreme Court, Ministry of Justice, and Palace following Parliament's decision to send the law to the courts for review. One Palace source said Karzai did not receive a full briefing on the law before signing it. Other advisors, like National Security Advisor Zalmay Rassoul, downplayed the law's impact, echoing many MPs' opinion that the Shia law was not a matter of interest to most Afghans (i.e. the Sunni majority). Hopes to Revive the Issue -------------- ¶5. (C) Moderate reformer and MP Faizullah Zaki (Jowzjan, Uzbek) told POLOFF most MPs, especially moderates, did not believe they were supporting the legislation when voting to confirm, and instead thought they were only temporarily deferring the issue to the judicial system. Women's Affairs Committee members Fawzia Kofi (Badakhshan, Tajik),who was one of the four no votes, and Qadria Yasdanparast (Kabul, Tajik),who supported Sayyaf's "confirm vote" compromise, said they would have increased their opposition to the bill if they had known the Supreme Court planned to send the bill directly to Karzai. However, many Sunnis, happy to rid their agenda of Shia affairs, remain disinterested in the law's KABUL 00000837 002 OF 003 legality or ultimate fate. ¶6. (C) Civil society groups and European embassy officials are hopeful that Karzai can be pressured to "revise" or "clarify" the more extreme aspects of the law in the space of time between his signature and the law's publication in the government's official legal gazette. This may be an effective approach, if Afghan-led and if accepted by the country's political leaders. We believe under Afghan law, legislation does not become official until published in the gazette ) we have posed this question to Afghan legal experts and are awaiting their responses. European diplomats say their governments raised the issue with Karzai in The Hague this week, pressuring the president to repeal the law or take other measures to assuage international concerns of a "re-Talibanization" of Afghanistan. Press Reports Drive International Interest, Lose Some Perspective -------------- ¶7. (C) International media reports have energized opposition parties and human rights advocates in Europe and Canada, according to local diplomats, driving their governments' interest in the law. While many of the provisions are clear violations of human rights, some media reports have mischaracterized Karzai's support for the bill as an effort to win support from the Taliban and other hard-line insurgent groups. However, insurgent groups like the Taliban are predominately Sunni (when in power, the Taliban instated harsh anti-Shia policies) and abhor any effort to codify Shia jurisprudence. Instead, it's more likely the bill's passage stemmed from a combination of the Shia community's interest in solidifying its identity and Sunnis' disinterest in being involved in Shia issues. As with many efforts to codify social and religious practices into Afghan law, the effort was driven by conservative fundamentalists. Notable Provisions of Concern -------------- ¶8. (U) The following articles appear to violate the Afghan Constitution's guarantees of equal rights to men and women (Article 22) and the right to work (Article 48): - Article 47 grants guardianship, after age 7 for boys and 9 for girls, to Shia fathers and paternal grandfathers. - Article 122 sets the minimum age of marriage at 16 for Shia girls and 18 for Shia boys, but allows a Shia father to "marry off" minors. - Article 132 states that a Shia wife must submit to her husband's wish to engage in sexual relations. Press reports have characterized this as legalizing "marital rape." - Article 133 states that a Shia husband can prevent his wife from any activity not prohibited under Sharia law; a husband can prevent his wife from leaving their home except in an emergency. - Article 166 requires Shia divorce proceedings to be heard in the presence "two fair men." - Article 226 states that Shia women can only inherit personal property, not real estate from a deceased spouse; whereas Shia men inherit both real and personal property. Advocacy for Improvements in Women's Rights -------------- ¶9. (C) Judges and informal decision-makers often side against women regardless of the merits of the dispute or constitutional guarantees of equality. As this law does not provide for the establishment of Shia courts or Shia-jurisprudence trained judges, the current court system will have to administer the law, with questionable motivation and success. Many Shia did not publicly oppose this law because they see it as a long overdue recognition of their rights, even if they privately disagreed with, and thus, may not push for implementation of, all of its provisions. Even as these factors may temper the law's impact, we are deeply concerned by this further evidence of the willingness of the Afghan polity to acquiescence in the agendas of its most conservative elements. ¶10. (C) We support efforts to convince Karzai, the Supreme Court, and Parliament's leaders to use the disputed means of Parliament's passage of the law as an impetus to review any measures in the law that would violate human rights protections in the Constitution before the law is published in the official gazette. This window of time may provide room for an "Afghan solution" to step back from the extreme provisions that threaten women's rights. However, advocacy of women's rights in Afghanistan does not end with a defense against this law, but must include a pro-active agenda that supports measures such as the draft violence against women legislation now under review by the Justice Ministry and KABUL 00000837 003 OF 003 steps to protect the security of women leaders who brave numerous threats against their lives and families to speak out in support of women's issues. ¶11. (U) Our detailed review of the Shia legislation, coordinated with European missions and UNIFEM, is ongoing. RICCIARDONE