Gender and Constitution Building - Women for Women International

The New Afghan Constitution: How
Women Succeeded in Ensuring Certain
Rights and What Challenges Remain
HORIA MOSADIQ
Introduction
A constitution is defined as “the basic principles and
laws of a nation, state, or social group that determine
the powers and duties of the government and guarantee
certain rights to the people in it.” 1 The powers and duties
of government, and the rights which people are guaranteed,
are the tangible results of an internal process
translating history and experience into an institutional
framework. No two countries have the same history and
experiences and each country must consider its own history,
characteristics and problems while drafting a constitution.
Therefore, each country’s constitution should
reflect that country’s unique circumstances.
Additionally, over the last half century, the international
community has reached some consensus on a minimum
standard of human rights that individual governments
must guarantee to their citizens. Therefore, any
new constitution should take into account provisions of
the United Nations Charter, the Universal Declaration
of Human Rights and other international treaties to
which the state is a party. Although a constitution in and
of itself can never be sufficient to prevent human rights
violations and guarantee women’s rights, a constitution
that specifically provides for the protection of fundamental
human rights and freedoms can be an important
starting point for remedying past violations and preventing
future ones.
This article examines the recent constitution-building
exercises and developments in Afghanistan and attempts
to glean some lessons in gender issues that may
be relevant in other post-conflict nations facing the challenges
of drafting and adopting new constitutions.
Women in Afghanistan
Afghanistan is an Islamic and culturally traditional
country. Throughout Afghanistan’s history, real discussion
about women’s rights has been stifled by both religious
fundamentalists and the strength of cultural tradi-
tions. Indeed, traditional cultural values are often even
more influential than formal religious ones. For example,
according to Islamic law, a woman has the right to select
her own life partner, but in practice this choice is often
made for her. Also, under Islamic law, a women is entitled
to inherit property after a spouse or relative dies,
but in practice, if a woman attempts to enforce this right,
her community will shun her.
There has been almost constant warfare in Afghanistan
for the past quarter century, including the international
conflict with Russia’s Red Army, which lasted a
total of 14 years and more than nine years of civil war.
This constant state of conflict has rendered Afghanistan
one of the poorest countries in the world. 2 One consequence
of such extreme poverty is that more than half
of the women in Afghanistan are illiterate and unaware
of their rights. During the rule of the Taliban, the most
extremist regime in Afghanistan’s history, women were
subjected to behavioral, dress and movement limitations.
Because of the social restrictions placed on women, even
those women who are able to read have very little awareness
of their legal rights.
Since the 1920s, progress on women’s rights in Afghanistan
has faced almost overwhelming opposition
from religious fundamentalists and those who have promoted
their own understandings of the country’s traditions.
Afghanistan is a male dominated society. Most of
the Islamic verdicts and rules that could benefit women
have been misinterpreted by Mullahs 3 and other religious
figures in various communities. Because of fundamentalist
extremists and prolonged war, the struggle for
women’s rights continues today.
After the terrorist attacks on the World Trade Center
and Pentagon on September 11, 2001, the plight of
Afghan women living under the Taliban regime became
a global concern. After the US military invasion of Afghanistan
in October 2001, which resulted in the collapse
of the Taliban regime, women in Afghanistan seized
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