Gender and Constitution Building - Women for Women International

THE NEW AFGHAN CONSTITUTION:
HOW WOMEN SUCCEEDED IN ENSURING CERTAIN RIGHTS AND WHAT CHALLENGES REMAIN
the opportunity to reassert the fight for gender equality.
To succeed, women needed to secure a legal basis for
ensuring recognition and protection of their fundamental
rights. The drafting of a new constitution held this
potential.
Women’s Participation in the
Constitutional Commission
On December 5, 2001, the Bonn Agreements, which
mandated the Transitional Administration of Afghanistan
to set up a Constitutional Commission to draft a
new Constitution, were signed. 4 The draft Constitution
would then be reviewed, discussed and adopted at a Constitutional
Loya Jirga (Grand Assembly). The Bonn Agreements
envisaged that the new Constitution would meet
international standards and provide for democracy and
the rule of law, respect human rights, create independent
institutions aimed at ending the tragic conflict in Afghanistan
and promote national reconciliation and lasting peace
and stability. The Bonn Agreements speak of the right
of the people of Afghanistan to freely determine their
own political future in accordance with the principles of
Islam, democracy, pluralism and social justice. This meant
that, as people of that country, Afghan women were now
endowed with the right to political participation.
The Constitutional Commission members were recommended
by different groups, such as civil society organizations,
government officials and the Afghan Independent
Human Rights Commission. The President of
Afghanistan then appointed the members of the Constitutional
Commission from among the recommended persons.
Once assembled, the Constitutional Commission
was comprised of 35 members, seven of whom were
women. These women played an important role in ensuring
that women’s fundamental rights were specifically
addressed in the new Constitution.
Constitution-Building and Gender Issues
A constitution should ensure equal rights for all
groups within society, including men, women, children,
minorities and the disabled. Also, a constitution will not
work if the people do not understand their rights and
duties, or find that those rights and duties have little or
no relevance in their daily lives. Part of the Constitutional
Commission’s mandate required consultation with the
public in order to avoid these pitfalls. The objective was
to draft a Constitution that the people agreed with. The
public consultation played an important role in assessing
public opinion regarding which rights and government
obligations citizens at the grassroots level wanted to establish
in the Constitution.
30 SUMMER 2005
The public consultations revealed that women’s issues
were a high priority. Specifically, for many years,
Afghan women had been unable to obtain the same level
of education as men and most had been unable to pursue
careers. This was seen as a problem. There was also
evidence of a good deal of violence against women, some
of it a direct result of the turmoil of recent years and
some of it a result of the stresses that circumstances
had placed on society as a whole. Customs in particular
communities that weighed heavily on women, such as
forced marriages and the practice of giving away daughters
as a way of settling disputes, were also cause for
concern. The customary practices were often enforced
by informal justice systems operating in rural areas. These
informal decision-making bodies act in both criminal and
civil disputes and matters within a community. Their
decisions are very much respected by the community
members, even though they often violate women’s basic
and fundamental rights.
Coordination by Women’s Rights Advocates
Faced with this situation, Afghan women activists,
NGO workers and other members of civil society started
coordinating their efforts country wide to ensure that
women’s fundamental rights were recognized in the new
Afghan Constitution. Because the members of the Constitutional
Commission were picked by the president
based on recommendations from civil society and other
groups, it was important that women’s groups be engaged
at the recommendation, rather than the selection
stage of the process. However, the advocates also needed
to be careful about how they presented women’s rights
claims. Again and again throughout the country’s history,
the Afghan people have shown that they are against
any kind of imported culture. It was clear that if women’s
rights were to be widely accepted and realized, they must
not be perceived as imposed by foreign interests.
A Gender-Based Approach
In making recommendations for the Constitution,
Afghan women’s rights advocates had to grapple with
the very real conflicts and tensions between popularly
held interpretations of religion and tradition on the one
hand, and standards for the promotion and protection
of women’s human rights on the other. Once women
were at the negotiating table and engaged in the drafting
process, as was required by the Bonn Agreements, it
became clear that in some cases the words used to describe
the rights to be protected were just as important
as the rights themselves. For instance, it was very important
to Afghan women to include the term “men and