• Download the Afghanistan section of Home Truths: A Global Report on Equality in the Muslim Family in English or Arabic. 

• View the report submitted to Musawah by Rights & Democracy.

Afghanistan remains in a transition period. The 2004 Constitution and other laws, strategies, policies and programmes are new, and necessary infrastructures are not yet in place. Codified family law, as part of the Civil Code, has not been fully implemented due to weak states. As a result, a parallel customary system has always filled the gap.

Family law was initially codified in the 1920s, with additional principles taking effect in 1961. In 1971, a new marriage law was promulgated that included requirements of consent to marriage and registration of marriage, along with provisions on divorce. The 1977 Civil Code combined this family law with other provisions, but included only minor reforms on child marriage, polygamy and divorce. The code is currently undergoing reform to bring it in line with the new Constitution, which provides for gender equality, emphasises education for women, and calls for protection and health of the family and the elimination of traditions contrary to the principles of Islam.

• The 1977 Civil Code has many shortcomings, including: different minimum ages of marriage (16 for girls and 18 for boys); a lack of explicit provisions on consent to marriage; tamkin (obedience) of the wife; unequal authority in termination of marriage; ignorance of children's interests and rights; discriminatory articles on inheritance; and limitations to women's constitutional rights through requirements that they seek permission from their husbands to practice such rights.
 
• In many instances, women are considered to be legal minors in the Civil Code. Men have the inherent right to be heads of the family and women are supposed to obey them. Men can decide on the marriage of girls, even for those who are legally mature. Despite the constitutional emphasis on fundamental rights and compulsory education, the current Civil Code discourages empowerment by limiting women's access to education, work and other fundamental rights. Article 122 of the Civil Code explicitly enables a man to not pay his wife's maintenance 'when she leaves the residence without the permission of the husband or when she goes out for illegal purposes'.
 
• The Civil Code and the judiciary allow, to some extent, many customary practices such as forced marriage, child marriage and challenging women's choice in marriage. In a recent case of a 14-year-old girl who was sold two times for $2000 and then to another man for $5000, the judges ruled that the girl should marry the man who paid the money.
 
• Access to justice is limited for Afghan women. This cuts across several sectors of the justice system: judges, police, prosecutors, etc.
 
• More than 80 per cent of dispute cases are referred to customary resolution mechanisms, which are male-dominated and often biased against women. Such customary mechanisms, for example, have ordered women to be given in compensation for their male relatives' criminal acts. Many women prefer to commit suicide rather than abide by these judgements. Since March 2008, there have been one hundred cases of self-immolation in south-western Afghanistan alone, and one woman who was awaiting the provincial court verdict on her divorce petition set fire to herself in protest against the institution. Despite the increase in female self-immolation since 2001, the government has taken no concrete measures to address the injustices that women suffer and that lead to suicides.

• The 2003 Bonn Agreement and the 2006 London Compact helped establish the new post-Taliban administration and underlined the main strategic goals of Afghanistan. Both agreements emphasise gender equality and law reforms, as do certain interpretations and understandings of Qur'anic and Islamic laws.
 
• Afghanistan ratified CEDAW in 2003 without any reservations. Article 7 of the Constitution says: 'The state shall abide by the UN Charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights.'
 
• The Ministry of Women's Affairs is currently working with the International Center for Human Rights and Democratic Development (Rights & Democracy) to bring the family law in line with the Constitution, best practices in other Muslim countries, and Afghanistan's obligations under international human rights treaties. A drafting committee comprised of representatives of the Supreme Court, the Ministry of Justice, Family Court, the Ministry of Women's Affairs and civil society has been established. The committee will review the family-related provisions of the Civil Code from a gender equality perspective, draft a separate, specific family code by mid-2009, and hold consultations with other stakeholders. The committee has also reviewed new articles for a Shi'ite Personal Status Law bill and has drafted a Law Concerning Guardians and Wards.

• Many conservative groups oppose reform, mostly based on arguments purported to be Shari'ah arguments. Even scientific findings such as increased child and mother mortality due to child marriage are rejected as contradicting the nass (Hadith texts). Opponents argue that human-made laws, including international human rights instruments, have no value and only divine laws must be followed. They believe in the divine division of roles and emphasise that the roles of mother and wife are sacred for women.
   
• A group of conservative Members of Parliament (MPs) and officials admit that amendments are needed, but argue that they will have no effect on women's lives because are no guarantees that the laws will be implemented. Other MPs reject the issue of family law reform, arguing that Islamic extremists who will introduce a more restrictive law currently control Parliament, so it is better not to include family law on the agenda now. Others argue that issues like security, accessibility and implementation of laws should be prioritised over family law.
   
• Mullahs say that they fear that families will collapse if they codify what Shari'ah considers to be rights for women. For example, they do not want to introduce divorce due to harm because this may increase the number of divorces.
   
• Many Islamist figures, including most of the MPs, believe that Article 3, which says that 'no law can be contrary to the beliefs and provisions of the sacred religion of Islam', has a paramount role in formulating and amending all laws.