A Blast from the Brutal Past

Shafeek Seddiq
President AJO

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Stung by the scathing criticism from various quarters, the Afghan government has backed away from the plan to reintroduce public stoning as punishment for adultery, which was first exposed by US-based advocacy group Human Rights Watch last week.

A report by the Human Rights Watch (HRW) last week sent shockwaves across the world. The report made a startling revelation that the Afghan government is reconsidering stoning, a medieval punishment that was once the hallmark and the most hideous symbol of erstwhile Taliban regime. The HRW report said the Ministry of Justice has proposed public stoning for married adulterers and flogging for unmarried offenders in a draft revision of the country’s penal code.

The idea of stoning in today’s Twitter and Facebook age as anachronistic as that of the Taliban regime was especially given the decade long nation building and ushering an era of democracy in Afghanistan. So when the news of the stoning law spread, it did not go well, justifiably, with the human rights advocates and Afghans around the world.

In a country like Afghanistan where religion is deeply politicized and people can be tried for blasphemy by both state and non-state actors, the reintroduction of heinous and inhumane law like stoning can have damning repercussions.

Stung by the scathing criticism and denunciation from various quarters, Afghan government did a volte-face, criticizing the reports about reintroducing stoning in the penal code. “It is not correct. The Minister of Justice has rejected it,” President Karzai told Radio Free Europe, soon after the HRW report came out.

An ancient practice, stoning has existed as a form of punishment since Ancient Greece, and contrary to the widespread perception, its origin is not from Islam. According to historians, the practice is rooted in Ancient Greek mythology. “It is only a co-incidence that the practice is prevalent today mostly in countries with Muslim majority, while the fact is stoning has existed throughout history,” says Jameel Yazdan, Kabul-based historian.

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Stoning is not part of only the Islamic Hudood crimes; it has been specified as a penalty for various crimes under rabbinic laws in the Old Testament. It is also widely prevalent in some Iraqi tribes. In 2007, a young girl was stoned to death by the community, who practices ancient Yazidi religion. The incident took place in a small town in Ninawa Governorate and became public through a mobile phone clip that was widely shared over internet.

While other countries have successfully brought reform in their justice delivery system, Muslim countries in general and Afghanistan in particular are still lurking in the dark. Last summer, there was a massive public outcry against the public execution of 21-year-old woman Najiba in Shinwari district of Parwan province, located on the outskirts of Kabul city. The incident snowballed into a big controversy and caused major embarrassment to the Karzai government after a harrowing three-minute footage showing the women being executed in front of cheering crowd of men leaked out. The woman was accused of adultery by the influence-yielding warlords of the province. Taliban denied involvement in the killing, which NATO’s top commander in Afghanistan, General John Allen called “an atrocity of unspeakable cruelty”.

Najiba’s killing, however, is not an isolated case of brutality against women in Afghanistan. The public executions by stoning and gunfire have not stopped entirely after the fall of Taliban regime in 2001, says Jalal Ahmad, Kabul-based political analyst. “The barbaric practice continues in many insurgency-hit areas of Afghanistan, infested with Taliban elements.”

Many of these gruesome incidents go unnoticed, as locals do not lodge the complaint for fear of retaliation. Some of the incidents, however, have come to light. In the province of Ghazni, a mother and daughter were stoned to death in November 2011. A couple was stoned to death in Kunduz in August 2011. In 2005, a 29-year old woman accused of adultery was stoned to death in Badakhshan. In each case, the Afghan government condemned the incident.

The statement issued by HRW asked Afghan government to “immediately reject a proposal to restore stoning as punishment for adultery” 

Even in areas with little or no presence of Taliban forces, there have been honor killings of women who revolted against their abusive husbands or eloped with someone they want to be married to. All these killings have taken place outside the ambit of law and in local courts called Jirgas, traditional dispute mechanisms, where tribal leaders pronounce verdicts against women accused of among other things adultery, infidelity, and betrayal. In most such cases, men get away because of the influence they yield.

On November 25, HRW released a report based on the leaked draft of the penal code, which said Afghanistan Ministry of Justice was planning to introduce new provisions in the penal code that would allow stoning as punishment for adultery. According to the report, married individuals accused of adultery would be stoned to death and unmarried individuals accused of same crime would face 100 lashes as punishment. “It is absolutely shocking that 12 years after the fall of the Taliban government, the Karzai administration might bring back stoning as a punishment,” said Brad Adams, Asia Director at Human Rights Watch.

The statement issued by HRW asked Afghan government to “immediately reject a proposal to restore stoning as punishment for adultery” because it violates international human rights standards, including prohibitions on torture and cruel and inhuman punishment. The International Covenant on Civil and Political Rights, HRW statement said, allows countries to impose the death penalty only for the most serious offenses, which does not include adultery.

The report created tremendous furor prompting civil rights activists to launch scathing criticism at the Karzai government. Many leading activists, academics, senators, commentators denounced the move. Amnesty International also issued a statement warning that it will “mark a dangerous return to legalized state brutality” and urging authorities to reject the plans. “Stoning and amputation are always torture, and so is flogging as practiced in Afghanistan. All these forms of punishment are strictly prohibited under international human rights treaties which are binding on Afghanistan,” said Horia Mosadiq, Afghanistan Researcher at Amnesty International.

The HRW report stirred the hornet’s nest outside Afghanistan too. A senior British minister, Justine Greening, who has made women’s rights the priority for her government's aid operation in Afghanistan, met President Karzai to express her indignation. The Foreign Affairs Minister of Netherlands, Frans Timmermans also joined the chorus, warning that Afghanistan will be risking its relationship with his country if it introduces stoning as punishment for adultery.

‚ÄčTaken aback by the torrent of blistering criticism, Afghan government backed away from the proposal to reintroduce public stoning

Abdul Rauf Heerawi, Head of the Legislation Directorate of the Ministry of Justice, had confirmed that public stoning to death for adulterers was included in the draft to amend the penal code. “The Islamic Sharia instructs us to do so. There is a verse in the Quran about it," he was quoted by Wall Street Journal. But after a few days of growing international criticism, the Ministry of Justice issued a statement saying it would not appear in the revamped penal code because there was no need to amend the issue. “The legality of the crime and punishment is fully addressed and there is no need to regulate the issue in the new code. So, the Ministry of Justice does not intend to regulate it in the new draft code," read the statement.

Taken aback by the torrent of blistering criticism, Afghan government backed away from the proposal to reintroduce public stoning. In an interview with Radio Free Europe, President Karzai downplayed the reports about stoning being reintroduced in the amended penal code. “It is not correct. The Minister of Justice has rejected it,” he said, indicating that stoning would not be coming back.

According to privy sources, it was the brainchild of the Minister of Justice, Habibullah Ghalib, a known hardliner who has a knack for courting controversies. Following a barrage of condemnations and sensing trouble, President Karzai stepped in and quashed it.

According to Syed Yosuf Halim, the Deputy Minister of Justice, the criminal law in Afghanistan, introduced in 1976, needs to be reassessed and revamped to address and conform to the current realities of Afghanistan. “The proposal of introducing stoning in the penal code was put forward by one member of the committee, which was not accepted by others,” says Mr. Halim. He says a committee has been working for the past eight months to revise and amend the penal code. And a member of the committee had suggested the Hudood, Qisas and Diyat already stated in the code should be made clear. But, the committee decided to leave it “as is”.

Some top government officials, however, have termed it a ‘western propaganda’. “The timing of the report is suspect. As the stalemate continues over the US-Afghan bilateral security pact, it looks like a conspiracy by western spin doctors to discredit and shame Karzai’s administration,” says Matiullah Kharoti, a political analyst.

While welcoming the decision of the Afghan government not to include stoning in the revised penal code, rued the fact that the human rights, especially women’s rights still face threat on multiple fronts. “Of course it's a huge relief that the government appears eager to disown this proposal now, but this is not an aberration that appeared out of the blue," Heather Barr of Human Rights Watch told The Guardian.

The Afghanistan Constitution, contradictory and pluralistic at places, clearly outlines the application of Islamic law. While Article 3 says no law must be made in contravention of the holy religion of Islam, Article 130 tells the courts to apply first the provisions of this constitution and the other laws to cases before them, but when no provisions are found in either, then to resort to Hanafi Jurisprudence. Further, the courts are instructed to apply the Hanafi Jurisprudence “within the limits set out by this Constitution” and to “rule in a way that attains justice in the best manner.” And Article 7 also obligates Afghanistan to observe United Nations Charter and Human Rights Declarations.

Sharia expert and Professor at Kabul University, Nassirullah Khalid explains the crimes falling in one of the two categories under Hanafi School of Jurisprudence: “Haad” (meaning limit in Arabic) or “Ta’zir” (meaning discretionary punishment in Arabic). In other words, Ta’zeeri (plural of Ta’zir) are crimes that do not fall under Hudood (plural of Haad) or crimes that lack sufficient evidence to prove under Hudood. Hudood refer to those crimes ordained by Allah. The punishment for these crimes is fixed in the Quran and or Hadith. However, the punishment of stoning for adultery, a Hudood crime, is not stated or fixed in the Quran but claimed to have roots in Hadith, says Professor Khalid. He further states that the standard of proof is beyond reasonable doubt so it is very difficult to prove such crimes, to begin with.

Article 1 of the current Afghan Penal Code, codified in 1976, states that the Penal code is promulgated to regulate Ta’zeeri crimes and punishments, and the “crimes of ‘Hudood’, ‘Qasaas’, and ‘Diyat’ shall be punished in accordance with Islamic religious law (the Hanafi religious jurisprudence)”. So the Penal Code clearly states the punishment for Hudood crimes, including adultery, are to be administered under Hanafi jurisprudence.

The genesis of specifying stoning and lashing punishment for adultery cases stems from one of the two probable scenarios: since the international community’s intervention a decade ago, the adage applies that everything in Afghanistan must be looked at to modernize, improve, modify or amend. Or some Islamic scholars fear that courts will misinterpret Article 1 of the Penal Code, leading to travesty of justice with respect to Hudood crimes because it does not clearly outline the burden of proof and the standards of proof, and the Afghan judiciary lacks the necessary capacity in Hanafi jurisprudence to apply Hudood crimes. It is, thus, suspected that both scenarios played a role in the committee’s decision, which consists of both Afghan and International legal experts, to include amending Article 1 of the Penal code by enumerating the punishment for Hudood including adultery. Thus, the draft amendment that describes the punishment for adultery (stoning and lashes) that everyone is now talking about and condemning.

The crime of adultery is not new to Afghanistan. It is even referred to in the Elimination of Violence Against Women Law and reference is made to punishment under Hudood - stoning. It is part of Hudood crimes that is clearly included in Article 1 of the Penal Code and for which there is clear punishment under Hanafi Jurisprudence.

But what is interesting is that after HRW warned of the potential inclusion of specifying the punishment for adultery in the draft amendment, mainstream media in the west, true to their style, sensationalized the whole affair. The western media too suffers from the classic syndrome of “Khaitalogy”. Media institutions like the Wall Street Journal and BBC misquoted officials, misspelled names and used the wrong names all together, but most egregiously, claimed that stoning is in the verse of the Quran. Both Nathan Hodge who has been reporting from Afghanistan for several years and understands Dari and his colleague, Habib Khan Totakhil, did not bother to check the veracity of Mr. Heerawi’s statement before publishing it.

Even though clearly stated in the code, since 1977, there is no record of any Afghan regime, except the Taliban, that has applied stoning as punishment. The idea that Hudood and other crimes stated in Article 1 of the Penal Code ought to be specified with the requirements for proof does not necessarily mean Afghanistan is going back to the Taliban era nor it should be sensationalized or threats made about funds or relationships. Further, mere protest or threats of removing the specificity of the punishment as leaked in the so-called draft amendment did not render moot the potential application of stoning to punish adultery. It is still there under the Hudood umbrella, and if a judge so desires will apply the punishment in adultery case. But rather, the penal code should be looked at both from a historical aspect and an Afghan perspective and amended to reflect their wishes and views and aligned with today’s universal human rights standards.

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