Advocating for Women's Participation in Afghanistan's Supreme Court
Although women judges can be found in Afghanistan's lower courts system, and both the Family and Juvenile Court are headed by women, female representation in the country's justice sector as a whole remains limited and confined to lower levels. The Afghan Women Judges Association (AWJA) estimates that of roughly 2,000 sitting judges in Afghanistan, between 65 and 70 are female. And there has never been a female justice on the Scholar Council of the Supreme Court, Afghanistan's highest judicial body.
According to civil society organizations, the need for women to be represented on this body is especially critical for a justice system that has long been criticized for its lack of sensitivity to gender concerns.
A recent Amnesty International report indicates that Afghanistan's judicial system is generally either indifferent or hostile to increased female representation in its ranks, and particularly on the Supreme Court. In interviews with senior male judges, the report found that a main reason for women's exclusion from the Supreme Court lay in a popular belief among legislators that women were not as well trained in religious matters as men. Many male judges are often former or practicing religious leaders, and since women are not allowed to participate in Islam as mullahs or religious authorities, they are often considered less qualified as judges.
In addition, the report also found obstacles, based on social and traditional practices, which prevent women from easily accessing justice. For example, in numerous cases where male judges were required to hear testimony from women, these women were blocked by family or tradition from addressing them directly. Instead, the women had to rely on male relatives to give testimony or make pleas on their behalf, thereby posing risks for distortion or misrepresentation of facts. The report also said that women were often unwilling or unable to discuss sensitive or private details with a male judge in court. In divorce and domestic violence cases, verdicts were found to almost always favor a man's interests over a woman's, and in situations where a woman could not provide a male representative in court, the chances of a verdict in her favour were even further reduced.
UNIFEM, with civil society partners such as the AWJA, is working to improve Afghan women's access to justice, and to promote the appointment of female judges in the justice system. Advocacy has especially targeted the Supreme Court, due to its role in setting precedence and monitoring judges in the lower courts. Afghanistan's Supreme Court, unlike those of many other countries, does not hear cases. It is instead mandated to monitor judgments in the lower court system and approve sentencing in criminal cases, including capital crimes. Since only the most serious cases pass through the Supreme Court, including criminal cases which invoke the death penalty, it is essential that women's testimonies be analyzed accurately, and without bias, so that irreversible mistakes are not made by the lower court system.
According to the AWJA, a qualified female justice on the Supreme Court would be able to correctly interpret Shari'a law as it applies to women, and at the same time, incorporate the international conventions to which Afghanistan is party into rulings. While Afghanistan's constitution makes no specific provision for women's placement on the Supreme Court, the constitution does include clear articles against discrimination, and gives both men and women equal rights and duties before the law. In March 2003, Afghanistan also became party to CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) and thus is obliged under international law to ensure that Afghan women do not face discrimination, and can claim their rights as equal to men.
As part and parcel of its strategy, the AWJA is advocating with the Afghan government, parliamentarians, and UN system officials, and has proposed the names of six qualified women judges to sit on the Supreme Court, some of whom have 30 years of experience, and have graduated from the same training institutions in Shari'a law as their male counterparts. In addition, lessons are also being drawn from the experiences of other Islamic countries who do appoint women to their Supreme Courts, such as Egypt, Morocco, Tunisia, Pakistan, Syria and Algeria.
(Story Date: 4 April 2006)
