88953 Gender Dynamics in Access to Justice in Afghanistan Social Development Unit South Asia World Bank Acknowledgements This report was prepared by a team led by Miki Terasawa, including George Joseph, Teresa Marchiori, Hitomi Komatsu, Rebecca Haines, and Paul Prettitore. The report was developed under the overall guidance of Maria Correia, Sector Manager, Social Development Department, South Asia (SASDS). Poonam Rohatgi and Wahida Obaidy provided administrative assistance. The extensive field research and data analysis at the heart of this report were contributed largely by Samuel Hall Consulting, with a team of consultants led by Camille Hennion and Hervé Nicolle, with the participation of Naeem Meer, Marion Guillaume, Ahmad Shah Momin, Fatma Wakil, and the field teams led by Ibrahim Ramazani and Basir Mohmand Naeem. Teresa Marchiori, Rebecca Haines, George Joseph, and Miki Terasawa developed Samuel Hall’s final report into the present document. The team wishes to thank the peer reviewers, Rea Chiongson and Maria Orlando, for helpful comments and guidance, and the counterparts in Afghanistan’s Ministry of Justice (MoJ), Supreme Court (SC), Attorney General’s Office (AGO), and the Justice Service Delivery Project (JSDP) team for their valuable assistance. The team also extends its thanks to the women and men, justice service providers, Ministry of Women’s Affairs (MoWA), aid agencies, non-governmental organizations, and donors in Kabul, Bamyan, Herat, Logar, and Nangarhar, who provided valuable inputs to the study through surveys, focus group discussions, or interviews. This study was made possible through assistance from Australian Aid, through their Strengthening Community-Level Service Delivery in Afghanistan, and South Asia Gender Initiative (SAGE). The team wishes to take this opportunity to express its appreciation for Australian Aid’s generous support. i CURRENCY EQUIVALENTS (Exchange Rate Effective as of March 26, 2014) Currency unit = Afghani (Af) Af 57.5 = US$ 1 FISCAL YEAR January 1 – December 31 ABBREVIATIONS AND ACRONYMS AGO Attorney General’s Office AIHRC Afghan Independent Human Rights Commission AJSRP Afghanistan Justice Sector Reform Project ANP Afghan National Police CDC Community Development Council CSO Central Statistics Office DoJ Department of Justice DoWA Department of Women’s Affairs EVAW Elimination of Violence against Women FGD Focus group discussion FRU Family Response Unit JSDP Justice Service Delivery Project KII Key informant interview km Kilometer MoJ Ministry of Justice MoWA Ministry of Women’s Affairs NGO Non-governmental organization NRVA National Risk and Vulnerability Assessment PSU Primary Sampling Unit SC Supreme Court UNHCR United Nations High Commissioner for Refugees USAID United States Agency for International Development USIP United States Institute of Peace Regional Vice President: Philippe Houerou Country Director: Robert Saum Sector Director: John Henry Stein Sector Manager: Maria Correia Task Team Leader: Miki Terasawa ii Contents ACKNOWLEDGEMENTS .............................................................................................. I ABBREVIATIONS AND ACRONYMS ........................................................................ II EXECUTIVE SUMMARY ............................................................................................ VI 1. STUDY CONTEXT AND METHODOLOGY ...................................................... 1 1.1 BACKGROUND ............................................................................................................ 1 1.2 STUDY OBJECTIVES AND ANALYTICAL FRAMEWORK ................................................ 2 1.3 LEGAL FRAMEWORK .................................................................................................. 3 1.4 JUSTICE INSTITUTIONS ............................................................................................... 3 1.5 STUDY METHODOLOGY.............................................................................................. 7 1.6 ORGANIZATION OF THIS REPORT ............................................................................. 10 2. FINDINGS ............................................................................................................... 11 2.1 INTRODUCTION......................................................................................................... 11 2.2 PROFILE OF HOUSEHOLD SURVEY RESPONDENTS AND USERS ................................. 11 2.3 DISPUTES ................................................................................................................. 12 2.4 DISPUTE RESOLUTION .............................................................................................. 15 2.5 LEVEL OF SATISFACTION WITH PROCESS AND OUTCOMES ....................................... 24 2.6 BARRIERS TO ACCESSING JUSTICE SERVICES ............................................................ 27 2.7 CONCLUSION ............................................................................................................ 40 3. CONCLUSIONS AND IMPLICATIONS ............................................................ 43 3.1 EXPERIENCE IN NON-STATE JUSTICE INSTITUTIONS .................................................. 43 3.2 ACCESS TO STATE JUSTICE INSTITUTIONS ................................................................. 44 3.3 IMPROVING THE EXPERIENCE IN STATE JUSTICE INSTITUTIONS ................................. 44 3.4 WORKING THROUGH OTHER SECTORS ...................................................................... 45 4. BIBLIOGRAPHY ................................................................................................... 46 ANNEX 1. METHODOLOGY ...................................................................................... 49 ANNEX 2. ADDITIONAL FIGURES AND TABLES ................................................ 58 ANNEX 3. GLOSSARY ................................................................................................. 61 ANNEX 4. SURVEY QUESTIONNAIRES (SAMPLE) ............................................. 63 ANNEX 5. OVERVIEW OF LAWS AND NORMS REGULATING MATTERS AFFECTING WOMEN’S STATUS IN AFGHANISTAN ....................................... 103 TABLES TABLE 1.1 EXAMPLES OF THE APPLICATION OF STATE LAW, SHARI’A, AND CUSTOMARY RULES .................................................................................................................................. 4 TABLE 1.2 TOOLS USED IN THE STUDY ................................................................................. 8 TABLE 1.3 SURVEY PROVINCE PROFILE .............................................................................. 10 TABLE 2.1 DIFFERENCES BETWEEN THE HOUSEHOLD AND USER SURVEY RESPONDENTS (%) ........................................................................................................................................... 12 TABLE 2.2 PERCENTAGE OF USERS WHO HAD TO PAY BRIBES ............................................. 24 iii TABLE 2.3 NUMBER OF USERS WHO HAD OUTCOMES ON THEIR CASES ............................... 27 TABLE 2.4 AVERAGE DISTANCE OF JUSTICE INSTITUTION FROM THE SURVEYED VILLAGES (KM) ................................................................................................................................... 29 TABLE 2.5 AWARENESS OF THE ROLE OF STATE JUSTICE INSTITUTIONS (HOUSEHOLD SURVEY) (%) ...................................................................................................................... 29 TABLE 2.6 AVAILABILITY OF STATE JUSTICE INSTITUTIONS AT DISTRICT AND PROVINCIAL LEVELS ............................................................................................................................... 37 TABLE 2.7 WOMEN STAFF IN STATE JUSTICE INSTITUTIONS................................................ 38 TABLE 2.8 NUMBER OF WOMEN LEGAL WORKERS IN SURVEYED PROVINCES ..................... 38 TABLE 2.9 NUMBER OF STATE INSTITUTION USERS BY TYPE OF DISPUTE ............................ 40 TABLE A2.1 OVERVIEW OF QUANTITATIVE AND QUALITATIVE TOOLS USED IN THE STUDY 49 TABLE A2.2 NUMBER OF PSUS BY DISTRICT AND PROVINCE ............................................. 51 TABLE A2.3 NUMBER OF RESPONDENTS OF HOUSEHOLD SURVEY BY PROVINCE AND GENDER .............................................................................................................................. 52 TABLE A2.4 PERCENTAGE OF RURAL HOUSEHOLDS IN HOUSEHOLD SURVEY BY PROVINCE ........................................................................................................................................... 52 TABLE A2.5 NUMBER OF RESPONDENTS IN USER SURVEY BY PROVINCE AND GENDER ....... 53 TABLE A2.6 INSTITUTIONS WHERE THE USERS WERE FOUND (%)....................................... 53 TABLE A2.7 JUSTICE SERVICE PROVIDER SURVEYED BY PROVINCE.................................... 55 TABLE A2.8 FOCUS GROUP DISCUSSIONS BY PROVINCE ..................................................... 56 TABLE A2.9 KEY INFORMANTS INTERVIEWED BY PROVINCE ............................................. 57 FIGURES FIGURE 1.1 STATE JUSTICE INSTITUTIONS IN AFGHANISTAN ................................................ 5 FIGURE 2.1 PREVALENT DISPUTES: WOMEN....................................................................... 13 FIGURE 2.2 PREVALENT DISPUTES: MEN ............................................................................ 13 FIGURE 2.3 WOMEN’S MOST PREVALENT DISPUTES BY PROVINCE...................................... 14 FIGURE 2.4 HYPOTHETICAL CHOICE OF INSTITUTION FOR DISPUTE RESOLUTION: WOMEN . 16 FIGURE 2.5 HYPOTHETICAL CHOICE OF INSTITUTION FOR DISPUTE RESOLUTION: MEN ...... 16 FIGURE 2.6 WOMEN’S HYPOTHETICAL CHOICE OF INSTITUTIONS TO ADDRESS DIVORCE, BY PROVINCE ........................................................................................................................... 17 FIGURE 2.7 WOMEN’S HYPOTHETICAL CHOICE OF INSTITUTIONS FOR ADDRESSING VIOLENCE AGAINST WOMEN, BY PROVINCE ......................................................................................... 18 FIGURE 2.8 REASONS FOR NOT TAKING ACTION IN HYPOTHETICAL CASES OF INHERITANCE AND VIOLENCE AGAINST WOMEN ....................................................................................... 18 FIGURE 2.9 ACTUAL CHOICE OF INSTITUTION FOR RESOLVING DISPUTES ........................... 19 FIGURE 2.10 ACTUAL CHOICE OF INSTITUTION FOR RESOLVING DISPUTES, BY PROVINCE .. 20 FIGURE 2.11 CHOICE OF INSTITUTION FOR RESOLVING CASES OF VIOLENCE AGAINST WOMEN ........................................................................................................................................... 21 FIGURE 2.12 CHOICE OF INSTITUTION FOR RESOLVING DISPUTES RELATED TO DIVORCE .... 21 FIGURE 2.13 CHOICE OF INSTITUTION FOR RESOLVING LAND DISPUTES ............................. 22 FIGURE 2.14 CHOICE OF INSTITUTION FOR RESOLVING INHERITANCE DISPUTES ................. 22 FIGURE 2.15 REASONS FOR GOING TO THE STATE JUSTICE INSTITUTIONS (MULTIPLE CHOICES) ............................................................................................................................ 23 iv FIGURE 2.16 REASONS FOR GOING TO THE NON-STATE JUSTICE INSTITUTIONS (MULTIPLE CHOICES) ............................................................................................................................ 23 FIGURE 2.17 WOMEN’S AND MEN’S LEVELS OF SATISFACTION AT DIFFERENT STAGES OF THE JUDICIAL PROCESS IN STATE AND NON-STATE INSTITUTIONS .............................................. 25 FIGURE 2.18 LEVEL OF SATISFACTION WITH STATE AND NON-STATE INSTITUTIONS BY PROVINCE (FIRST STAGE) .................................................................................................... 26 FIGURE 2.19 LEVEL OF SATISFACTION BY INSTITUTION (FIRST STAGE) .............................. 26 FIGURE 2.20 LEGAL AWARENESS AMONG WOMEN: DIVORCE (% AGREEING WITH THE STATEMENT) ...................................................................................................................... 30 FIGURE 2.21 LEGAL AWARENESS AMONG WOMEN: VIOLENCE AGAINST WOMEN (% AGREEING WITH THE STATEMENT) ..................................................................................... 30 FIGURE 2.22 AWARENESS OF THE RIGHT TO REPORT THAT A WOMAN HAS BEEN BEATEN (% AGREEING THAT THEY HAVE THE RIGHT)............................................................................ 31 FIGURE 2.23 LEGAL BODY OF LAW REFERENCED IN DECIDING ON A CASE (MULTIPLE CHOICES) ............................................................................................................................ 32 FIGURE 2.24 USERS WHO PERSONALLY ATTENDED THEIR PROCEEDINGS ........................... 34 FIGURE 2.25 PERCENTAGE OF USERS WHO HAD LEGAL REPRESENTATION BY STAGE OF PROCESS AND TYPE OF CASE ............................................................................................... 39 FIGURE 2.26 PERCENTAGE OF WOMEN WHO HAD LEGAL REPRESENTATION AT FIRST STAGE (BY PROVINCE) ................................................................................................................... 40 FIGURE A2.1 SELECTION PROCESS (HOUSEHOLD SURVEY) ................................................. 50 FIGURE A3.1 REPORTING VIOLENCE AGAINST WOMEN BY LITERACY (%) .......................... 58 FIGURE A3.2 REPORTING VIOLENCE AGAINST WOMEN BY EDUCATION LEVEL (%) ............ 58 FIGURE A3.3 WOMEN’S POTENTIAL DISPUTE RESOLUTION BY PROVINCE: VIOLENCE AGAINST WOMEN................................................................................................................ 59 FIGURE A3.4 WOMEN’S POTENTIAL DISPUTE RESOLUTION: DIVORCE ................................ 59 FIGURE A3.5 WOMEN’S POTENTIAL DISPUTE RESOLUTION: LAND...................................... 60 FIGURE A3.6 WOMEN’S POTENTIAL DISPUTE RESOLUTION: INHERITANCE ......................... 60 BOX BOX 2.1 THE ROLE OF ECONOMIC STATUS AND EDUCATION IN REPORTING VIOLENCE AGAINST WOMEN................................................................................................................ 15 v Executive Summary 1. Afghanistan has a multitude of complementary, competing, and at times conflicting spaces for rule-setting and dispute resolution; state laws, Shari’a, and customary practices and norms are applied and enforced in varying situations, by state as well as non-state justice institutions. State justice institutions are those which represent the central government and the formal legal system. Non-state justice institutions include a range of both traditional and new community organizations, such as shuras (local councils), among others. Even significant individual positions in communities can represent non-state justice institutions, as can be the case for mullahs. 2. Non-state justice institutions are believed to resolve up to 80 percent of disputes (disagreements between individuals or groups) in rural communities, where insecurity, inaccessibility, and the generally weak presence of the state, along with the persistence of strongly held traditions, make outreach by state justice institutions difficult. For those reasons, most of the disputes that women seek to resolve are brought to non-state institutions. Non-state justice institutions can be distinguished from state institutions based on their approach to resolving disputes: While the principles of state justice tend toward retributive justice (upholding the rights of the wronged individual and punishing the guilty individual), principles of non-state justice tend toward restorative justice (restoring social stability after a dispute and ensuring that community, household, or family relationships remain intact). 3. This study looks at the gender dynamics of access to justice services in Afghanistan. It examines the intersecting spaces of state and non-state institutions and their respective bodies of law and norms to gain a better understanding of how they affect the choices that women make in resolving disputes through those institutions. By investigating barriers hindering women’s access to justice services, identifying the most common disputes or cases that women and men bring before justice institutions, examining justice-seeking behaviors of women and men, and documenting levels of satisfaction with the process and its outcomes, the study aims to provide Afghan and international policy makers and program designers with quantitative evidence to devise approaches that address gender-based inequities in women’s access to justice and justice outcomes. Another contribution of this study is to inform the World Bank–financed Justice Service Delivery Project (JSDP), which is aimed at improving access to justice by supporting both state and non-state justice institutions. 4. The field research for the study relied on quantitative and qualitative instruments. The quantitative instruments included a survey of individuals who might use justice- related services (household survey respondents or potential users), as well as individuals who had already used justice-related services (users). Individuals in institutions that supply justice services were also surveyed, with a view to understanding the most prevalent disputes, the barriers to accessing justice, the manner in which disputes were resolved, and the level of satisfaction with the process and outcomes, for women and men. These aspects of the justice system are examined in central (Kabul), central highland (Bamyan), western (Herat), and eastern (Nangarhar/Logar) provinces of vi Afghanistan. All of the provinces except Nangarhar are pilot provinces of the JSDP. In the eastern provinces, household and user data were collected mostly in Nangarhar due to security concerns in Logar. 5. All told, the surveys covered 5,098 individuals (47 percent were women), including actual users of state or non-state justice institutions (760 persons, or 15 percent), as well as a range of state and non-state justice service providers (283 persons, or 6 percent), including judges, prosecutors, lawyers and legal aid providers, hoqooq representatives, and community leaders. (Afghanistan’s Hoqooq Departments register and manage cases related to family, land, property, debt recovery, and business and refer parties to non-state institutions or primary courts.) The remaining 4,055 individuals were household survey respondents—citizens who have been or could become users of justice institutions. To complement these quantitative surveys, the qualitative instruments (focus group discussions and key informant interviews) were used to obtain a deeper understanding of sensitive issues and triangulate findings based on the quantitative data. Summary of Findings 6. Afghan women and men face different sets of justiciable disputes (problems or issues that might be resolved through legal means). Women’s disputes are predominantly related to family and domestic issues, such as divorce, domestic and sexual violence, and inheritance, reflecting their social positioning primarily in the private sphere. Men’s disputes are largely related to the public sphere and concern financial issues related to land, property, and business. 7. Women’s access to justice is hindered by social and cultural norms that limit their mobility as well as their awareness of rights, laws, and state justice institutions. Distance, inaccessibility, insecurity, high cost, and low numbers of female professionals in the justice sector also impede women’s access. In a rural province like Bamyan, state justice institutions can be up to 86 kilometers away—a lengthy distance for individuals without access to a car or public transportation. Women legal professionals are few. On average, in the four surveyed provinces about 20 percent of lawyers are female. Because few legal aid providers are available, legal representation in the first stage (the first attempt to resolve or report a dispute by having it prosecuted at a state or non-state justice institution) is low for both women and men. Women were substantially less aware of state institutions than men (40 percent of women compared to 77 percent of men). Female household survey respondents are the most disadvantaged of all groups surveyed, because they are the most likely to be rural and poor, to have less or no education than other respondents, and to have the least access to government offices. Female household survey respondents were less aware of the right to divorce (62 percent) than female users of justice services (85 percent); they were also less aware of their right to report domestic violence (70 percent of survey respondents versus 88 percent of users). Even so, the data show that rural women’s awareness of their rights is higher than generally perceived. Rural women may in fact have greater awareness of their rights, but they may still be reluctant to report disputes because other factors—such as women’s vii lack of mobility and the cultural unacceptability of reporting family or community matters to state or non-state institutions—have not substantially changed. 8. Demand-side constraints influence women’s preference for non-state institutions, where customary laws are more frequently applied. Women are substantially less likely to attend the proceedings personally than men. Although the gender gap is smaller in state institutions, women are still less likely to attend proceedings than men. 9. Among women, the prevalence of reporting varies based on place of residence (urban or rural) and prevailing social and cultural norms at the community level, among other factors. The surveys of female users of justice systems in Kabul and Herat (both provincial samples with significant urban populations) found that divorce and violence against women were the most commonly reported cases (divorce was reported by 23 percent of users in Kabul and 46 percent in Herat; violence against women was reported by 26 percent of users in Kabul and 32 percent in Herat). Divorce also accounted for most of the cases pursued by women using justice systems in Nangarhar (32 percent), but only 8 percent of cases were related to violence against women, perhaps because Nangarhar is more conservative than the other study sites. In Bamyan, the most rural study site, the fieldwork revealed that women use justice services mostly to resolve land disputes (42 percent of respondents), followed by violence against women and inheritance cases (both at 19 percent). Land and inheritance disputes are also prevalent in Nangarhar (making up 17 and 18 percent of female users’ cases, respectively). 10. The data available suggest that respondents to the household survey, especially the women, significantly under-report disputes. Based on the household survey data, it would seem that only 1.2 percent of women and 2.4 percent of men had sought to resolve disputes through non-state or state justice institutions. For just one type of dispute—cases of violence against women—this study found that 25 percent of women would take no action, and almost 50 percent would seek to resolve their problems through family, friends, or direct negotiations. Yet national surveys (summarized by Global Rights in 2008) indicate that more than 80 percent of women experience some form of violent abuse (physical and sexual, domestic and otherwise) in their lifetimes. The discrepancy between the prevalence of disputes reported in the household survey and the prevalence of violence against women documented nationally highlights two prevailing challenges: first, the challenge for women to recognize that the issues they face are justiciable disputes, and second, the challenge posed by widespread unwillingness to report such disputes. 11. Provincial differences, as well as the type of dispute involved, are influential in determining whether individuals chose state or non-state institutions to resolve their disputes. To handle divorce proceedings or land and inheritance disputes, both women and men responding to the household survey in Bamyan, Herat, and Nangarhar preferred non-state justice institutions. Overall, women in Bamyan and Herat would strongly prefer non-state institutions to handle such cases. The pattern is similar in viii Nangarhar but less prominent. On the other hand, women in Kabul prefer state institutions for handling these types of cases. 12. Among the actual users of justice institutions, substantially more women went to state justice institutions in their initial attempts to resolve cases of divorce and violence against women. On the other hand, they exhibited a slightly stronger preference for non-state institutions for handling land and inheritance issues. (Note that 60–70 percent of the users were located in state justice institutions, so these responses are likely to be positively biased.) In Kabul and Herat, where cases of divorce and violence against women were most prevalent among the users interviewed, substantially more women went to state institutions. In Bamyan and Nangarhar, on the other hand, slightly more women went to non-state institutions. Men who used justice institutions preferred state institutions to handle all four types of disputes, especially divorce. The divergent preferences shown by household survey respondents and users could be explained by differences in access to state institutions and awareness of state institutions. As noted, household survey respondents, especially in Bamyan, were more likely to reside in rural areas and have difficulty accessing district or provincial centers. In contrast, non-state institutions are available at the village or sub-district level. Users of justice institutions, especially state institutions, are likely to have better access and awareness. 13. For both women and men, the most important factor influencing their decision to choose a state institution was authority, while the most important factor influencing them to choose a non-state institution was ease of access. For state institutions, authority was a more important factor for men (60 percent) than for women (50 percent), while ease of access to the state institution was a more critical factor for women (33 percent) than for men (29 percent). In choosing non-state institutions, ease of access was more important for men (71 percent, versus 57 percent for women), as was cost (free/cheap) (56 percent of men versus 40 percent of women). Advice from family was substantially more important for women (38 percent) than men (7 percent). The emphasis on cost may reflect the general perception that less or no bribery is required at non-state institutions, a message that came across strongly in every focus group discussion, regardless of gender. Less than 1 percent of users had to pay bribes to non- state institutions, while 14 percent of male users paid bribes to state institutions. Only 5 percent of female users paid bribes. 14. Among users of justice institutions, men are significantly more likely to be satisfied with the outcome of their cases than women are. Just 37 percent of women (23 female users) said they were satisfied with the outcome, against 61 percent of men (53 male users). 15. Women were more satisfied with the justice process and experience at state institutions than at non-state institutions, whereas men were more satisfied with non-state institutions. Across the range of state justice institutions, women were most satisfied with courts (60 percent) and least satisfied with the police (3 percent). Women in Herat were more satisfied with state institutions (55 percent) compared to women in ix other provinces. A variety of factors could explain this response, some of which are findings of this report: Women in Herat are more likely to have legal representation at the first stage in a judicial process (37 percent in Herat, versus 30 percent in Nangarhar and 19 percent in Kabul), and Herat has more female legal professionals than the other provinces surveyed (30 percent in Herat, versus 20 percent in Kabul). Other sources have found that Herat has a better track record in implementing the EVAW Law, which could be an additional factor behind women’s high level of satisfaction with state institutions. Implications for Policy and the JSDP 16. The findings of this report can be grouped into four main categories. First, given the depth and complexity of legal and institutional pluralism in Afghanistan, and considering the large share of disputes handled in non-state institutions, recommendations for improving women’s access to justice must seriously consider practical means for women to engage with non-state systems. Second, the justice issues that most strongly affect the lives of women and men tend to differ. Men’s disputes are related largely to the economic sphere, whereas women’s are related predominantly to the family and domestic spheres. These differences mean that women and men require varying kinds of support, and legal professionals need to target the different challenges involved in addressing women’s and men’s needs. Third, women and men tend to engage in different justice-seeking behaviors, based on their varying circumstances. It is critical that interventions take a closer look at these variations in behavior and develop specific policies to address the challenges that they pose. Fourth, women and men experience uneven levels of satisfaction with justice system outcomes. 17. A number of specific recommendations may help to address these issues. First, enhance women’s experience in non-state justice institutions by having other respected women (such as members of a women’s shura) facilitate cases in which women are the victims or accused, by helping them to liaise with non-state institutions. Second, provide legal training to non-state justice service providers, such as training in mediation and legal awareness, including training on Shari’a. Third, improve access to state justice institutions by developing extension models. For example, create a network of community resource persons, and provide information through mobile applications and media information campaigns. Fourth, improve women’s experience in state institutions by increasing the number of female legal professionals and legal aid providers in general, developing special programs to enhance the geographical distribution of professionals, and improving the distribution and outreach of state institutions (particularly in rural areas). Finally, work through other sectors that already engage in extensive rural outreach, such as health and education, to refer cases and provide information. x 1. Study Context and Methodology 1.1 Background 1. A multitude of complementary, competing, and at times conflicting spaces for setting rules and resolving disputes coexist in Afghanistan. State and non-state justice institutions apply and enforce overlapping bodies of state law, Shari’a law (both Hanafi and Jafari jurisprudence, sometimes with separate statutory laws emanating from them), and customary rules.1 Non-state justice institutions or community organizations, such as shuras, jirgas, and other significant individuals, resolve up to 80 percent of disputes— defined here as disagreements between individuals or groups. These organizations are the primary source of societal order in rural areas, which make up 85 percent of the country.2 2. As posited in the World Development Report 2011: Conflict, Security, and Development, the existence of, and access to, effective justice institutions is central in maintaining and increasing state legitimacy in fragile countries.3 Afghanistan’s new constitution, drafted in 2004, reestablished central justice institutions, including the Ministry of Justice (MoJ), Supreme Court (SC), and Attorney General’s Office (AGO). The World Bank supported capacity building within justice institutions through the Afghanistan Justice Sector Reform Project (AJSRP). The subsequent Justice Service Delivery Project (JSDP) builds on the AJSRP to improve access to justice through synergies between state and non-state justice institutions.4 3. A recent World Bank report on the status of women in Afghanistan5 indicates that criminal cases involving women or against women in Afghanistan typically center on acts of violence (including rape, immolation, beating, honor killing, or some other kind of abuse) or zina (adultery) or alleged adultery. Civil cases typically are related to forced marriage (including the practices of ba’ad or ba’adal—giving a woman to settle a dispute, or exchanging brides between families), underage marriage, bride price, divorce, child custody, and inheritance. To ensure the protection of women’s rights, the Elimination of Violence Against Women (EVAW) Law was enacted by presidential decree in 2009.6 The EVAW Law prohibits child marriage, forced marriage, the buying and selling of women for the purpose (or under the pretext) of marriage, ba’ad, immolation, forced self-immolation, and 16 other acts of violence, including rape and beating. Many of these acts were explicitly criminalized for the first time under the EVAW Law. Its enactment was one of the most notable reforms for women in 1 Legal and local terms are defined in the glossary (Annex 3). 2 World Bank (2012a). 3 World Bank (2010). 4 AJSRP was implemented from 2008 to 2011. The JSDP started in 2012 and will close in 2017. Both projects are financed by the Afghanistan Reconstruction Trust Fund. 5 World Bank (2013). 6 The parliament was reviewing and revisiting the EVAW Law as of this writing. 1 Afghanistan, where an estimated 62 percent of women experience some form of violence at home.7 4. The World Development Report 2012: Gender Equality and Development emphasizes that access to justice is a developmental goal in its own right, as well as an instrument for the proper enjoyment of other rights, such as the rights to health and safety, education, reproductive choice, and access to assets and economic opportunities.8 Both that report and the World Bank’s 2005 report on the status of women in Afghanistan9 recognize that little knowledge exists about women’s needs and challenges related to accessing justice. Acknowledging that “improving women’s access to justice requires collection and publication of gender disaggregated data on access and use” of justice institutions for the resolution of disputes, this study seeks to develop a more comprehensive and nuanced understanding of gender and justice in Afghanistan.10 1.2 Study Objectives and Analytical Framework 5. More specifically, this gender and justice study in Afghanistan aims to provide policy makers with quantitative evidence and better qualitative knowledge to devise and implement policies that address gender-based inequities in women's access to justice and justice outcomes. The study team undertook household, user, and justice service provider surveys in central (Kabul), central highland (Bamyan), western (Herat), and eastern (Nangarhar/Logar) provinces of Afghanistan to investigate barriers to accessing justice; the most common cases or disputes; justice-seeking behaviors; and satisfaction with the process and outcomes.11 Wherever possible, the discussion highlights variations in the findings, not only by gender but by region, economic status, and other variables. 6. The analytical framework selected for the study reflects the focus on collecting data and information about the demand side of justice (by surveying actual and potential users of courts and other justice institutions) as well as the supply side (by tapping into the knowledge and perspectives of justice service providers). The study’s design and approach reflect several assumptions on the nature of justice and access to justice:  Justice and the mechanisms presiding over dispute resolution are context- specific, and their forms and processes reflect an idiosyncratic value system.  Legitimacy and trust are central elements of effective justice institutions. 7 Global Rights (2008). This percentage is substantially higher than the World Health Organization’s global estimate (reported in UNDP 2013) that 35 percent of women worldwide are victims of violence, largely from an intimate partner. 8 World Bank (2011). 9 World Bank (2005). 10 World Bank (2011:367). 11 The analytical framework for this study is based on the work on public attitudes toward the civil justice system in the United Kingdom conducted by Hazel Genn and illustrated in her 1999 book Paths to Justice: What People Do and Think About Going to Law. The framework used here also draws on the Rule of Law and Access to Justice (ROLAX) framework, which maps “in a systematized way how a potential justice seeker finds his or her way through the legal repertoire—or drops out of it for various reasons” (Bedner and Vel 2010). 2  Any effective and sustainable intervention aimed at broadening access to justice needs to be built upon firsthand knowledge of the dynamics underlying people’s position in relation to justice. 1.3 Legal Framework 7. Afghanistan is divided among a number of different normative systems, while the state holds the monopoly as the maker of laws and the provider of justice. Customs, often mixed with Shari’a or idiosyncratic interpretations of Shari’a, regulate the life of the majority of the population. The country is governed by a Shari’a-based constitution and emanating state laws, which are intended to complement and integrate Shari’a principles. Shari’a principles are based largely on Hanafi jurisprudence; however, state law also includes the 2009 Shia Personal Status Law that creates specific conditions within Family Law for Shias (see Annex 5 for details on these variations in Shari’a). If the law is silent on a particular matter, the statutory legal system provides for the direct application of Shari’a. In so doing, it leaves an opening for other norms, such as other relevant jurisprudence of Shari’a, or for potential misinterpretations of Shari’a, to be applied in cases within state legal institutions. In addition, state law itself has not always been rationalized and harmonized over time, so contradictions exist. Table 1.1 compares the application of three bodies of law (state, Shari’a, and customary) pertaining to divorce, domestic violence, inheritance, and land, demonstrating the variations that could apply to cases in Afghanistan.12 8. The application of state law, Shari’a, and/or customary rules by state and non- state justice institutions is nuanced. The state justice institutions are likely to apply state law, including the EVAW Law, and Shari’a. On the other hand, the non-state institutions tend to apply Shari’a and customary rules. 1.4 Justice Institutions 9. As noted, Afghanistan is characterized by the coexistence of state and non-state justice institutions that make up competing and overlapping justice systems. 10. State justice institutions. These institutions are present at the central and provincial levels and limited at the district level. For Afghan women and men, the entry points into the state justice system are the Hoqooq Departments or primary courts at provincial and district levels. The hoqooqs—a unique state institution in the Afghan judiciary system—register and manage non-criminal cases related to family, land and property, debt recovery, and business. They mediate between parties and also refer parties to primary courts or non-state institutions. Figure 1.1 provides an overview of state justice institutions in Afghanistan. 12 There are no discrepancies between state law and Shari’a in these instances. In other instances, such as women’s age of marriage, the two sources of law contain different provisions. See Annex 5. 3 Table 1.1 Examples of the application of state law, Shari’a, and customary rules State law Shari'aa Customary rulesb Divorce A man can divorce his wife Divorce is primarily the Divorce is usually initiated by repudiating her orally. A right of the husband. A by the husband. The main woman can ask the court man can divorce his wife conditions recognized for separation on legal by repudiating her orally 3 under which a woman can grounds with reasons such times. A woman can get a ask for a divorce are as harm, absence, no separation based on impotency and the inability payment of alimony, specific circumstances. or a to pay for alimony. imprisonment, or woman can compensate her impotency. If a woman husband to get his approval asks for separation without for divorce by paying due cause, she will need the money or her mahr.c approval of her husband However, the husband and must pay needs to consent to divorce. compensation. This largely follows Shari’a. Domestic Yes. If violence does not No, but principles exist to No, but in some areas, violence cause injury, it can be curb the more extreme elders demonstrate (crime or punished by short term cases. disapproval for more not?) imprisonment (no more extreme cases and have than a month). If it did stepped in to stop them. cause injury, medium-term imprisonment is applicable (no less than 3 years). Inheritance Sons inherit twice as much Sons inherit twice as much Often, daughters do not by sons and as daughters. as daughters. inherit property when they daughters have brothers. They give up or are denied their rights in favor of their brothers. Land Yes Yes Many community leaders ownership by recognize women’s right to women own land. Women own land most often when they are the sole heir to the land, and often their rights to land are denied. Based on Hanafi jurisprudence, which is more commonly used in Afghanistan when state law is silent.These entries were compiled through interviews with community leaders, NGOs, and other justice sector stakeholders. c Mahr is money or property given by the husband upon marriage. 4 Figure 1.1 State justice institutions in Afghanistan 11. To protect women’s rights, particularly in cases of violence against women (physical, sexual, and domestic violence), three state institutions are active: the Ministry of Women’s Affairs (MoWA) and its provincial departments (DoWAs), the Afghan Independent Human Rights Commission (AIHRC), and the Family Response Units (FRUs) under the Afghan National Police (ANP). MoWA is ultimately responsible for implementing the EVAW Law. The DoWAs lead provincial EVAW Commissions (where these have been established), registering cases of violence against women when they receive them, providing legal assistance to victims, and raising awareness. Eight EVAW units currently operate in eight provinces of Afghanistan, including Kabul, Herat, Nangarhar, and Balkh. The units are accountable to the AGO, which controls their financing and operations.13 12. The AIHRC supports female victims of domestic violence, dispossession of assets and inheritance, and denial of the right to education and freedom of movement. In theory FRUs enable women to bring their cases to the attention of the police, such as cases of domestic violence. In practice, the FRUs’ role is limited, and violence against women is reported at myriad locations, including police stations without FRUs, prosecutors’ offices, legal aid providers, courts, health clinics, and others. These institutions have no 13 UNDP (2013). 5 unified system to collect data and do not refer women through the system in identical ways, so cases of violence against women are extremely hard to count and track. 13. Non-state justice institutions. Non-state justice institutions are community-based organizations or individuals acting at the sub-district or village level to resolve disputes arising in the community, among other functions. Across regions, these institutions vary in their form, function, outreach, relative influence, and hierarchical position in the community. 14. The main non-state deliberative bodies are groups of community elders (shuras or jirgas). Shuras are standing councils of elders, sometime traditional or sometimes more newly elected or selected by their communities. Jirgas are ad hoc councils of elders and respected community members, who are called upon to resolve specific issues. Shuras are most common to Tajik regions in northern Afghanistan. Among the five provinces where the study was carried out, shuras appeared more often in Herat, while jirgas were found predominantly in Pashtun areas, mainly in Nangarhar and Logar. 15. Certain individuals (such as mullahs, arbabs, and maliks) may also have authority within the community to resolve disputes. As the religious authority at the community level, the mullah may be a key actor in resolving disputes by applying religious jurisprudence. Shuras or jirgas may sometimes consult mullahs to resolve disputes, because of their Shari’a-based legal awareness (although in practice, their level of scholarship varies). In addition to mullahs, elite individuals in the community, such as maliks and arbabs, may also play a role in dispute resolution.14 16. One key difference between state and non-state institutions is their underlying approach to resolving disputes. While the principles of state justice tend toward retributive justice (upholding the rights of the wronged individual and punishing the guilty individual), principles of non-state justice tend toward restorative justice (restoring social stability after a dispute and ensuring that community, household, or family relationships remain intact). In general, principles of restorative justice can be problematic for women, as many of the crimes against them take place within the family or the community, and restorative justice mechanisms aim to maintain social relations with the individuals involved.15 In practical terms, however, women have very limited options in Afghanistan outside of familial relationships. 17. It is important to note that this dichotomy between Afghanistan’s state and non- state justice systems is theoretical, existing more clearly in the respective bodies of law than it does in practice. In practice, non-state institutions (even Taliban institutions) 14 The community position of malik or arbab is sometimes hereditary, stemming from family wealth and lineage. Among Pashtuns, “malik” designates someone who is a community leader. Arbabs were present in the communities surveyed in Herat. These positions are not essential to or identical in traditional community structures in Afghanistan, however. Not all Pashtun communities have a malik, and not all Tajik communities have an arbab. The existence of these positions may also relate to the level of influence of the central government in a particular rural area, where single liaisons were often delegated to link a community to the state. 15 World Bank (2013). 6 sometimes act to protect individual rights or enact retributive justice, whereas state institutions often mediate cases and restore victims to their preexisting familial relationships—especially the police, the first point of entry into the state system for many cases. 18. Despite their differences, state and non-state justice institutions interact in providing services to the population. The Hoqooq Departments refer some types of cases, such as land disputes, to non-state institutions, and refer others, often those deemed criminal in nature, to state institutions. Various survey respondents believed that community leaders were better equipped to resolve some types of cases because they could facilitate agreement between parties from the same community and had more local knowledge of the situation. Judges and prosecutors themselves at times call upon elders and other non-state justice service providers to help resolve cases because they are more familiar with the disputants and their backgrounds. Likewise, non-state justice institutions refer some cases to state institutions, such as criminal cases or long-standing land disputes involving different villages or tribes, because they have not been resolved over time through non-state structures. In the five surveyed provinces, this division of labor seems more prevalent in Kabul and Bamyan, whereas in Nangarhar, Logar, and Herat, community leaders tend to keep even serious disputes outside the purview of state justice institutions. 1.5 Study Methodology 19. The study used quantitative and qualitative methods to collect data. The four quantitative tools included surveys of households, justice service users, and justice service providers, as well as mapping of institutions in the justice system. These tools were designed to obtain data from the demand side (households and users) and supply side (justice service providers) of justice provision, to enhance the analysis. For the household survey, female enumerators interviewed female respondents in a safe and secure environment. The tools were developed in consultation with individuals from JSDP, SC, AGO, and MoJ. Qualitative tools such as focus group discussions (FGDs) and key informant interviews (KIIs) were also developed to gain a deeper understanding of issues, particularly those of a sensitive nature, and to help triangulate the quantitative findings. Some limitations in data collection were expected, given that respondents may have been reluctant to share sensitive information about disputes and personal issues. Table 1.2 summarizes the quantitative and qualitative tools used in the study, which are presented in greater detail in the sections that follow, along with information on the provinces selected. 20. A literature review was done at the beginning of the work to contextualize the research and its findings. The review compiled further detailed information about laws and norms regulating matters affecting women’s status and highlighted the differences among Afghanistan’s various legal regimes (Annex 5). 7 1.5.1 Quantitative Tools 21. Representative household survey. The household survey, administered to a sample of 4,055 individuals in five provinces, gathered information about actual disputes and their resolution mechanisms, awareness of the existence and role of justice institutions, mechanisms that individuals would adopt to resolve hypothetical cases, and household demographic and socioeconomic information. To ensure sufficient responses from men and women, approximately 50 percent of the surveys from each primary sampling unit (PSU) were administered to a responsible female member of the randomly selected household. Table 1.2 Tools used in the study Quantitative tools Qualitative tools Demand side Focus group discussions Representative household survey (37 meetings) (4,055 individuals were interviewed in five provinces; 48 percent were women) User survey Key informant interviews (760 individuals were interviewed in five provinces; (88 interviews) 41 percent were women) Supply side Survey of justice providers (283 state and non-state justice service providers were interviewed in five provinces) Mapping of justice institutions (151 villages, about 80 villages where household survey was conducted) 22. In Kabul, Bamyan, Herat, and Nangarhar, household survey respondents were identified randomly in selected districts to ensure that the sample was representative at the level of the target province. In Herat, more remote districts could be included in the sample because security was relatively better; in Nangarhar, districts near the more secure provincial center were selected. Worsening security in Logar caused interviews to be conducted with a randomly selected sample of individuals at the market in the provincial capital; for that reason, justice institutions in Logar were not mapped. Likewise, the household survey data presented here do not include data collected in Logar, so the sample analyzed in this report consists of 3,856 individuals (50 percent women) in four provinces. 23. User survey. It was anticipated that only a limited number of household survey respondents would have used justice institutions to resolve a dispute or would be willing to talk about their experience. For that reason, 760 users of justice institutions (310 female and 450 male users), spread across the five selected provinces, were also surveyed. The user survey collected the same information as the household survey, although the selection of respondents was undertaken purposively. Although 7 male users of justice institutions (no female users) were identified and interviewed in Logar, to be consistent with the approach used for the household survey, the Logar data were not analyzed. In sum, the user data cover 753 individuals (310 women and 443 men) in four provinces. 8 24. Given the difficulty of finding equal proportions of users of each type of state and non-state institution, the sample simply reflects users’ availability. About 60 percent of women and 70 percent of men in the sample were selected randomly at state justice institutions. Users of non-state institutions were identified by community leaders. The proportion of women and men in the user sample is not representative of the proportion of women and men who use Afghanistan’s justice institutions; instead, it reflects a purposive effort to ensure gender balance among the interviewees. Interviews were conducted at the village, district, and provincial levels. 25. Justice service provider survey. To complement the demand-side data collected through the household and user surveys, 283 state and non-state justice service providers were surveyed, 48 percent of whom were non-state providers (community elders). Interviews of state justice providers included 47 judges, 38 prosecutors, 20 Hoqooq Department members, and 42 lawyers and legal aids. The survey gathered data on the most common disputes dealt with by providers, information on judicial processes, and women’s and men’s experiences of justice. The survey instruments were developed to enable comparisons across groups of providers and were administered in five provinces. All data, including data for Logar, are included in the analysis. 26. Mapping of justice institutions. Justice institutions at the village, district, and provincial levels for the 151 surveyed villages were mapped, and information on distance and travel time to each institution was collected. Mapping makes it possible to determine the extent to which various institutions are available to the survey population and to understand how their relative availability affects individuals’ reporting of disputes, awareness of justice institutions, and use of those institutions. 1.5.2 Qualitative Tools 27. Focus group discussions. Given the sensitive nature of most civil and criminal disputes, as well as the limitations of quantitative tools in a context where it is often inappropriate for women to talk to strangers, the study introduced a number of FGDs to clarify and complement findings from the quantitative analysis. Facilitated group discussions were expected to elicit greater engagement and openness among the participants than a survey. In the targeted provinces, 19 FGDs were conducted with women, including 1 discussion in a shelter, and 18 with men. The structured discussions focused on experiences and perceptions of justice, as well as awareness of rights. 28. Key informant interviews. Eighty-eight interviews with key stakeholders helped to develop a better understanding of the legal and institutional framework as well as women’s legal needs, challenges, and attitudes towards justice. Informants included government officials, justice service providers, and representatives of civil society and the international community. 9 1.5.3 Selection of Provinces 24. The five provinces selected for the surveys were chosen in light of regional differences, security concerns, and rural access. As mentioned, fieldwork was undertaken in the provinces of Kabul, Bamyan, Herat, Nangarhar, and Logar; with the exception of Nangarhar, these are all JSDP pilot provinces. Nangarhar was selected to complement information from Logar, where access to rural households was limited by deteriorating security. Table 1.7 summarizes key demographic and development data on the provinces and country as a whole. Table 1.3 Survey province profile Kabul Bamyan Herat Nangarhar Logar Nationalc Population 4,243,000 426,000 1,871,000 1,738,000 458,000 26,955,000 Literacya 68 52 29 53 45 45 (Men) Literacya 35 18 19 11 9 17 (Women) Poverty 23 56 39 60 75 36 headcount Urban 84 3 28 15 3 23** Land Accessb 16 87 42 57 58 Access to 78 21 53 46 46 46 safe drinking water Any source 88 96 72 41 99 69 of electricity Drivable 95 79 90 85 95 80 road within 2 km Source: National Risk and Vulnerability Assessment (NRVA) 2011/12 (population; literacy; access to water, electricity, drivable roads); NRVA 2007/08 (poverty headcount); Samuel Hall Consulting, Inception Report (% urban and land access). a Literacy rate of population aged 15 years or older. b Land access is defined as either owning land or farming land based on renting, sharecropping, or mortgaging arrangements. Data from NRVA 2007/2008 (pp. 41–42). c National data is from the NRVA 2011/12. 1.6 Organization of This Report 25. This initial chapter has described the rationale for the study, its methodology, and legal and institutional pluralism in Afghanistan. Chapter 2 discusses the quantitative and qualitative findings of the surveys, FGDs, and KIIs. Chapter 3 presents the conclusions, followed by recommendations for policy makers and the JSDP. The annexes provide further information on the methodology (Annex 1), additional data (Annex 2), a glossary of terms used in the report (Annex 3), sample survey questionnaires (Annex 4), and an overview of laws and norms regulating matters affecting women’s status in Afghanistan (Annex 5). 10 2. Findings 2.1 Introduction 26. This chapter highlights the main results of the three quantitative surveys (of households and of justice service users and providers). It profiles the households and users surveyed, identifies the barriers faced by women in resolving disputes through institutional means, compares the types of disputes encountered by women and men, describes justice-seeking behaviors undertaken in response to those disputes, and assesses users’ satisfaction with the outcome of their experiences in navigating state and/or non- state justice institutions. 27. In focusing on the variation between gender groups and regions, the study largely draws on the demand-side data collected through the household and user surveys, complemented by the supply-side data collected through justice provider surveys and the qualitative data obtained through FGDs and KIIs. Barriers in accessing and providing justice are investigated based on demand- and supply-side data from the three survey tools. To learn about the kinds of disputes that most concern women and men, data from the user survey are combined with data from household survey respondents who reported experiencing actual disputes in the last five years. On the other hand, the household and user data are used separately to understand potential (for household respondents) and actual (for user survey respondents) actions (or lack of action) taken to resolve disputes, and the reasons for those choices. The assessment of the level of satisfaction draws on the user data only. 2.2 Profile of Household Survey Respondents and Users 28. As discussed, household survey respondents are a representative sample of the population in each target province, whereas the users are a sample of female and male users of justice services. The two samples differ, particularly with regard to socio- economic status (Table 2.1). For example, compared to female respondents in the household survey, female users of justice services are more likely to reside in urban areas16 with much easier access to district or other government institutions. They are also more likely to be literate and less poor,17 with better access to media. Substantially more female heads of households are found among the female users compared to the female household survey respondents. Similar trends emerge for the men in each sample, but the gaps between male household survey respondents and users are less wide, in some cases much less, than they are for the women. Men—regardless of whether they belong to the household or user survey samples—are significantly more literate overall and have better access to government offices and mobile phones than women. For most indicators, men who use justice institutions do not have substantially better access to those institutions 16 These users are in Bamyan, Herat, and Nangarhar only. The Kabul users are not included, as information on residence was not collected in Kabul. Should the Kabul users be included, the urban ratio would be much higher. 17 “Poor” includes those who are categorized in the first and second quintiles of the asset index. “Non- poor,” on the other hand, includes those who are in the third, fourth, and fifth quintiles of the asset index. 11 than the men who discuss their hypothetical use of justice institutions in the household survey. For women, the obstacles to access are clearly much greater. Table 2.1 Differences between the household and user survey respondents (%) Men Women Household User Household User (n=1,926) (n=443) (n=1,930) (n=310) Dispute prevalence/ 2.4 100 1.2 100 reporting Rurala 70 53 70 45 Access to district or other 46 58 18 44 government offices (within an hour’s travel) Poor 37 28 47 33 Literacy 55 50 19 34 Access to media 86 86 71 84 (TV or radio) Access to mobile phone 89 97 75 85 Heads of household 78 89 3 16 Source: Household and user surveys (Logar not included). a Excludes Kabul users (location of residence not recorded). 2.3 Disputes 29. To understand the most prevalent types of disputes in which women and men were involved, the analysis included responses from female and male users as well as from household survey respondents reporting direct involvement in the last five years in a justiciable dispute (a problem or issue that might be resolved through legal means). There were 78 such household survey respondents (27 women and 51 men). Thus, the prevalence or reporting rate for disputes among the household survey respondents was 1.2 percent among women and 2.4 percent among men (Table 2.1). These rates appear substantially lower than the 19 percent observed in a 2013 survey by the Asia Foundation.18 The difference might be due to the variation in the methodologies, including respondents’ gender ratio, area coverage, and questionnaires.19 30. Figures 2.1 and 2.2 illustrate the prominent disputes reported by women and men in the household and user surveys. The most prevalent disputes are related to divorce (including separation), violence against women (both domestic and sexual violence), land, business issues, and inheritance. The difference between the most common types of 18 The Asia Foundation 2013 survey asked 9,260 men and women across all 34 provinces if in the past two years they had been involved in a dispute or a formal case that they could not settle with the other party and had to go to the hoqooq department or village/neighborhood shura/jirga to resolve. See Asia Foundation (2013). 19 The household survey could have covered more women than the Asia Foundation survey; 48 percent of the household survey respondents were women. On the other hand, based on the share of female enumerators, it appears that about 38 percent of the Asia Foundation survey respondents were women. While the household survey targeted only 4 provinces (Kabul, Bamyan, Herat, and Nangarhar), the Asia Foundation survey covered all 34 provinces. In addition, the translated household survey questionnaire might have given the impression to the respondents that this study was seeking disputes reported only to the state institutions. 12 disputes for women and men is marked. Among women, the two most frequent types of disputes reported were divorce (30 percent of actual disputes found), followed by violence against women (23 percent of actual disputes). Divorce disputes include the question of whether the woman has to repay mahr.20 On the other hand, men’s most prominent disputes involved land (28 percent of actual disputes found), followed by business issues (20 percent).21 Figure 2.1 Prevalent disputes: Women Figure 2.2 Prevalent disputes: Men Other property Business disputes related Violence Land 3% issues against Other Other 10% 2% women 16% Land 16% 9% 28% Inherita nce Violence 11% Child against custody Divorce women Other 2% 7% Business property 23% Divorce related disputes 30% issues 12% Child Inherita 20% custody 5% nce 6% Source: User and household surveys (users and those household survey respondents who experienced disputes in the last five years; Logar not included). 31. The most prevalent types of disputes reported by women differ by province. In Kabul, Herat, and Nangarhar, divorce is most prominent, particularly in Herat, where about 50 percent of the women interviewed were using a justice institution to report such cases. In Bamyan, almost 50 percent of cases related to women pertain to land and property disputes, as the province is predominantly rural (97 percent of respondents were rural), and land access is the highest (87 percent of respondents cited having some kind of access to land) among the five provinces surveyed (Table 1.3). Violence against women is prominently reported in Kabul and Herat (around 25–30 percent of disputes in the sample), while it is least likely to be reported as a justiciable issue in Nangarhar (8 percent of cases in the sample). Considering a recent estimate that about 60 percent of all Afghan women experience some form of violence at home, and closer to 80 percent of Afghan women experience some form of abuse (domestic or otherwise) in their lifetimes,22 the low prevalence rates in the survey data are an indication of reporting bias rather than prevalence, where reporting is more frequent in Kabul and Herat, less in Bamyan, and lowest in Nangarhar. 20 Money or property given by the husband upon marriage; see Table 1.1. 21 Findings from the Asia Foundation survey are not disaggregated by gender. Among the 19 percent of respondents who experienced disputes, however, the most prevalent type of dispute was related to land (41 percent), followed by family (18 percent) and business and other property disputes (12 percent). 22 Global Rights (2008). 13 Figure 2.3 Women’s most prevalent disputes by province Kabul Bamyan Herat Nangarhar 46 42 32 32 26 23 19 19 18 17 11 8 8 6 5 3 3 2 3 0 Divorce Violence against Inheritance Land Other property women disputes Source: User and household surveys (female users and those female household survey respondents who experienced disputes; Logar not included). 32. Divorce and violence against women are sensitive issues, and they tend to be reported more in Kabul and Herat, where the EVAW Law has been more intensively implemented.23 Implementation of that law, along with the establishment of support institutions such the AIHRC, public prosecutors, and family and state courts, may have increased women’s awareness of justice services and encouraged them to report sensitive issues at a higher rate. In addition, Kabul and Herat have the highest urban shares in the targeted provinces (84 and 28 percent of respondents, respectively), and women in Kabul and Herat generally are more literate, have better access to communications (mobile phones, radio, and TV), and are more mobile than women in other provinces, as seen in the demographic data. In other words, where women have greater awareness of and access to state justice institutions, demands for those institutions to respond to divorce and domestic violence appear to be greater. Economic status may also play a role in reporting incidents of violence against women; see Box 2.1. 23 UNAMA (2013). 14 Box 2.1 The role of economic status and education in reporting violence against women Among the user survey respondents and those household survey respondents who experienced disputes, the poor are less likely to report cases of violence against women, compared to the relatively richer economic groups (see figure). One reason for this difference might be that women belonging to better-off households have more financial resources to fall back on. A woman from a wealthier household may be more confident that she can keep the respect of the community, maintain her standard of living even if her husband is incarcerated, or return to her family of origin. Better-off women may also be in a better position to pay the costs related to judicial processes (transportation, legal fees, bribes, and others). Literacy and education also make a difference. Literate women are more likely to report cases of violence against women than illiterate women (31 percent versus 20 percent). Likewise, female users of justice services who have primary school education are more likely to report such cases than females with no education (39 percent versus 21 percent) (Annex 2).a Reporting of disputes by economic status Poor Women Non-Poor Women 31 29 27 16 13 13 10 9 Divorce Violence against Inheritance Land women Source: User and household surveys (female users and those female household survey respondents who experienced disputes; Logar not included). a Beyond primary school education, however, no clear pattern emerges between level of education and willingness to report cases of violence against women: 36 percent of respondents with secondary school education reported violence; 26 percent with high school education; 25 percent who had attended teacher’s college; and 27 percent who held a university degree. It may be that more educated women have more favorable marriage conditions (they may come from more liberal families, marry later, have better financial circumstances, and so forth) and are therefore less likely to experience violence. 2.4 Dispute Resolution 33. This section investigates strategies for dispute resolution, focusing on women’s most prevalent justice issues—divorce, violence against women, inheritance, and land. In the household survey, both women and men were asked what actions they might possibly take to address these four types of disputes. In the user survey, as noted, the users described the actual course of action they had taken. 15 2.4.1 Possible dispute resolution mechanisms (hypothetical) 34. Figures 2.4 and 2.5 compare how male and female survey respondents proposed to resolve the four key types of disputes. The most substantial difference between women and men is that about 50 percent of women would resolve a case of violence against women through family, friends, or direct negotiation, and almost the same percentage of men would approach non-state justice institutions. Twenty-five percent of women would not take any action. On the other hand, on inheritance, land, and divorce, women and men are consistent in their overall preference for non-state institutions. For land-related disputes, around 60 percent of women and men would approach non-state institutions for redress. Figure 2.4 Hypothetical choice of institution for dispute resolution: Women State institution Non-state institution Family, friends or resolved through direct negotiation Would not take action Other 59 45 46 47 26 27 25 22 21 16 16 17 11 10 5 2 2 1 2 1 Land Divorce Inheritance Violence against women Source: Household survey (Logar not included). Figure 2.5 Hypothetical choice of institution for dispute resolution: Men State institution Non-state institution Family, friends or resolved through direct negotiation Would not take action Other 62 63 49 46 42 22 21 22 13 17 12 12 9 2 1 2 2 1 3 0 Land Divorce Inheritance Violence against women Source: Household survey (Logar not included). 16 35. Regional differences in women’s preferred institutions. Although women exhibited a marked preference for approaching non-state institutions to resolve disputes, their preferred institutions vary by province. For example, Figure 2.6 indicates how women would potentially address divorce, which is the most prominent dispute in Herat, Nangarhar, and Kabul. Among the female household survey respondents, the preference for non-state institutions was as much as five times greater in Herat and three times greater in Bamyan than in the other two provinces surveyed. In contrast, respondents in Nangarhar expressed a nearly equal preference for state and non-state institutions, whereas respondents in Kabul preferred the state institutions. These preferences are consistent across all four types of disputes (see the details in Annex 2). Figure 2.6 Women’s hypothetical choice of institutions to address divorce, by province State institution Non-state institution Family, friends or resolved through direct negotiation Would not take action Other 55 47 49 43 40 33 30 32 17 12 9 11 8 6 1 3 4 0 0 0 Kabul Bamyan Herat Nangarhar Source: Household survey (Logar not included). 36. Not taking action. Figure 2.7 shows that some 25–30 percent of women responding to the household survey in Kabul, Herat, and Bamyan would take no action in a case of violence against women. On the other hand, only 14 percent of women in Nangarhar said they would take no action, and 44 percent would report to non-state or state justice institutions. Note that this hypothetical willingness to report was contradicted by actual users of the justice system; as shown in Figure 2.3, only 8 percent of them were processing cases of violence. 37. When household survey respondents were asked why they would take no action on a case, their primary reason was that “[the issue is] not important enough” (Figure 2.8). This reason was cited most frequently for cases of violence against women. Fear of retaliation also deters women from taking action in cases of violence. Women noted that they were reluctant to create problems with their families, or in cases involving inheritance issues, to damage relations with close relatives. 17 2.4.2 Actual dispute resolution mechanisms 38. Choice of justice institution by gender, province, and type of dispute. Figure 2.9 indicates that both men and women users are more likely go to the state justice institutions first, especially in cases of violence against women and divorce. For cases involving land and inheritance, on the other hand, women and men both tend to approach non-state institutions first. Figure 2.7 Women’s hypothetical choice of institutions for addressing violence against women, by province State institution Non-state institution Family, friends or resolved through direct negotiation Would not take action Other 56 46 46 42 33 33 26 27 18 13 15 14 11 8 8 2 0 2 0 0 Kabul Bamyan Herat Nangarhar Source: Household survey (Logar not included). Figure 2.8 Reasons for not taking action in hypothetical cases of inheritance and violence against women Domestic violence Inheritance 63 46 18 18 11 12 6 6 5 8 1 4 3 1 Not important Danger or fear It would create It makes no It is not my role It would Other enough of retaliation problems for my difference. I have to take action damage relations family no chance of with other party winning Source: Household survey (Logar not included). 18 Figure 2.9 Actual choice of institution for resolving disputes State Institution Non-State Family, Friends Or Resolved Through Direct Negotiation 74 Other 66 59 59 56 53 5248 49 44 44 36 38 29 24 1310 7 6 6 7 4 5 3 2 2 1 1 3 0 0 0 Men Women Men Women Men Women Men Women Violence against women Divorce Land Inheritance Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). 39. The 2013 Asia Foundation survey also that found that state institutions were preferred over non-state institutions to handle divorce cases. Both state and non-state institutions were equally preferred for resolving land cases, which is somewhat consistent with Figure 2.9. In cases related to inheritance, respondents in the Asia Foundation survey exhibited a substantial preference for state institutions. Note that the 19 percent of Asia Foundation survey respondents who experienced disputes related to inheritance may have been more likely to reside in urban areas, compared to the overall sample for that survey.24 40. Among the users surveyed for this study, women as well as men in Kabul and Herat went to state institutions in the first instance to resolve disputes (Figure 2.10). The preference for state institutions over non-state institutions was greater among women than men, and it was 3.5 times greater in Kabul and 6.5 times greater in Herat than in the other provinces. In Bamyan, men showed a clear preference toward state institutions, while nearly equal numbers of women chose state and non-state institutions. In Nangarhar, more men went to state institutions, and more women resorted to non-state institutions. 41. Note that the preferences of justice service users differ from those of household survey respondents who reported experience with disputes in the justice system, partly because 88 percent of female and 85 percent of male users were sampled at state justice institutions. In the case of Herat, the difference in preferences between the household survey respondents and justice service users could be explained by household survey 24 The users in this study are more likely to reside in an urban area (47–55 percent). In the Asia Foundation survey (Asia Foundation 2013), 14 percent of the overall sample population resided in urban areas. For that reason, it is assumed that the 19 percent of respondents who had disputes in the last two years were more likely to reside in urban areas, compared to those who did not experience any dispute. 19 sampling in remote districts, chosen because of their relative security. The preference of justice service users for state institutions may also be attributable to the characteristics of the users themselves; they are more urban and literate, have better access to government offices and media, and are more likely to belong to households with a higher economic status than the general population. Figure 2.10 Actual choice of institution for resolving disputes, by province State Institution Non-State Family, Friends Or Resolved Through Direct Negotiation Other 83 72 72 67 64 56 58 46 42 38 36 30 29 27 16 12 11 6 6 4 1 1 1 3 4 0 0 1 4 3 3 3 Men Women Men Women Men Women Men Women Kabul Bamyan Hirat Nangarhar Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). 42. The courts (provincial or family), Hoqooq Departments, and community elders tend to be women’s and men’s preferred institutions.25 The choice of institution at first instance varies by type of dispute and gender, as indicated in Figures 2.11–2.14.26 43. To resolve disputes related to violence against women, both women and men resorted to courts, with men showing a higher preference for courts than women (31 percent versus 26 percent). Women’s second choice was the prosecutor, closely followed by the police. On the other hand, the men’s second choice was the Hoqooq Department. 44. In disputes related to divorce, women (22 percent) as well as men (32 percent) mostly sought resolution through the courts, followed by the community elders. Women’s third choice varied (the DoWA, Human Rights Commission, or Hoqooq Departments), while men preferred Hoqooq Departments. 45. To resolve land disputes, women’s preferred institution by far was the community elders (36 percent of women versus 28 percent of men), followed by mullahs and Hoqooq Departments. These preferences may reflect the fact that land disputes tend to be related to inheritance and could be better resolved through non-state institutions, which are more aware of the litigants and their backgrounds. Moreover, land issues are more prominent 25 Note however that 45 percent of female users were sampled while visiting courts, whereas 37 percent of male users were sampled at hoqooq offices. 26 State and non-state justice institutions listed in the figures were the top 6 of a list of 30 institutions. 20 in Bamyan, where non-state institutions would be more available as the province is predominantly rural. Men, on the other hand, relied on Hoqooq Departments (29 percent) and community elders (28 percent), followed by the District Governor’s Office (14 percent). Figure 2.11 Choice of institution for resolving cases of violence against women Men Women 31 27 26 18 16 13 11 11 9 6 4 2 Elders Or Local Malik Hoqooq Courts Public Afghan Shura/Jirga Department Prosecutor National Police Non-state State Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). Figure 2.12 Choice of institution for resolving disputes related to divorce Men Women 32 22 18 17 12 12 11 10 6 5 6 0 Elders Or Local Mullah Hoqooq Courts Dowa Human Rights Shura/Jirga Department Commission Non-state State Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). 21 Figure 2.13 Choice of institution for resolving land disputes Men Women 36 28 29 14 14 14 11 8 8 8 1 2 Elders Or Local Mullah Hoqooq Courts Public District Shura/Jirga Department Prosecutor Governor Non-state State Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). Figure 2.14 Choice of institution for resolving inheritance disputes Men Women 36 30 30 19 18 11 8 8 8 4 5 4 5 0 Elders Or Malik Hoqooq Courts Provincial Public Afghan Local Governor Prosecutor National Shura/Jirga Police Non-state State Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). 46. Reasons for choosing a state or non-state institution. In choosing state institutions, state authority was the most important factor for both women and men (50 percent and 60 percent), followed by the ease of access (33 percent and 29 percent) (Figure 2.15). On the other hand, in choosing non-state institutions, access was the most important factor for both women and men (57 percent and 71 percent), followed by cost (56 percent and 40 percent) (Figure 2.16). For women, the choice of non-state institutions is motivated to a large extent by advice from family (cited by 38 percent for women versus 7 percent of men), which highlights the greater social acceptability of women approaching non-state justice institutions compared to state institutions. 22 Figure 2.15 Reasons for going to the state justice institutions (multiple choices) Men n=322 Women n=217 60% 50% 33% 29% 27% 25% 25% 23% 26% 20% 12% 6% They Have It Was Easy To It Was Confident They Confident They Confident It Authority To Access Free/Cheap Will Resolve This Would Address Would Not Take Deal With this Dispute The Issue Fairly Too Much Time Issue Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). Figure 2.16 Reasons for going to the non-state justice institutions (multiple choices) Men n=152 Women n=81 71% 57% 56% 40% 38% 34% 27% 26% 25% 25% 22% 20% 7% 6% It Was Easy To It Was Advice From Confident Confident Confident It Person Has Access Free/Cheap My Family They Will They Would Would Not Community Resolve This Address The Take Too Respect Dispute Issue Fairly Much Time Source: User and household surveys (users and those household survey respondents who experienced disputes; Logar not included). 47. In every FGD, men as well as women raised the issue of bribery at state institutions. The Asia Foundation survey indicates that 33 percent of respondents had to pay bribes at state justice institutions, which places them among the government service providers that most often demand bribes.27 In the user survey, 10 percent of users had to 27 The worst is public healthcare services (38 percent), followed by state justice institutions (33 percent), Afghan National Police (31 percent), and employment (31 percent). 23 pay bribes at state institutions, and men paid bribes more often than women (14 percent versus 5 percent). This difference was particularly marked for the police (10 percent versus 1 percent) and prosecutors (5 percent versus 2 percent). On the other hand, at non- state institutions, less than 1 percent of users paid bribes. The relative absence of bribery may explain why cost (free/cheap) was the second most important factor in choosing non-state justice institutions, and why it was cited more often by men than women (56 percent versus 40 percent) (Figure 2.16). Another reason why more men than women pay bribes may be that fewer women can afford them. The FGDs included women in prison, who confirmed that police and prosecutors asked them to pay bribes, but they could not pay. The inability to pay adequate bribes clearly can have serious and negative effects on an individual’s outcomes in the justice system. Table 2.2 Percentage of users who had to pay bribes Women Men Total State institutions (n=217) (n=322) (n=539) Police 1.3% 9.5% 6.1% Public prosecutor 2.3% 5.2% 4.0% Local courts 0.6% 4.1% 2.7% Hoqooq 1.3% 3.9% 2.8% Governor's Office 0.6% 0.7% 0.7% Family Response Units 0.3% 0.2% 0.3% Family court 0.0% 0.3% 0.2% DoWA 0.0% 0.0% 0.0% EVAW Prosecution Unit 0.0% 0.0% 0.0% Human Rights Commissions 0.0% 0.0% 0.0% Sub-total 4.5% 14.2% 10.2% Non-state institutions (n=81) (n=152) (n=233) Women’s shura 0.6% 0.0% 0.2% Tribal leaders/malik 0.3% 0.9% 0.7% Elders of local shura/jirga 0.0% 0.0% 0.0% Mullah Saleb 0.3% 0.0% 0.1% Sub-total 1.0% 0.9% 0.9% Total (n=298) (n=474) (n=772) State and non-state 5.2% 14.4% 10.6% Source: User survey (Logar not included). Note: The sub-total indicates the percentage of users who paid bribes at any state or non-state institution, respectively. The grand total is the percentage of users who paid bribes at any state or non-state institutions. 2.5 Level of Satisfaction with Process and Outcomes 48. Process. Figure 2.17 indicates the level of satisfaction with the process or experience among female and male users by type of justice institution and stage of the judicial process (The “stage” means the first, second, or third attempt to resolve or report 24 a dispute by having it prosecuted at state or non-state justice institutions; see Annex 4). Satisfaction was rather low among female and male users, regardless of whether they went to state or non-state justice institutions. Men were significantly more satisfied with non-state institutions than women, however (42 percent versus 22 percent), whereas women tended to be more satisfied than men with state institutions (32 percent versus 24 percent).28 As cases progress through the system, women remain relatively more satisfied with state institutions than men, while men’s satisfaction level progressively declines. Figure 2.17 Women’s and men’s levels of satisfaction at different stages of the judicial process in state and non-state institutions 42 32 31 26 22 24 18 13 Men Women Men Women Men Women Men Women Non-state State institutions State institutions State institutions First stage Second stage Third stage Source: User and household surveys (users and those household survey respondents who had disputes in the last five years; Logar not included). Note: The “stage” means first, second, or third attempt to resolve or report a dispute by having it prosecuted at state or non-state justice institutions (see Annex 4). 49. Users’ satisfaction with the judicial process varies by province. Female users of state institutions in Herat (more than 50 percent),29 followed by male users of non-state institutions in Nangarhar and Herat, expressed the greatest satisfaction (Figure 2.18). On the other hand, female users of state institutions in Nangarhar were the least satisfied with the process (less than 10 percent). Women were more satisfied with state institutions than men in Herat (more than double) and Bamyan (by 33 percent). In Nangarhar and Kabul, women as well as men were more satisfied with non-state institutions. In Nangarhar, women’s level of satisfaction was generally lower than men’s (50 percent versus 22 percent for the non-state institutions, and 18 percent versus 9 percent for state institutions). 50. When the level of satisfaction is examined by institution, the most satisfied group appears to be female court users, followed by male users who requested community 28 Findings from the 2013 USAID survey on users’ satisfaction with state courts show a similar trend; female users were more satisfied with court (state institution) performance (51 percent) than male users (47 percent). USAID (2013:6). 29 This finding is also in line with the 2013 USAID survey on satisfaction with the courts, which found that users in Herat expressed a higher level of satisfaction with justice institutions (USAID 2013). 25 elders to resolve their dispute. The least satisfied group was female users who approached the police to resolve a dispute. Figure 2.18 Level of satisfaction with state and non-state institutions by province (first stage) 55 48 50 36 33 32 27 27 27 25 23 22 18 17 18 9 Men Women Men Women Men Women Men Women Men Women Men Women Men Women Men Women Non-state State Non-state State Non-state State Non-state State institutions institutions institutions institutions Kabul Bamyan Herat Nangarhar Source: User and household surveys (users and those household survey respondents who experienced disputes in the last five years; Logar not included). Figure 2.19 Level of satisfaction by institution (first stage) 60 49 34 27 29 24 23 21 19 3 Men Women Men Women Men Women Men Women Men Women n=100 n=54 n=131 n=35 n=62 n=58 n=36 n=28 n=28 n=34 Elders Hoqooq Courts Prosecutor Police First stage Source: User and household surveys (users and those household survey respondents who experienced disputes in the last five years; Logar not included). 51. Outcomes. Because users were sampled at justice institutions, the majority had ongoing cases, but the cases of 149 users (20 percent) had already been decided by state or non-state institutions (Table 2.3). Among men, 61 percent were satisfied with the outcome (the decision had been in their favor), compared to 37 percent of women. Further analysis is not possible, however, because the sample is too small, and non-state 26 users are disproportionately represented (the cases of 74 percent of all non-state users versus 6 percent of all state users had been decided).30 Table 2.3 Number of users who had outcomes on their cases Women Men Total % of all users State institution 43 28 71 6 Non-state institution 19 59 78 74 Total 62 87 149 20 Source: User and household surveys (users and those household survey respondents who experienced disputes in the last five years; Logar not included). 2.6 Barriers to accessing justice services 52. This section uses the data on disputes, mechanisms of dispute resolution, and satisfaction with the process and outcomes to analyze the barriers that women face in accessing justice services. The barriers can be divided into demand-side barriers, which hinder women from seeking to resolve disputes through justice institutions, and supply- side barriers, which reduce the availability of justice institutions to women. 2.6.1 Demand-side barriers 53. Three interrelated demand-side barriers prevent women from accessing justice institutions: (i) prevailing social and cultural norms, (ii) limited mobility, and (iii) limited awareness of rights, laws, and the role of state justice institutions. These three barriers interact to reduce women’s demand for justice institutions to resolve their justiciable problems. 54. Social and cultural norms. Prevailing patriarchal social and cultural norms put a high premium on women’s discretion and modesty and do not approve of women accessing the public sphere without the support and accompaniment of male guardians. Seeking help outside the family to redress personal grievances, particularly if those grievances relate to matters considered private (such as relationship dynamics between a husband and a wife) is often frowned upon. Attempts to address a dispute outside the family are often perceived as shameful and socially unacceptable, and family members often try to prevent women from dealing with family matters through outsiders. Community leaders may prevent women from accessing state institutions, believing that disputes, especially those related to family issues and thus considered private, should be dealt with from within the community.31 Responses from FGDs provide ample testimony of the role of social and cultural norms in restricting women’s access to justice institutions: 30 Because users were sampled randomly at state justice institutions, they most likely had ongoing cases that remained to be decided, or they were escalating cases that had not been decided satisfactorily. On the other hand, non-state users were referred by community leaders and other non-state institutions. The referrals could have been biased toward individuals whose cases had closed, most likely with satisfactory outcomes. 31 These findings are in line with a recent study carried out by the United States Institute of Peace (see USIP, forthcoming). 27 In our village no one is in favor of the idea of women going to the district center. Everybody wants the women to solve their issues inside the village and with the shura and elders. It is a disgrace for the villagers if a woman from our village refers to the district center. If the village arbab finds out that a woman wants to go to the court, he will stop her and won’t let her do that. FGD (women), Mangoran Village, Ghoryan District, Herat Province If women want to refer to district authorities, people will prevent them from doing so. FGD (men), Shikhi Village, Waras District, Bamyan Province 55. Concepts of family honor, reputation, and shame are paramount in women’s lives: Domestic violence is a serious problem in our village and it is because of poverty and illiteracy. If women face issues like that, they don’t refer to any institution because of their honor…. Yet women always try to stay calm and bear all domestic violence. FGD (women), Sar Pilu Village, Waras District, Bamyan Province 56. Mobility. Ease of access is a key factor in women’s choice of a justice institution (see Section 2.4.2). Women, particularly in rural communities, are often not allowed to travel alone. Social and cultural norms of female respectability often dictate that a woman must be accompanied by a mahram, generally her husband, brother, or father. This requirement presents a particular challenge, given that her dispute could well be with one of these individuals. Under such circumstances, she is likely to struggle to find a mahram willing to escort her to a justice institution. Insecurity and poor access to transport in rural areas hinder women as well as men from traveling to district or provincial centers, where state justice institutions are generally located. A drivable road is located within 2 kilometers for 79 percent of the population in Bamyan, compared to 85–95 percent in the other four provinces (Table 1.3), but access to a vehicle is a much larger challenge. In the absence of appropriate transport facilities, travelling longer distances tends to be difficult for everyone, but especially for women. 57. Given the limitations on women’s mobility, the location and distance of justice institutions have a strong effect on the likelihood that a woman will choose a non-state institution to resolve her justiciable issue. In fact, women responding to the household survey in Bamyan and Herat expressed a strong preference for non-state justice institutions (Section 2.4.1). These are the two provinces with the greatest distances between communities and state institutions compared to community and non-state institutions (Table 2.4). 28 Table 2.4 Average distance of justice institution from the surveyed villages (km) Kabul Bamyan Herat Nangarhar Logara District centers 1.9 27.6 8.7 4.8 4.1 Provincial centers 8.6 161.6 29.9 14.5 9.8 State institutions 6.4 85.9 16.3 9.1 - Non-state institutions 2.9 6.4 1.7 1.0 - Source: Institution mapping. a Because the household survey was conducted in the market in Logar, data on the distance to state and non-state institutions were not collected. 58. Limited awareness of rights, laws, and state justice institutions. The household survey indicates that women generally have limited awareness of the role of state justice institutions. On average women are less aware of the role of state justice institutions than men, and the difference between the two groups is substantial (Table 2.5). Because of women’s low literacy, limited ability to travel to district or provincial centers and obtain information, and limited access to media, women were 136 percent less aware of family courts than men. Among household survey respondents, the number of literate men was almost double that of women, and 21 percent more men had access to media than women (Section 2.2). 59. Despite significant gaps, rural women’s awareness of state justice institutions was higher than expected. The implication of this finding is that the lack of awareness may be less of a barrier to accessing state justice services than women’s limited mobility or the fact that it is socially unacceptable for them to approach state institutions. Table 2.5 Awareness of the role of state justice institutions (household survey) (%) Men Women Hoqooq 80 43 Local courts 82 41 Public prosecutor 85 52 Family Response Units (with the ANP) 66 32 a DoWA 78 39 a EVAW Prosecution Unit 73 38 a Family court 71 30 a AIHRC 82 49 Average 77 40 Source: Household survey, excluding Logar a Figures exclude Kabul for DoWA, EVAW Prosecution Unit, family court and AIHRC. 60. Female users of justice institutions were more likely to be aware of rights and laws, particularly rights related to the EVAW Law (Figures 2.20 and 2.21). Female users’ greater level of awareness is probably results from better access to provincial centers (female users were more common in urban areas), higher literacy, and better access to media than female household survey respondents. Greater awareness could also be related to the particular experiences of these women as users—they may have learned as they went along. 29 Figure 2.20 Legal awareness among women: Divorce (% agreeing with the statement) HH Survey, Women User Survey, Women 85% 62% 31% 30% 23% 13% A woman has the right to get Upon divorce, a woman is Upon divorce, a woman has a divorce from her husband entitled to alimony rights to child custody Source: User and household surveys (Logar not included). Figure 2.21 Legal awareness among women: Violence against women (% agreeing with the statement) HH Survey, Women User Survey, Women 95% 90% 88% 70% There are no circumstances where it is A woman who has been beaten is entitled to legitimate to beat your wife report it to someone Source: User and household surveys (Logar not included). 61. Figure 2.22 indicates that female users are more aware that they have a right to report a beating, except for users in Herat. Household survey respondents in Bamyan are least aware of this right, followed by those in Nangarhar. 30 Figure 2.22 Awareness of the right to report that a woman has been beaten (% agreeing that they have the right) HH Survey User Survey 96 90 91 88 83 84 67 59 Kabul Bamyan Herat Nangarhar Source: User and household surveys (Logar not included). 62. Overall, women’s awareness of rights and entitlements was higher than expected. This finding challenges the common assumption that lack of legal awareness is one of the main barriers to women’s access to justice. When these data are examined alongside data on women’s willingness to take action through justice institutions to protect their rights, a more nuanced picture emerges. For example, in Herat, while awareness of the right to report domestic violence is high among female household survey respondents—96 percent of women agree that they have a right to report if a woman is beaten (Figure 2.22)—27 percent would take no action (Figure 2.7). 63. The implication is that although awareness—and acceptance—of women’s rights is rising, violations of those rights often go unchallenged and remain outside the purview of justice institutions. Data from the 2013 Asia Foundation survey32 confirm and complement these findings. Indeed, they show that an overwhelming majority of Afghans agree that women and men should have equal rights under the law. Among respondents, 62 percent disagree with the practices of ba’ad (blood money or honor killings) and ba’adal (the exchange of brides), and 74 percent agree that a girl’s guardian should wait until she becomes an adult before arranging her marriage, and should always consult her first. On the other hand, respondents cited rights-related issues, such as forced and early marriage, domestic violence, limited mobility, and being under the control of men, as the main problems facing women in Afghanistan—confirming that, notwithstanding the support shown by respondents for gender equality and women’s rights, inequality and rights violations are still very common. 2.6.2 Supply-side barriers 64. Women’s generally lower satisfaction with justice institutions, non-state justice institutions in particular, reflects specific issues—often linked to discriminatory practices and social and cultural norms related to gender roles—that prevent them from enjoying a 32 The Asia Foundation (2013)., cit., p. 106 ff. 31 fair judicial process. In navigating justice institutions, women face six key barriers: (i) application of a multitude of laws and legal practices in ways that at times do not provide women with the maximum protection to which they are entitled under the law; (ii) low personal attendance at judicial proceedings; (iii) the use of mediation, which may prevent women from filing and pursuing a case; (iv) limited availability of state justice institutions at the district level; (v) the limited number of women providing legal services; and (vi) the scarcity of legal aid providers. This section draws on data from the surveys of justice service providers, which are complemented by the findings from household and user surveys, to analyze each of these barriers. 65. Application of a multitude of laws and legal practices. Afghanistan uses three normative and overlapping sources of law, which are state law, Shari’a, and customary rules (see Section 1.3). State justice service providers perceive that state law is applied more frequently than Shari’a by judges, lawyers and legal aid providers, and Hoqooq Departments. On the other hand, among non-state justice service providers, the application of Shari’a and customary rules predominated.33 Figure 2.23 Legal body of law referenced in deciding on a case (multiple choices) State law Shari'a law Customary rules 96% 96% 97% 95% 81% 74% 55% 57% 30% 16% 6% 8% 10% 10% 3% Community Judge Prosecutors Lawyers/legal aid Hoqooq leaders Source: Justice service provider survey 66. Non-state institutions tend to base their decisions on a combination of customary principles and their own interpretation of religious norms, resulting in a potentially idiosyncratic set of rules. Discussants in focus groups provided examples of this practice, citing the instance of divorce: If a woman wants to divorce her husband, the elders investigate the issue and the reasons why she is asking for divorce. A woman can divorce her husband, according to the shura, if the husband is impotent or can’t earn money for his family. Otherwise, the shura doesn’t let the women divorce their husbands 33 State and non-state justice service providers were asked which set of rules they refer to in order to judge a case. The answer is based on their perception of these three laws and rules, thus, it does not necessarily reflect a correct understanding of these laws. 32 because it causes problems for the community. If the shura does not make proper decisions, women will refer to shura to divorce their husbands without any reasons. FGD (men), Khaja Roshnayee Village, Bamyan District, Bamyan Province 67. Out of the five instances in which Shari’a recognizes women’s rights to seek divorce (see Table 1.1), the village shura recognizes only two, which limits women’s ability to end a marriage. 68. In Nangarhar, Logar, and rural districts in Herat, civil society actors as well as focus group participants pointed to the resilience of discriminatory customary practices. Although qualitative evidence shows that customs such as ba’ad and honor killings take place outside the purview of community justice actors, there are also cases where the shura sanctions them as a means to resolve controversy: If a young girl runs away with a boy, she won’t be killed. She will be married to the boy after some meetings taken by the shura and the boy will give a girl as “ba’ad.” The girl can be his sister or cousin or he might have to pay to the girl’s family. FGD (women), Bazarak Village, Kuz Kunar District, Nangarhar Province 69. It is important to emphasize that state justice institutions do not always apply state laws, and key informants in this study often noted that officials in the state justice system were not always as well informed about the content of state laws as they should be. Sometimes officials in state justice systems apply informal laws or rules (for example, arresting women for “running away,” which is not a crime under state law but is not permitted under customary rules). State officials confuse their perceptions of Shari’a principles with actually encoded laws, creating an idiosyncratic mix in the state system as well. 70. Low personal attendance at judicial proceedings. Women attend proceedings in non-state justice institutions much less often than men (47 percent versus 89 percent) (Figure 2.24). On the other hand, in state justice institutions, the differences are rather small. This finding suggests that in non-state justice institutions, women are unlikely to be heard directly, because of social and cultural norms. NGOs, AIHRC, and private lawyers alike say that women’s participation in proceedings of traditional justice institutions is very rare, and almost impossible in the eastern areas. 33 Figure 2.24 Users who personally attended their proceedings Men Women 89% 83% 78% 78% 73% 71% 70% 47% Non-state State institutions State institutions State institutions First stage Second stage Third stage Source: User and household surveys (users and those household survey respondents who had disputes in the last five years; Logar not included). 71. Use of mediation. Mediation is a main feature of traditional dispute resolution mechanisms (non-state institutions). State institutions also commonly use mediation as the first phase in any proceedings; the Hoqooq Department is mandated to mediate disputes between parties before referring them to the appropriate justice institution, and the police often use mediation methods as well. For women, whose bargaining power is disproportionately lower than men’s and whose ability to gain a hearing is limited by culture and social pressures, mediation may often result in an unfair justice process or the denial of justice. 72. This possibility is especially strong in cases involving marital issues, child custody, alimony, and, most of all, domestic violence, where mediation can prevent cases from reaching the prosecutorial or adversarial stage. Interviews with stakeholders indicate that this outcome is common. For example, interviewees in Bamyan highlighted how a number of cases referred to the EVAW Prosecution Unit were mediated, noting that, of the cases referred to the unit, only a few were prosecuted under the law.34 Similarly, a legal aid provider in Kabul recalled facilitating the mediation of a rape case. The victim agreed to marry the perpetrator, which the legal aid provider regarded as the most preferable outcome for the victim, who would otherwise have no chance to marry and would become an outcast in the community. This interview demonstrates how justice and fairness are perceived when achieving social and communal wellbeing takes priority over upholding individual rights. 73. It also demonstrates the clear limitations in the genuine options available to women when their family and communal relationships break down. Women have extremely restricted economic options and are very unlikely to be able to live alone (even if they can afford to do so). Women who cannot return to their family relationships often 34 See UNAMA (2013). 34 end up living perpetually in shelters, since leaving the shelter and becoming independent as a single woman is very rare in Afghanistan. Given women’s limited long-term options, many actors believe that mediation is the lesser of two evils. 74. Limited availability of state justice institutions at the district level. Table 2.6 summarizes the availability of key primary state justice institutions, such as Hoqooq Departments, courts, and AGOs at the district level. These institutions were not present in every district where the household survey was carried out. Institutions that support implementation of the EVAW Law, such as the FRUs, DoWAs, and AIHRC offices, are present only at the provincial level. As a result, women were less aware of those institutions than of Hoqooq Departments, courts, or prosecutors (Table 2.5). Legal aid providers and private lawyers also tend to be represented only at the provincial level. Given deteriorating security, many institutions that had a presence at the district level in some areas are retreating to provincial centers. 75. Fewer women legal professionals. The dearth of women justice professionals affects the capability of the very institutions established to protect and enforce women’s rights, such as the EVAW Prosecution Unit and the FRUs.35 Nationally, women accounted for 4.7 percent of sitting judges, 6.4 percent of prosecutors, and 6.1 percent of attorneys in 2007.36 According to the SC and AGO, as of November 2013, women are approximately 10 percent of staff, including administrative staff in managerial positions (Table 2.7). 76. The surveyed provinces have only a few women legal workers (Table 2.8). In Herat, however, about 30 percent of lawyers are women, as opposed to about 20 percent in Kabul, 14 percent in Bamyan, and 11 percent in Nangarhar. This difference may explain the high level of satisfaction expressed by women in Herat with state justice institutions (Section 2.4). 77. Stakeholders mentioned the lack of women justice providers as one of the main obstacles hindering women’s right to due process. Women discussants in focus groups repeatedly said that they would feel more comfortable interacting with women judges, pointing to feelings of shame and shyness should they have to discuss their issues with male justice providers. 35 In Bamyan, for example, only one woman works in the EVAW prosecution unit, and, although she has no legal background, she is tasked with interviewing women victims, as well as the accused individuals and witnesses, and must perform the difficult duty of distinguishing cases of zina from those of rape (Source: key informant interview). 36 World Bank (2013). The data are from MoWA (2008). 35 Table 2.6 Availability of state justice institutions at district and provincial levels KABUL BAMYAN HERAT NANGARHAR LOGAR District level Provincial level District level Provincial level District level Provincial level District level Provincial level District level Provincial level Primary Court All except Shindand, All except 4 active √ √ √ √ Kushki Kuhna, √ Shizar and √ from Puli √ Gulran and Hisarak Alam Farsi Appeal Court √ √ √ √ √ Family Court √ √ √ Primary AGO Not in every √ √ √ All but one district Appeal AGO √ √ √ √ √ Governor’s √ √ √ √ √ √ √ √ √ √ Office Hoqooq Dept. All except √ √ √ √ √ √ Shizar and √ Hisarak Legal Aid √ √ √ √ √ Dept. (1 staff) EVAW Prosecution √ √ √ √ Unit Family √ √ √ √ Response Unit AIHRC √ √ √ √ Legal Aid Only in 3 ++ ++++ + +++ +++ NGOs districts Private 1,000-1,200 1 250-300 165 1 Lawyers Shelter √ √ √ √ Source: Institution mapping. 37 Table 2.7 Women staff in state justice institutions SC- SC-Civil AGO- AGO-employees in EVAW Directorate Judges servants Prosecutors managerial positions Total 1,826 1,820 1,987 952 22 Women 180 207 174 87 10 (4 managerial positions) Source: SC and AGO. Table 2.8 Number of women legal workers in surveyed provinces Kabul Bamyan Herat Nangarhar Logar Judges 0 10 0 0 Prosecutors 1 support staff 8 0 0 Hoqooq 0 1 0 0 Private 200-250/ 1/7 100/259-300 18/165 0/1 lawyers 1000-1200 Source: KIIs with the heads of provincial appeal courts, heads of provincial appeal AGOs, heads of DoJ, and head of Afghanistan Independent Bar Association in each province. 78. An interview with the EVAW Prosecution Unit in Bamyan, pertaining to a case of alleged attempted rape, is particularly telling. After recalling how he had asked the woman reporting the crime to undergo a medical check to determine whether the rape had taken place, and the woman’s ensuing reaction, the prosecutor concluded: If I had women staff, she would not have the impression that I […] insulted her. When she was crying, I felt that it was because she was being investigated by a man. 79. On the other hand, few women are found in non-state justice institutions. In some of the provinces surveyed, elder women, referred to as “white hairs,” have traditionally had a role in resolving small disputes between women or children. In Bamyan, elder women would reportedly intervene in “women issues” and try to mediate cases, including cases of domestic violence. Cases that cannot be mediated easily, such as divorce, are always referred to shuras or other male justice actors. Women observed that it would be easier for them to report their issues to women and saw the advantages of having women participate to the shura, yet they rarely mentioned them as decision makers. Women elders often seem to act as intermediaries between women claimants and male elders, but they do not participate in the judicial process as such. 80. Scarcity of legal aid providers. The scarcity and unreliability of legal aid severely undermines the legitimacy of the judicial process. Although this issue affects both women and men, women are more likely to suffer from the lack of legal representation because of the barriers created by their lower literacy, education, and awareness of institutions, which make it difficult for them to navigate the system and 38 effectively defend their position. The high cost of private lawyers37 is an additional and more severe obstacle for women than for men, given women’s limited financial independence. 81. In the first stage of the judicial process, both women and men had less legal representation than they did when pursuing their cases in subsequent stages (Figure 2.25). Implementation of the EVAW Law has increased the likelihood that more women than men will have legal representation in initial cases of violence against women and divorce, but even so, only 20–25 percent of women have representation. Representation increased substantially for women in second-stage divorce cases. Figure 2.25 Percentage of users who had legal representation by stage of process and type of case Men Women 73 52 49 45 31 34 24 27 26 20 20 16 9 8 11 5 First stage Second stage First stage Second stage First stage Second stage First stage Second stage Land Inheritance Divorce Violence against women Source: User and household surveys (users and those household survey respondents who had disputes in the last five years; Logar not included). 82. Figure 2.25 should be interpreted carefully, however, as the sample size varies by dispute and gender. Table 2.9 indicates that substantially fewer women and men used state institutions to resolve inheritance disputes compared other kinds of disputes. In the first and second stages, fewer women went to state institutions to resolve land cases, and fewer men resorted to those institutions for cases of divorce and violence against women. The sample of women who have escalated land and inheritance disputes to the second stage is slightly larger. These women went to non-state institutions in the first stage and approached state institutions in the second stage. 83. Compared to other provinces, in Herat, where divorce was the most prominent kind of dispute (Figure 2.3), 37 percent of women had legal representation at the first stage (Figure 2.26). Although Kabul has the largest pool of private lawyers in Afghanistan (Table 2.8), women’s legal representation was lower there than in Nangarhar. Whether a woman has legal representation also appears to be related to the type of dispute. While divorce was the most common type of dispute in Nangarhar, 37 According to data collected through the user survey, the average cost of legal representation for a male user in the first stage of the process is around Af 38,401 (about US$ 770). 39 violence against women and divorce were most common in Kabul. Women in Bamyan, where land disputes were the most prominent type of dispute, had no legal representation. Table 2.9 Number of state institution users by type of dispute Land Inheritance Divorce Violence against women 1st stage 2nd stage 1st stage 2nd stage 1st stage 2nd stage 1st stage 2nd stage Women 16 20 17 23 69 63 61 36 Men 82 63 14 14 20 14 25 20 Total 98 83 31 37 89 77 86 56 Source: User and household surveys (users and those household survey respondents who had disputes in the last five years; Logar not included). Figure 2.26 Percentage of women who had legal representation at first stage (by province) 37% 30% 19% 0% Kabul (n=135) Bamyan (n=26) Herat (n=94) Nangarhar (n=63) Source: User and household surveys (users and those household survey respondents who had disputes in the last five years; Logar not included). 84. The overall difficulty of securing legal representation (through legal aid or otherwise) as a first step in accessing justice services suggests that faults in the system hinder both the demand and supply of legal services. This supposition is reinforced by the observations of stakeholders who mentioned that lawyers, who are required to take on a minimum number of legal aid cases each year, cannot find clients requiring assistance unless they go to the courts to look for them.38 In this way, lawyers may miss opportunities to assist claimants or victims whose cases never reach the courts, because at the police station or prosecutor’s office, for example, they may have been convinced or intimidated into withdrawing their cases or led to commit to damaging statements that they cannot disavow later in the process. 2.7 Conclusion 85. This chapter has investigated the types of disputes, their resolution, levels of satisfaction with the outcomes, and barriers encountered by women and men in the selected four provinces when they attempt to access justice services. As mentioned, the analysis relies on data from household and user surveys (representing the demand for 38 Key informant interviews. 40 services) and a survey of justice service providers (representing the supply of services). That information was enhanced by information from FGDs and KIIs. 86. Women and men face different justiciable issues. The kinds of disputes that women seek to resolve are predominantly family and domestic, while men’s disputes are largely financial. The most prevalent or reported disputes among women involved divorce, violence against women, inheritance, and land, while men’s were related to land and business, followed by violence against women. In Herat, Nangarhar, and Kabul, divorce was one of the most prevalent disputes among women—particularly in Herat (almost 50 percent)—but it was the least prominent in Bamyan. Violence against women was also reported quite frequently in Herat and Kabul but less in Nangarhar. Land was most frequently a cause for reported disputes in Bamyan, but substantially less in Kabul and not at all in Herat. 87. Both female and male household survey respondents said that they would prefer to use non-state justice institutions to resolve their disputes, and some female respondents said that they would take no action at all to resolve cases of violence against women and inheritance (20–25 percent of female respondents). Among actual users of the justice system, women preferred state institutions to handle cases of divorce and violence against women and preferred non-state justice institutions to handle issues involving land and inheritance. More male users went to state justice institutions to resolve all four types of disputes. Although the choice of state or non-state justice institution appears to depend on the type of dispute, household survey respondents’ overall preference for non-state institutions may be explained by the limited availability of and access to state institutions at the district level. For both women and men, state authority was the most important factor in choosing state institutions. In using non-state institutions, on the other hand, ease of access was the most important factor, followed by the cost (free/cheap). The importance of cost may reflect the perception that bribery is much less common at non- state institutions, where only 1 percent of users had to pay bribes, compared to 14 percent of male users and 5 percent of female users at state institutions. 88. Women who had actually used justice institutions were more satisfied with state institutions (courts and Hoqooq Departments), while men were more satisfied with non- state institutions. Across provinces, female users of state institutions in Herat were most satisfied. This finding may reflect the higher likelihood of having legal representation at the first stage (37 percent in Herat, versus 30 percent in Nangarhar and 19 percent in Kabul) and the higher number of female legal professionals (30 percent in Herat, versus 20 percent in Kabul). The least satisfied group was female users of state institutions in Nangarhar. Among the men, 61 percent ( 53 male users) were satisfied with the outcomes of their cases, compared to 37 percent of the women (23 female users). 89. The three major barriers to women’s demand for justice are social and cultural norms, limited mobility and poor rural access to state justice institutions, and limited awareness of rights, laws, and state justice institutions. On the supply side, the barriers include the inconsistent application of three sets of interconnected laws by state (most often state law and Shari’a) and non-state (most often Shari’a and customary rules) 41 justice service providers, with the result that women may not receive the optimal rights to which they are entitled under the law; women’s low personal attendance at proceedings; the frequent use of mediation by state and non-state institutions, which can deter women’s pursuit of justice; limited availability of state justice institutions at the district level; the small number of female legal service providers; and the scarcity of legal aid providers. 42 3. Conclusions and Implications 90. The findings of this report can be grouped into four main categories. First, given the depth and complexity of legal and institutional pluralism in Afghanistan, and considering the large share of disputes handled in non-state institutions, recommendations for improving women’s access to justice must seriously consider practical means for women to engage with non-state systems. Second, the justice issues that most strongly affect the lives of women and men tend to differ. Men’s disputes are related largely to the economic sphere, whereas women’s are related predominantly to the family and domestic spheres. These differences mean that women and men require varying kinds of support, and legal professionals need to target the different challenges involved in addressing women’s and men’s needs. Third, women and men tend to engage in different justice-seeking behaviors, based on their varying circumstances. It is critical that interventions take a closer look at these variations in behavior and develop specific policies to address the challenges that they pose. Fourth, women and men experience uneven levels of satisfaction with justice system outcomes. 3.1 Experience in non-state justice institutions 91. Women continue to face enormous barriers to reporting crimes or seeking justice, whether through state or non-state institutions. Cultural norms of privacy and family honor, as well as issues of mobility, legal awareness, and rural access, all play a large role in sustaining those barriers. To circumvent them, women often choose non-state justice institutions. They may also choose non-state institutions simply because the consequences of approaching state institutions are too severe in terms of their alienation from family or physical risk. 92. For these important reasons, interventions to help women access justice services need to engage with state as well as non-state institutions. Women view greater activity by women within non-state justice institutions (in women’s shuras, for example) as helpful, even if those women act only as liaisons or facilitators who help women gain a hearing from male-dominated shuras, mullahs, or other non-state institutions. Women’s shuras could be given basic training in women’s rights, state justice institutions, and their functions. Paralegals or community paralegals trained in women’s rights could facilitate women’s access to justice where multiple state and non-state systems are active.39 On a pilot basis, some women shura members could receive additional legal training related to state justice institutions and then act as community resource persons who can offer advice based on a good understanding of the local social and legal context and perhaps also act as a bridge between state and non-state systems. 93. Outreach training for non-state providers of justice services in the principles of good mediation could be useful as well, along with training in general legal awareness, given that the vast majority of cases involving women entail mediation in the informal sector. Training in Shari’a law is also useful. Many Shari’a principles, if implemented correctly and consistently, would significantly improve women’s options for justice 39 As suggested in the United Nations report on women and justice (UN Women 2011). 43 within non-state institutions. In Papua New Guinea’s hybrid village courts, which have been given jurisdictional powers by the state, village leaders resolve disputes according to local custom. UNICEF supported human rights training for village leaders as well as women’s groups and youths. This arrangement improved women’s acceptance of village leaders as court officials and facilitated an active role for women in monitoring court decisions.40 Community-level rights training, provided to community elders, other non- state justice service providers, and women’s shuras, would help them to understand and claim women’s rights. Other community-based groups formed by various development projects, such as school management shuras41 and women’s savings and credit groups,42 could also be trained in women’s rights and could facilitate the monitoring of decisions taken by non-state justice institutions. 3.2 Access to state justice institutions 94. Where demand for state justice services is unmet, the situation is likely to get worse rather than to improve in the near term, given that state justice institutions are retreating from insecure areas. Developing extension and outreach models for legal services is an important strategy; indeed, other public services have also had to grapple seriously with extension models, understanding that it will be a long time before physical state institutions cover many areas. Extension based on mobile service models, with telecommunications and media components (such as radio or mobile phone-based information provision), is a critical means of bridging the gap between the average woman and the point of service delivery in the state justice sector, which largely reflects the rural/urban divide. 3.3 Improving the experience in state justice institutions 95. For women who do choose state justice institutions, the absence of female legal professionals and legal aid in general are large hindrances to pursuing justice in the system. Women are not often represented and run the risk of being exploited at the police station or manipulated throughout the legal process. In the qualitative interviews, lawyers complained primarily about a lack of cooperation between police, prosecutors, and legal aid, claiming that police and prosecutors do not tell women about their rights to representation or inform legal aid of new cases. On the other hand, police and prosecutors generally complain about legal aid being in short supply. Legal aid and consistent representation can help women gain a more favorable experience in the legal system and improve the system’s general reputation, reliability, and (conceivably) transparency. It is critical that the supply of legal aid not only increases but is distributed more equally, especially in rural areas. Support for organizations and providers who are specifically embedded in rural districts and provide legal aid is important. Finally, more systematic 40 UN Women (2011). 41 School management shuras were formed by the Education Quality Improvement Program financed by the World Bank. School and community representatives, including women, participated in the shuras to support school management and increase awareness of the importance of girls’ education. 42 Women’s savings and credit groups are formed under the Afghanistan Rural Enterprise Development Project (financed by the World Bank) and other donor-funded projects. 44 coordination between key actors (especially early in the judicial process for a given case) is critical to avoid many of the pitfalls experienced by women in state institutions. 96. Women’s satisfaction with state institutions seems to correlate especially strongly with the presence of female legal professionals. Herat has the highest number of female legal professionals of any surveyed province, and as this study demonstrates, it has the highest approval ratings from women who have relied on state justice institutions. 97. Although this correlation is indicative, it is instructive. It would be valuable to learn more from the experience in Herat and determine the extent to which different variables matter. For example, is legal aid simply more widely available in Herat? Is it the presence of female professionals that makes the biggest difference for women? What factors cause the EVAW Law to be more consistently implemented in Herat than elsewhere? A case study focusing on these questions would be helpful. 98. More generally, it appears critical to improve the supply of legal aid providers and female legal professionals. Other service delivery sectors have tackled this issue through systematic recruitment practices and incentives that aim to address spatial inequality, affirmative action measures to place promising students from underserved areas into specific degree programs (with the requirement that they practice in their home region upon graduation), and the provision of shorter, paralegal-style training to help with common problems and challenges arising in the system (as opposed to focusing only on increasing the number of lawyers). 99. Of all providers of state justice services, the police are viewed as the worst by women. This finding reinforces information from other studies concluding that FRUs are largely ineffective, partly because of women’s very low position in the police force. Approaches for reforming this system should be explored. One option is to pilot the removal of FRUs from the police stations to a separate location. Procedures should also be revised to ensure that all cases of violence against women go through FRUs if they are brought to the police. At the moment, it would appear that serious cases of violence against women, such as rape, still go through the criminal investigation departments, whereas FRUs handle only cases of “minor” domestic violence. 3.4 Working through other sectors 100. Because poor access to all state justice institutions remains a serious problem, the justice sector should seek closer links with the health and education sectors for case referrals, especially in cases of violence against women. These sectors have wider coverage in rural areas, are more socially acceptable for women to access, and have more female staff. 45 4. Bibliography Asia Foundation. 2012 Afghanistan in 2012: A Survey of the Afghan People. Kabul. __________. 2013. Afghanistan in 2013. A Survey of the Afghan People. Kabul. 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Forthcoming. “Mapping the Barriers to Women’s Access to Justice.” Washington, DC. Wardak, Ali. 2011. “State and Non-State Justice Systems in Afghanistan: The Need for Synergy.” University of Pennsylvania Journal of International Law 32(5):1305–24. World Bank. 2005a. “Afghanistan: National Reconstruction and Poverty Reduction—The Role of Women in Afghanistan's Future.” Washington, DC. __________. 2005b. “What Are the Sources of Conflict in Urban Land Tenure?” Kabul Urban Policy Notes Series No. 4. Washington, DC. __________. 2010. World Development Report 2011: Conflict, Security, and Development . Washington, DC. __________. 2011. World Development Report 2012: Gender Equality and Development. Washington, DC. __________. 2012a. “Afghanistan: Emergency Project Paper, Justice Service Delivery Project.” Washington, DC. __________. 2012b. Afghanistan: Interim Strategy Note for the Period FY2012–2014.” Washington, DC. __________. 2013. “Afghanistan: Women’s Role in Afghanistan’s Future—Taking Stock of Achievements and Continued Challenges.” Washington, DC. __________. 2014. “Crimes and Disputes: Missed Opportunities and Insights from a National Data Collection Effort in Papua New Guinea.” Briefing Note No. 5. Washington, DC. Yassari, N., and M.H. Saboory, 2010. “Shari’a and National Law in Afghanistan.” In Shari’a Incorporated: A Comparative Overview of the Legal System of Twelve Muslim Countries, edited by J.M. Otto. Leiden: Leiden University Press. Pp. 273–318. 48 Annex 1. Methodology This study was based on a mixed methods strategy, composed of qualitative and quantitative tools summarized in the table below. Table A2.1: Overview of quantitative and qualitative tools used in the study Quantitative tools Qualitative tools Demand side Key informants’ interviews (88 interviews)  Representative Household Survey (4,055 individuals: 1,954 women and 2,101 men)  User survey (users of justice system) Focus Group discussions (760 individuals: 310 women and 450 men) (37 meetings) Supply side  Justice Providers’ Survey (283 individuals)  Mapping of justice and government institutions (159 locations) The variety of methods used in the study has the following advantages: a) The findings from the study can be validated by different sources of data. b) Given Afghanistan’s sociocultural context, a number of limitations in data collection were anticipated, including the reluctance of respondents to share information about disputes they experienced, and security concerns. The user survey was specifically designed to overcome such limitations and collect statistically significant information about individuals’ use of the justice system. c) Having different tools targeting the demand side of justice allows capturing data from different angles: for example, the household survey, which is representative of population in the provinces surveyed, can provide valuable data on women’s as well as men’s perceptions of the justice system, while the user survey can offer insights on women’s and men’s experience with non-state and state justice systems. By interviewing both women and men, the surveys can identify the issues specific to women. d) Conflicting results from different sources help highlight areas where there are differences in perceptions, expectations and experiences between women users, women potential users and justice providers. e) Qualitative tools such as FGDs can provide insights and deepen our understanding of the findings from quantitative data in the household and user surveys or justice providers’ survey. The following sections describe (1) household and user surveys, focusing on sampling methodology, (2) justice service provider survey, in particular on the design and implementation, (3) institution mapping, and (4) qualitative tools. 49 1. Household and User Survey (demand side) This section describes in details on sampling, questionnaires, and field work. 1.1. Sampling Design (a) Representative Household Survey. The household survey was administered to a sample of 4,055 individuals in the targeted five provinces. Respondents were randomly selected in Kabul, Bamyan, Herat, and Nangarhar. However, in Logar, due to security concerns, enumerators interviewed randomly selected individuals at the market in Puli Alam, the provincial capital. The household survey was to interview 490 women and 490 men from each of the four provinces, using the stratified random sampling strategy discussed in sections.43 During the analysis, the data was weighed to make those proportionate to the size of the population per province (see the provincial profile above). The following steps were taken to identify the households to be interviewed for the household survey. Figure A2.1 Selection process (household survey) Selection of Primary Selection of Selection of districts Sampling Units households Selection of Districts and Primary Sampling Units (PSUs). The selection of districts in each province was based on the following principles: 1) Exclude all districts inaccessible due to security restrictions. 2) Include the provincial center in every province to have a sufficient urban sample. 3) Randomly select districts within the remaining group of districts. Within each district, the Primary Sampling Units (PSUs) for the study were selected. The following two steps were used to identify the PSUs: 1) For each of the four provinces, the Central Statistics Office (CSO) provided the location maps of the 60 PSUs that were surveyed for the National Risk and Vulnerability Assessment (NRVA) 2011-2012. However, a number of these locations had to be excluded, because of the poor quality of the maps and security restrictions. Some PSUs were either not found or inaccessible. The number of PSUs surveyed in each province using this method varied between 20 and 30. 2) Due to the limited number of PSUs selected in step 1, an additional 10-20 PSUs had to be included in the sample based on a random selection from the master list of enumeration areas provided by the CSO. 43 A target of 200 women and men was set for Logar but was not possible due to security reasons. 50 These two steps resulted in the selection of between 29 and 48 PSUs in each province as shown in Table 2. Table A2.2: Number of PSUs by district and province Province Districts Number of PSUs Total number of by district PSUs by province KABUL Kabul City 22 Bagrami 2 Kalakan 2 Mirbacha kot 2 Qarabagh 2 30 BAMYAN Bamyan District 4 Markaz 8 Panjab 8 Shebar 4 Waras 12 36 HERAT Enjil 8 Ghoryan 8 Gozara 4 Markaz 12 Karukh 4 Zinda Jan 4 40 NANGARHAR Jalalabad City 12 Beshood 8 Kama 8 Koz Kunar 8 Sorkhroad 12 48 TOTAL 22 districts 154 154 There were a few biases in the selection of PSUs that should be noted. Firstly, all the PSUs in Bamyan on the CSO list were rural and did not include the town of Bamyan. As a result, the urban areas were underrepresented in the household survey. Secondly, due to security restrictions and difficulty in accessing parts of Herat and Nangarhar, some of the PSUs had to be excluded. This resulted in the selection of remote districts in Herat and more accessible districts in Nangarhar. Thus, there potentially is a bias in awareness of rights and state institutions and institution mapping. Selection of households. In each PSU, between 20 and 35 households located at fixed intervals from a random-start point were selected as follows: 1) The study: a) estimated the size of the PSUs; b) mapped the PSU to identify the area of population within each PSU; and c) geographically covered the PSU by sending several teams of 2 interviewers (one woman and one man) to the neighborhoods or villages in the PSU. 51 2) Each team of two interviewers starts from a random starting point, such as the mosque, and then chooses the household that is located every third door starting from the mosque. This process continues until the target number of households in each PSU is reached. Only one respondent (female or male) was interviewed in each household (in other words, no men and women were interviewed from the same household). The breakdown of respondents by gender and province is as follows: Table A2.3: Number of respondents of household Survey by province and gender Household Survey Kabul* Bamyan Herat Nangarhar Logar All Men 485 480 480 481 175 2,101 Women 490 480 480 480 24 1,954 Total 975 960 960 961 199 4,055 Source: Household survey *In Kabul, the enumerators went over the target. In Logar, because of security, all the respondents were randomly selected in the market, which reduced the data reliability. Firstly, there was not enough privacy for respondents to answer sensitive questions, such as whether they experienced a dispute or whether they would go to certain justice institutions to help solve a dispute. Perhaps for this reason, the response rate of individuals who reported to have faced a dispute is very low (with no woman and two male respondents in the household survey) confirming to have experienced a dispute in the last five years. Secondly, only 24 women were interviewed in the province, which is too small a sample to be representative of the province. Thirdly, given that respondents were found in the markets, there may be an overrepresentation of women who are less conservative. For these reasons, the data from Logar cannot be considered representative of the province, hence, most of the quantitative analysis of the household survey in the main report excludes Logar. The table below indicates the percentage of rural households among the survey respondents. The rural/urban ratio of the selected households is in line with the provincial profile. Table A2.4: Percentage of rural households in Household Survey by province Household Survey Province Kabul Bamyan Herat Nangarhar Logar % Rural 28% 100% 71% 81% 30% Source: Household survey 52 (b) Purposive User Survey The user survey was administered to 760 users of state and non-state justice institutions: 450 men and 310 women. The table below provides a breakdown by gender and province. This reflects an effort to reach gender balance among the respondents, which does not necessarily reflect prevalence of disputes by these groups. Table A2.5: Number of respondents in user survey by province and gender User Survey Kabul Bamyan Herat Nangarhar Logar All Men 140 69 106 128 7 450 Women 135 22 91 62 0 310 Source: User survey In sampling between state and non-state institutions, the initial intention was to find an equal number of users between the two, with provincial samples proportional to the population size of each province. However, the survey team had difficulty finding users, especially at the community level, possibly due to reluctance among the community leaders to disclose those who have had disputes. Further, even at the state justice institutions, the users in Kabul, in particular, were often unwilling to answer questions, because of time constraints. Therefore, the sampling reflects the availability of users at certain institutions, with a majority of them (88 percent of female and 85 percent of male users) found at state justice institutions, such as courts and hoqooqs (see the figure below). Table A2.6 Institutions where the users were found (%) Women Men (n=310) (n=450) State justice institutions Court 45 35 Hoqooq 14 37 Provincial Governor’s Office 10 8 AGO 5 5 EVAW Prosecution Unit 2 - Other state institutions Women’s jail or shelter 13 - Non-state justice institutions Community leaders 10 15 NGO 1 - Source: User survey The sample likely over-represented the state justice institution users, as it is estimated that at least 80 percent of disputes in Afghanistan are resolved by the non-state justice institutions.44 There may also be bias among non-state institution users, as community leaders could well have chosen not to mention certain sensitive disputes to surveyors. 44 See Sinha (2011:1). 53 1.2 Questionnaire Design The same questionnaire was administered to the household and the user survey respondents. The questionnaire consists of the following four sections: 1) Household identification; 2) Socio-Economic Profile (including a household roster); 3) Legal Awareness and Perception of Justice; and 4) Disputes. The Socio-Economic Profile section asks questions ranging from the respondent and the household members’ age, marital status, education, migration status, and labor force status. Information regarding the household’s assets, livestock and housing material and access to facilities are also collected. As much as feasible, many of the questions in this section, particularly on household materials, assets and livestock, are consistent with the NRVA Household Questionnaire 2005 to ensure comparability between the household survey and NRVA. The section on Legal Awareness and Perception of Justice Institutions attempts to gather information about the respondents’ level of awareness of rights and regulations, covering a range of topics, such as the legal age of marriage, women’s inheritance’s rights and domestic violence. This section also includes questions on respondents’ awareness of the role of non-state and state justice institutions, and whether they would turn to them to solve a dispute. In addition, given that the response rate on individuals who faced a dispute was expected to be low, it was decided to administer questions on what respondents would do if they faced hypothetical disputes, including which dispute resolution mechanism they would turn to. The hypothetical disputes covered the topics on domestic violence, inheritance, land dispute, divorce and separation and child marriage. Lastly, the section on Disputes includes questions about the way respondents dealt with disputes they faced, which was more for the users. First, respondents were asked whether they or members of their household experienced a dispute in the past five years. If they did, follow up questions were asked regarding what they did, which dispute resolution mechanism they turned to, what determined their decision to turn such person/institution, the trajectory of dispute resolution and their experience with the justice system. The survey questionnaire was translated into Dari and was first piloted in a community in Kabul before the fieldwork began. Changes to the wording and content were made after the pilot. Further changes to the questionnaire were made after the fieldwork in Kabul was conducted. The resulting questionnaire is attached as an annex to the report (Annex 5). 1.3 Fieldwork For the household survey, individuals were interviewed, to the extent possible, in an isolated and quiet environment. This was easily achieved for male respondents who could use their garden, the main room of their house or the street. However, a complete isolation was sometimes less feasible for female respondents because the number of rooms in houses did not always allow women to be interviewed in a separate room from their children or women relatives. It should be mentioned that men were almost never 54 present during the interviews because they were conducted by female interviewers. If any, most interference would come from sisters, sisters-in-law, mothers-in-law and children. 2. Justice Service Provider Survey (Supply Side) The justice service provider survey was administered to a sample of state (judges, prosecutors, hoqooq officials, and attorneys/legal aids) and non-state (community elders) justice providers. In each province, the survey interviewed justice providers working in the provincial and at the district capitals. Given the low concentration of justice service providers in each district capital, there is an over-representation of the providers at the provincial level. Table 7 shows the distribution of justice providers by type and province. Table A2.7: Justice service provider surveyed by province Kabul Bamyan Herat Nangarhar Logar Total State Institutions Judges 11 8 9 10 9 47 Prosecutors 9 6 8 9 6 38 Hoqooq 7 2 6 4 1 20 Lawyers/legal aid 19 3 9 10 1 42 Sub-total (state) 46 19 32 33 17 147 Non-state Institution Community elders 20 27 37 48 4 136 Grand total 66 46 69 81 21 283 (State and non-state) Survey of Justice Providers (judges, elders, hoqooqs, prosecutors, lawyers) For each category of justice providers, a specific questionnaire was produced. The main sections include (a) access to justice, (b) judicial processes, (c) practice, (d) legal awareness, and (e) hypothetical disputes. The section on access to justice asked questions on most common civil and criminal cases that involved women, and their perceptions about women’s and men’s main barriers to accessing justice. The section on processes explored whether women and men had access to legal representation (in the cases justice providers’ handled), whether justice providers refer cases to other institutions, and which set of rules justice providers use to instruct a case. The section on practice had, inter alia, questions about whether there are women in their offices and in what capacity. The section on legal awareness assessed the respondents’ legal knowledge, such as women’s rights as to inheritance and divorce, and the EVAW law. Lastly, a series of hypothetical disputes were presented to respondents in order to learn how justice providers would handle cases that involve divorce, inheritance, sexual violence, zina, mahr, domestic violence and a girl running away from her husband. The questionnaire administered to judges is included in Annex 4. 55 3. Institution mapping An institution mapping was conducted at the village level in order to assess the availability of justice and governmental institutions, and to measure the level of accessibility of institutions not immediately available at the village level from each of the villages where the household survey was conducted.45 Accessibility to institutions is viewed as an important factor affecting women’s access to justice and their knowledge about the existence and role of justice and government institutions. 4. Qualitative tools 4.1. Focus Group Discussions Thirty-seven FGDs were conducted to complement quantitative findings. Due to the sensitivity of gender and justice issues and the limitations of quantitative tools in a context where it is inappropriate for women to talk to strangers, the facilitated group discussions were designed to elicit engagement and openness of participants on their experience in solving a dispute, accessing justice institutions and to assess their level of legal awareness. In addition, one focus group was held with women in prison and one with women in a shelter to gather information on their specific experiences. Facilitators conducted 8 to 10 FGDs per province, except in Logar, where only 1 men’s FGD could be held (detailed in the table below). Men and women participated in discussions in separate groups. Each of them included about 6 participants and was led by a male moderator for men’s groups and a female moderator for women’s groups. Table A2.8 Focus group discussions by province PROVINCE Women FGD Shelters/Prisons Men FGD Total Kabul 4 2 4 10 Bamyan 5 - 5 10 Herat 4 - 4 8 Nangarhar 4 - 4 8 Logar - - 1 1 Total 17 2 18 37 The questions posed in the FGDs deliberately mirrored the questions in the household and user survey questionnaire so that the FGDs can provide insights and more detailed information that may not be fully articulated in the household and user surveys. Additionally, there were questions raised in FGDs that were not included in the quantitative surveys, such as consequences of legal procedures on people’s lives (including family and social relations). For the women in prison and shelter, the FGDs 45 Institutional mapping was not conducted for respondents in the user survey. 56 asked how they were treated there and what they thought their life would be like after they leave. 4.2. Key informant interviews Eighty-one interviews were conducted with the justice sector stakeholders in order to gain a better understanding of the legal and institutional framework as well as women’s legal needs, challenges, and attitudes towards justice (detailed in the table below).46 Table A2.9 Key informants interviewed by province Donors NGOs Justice service Central Provincial Total provider government government Kabul 14 14 2 6 2 38 Bamyan 1 3 4 0 8 16 Herat 0 3 3 0 7 13 Nangarhar 2 5 2 0 5 14 Logar 0 0 0 0 0 0 Total 17 25 11 6 22 81 KIIs included questions concerning interviewees’ knowledge of women’s rights and entitlements with regard to inheritance, property and marriage, and their understanding of moral crimes (zina or running away), domestic violence, early marriage and baad as criminal acts. 46 It was not possible to conduct a KII in Logar due to security reasons. 57 Annex 2. Additional Figures and Tables 1. Reporting violence against women Figure A3.1 Reporting violence against women by literacy (%) Illiterate Literate 31% 20% Illiterate Literate Figure A3.2 Reporting violence against women by education level (%) 39 36 26 27 25 21 No Formal Primary Secondary High school Teacher University or Education school school college post-grad 2. Potential Dispute Resolution by the Female Household Survey Respondents Addressing violence against women. Around 25 to 30 percent of women would not take any action in Kabul, Herat, and Bamyan. The women in Nangarhar are more likely to take action and would go to justice institutions (44 percent). 58 Figure A3.3 Women’s potential dispute resolution by province: violence against women State institution Non-state institution Family, friends or resolved through direct negotiation Did not take action Other 56 46 46 42 33 33 26 27 18 15 13 14 8 11 8 2 0 2 0 0 Kabul Bamyan Herat Nangarhar Women’s potential dispute resolution: divorce. This is the most prevalent dispute in Herat and Nangarhar. Non-state institutions would be preferred substantially by those women interviewed in Herat (by even five times more) and Bamyan (by three times more). However, in Nangarhar, it was almost the same between state and non-state institutions. In Kabul, the women interviewed would prefer state institutions (by 42 percent). Figure A3.4 Women’s potential dispute resolution: divorce State institution Non-state institution Family, friends or resolved through direct negotiation Did not take action Other 55 47 49 43 40 33 32 30 17 12 9 11 8 6 3 4 1 0 0 0 Kabul Bamyan Herat Nangarhar Women’s potential dispute resolution: land. Land is the most prominent issue in Bamyan. The women interviewed in Bamyan and Herat would by far prefer to access non-state institutions. The trend is the same in Nangahar. However, compared to these two provinces, more women would prefer state institutions (by more than 40 percent). 59 Figure A3.5 Women’s potential dispute resolution: land State institution Non-state institution Family, friends or resolved through direct negotiation Did not take action Other 73 70 56 42 37 30 16 17 16 10 10 11 5 2 2 1 1 1 0 1 Kabul Bamyan Herat Nangarhar Women’s potential choice of institutions: inheritance. On inheritance, non-state institutions would be preferred than state institutions across the four provinces. This is substantially so in Bamyan and Herat (both by 41 percent points), while it is less so in Nangarhar (by 18 percent points) and Kabul (by 20 percent points). Compared to land and divorce, a larger percentage of the women, which is 15 to 25 percent, would not take any action. This is more so in Kabul and Bamyan. Figure A3.6 Women’s potential dispute resolution: inheritance State institution Non-state institution Family, friends or resolved through direct negotiation Did not take action Other 54 50 41 38 24 25 23 18 16 17 16 18 18 13 13 6 9 0 0 0 Kabul Bamyan Herat Nangarhar 60 Annex 3. Glossary Arbab Tribal leader, often a powerful landlord, community leader Ba’ad Traditional Pashtun practice in which one or several girls are given to settle a dispute between families Ba’adal The exchange of brides, often in order to avoid or cancel out bride price requirements. Ba’adal often takes the forms of marrying off pairs of brothers and sisters between families Blood money Amount of money paid to settle a dispute, especially in case of murder Bride price Sum of money paid by the groom’s family to the bride’s family upon marriage Dispute A disagreement between individuals or groups. Respondents to household and user surveys were asked whether they or a member of their household experienced a dispute about a number of specific issues, such as land, water, inheritance, forced and early marriage, and divorce Hoqooq Can designate the hoqooq department specifically or legal institutions more generally. The hoqooq department is responsible for registering, advising and mediating between parties for civil cases of 5 types: family cases, land & property cases, commercial cases, debt recovery, and juvenile cases. If the hoqooq department does not succeed in settling a dispute, it refers the case to the primary civil court. The hoqooq department is also responsible for the enforcement of the decisions taken by the civil court Jirga Traditional conflict-resolution and decision making mechanism typical of Pashtun areas. It is usually a council of male elders convened on an ad-hoc basis to solve a specific issue and restore peace within the community Justice institutions There are state and non-state justice institutions in Afghanistan. State justice institutions include state and family courts, hoqooq department, prosecutors, police, provincial and district governors, Department of Women’s Affairs (DoWA), Afghan Independent Human Rights Commission (AIHRC), EVAW prosecution unit, and family response unit. On the other hand, non-state justice institutions are community elders (mostly men), Shura/Jirga, individual community leaders, mullah, and malik. Justiciable A problem or issue that might be resolved through legal means – problem or issue regardless to whether or not it was in fact resolved through legal means Khul Separation obtained by women in exchange of money paid to their husband Mahr Sum of money to be paid by the husband to the wife upon marriage (on the night of the marriage or later on during the marriage), according to Islamic Law. Malik Community leader, similar in role to other terms found in 61 Afghanistan such as arbab or qariador in certain areas of the country Running away Practice of running away from one’s husband or father’s home without his authorization. Whilst not illegal, this practice is usually punished Shura Standing council of representatives of the community. The shura is often the ‘executive’ decision-making body of the community and in modern times, is often the main channel for the implementation of humanitarian and development projects. Yet, its role, composition and authority vary greatly from one place to another Stage First stage: the first attempt at resolving a dispute or reporting a of dispute crime and have it prosecuted at non-state or state justice resolution process institutions. Second stage: the second attempt at resolving a dispute or reporting a crime and have it prosecuted. It might be an instance of appeal of a decision of a court of first instance or a completely new procedure. Third stage: the third attempt at resolving a dispute or reporting a crime and have it prosecuted. It might be an instance of appeal of a decision of a court of second instance or a completely new procedure. Users Users of the state or non-state justice system. These refer to individuals who (a) have turned to non-state institutions (as defined above), or to state institutions (as defined above) – to solve a dispute or report a crime; or (b) Individuals who have been in contact with such institutions as defendants in civil cases or victims or perpetrators in criminal cases Zina Unlawful sexual intercourse not sanctioned by marriage. Women are also sometimes prosecuted for ‘attempted zina’, when the police or the prosecutors consider that a woman had the intention of committing zina (often in a case where she is running away from home), even if there is no evidence the crime was actually committed 62 Annex 4. Survey Questionnaires (sample) 1) Household Questionnaire GENDER & JUSTICE STUDY – HOUSEHOLD QUESTIONNAIRE GROUP A PLEASE PROVIDE THE FOLLOWING INFORMATION TO HEAD OF HOUSEHOLD The World Bank is selecting over 4,000 households to ask them about how men and women deal and cope with problems that may arise with others and that may be resolved through legal means. The responses obtained from the households are meant to help the Government improve justice services to better respond to people’s justice needs. Your household was selected randomly to participate in this survey at this time. You were not selected for any particular reason. Your name was on a list of all the households in the area, and your name was chosen randomly. Your name, as well as the name of all other respondents, and your answers will be kept confidential. I would like to ask the questions in this form. Before I start, do you have any questions? SECTION 1. HOUSEHOLD IDENTIFICATION Questionnaire Number Interviewer Code N°. Questions Answers PROVINCE CODE A Kabul – 1 ; Logar – 5; Nangarhar – 6 ; Bamyan – 10; Hirat – 32 B District Name C DISTRICT CODE D VILLAGE CODE E VILLAGE NAME F VILLAGE GEO-CODE G INTERVIEW DATE 1. Urban H TYPE OF LOCATION 2. Rural 1. Group A I Group of respondents 2. Group B 1 Name of the respondent 1. Male 2 Gender of the respondent 2. Female 3 Age of the respondent 4 Phone number of the respondent 1. Household head 11. Grandfather/grandmother 2. Husband/first wife 12. Brother/sister 3. Second wife 13. Brother-in-law/sister-in-law Relationship of the respondent 4. Third wife 14. Uncle/aunt to the head of household 5. Fourth wife 15. Amboq 5 6. Son/daughter 16. Other relatives DO NOT PROMPT – ONE 7. Son-in-law/daughter-in-law 17. Unrelated male/female ANSWER 8. Grandchild 18. Stepfather/stepmother 9. Nephew/niece 19. Stepdaughter/stepson 10. Father/mother-father-in-law/mother-in-law 20. Step-sister/step-brother 1. Pashtun 2. Tajik 5. Turkmen 6 Ethnicity of the household 3. Hazara 6. Baluch 4. Uzbek 7. Other (specify) SECTION 2: SOCIO-ECONOMIC PROFILE 7 8 9 10 11 12 13 I Make a complete list of Sex Relationship to the head of household Age Does [NAME] Marital Status Age at D all individuals who live DO NOT PROMPT – ONE ANSWER have a disability Marriage in this household, 1. Household head 11. Grandfather/gra or is chronically DO NOT PROMPT C starting with the head 2. Husband/first ndmother If less than ill? – ONE ANSWER O of household first. wife 12. Brother/sister one year, D 3. Second wife 13. Brother-in- enter “00” E Write down their names 4. Third wife law/sister-in- 5. Fourth wife law 6. Son/daughter 14. Uncle/aunt 7. Son-in- 15. Amboq 1. Married law/daughter- 16. Other relatives 2. Engaged in-law 17. Unrelated 3. Divorced 8. Grandchild male/female Or separated 9. Nephew/niece 18. Stepfather/step 4. Widow, NAME 1.MALE 10. Father/mother mother widower 2.FEMAL Father-in- 19. Stepdaughter/st YEARS 1. YES 5. Never married YEARS E law/mother-in- epson 2. NO SKIP TO Q. 14 96. I don’t law 20. Step-sister/step- know brother 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 14 15 16 17 18 19 20 I Migration Status In the last 12 Where did [NAME] live Is [NAME] What is the highest Is [NAME] currently What type of D PROMPT – ONE months, has when he/she was away? able to education level [NAME] enrolled in school, or school is [NAME] C ANSWER [NAME] been PROMPT – ONE ANSWER read and has achieved? if school not in enrolled in? O 1. Returnee (formerly away from 1. Same province, urban write? PROMPT – ONE session, was [NAME] PROMPT – ONE D legal refugee in the 2. Same province, rural 1. Yes ANSWER enrolled in the most ANSWER E Pakistan) household 3. Other province, urban 2. No 1. No formal education recent session? 2. Returnee (formely for more than 4. Other province, rural 2. Madrassa 1. Yes 1. Public school legal refugee in 6 months? 5. Pakistan 3. Primary School 2. No NEXT 2. Private school Iran) 1. YES 6. Iran 4. Secondary School PERSON 3. Religious 3. Returnee (formerly 2. NO SKIP 7. Arabian Peninsula 5. High School madrasa irregular migrant) TO Q. 17 8. Other, specify 6. Teacher College 4. School run by 4. Internally displaced 7. University NGO person 8. Post-grad NEXT PERSON 5. Deportee 6. Non-migrant 7. Other 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 21 22 23 24 25 I Did [NAME] work in the past seven During the last 7 In what sector of the economy is [NAME]’s main job What type of job was How much D days? days, did [NAME] (the one he or she spent the most hours doing in [NAME]’s main job? was [NAME] Work = (a) performed some work for look for work? the last 30 days)? PROMPT – ONE ANSWER earning in the C wage or salary in cash or in kind, (b) 1. Yes SKIP TO PROMPT – ONE ANSWER 1. Day laborer last 30 days O had a formal attachment to their job NEXT PERSON 1. Agriculture / 9. Sewing, embroidery, 2. Salaried worker in from main D but were temporarily not at work 2. No SKIP TO livestock tailoring private sector work and E during the reference period, (c) NEXT PERSON 2. Mining and 10. Carpet weaving 3. Salaried worker in other work? performed some work for profit or quarrying 11. Electricity/plumbing public sector 1. Number family gain in cash or in kind, (d) were SKIP TO Q. 26 3. Construction 12. Household worker 4. Self-employed (share In AFG with an enterprise such as a business, 4. Manufacturing 13. Health croppers, own account 2. I don’t farm or service but who were 5. Mechanic services 14. Education farmers, independent know temporarily not at work during the 6. Transportation/ 15. Other services professionals, selling reference period for any specific communication 16. Public administration/ handicrafts, other reason 7. Wholesale trade government private) 1. Yes SKIP TO Q. 23 8. Retail trade 17. NGO/Intl. organisations 5. Employer 2. No 6. Unpaid family worker 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 26. What are your household’s income generating INCOME ACTIVITY CODE 17. Petty trade/shopkeeping activities in the order of importance? 1. Crop production for home consumption 18. Cross border trade DO NOT PROMPT – RECORD THREE ANSWERS 2. Livestock production for home consumption 19. Firewood/ charcoal sales Enter income activity codes from Table 3. Production and sale of field crops 20. Handicrafts (sewing, embroidery, etc) 1.First 4. Production and sale of cash crops, except opium 21. Carpet weaving 5. Production and sale of opium 22. Mining 2.Second 23. Military service 6. Production and sale of orchard products 3.Third 7. Production and sales of livestock and products 24. Taxi/transport 8. Sales of prepared foods 25. Remittances from seasonal migrants 9. Agricultural wage labour (non-opium) 26. Remittances from family members 10. Opium wage labour permanently away from home 11. Shepherding 27. Pension 12. Mille 28. Other government benefits 13. Other wage labour 29. Rental income 14. Skilled labour 30. Sale of food aid 15. Salary/Government job/teacher/NGO/UN 31. Begging 16. Small business 32. Borrowing 33. Other 34. I don’t know WOMEN ONLY – MEN SKIP TO Q.30 Are you allowed to go out of your house? 1. Yes, I can go out on my own 27 2. Yes, if accompanied 3. No Do you have your own mobile phone? 1. Yes 28 2. No How often do you go and visit members of your parents’ family? 1. Never PROMPT – One Answer 2. Sometimes (once or twice a year) PROMPT – One Answer 3. Frequently (once or twice a month) 29 4. Often (several times per month) 5. Very often (on a daily basis) 6. Not applicable Section 3 – LEGAL AWARENESS & PERCEPTION OF JUSTICE INSTITUTIONS 30 From what age can a girl get married? DO NOT PROMPT – Write down age 31 Is it important to get a marriage certificate? 1. I don’t know what that is DO NOT PROMPT – One Answer 2. No, it is unnecessary 3. Yes, it is important 32 Do women have the right to get an education regardless of the authorization 1. Yes of their husband or father? 2. No 3. I don’t know 33 Do women have the right to own land? 1. Yes 2. No 3. I don’t know 34 Do women have the right to keep control over their own property upon 1. Yes marriage? 2. No 3. I don’t know 35 Upon the death of her husband, is a woman entitled to get her mahr? 1. Yes 2. No 3. I don’t know 4. Other (specify) 36 Upon the death of her father, what part of her father’s estate is a girl entitled 1. Nothing to? 2. What her brothers accept to give her DO NOT PROMPT – One Answer 3. Half the portion of her brothers 4. Other (specify) 5. I don’t know 37 Upon the death of her husband, what part of her husband’s estate is a widow 1. Nothing entitled to? 2. What her sons and brothers in law accept to give her DO NOT PROMPT – One Answer 3. 1/8 or ¼ of her husband’s estate, depending on whether they had children or not 4. Her mahr 5. Other (specify) 6. I don’t know 38 Does a woman have the right to get divorce from her husband? 1. Yes 2. No 3. I don’t know 39 Upon divorce, is a woman entitled to alimony? 1. Yes 2. No 3. I don’t know 40 Upon divorce, does a woman have rights to child custody? 1. Yes DO NOT PROMPT – One Answer 2. Yes, until children are young 3. Yes, until girls turn 9 and boys 7. 4. No 5. I don’ know 41 Is it important to have land certificates? 1. Yes 2. No 42 Are there circumstances when it is legitimate to beat one’s wife? 1. Yes 2. No 43 Is a woman who has been beaten entitled to report it to someone? 1. Yes 2. No 44. Do you know what is the role 45. Would you ask 46. Why would you ask for of the following for [PERSON/ this 9. Family/community relations would institutions? INSTITUTION]’s [PERSON/INSTITUTION]’s not be spoiled 1. Yes GO TO 45 help if you have a help? 10. It is not corrupt PERSON/INSTITUTION 2. No, I do not dispute? DO NOT PROMPT – Multiple 11. I have influence on this institution know GO TO Answers 12. There is not much bureaucracy NEXT THEN GO TO Q. 48 13. You can make your case before the INSTITUTION court 1.YES >> GO TO 46 1. It has/they /have the 14. Secures secrecy/discretion authority 15. It is safe 2.NO >> GO TO 47 2. This is what people in 16. It is Islamic the community do 17. It applies principles that reflect my 3. There is nowhere else values to go 18. It preserves the honour of my family 4. Disputes are resolved 19. I know I can pay to get a decision in very fast my favour 5. It is close 20. Other 6. It is fair/objective 21. I don’t know 7. It is cheap/free of charge 8. Decisions are enforced A. Elders of local Shura/Jirga B. Tribal leader/Malik C. Mullah Saleb D. Hoqooq E. Local courts F. Public prosecutor G. Governor office H. Police I. Taliban J. Legal Aid/Lawyer K. CDC L. Family Response Units (with the ANP) M. Department of Women Affairs N. EVAW Prosecution Unit O. Family Court P. Afghan Independent Human Right Commissions Q. Women Shura 47. Why would you not ask for 8. There is corruption 48. Have you ever had to INSTITUTION’s help? 9. Others have influence on this institution bribe staff from one of the DO NOT PROMPT – Multiple Answers 10. There is much bureaucracy following institutions? 11. Participating to the proceedings is too 1. It does/they do not have the burdensome PERSON/INSTITUTION authority 12. Does not guarantee secrecy/discretion 1. Yes 2. This is not what people do in the 13. It is dangerous 2. No community 14. It is haram 3. Disputes are resolved slowly 15. It endangers the honour of my family 4. It is far 16. I know I cannot pay to get a decision in my 5. It is not fair/not objective favour 6. It is expensive 17. Other (specify) 7. Family/community relations 18. I don’t know would be spoiled 19. Decisions are not enforced 20. I cannot afford to pay the zamanat 21. There are no female officers/female staff A. Elders of local Shura/Jirga B. Tribal leader/Malik C. Mullah Saleb D. Hoqooq E. Local courts F. Public prosecutor G. Governor office H. Police I. Taliban J. Legal Aid/Lawyer K. CDC L. Family Response Units (with the ANP) M. Department of Women Affairs N. EVAW Prosecution Unit O. Family Court P. Afghan Independent Human Right Commissions Q. Women Shura I will now read a number of hypothetical disputes and will then ask a number of questions about how you might resolve these disputes CODE FOR DISPUTE RESOLUTION 1. Through direct negotiations 2. Did not take any action 22. NGO 3. Father’s family 14. Public Prosecutor 23. Hoqooq department 4. Spouse’s family 15. State courts 24. Clinic – health centre 5. Other party’s family 16. Local Militia 25. DoWA 6. Friends 17. Taliban 26. Human Rights Commission 7. Elders or local Shura/Jirga 18. Local commandant 27. Other (specify) 8. Tribal leader/Malik 19. Lawyer office 28. EVAW Prosecution Unit 9. Mullah 20. Legal aid office 29. Family Response Unit (within police) 10. Elder woman – white hairs (mui-e-safed) 21. Paralegal 30. Family Court /Women Shura 11. District Governor 12. Provincial Governor 13. Police HYPOTHETICAL 1: Female Respondent: You are severely beaten and injured by your husband for no reason. He does not stop, even if you ask him to stop. Male Respondent: A female relative is severely beaten and injured by her husband for no reason. He does not stop, even if you ask him to stop. 49 To whom would you first request assistance to resolve this dispute? Enumerator: Allow respondent to answer and then use code for dispute resolution actors. Enumerator: If respondent answers “2. Not do anything”, go to 50. For all others, skip to 51 50 Why would you not take any action? DO NOT PROMPT – One answer 1. Not important enough 2. It is not my role to take action 7. It costs too much 3. It makes no difference. I have no chance of winning 8. Person who could assist is too far away 4. Danger or fear of retaliation 9. It would create problems for my family 5. Lack of evidence 10. It would damage relations with other party 6. Did not know what to do or who to go to 11. Cannot travel by myself 12. Other, please specify HYPOTHETICAL 2: Female respondent: Your father has passed away. You inherited a piece of land that you want to retain as yours. Your brothers will not let you have it. Male respondent: Your wife’s father has passed away. She inherited a piece of land that she wants to retain. Her brothers will not let her have it. 51 To whom would you first request assistance to resolve this dispute? Enumerator: Allow respondent to answer and then use code for dispute resolution actors. Enumerator: If respondent answers “2. Not do anything”, go to 52. For all others, skip to 53 52 Why would you not take any action? DO NOT PROMPT – One answer 1. Not important enough 8. Person who could assist is too far away 2. It is not my role to take action 9. It would create problems for my family 3. It makes no difference. I have no chance of winning 10. It would damage relations with other party 4. Danger or fear of retaliation 11. Cannot travel by myself 5. Lack of evidence 12. My brothers will take care of me in return 6. Did not know what to do or who to go to 13. Other, please specify 7. It costs too much HYPOTHETICAL 3: The land you (your household) have been cultivating for the past 10 years is claimed by a relative of your neighbor who just returned to the country after a long absence. 53 To whom would you first request assistance to resolve this dispute? Enumerator: Allow respondent to answer and then use code for dispute resolution actors. Enumerator: If respondent answers “2. Not do anything”, go to 54. For all others, skip to 55 54 Why would you not take any action? DO NOT PROMPT – One answer 1. Not important enough 2. It is not my role to take action 3. It makes no difference. I have no chance of winning 4. Danger or fear of retaliation 7. It costs too much 5. Lack of evidence 8. Person who could assist is too far away 6. Did not know what to do or who to go to 9. It would create problems for my family 10. It would damage relations with other party 11. Cannot travel by myself 12. Other, please specify HYPOTHETICAL 4: A woman is not happy in her marriage – where should she report this issue? 55 To whom should she first request assistance to resolve this issue? Enumerator: Allow respondent to answer and then use code for dispute resolution actors. Enumerator: If respondent answers 2. Not do anything”, go to 56 For all others, skip to 57 56 Why shouldn’t she take any action? DO NOT PROMPT – One answer 1. Not important enough 2. It is not her role to take action 7. It costs too much 3. It makes no difference. She has no chance of winning 8. Person who could assist is too far away 4. Danger or fear of retaliation 9. It would create problems for her family 5. Lack of evidence 10. It would damage relations with other party 6. Does not know what to do or who to go to 11. Cannot travel by herself 12. It is a shameful thing to do 13. Other, please specify HYPOTHETICAL 5: A relative of yours wants to give his 10-year old daughter in marriage against her will. 57 To whom would you first report this issue? Enumerator: Allow respondent to answer and then use code for dispute resolution actors. Enumerator: If respondent answers “2 Not do anything”, go to 58 For all others, skip to 59 58 Why would you not take any action? DO NOT PROMPT – One answer 1. Not important enough 7. It costs too much 2. It is not my role to intervene 8. Person who could assist is too far away 3. It makes no difference. I have no chance of winning 9. It would create problems for my family 4. Danger or fear of retaliation 10. It would damage relations with other party 5. Lack of evidence 11. Cannot travel by myself 6. Did not know what to do or who to go to 12. Other, please specify PREVALENCE QUESTIONS 59. Can you tell me how many of the following four statements you regard as true? PROMPT A. At least one member of my household plans to open a new business in the next five years. B. The economic situation of my household has improved considerably since last year. C. The country is moving in the right direction. D. A woman in my household was prevented from inheriting her portion of land by her relatives. WRITE NUMBER 60. Can you tell me how many of the following statements you regard as true? PROMPT A. Corruption in my country is a less serious problem than five years ago. B. A man in my household married the wife of his brother after the death of his brother. C. The quality of the diet in my household has improved since last year. D. The employment opportunities got worse in my area in the last year. WRITE NUMBER SECTION 3a. DISPUTES – All Respondents 61. 62 63. C Disputes Have people in your Where was the first place they went to try to resolve the dispute? Was the O village experienced DO NOT PROMPT – One answer dispute D any disputes related CODE FOR DISPUTE RESOLUTION resolved? E to [DISPUTE] in last 5 1. Direct negotiations 15. State courts years? 2. Did not take any action 16. Local Militia 3. Father’s family 17. Taliban 1. Yes 1.YES GO TO Q. 62 4. Spouse’s family 18. Local commandant 2. No 2.NO GO TO NEXT 5. Other party’s family 19. Lawyer office 3. It is still ROW 6. Friends 20. Legal aid office ongoing 7. Elders or local Shura/Jirga 21. Paralegal 4. I don’t 8. Tribal leader/Malik 22. NGO know 9. Mullah 23. Hoqooq department 10. Elder woman – white hairs 24. Clinic – health centre (mui-e-safed) / Women 25. DoWA Shura 26. Human Rights Commission 11. District Governor 27. Other (specify) 12. Provincial Governor 28. EVAW Prosecution Unit 13. Police 29. Family Response Unit (within 14. Public Prosecutor police) 30. Family Court A Land B Water C Other property disputes D Business, employment-related issues E Inheritance F Mahr G Forced/Early marriage H Disobedience I Divorce J Child Custody K Domestic Violence L Theft M Physical assault N Sexual violence 64 65 66 67 68 69 C Disputes/Issues Have members of What is the person How many Who was the dispute with? Where was the Was the O your household ID of this disputes DO NOT PROMPT – Multiple first place they dispute D experienced household related to ANSWERS went to try to resolved? E disputes related member in the [DISPUTE] has 1. Family member living in resolve the to [DISPUTE] in roster? your household dispute? last 5 years? household 2. Other relative REFER TO 1. Yes 1.Yes GO TO Q.65 experienced 3. Neighbour LIST OF 2. No 2.No GO TO NEXT PERSON ID in the last 5 4. Other individual in village INSTITUTIONS 3. It is still ROW FROM years? 5. Individual in other village (Q.62) ongoing ROSTER 1. NUMBER 6. Group in village OF 7. Group in other village DISPUTES 8. Company 2. Not 9. Government official applicable 10. Government 11. Other A Land B Water C Other property disputes D Business-related issues E Inheritance F Mahr G Forced/Early marriage H Disobedience I Divorce J Child Custody K Domestic Violence L Theft M Physical assault N Sexual violence SECTION 3b – DISPUTES (ALL RESPONDENTS) 70. Did you personally experience any dispute related to the following issues PROMPT – MULTIPLE ANSWERS or did you take care personally of a dispute for a member of your family? 10. Child custody 1. Land 11. Domestic violence 2. Water 12. Theft 3. Other property dispute 13. Physical assault 4. Business, employment-related issues 14. Sexual violence 5. Inheritance 15. Other 6. Mahr 16. I did not experience any dispute at all nor had I to handle the dispute of a 7. Forced/Early marriage member of my household SKIP TO Q. 101 8. Disobedience 9. Divorce We would like to talk about the most important dispute that you faced Was this dispute personally experienced by you or did you take care of it for a 1. It was my own dispute 71 member of your family 2. It was a dispute concerning one of my relatives but I took care of it – PROMPT – ONE ANSWER (SPECIFY relatives): ____________________________________ When the dispute arose, did you try to negotiate directly with other party? 72 1. Yes 2. No 73 When the dispute arose, or after direct negotiations, who did you turn to resolve it? DO NOT PROMPT – ONE ANSWER 1. It was resolved through direct negotiations SKIP TO Q. 101 2. Did not take any action 15. State courts SKIP TO Q. 75 3. Father’s family SKIP TO Q. 75 16. Local Militia SKIP TO Q. 75 4. Spouse’s family SKIP TO Q. 75 17. Taliban SKIP TO Q. 75 5. Other party’s family SKIP TO Q. 75 18. Local commandant SKIP TO Q. 75 6. Friends SKIP TO Q. 75 19. Lawyer office SKIP TO Q. 75 7. Elders or local Shura/Jirga SKIP TO Q. 75 20. Legal aid office SKIP TO Q. 75 8. Tribal leader/Malik SKIP TO Q. 75 21. Paralegal SKIP TO Q. 75 9. Mullah SKIP TO Q. 75 22. NGO SKIP TO Q. 75 10. Elder woman – white hairs (mui-e-safed) /Women Shura SKIP TO Q. 75 23. Hoqooq department SKIP TO Q. 75 11. District Governor SKIP TO Q. 75 24. Clinic – health centre SKIP TO Q. 75 12. Provincial Governor SKIP TO Q. 75 25. DoWA SKIP TO Q. 75 13. Police SKIP TO Q. 75 26. Human Rights Commission SKIP TO Q. 75 14. Public Prosecutor SKIP TO Q. 75 27. Other (specify) SKIP TO Q. 75 28. EVAW Prosecution Unit SKIP TO Q. 75 29. Family Response Unit (within police) SKIP TO Q. 75 30. Family Court SKIP TO Q. 75 Why did you not take any action? DO NOT PROMPT – Multiple Answers MEN - THEN GO Q.101 WOMEN – CONTINUE TO Q.74 b 1. Not important enough 7. Too far – Not accessible 74 2. It made no difference, I had no chance of winning 8. Did not have time to take care of this 3. Danger or fear of retaliation 9. No one to assist me 4. Lack of evidence 10. It would create problems for my family 5. Did not know what to do or who to go to 11. I would create problems with my family 6. Too expensive 12. Other (specify) 13. I cannot afford to pay the zamanat. 12. 14. There are no female police officers 74 b FOR WOMEN ONLY: 1. Yes Would you have reported the issue to the police if female police officers were available to interview 2. No you? THEN GO Q.101 Why did you choose this person/place to address your dispute? 75 DO NOT PROMPT – Multiple answers 1. It was free/cheap 9. They have authority or responsibility to deal with this type of 2. It was easy to access issues 3. I was confident it would not take too much time 10. It would cause least disruption to life 4. I was confident they would address the issue fairly 11. This is what people do in my community 5. This person/institution has community respect 12. Advice from my family 6. This person/institution has skills/Knowledge 13. Advice from relatives, friends, neighbours 7. I was confident that they will resolve this dispute 14. Other (Specify) 8. I was confident that they will resolve this in my favour 15. I don’t know Who assisted you in filing or reporting? DO NOT PROMPT – ONE ANSWER 1. It was resolved through direct negotiations 2. No one 15. State courts 3. Father’s family 16. Local Militia 4. Spouse’s family 17. Taliban 5. Other party’s family 18. Local commandant 6. Friends 19. Lawyer office 7. Elders or local Shura/Jirga 20. Legal aid office 76 8. Tribal leader/Malik 21. Paralegal 9. Mullah 22. NGO 10. Elder woman – white hairs (mui-e-safed) /Women Shura 23. Hoqooq department 11. District Governor 24. Clinic – health centre 12. Provincial Governor 25. DoWA 13. Police 26. Human Rights Commission 14. Public Prosecutor 27. Other (specify) 28. EVAW Prosecution Unit 29. Family Response Unit (within police) 30. Family Court 76.b Has the necessity to pay the zamanat – prevented your case to be solved? 1. Yes DO NOT PROMPT – ONE ANSWER 2. No 3. I don’t know what the zamanat is 4. Other (specify) We would like to know about the different stages that your dispute went through A B C 77 To whom/which institution the First person to whom the dispute Second person to whom the Third person to whom the dispute was taken dispute was taken ? was taken dispute was taken Enumerator: : Use code from Institution List Specify for each stage Enumerator: Use code from Enumerator: : Use code from 1. CODE – INSTITUTION/PERSON Institution List Institution List 1. CODE – 1. CODE – INSTITUTION/PERSON I 2. NONE, SKIP COLUMN C TO Q. 94 N STITUTION/PERSON 2. NONE, SKIP COLUMNS B & C TO Q. 94 78 Did you have the opportunity to 1. YES 1. YES 1. YES state their opinion at this stage of 2. NO 2. NO 2. NO the process? 79 Did you attend personally the 1. YES 1. YES 1. YES proceeding/discussion at this stage 2. NO 2. NO 2. NO of the process? 80 How satisfied are you with the 1. Very satisfied 1. Very satisfied 1. Very satisfied amount of respect you were given 2. Satisfied 2. Satisfied 2. Satisfied by the person to whom the dispute 3. Neither satisfied nor dissatisfied 3. Neither satisfied nor 3. Neither satisfied nor dissatisfied was taken? 4. Dissatisfied dissatisfied 4. Dissatisfied PROMPT – ONE ANSWER 5. Very dissatisfied 4. Dissatisfied 5. Very dissatisfied 5. Very dissatisfied 81 Did you feel that the person who 1.Very much 1.Very much 1.Very much dealt with your case at this stage 2. Much 2. Much 2. Much was impartial and objective? 3. Neutral 3. Neutral 3. Neutral PROMPT – ONE ANSWER 4. Not really 4. Not really 4. Not really 5. Not at all 5. Not at all 5. Not at all 82 How long did this first/second/third stage of the days days days process take? 83 How much money did it cost, if any? (In AFG) ___________ AFG ___________ AFG ___________ AFG Enumerator: If nothing, write 00 84 Did you have a legal representative 1. Yes 1. Yes 1. Yes at this stage of the process? 2. No 2. No 2. No 85 If this problem occurred again, 1. YES 1. YES 1. YES would you report to the same 2. NO SKIP TO Q. 87 2. NO SKIP TO Q. 87 2. NO SKIP TO Q. 87 person/institution? 3. DON’T KNOW SKIP TO Q. 88 3. DON’T KNOW SKIP TO Q. 88 3. DON’T KNOW SKIP TO Q. 88 86 If YES, why? 1. It was cheap 1. It was cheap 1. It was cheap MULTIPLE ANSWERS – DO NOT 2. It went fast 2. It went fast 2. It went fast PROMPT 3. It was simple 3. It was simple 3. It was simple 4. It was efficient 4. It was efficient 4. It was efficient 5. It was safe 5. It was safe 5. It was safe 6. My voice was heard 6. My voice was heard 6. My voice was heard 7. It was impartial/fair 7. It was impartial/fair 7. It was impartial/fair 8. It was discreet 8. It was discreet 8. It was discreet 9. It minimised 9. It minimised 9. It minimised consequences on my consequences on my consequences on my family family family 10. It was halal 10. It was halal 10. It was halal 11. Other 11. Other 11. Other 87 If NO, why not? 1. It was expensive 1. It was expensive 1. It was expensive MULTIPLE ANSWERS – DO NOT 2. It was long 2. It was long 2. It was long PROMPT 3. It was inefficient 3. It was inefficient 3. It was inefficient 4. It was complicated 4. It was unsafe 4. It was unsafe 5. It was unsafe 5. It was complicated 5. It was complicated 6. My voice was not heard 6. My voice was not heard 6. My voice was not heard 7. It was partial/unfair 7. It was partial/unfair 7. It was partial/unfair 8. It was not discreet 8. It was not discreet 8. It was not discreet 9. It had a lot of 9. It had a lot of 9. It had a lot of consequences on my consequences on my consequences on my family family family 10. It was haram 10. It was haram 10. It was haram 11. Other 11. Other 11. Other 88 From the following list, chose the 1. Angry 1. Angry 1. Angry adjective that describes the best 2. Ashamed/ Humiliated 2. Ashamed/ Humiliated 2. Ashamed/ Humiliated how you felt at each stage of the 3. Resentful 3. Resentful 3. Resentful process? 4. Dissatisfied/Disappointed 4. Dissatisfied/Disappointed 4. Dissatisfied/Disappointed PROMPT- ONE ANSWER 5. Satisfied 5. Satisfied 5. Satisfied 6. Relieved 6. Relieved 6. Relieved 7. Proud 7. Proud 7. Proud 8. Happy 8. Happy 8. Happy 89 How did the community react to 1. Very negatively 1. Very negatively 1. Very negatively your decision to take your dispute 2. Negatively 2. Negatively 2. Negatively to this person/institution? 3. Indifferent 3. Indifferent 3. Indifferent PROMPT- ONE ANSWER 4. Positively 4. Positively 4. Positively 5. Very positively 5. Very positively 5. Very positively 90 Was this dispute resolved during 1. YES SKIP TO Q.94 1. YES SKIP TO Q. 94 1. YES SKIP TO Q.94 this stage of the process? 2. NO 2. NO 2. NO 91 Did you take the dispute to another 1. YES GO TO COLUMN B 1. YES GO TO COLUMN C 1. YES person to solve this problem? 2. NO 2. NO 2. NO 92 In the end, did you manage to solve 1. 1. No, it is ongoing GO TO Q.98 1. 1. No, it is ongoing GO TO 1.YES CONTINUE TO 93 this problem? 2. No, it remains unsolved Q.98 2. No, it is ongoing GO TO Q. 98 GO TO Q.98 2. No, it remains unsolved 3. No, it remains unsolved GO TO Q. 98 GO TO Q.98 93 With whose help did you eventually 1. It was resolved through direct solve this problem? negotiations DO NOT PROMPT- ONE ANSWER 2. Did not take any action 3. Father’s family 4. Spouse’s family 5. Other party’s family 6. Friends 7. Elders or local Shura/Jirga 8. Tribal leader/Malik 9. Mullah 10. Elder woman – white hairs (mui-e- safed) /Women Shura 11. District Governor 12. Provincial Governor 13. Police 14. Public Prosecutor 15. State courts 16. Local Militia 17. Taliban 18. Local commandant 19. Lawyer office 20. Legal aid office 21. Paralegal 22. NGO 23. Hoqooq department 24. Clinic – health centre 25. DoWA 26. Human Rights Commission 27. Other (specify) 28. EVAW Prosecution Unit 29. Family Response Unit (within police) 30. Family Court 94 Were you satisfied with the final decision 1. YES 2. NO 95 Do you feel that decision was in your favor? 1. YES 2. NO 3. SPLIT DECISION 96 Was the decision enforced? 1. YES 2. NO 97 If you were awarded compensation, have you collected it? 1. No, I have not collected it 2. Yes, I have collected the full compensation awarded 3. Yes, I have partly collected the compensation awarded 4. Not applicable 98 IF YOUR CASE WENT THROUGH STATE COURTS please indicate your level of satisfaction for each of the following where 1=very dissatisfied, 2= satisfied; 3= neutral; 4=satisfied; 5=very satisfied and 6=not applicable – If you have not engaged with state courts SKIP to Q.99 1. The court’s opening times 1 2 3 4 5 6 2. Easily identifiable and available staff to deal with queries 1 2 3 4 5 6 3. Time waited before the court or staff dealt with your case 1 2 3 4 5 6 4. Information regarding court procedures and facilities 1 2 3 4 5 6 5. The forms you needed being clear and easy to understand 1 2 3 4 5 6 6. Privacy 1 2 3 4 5 6 7. Justice fees 1 2 3 4 5 6 8. Safety in courts 1 2 3 4 5 6 99 IF YOUR CASE WENT THROUGH A JIRGA/SHURA, please indicate your level of satisfaction for each of the following where 1=very dissatisfied, , 2= satisfied; 3= neutral; 4=satisfied; 5=very satisfied and 6=not applicable – If you have not engaged with Jirga/shura SKIP to Q.100 1. Time waited before the Jirga/shura dealt with your case 1 2 3 4 5 6 2. Information regarding jirga’s procedures 1 2 3 4 5 6 3. Privacy 1 2 3 4 5 6 4. Justice fees 1 2 3 4 5 6 5. Safety in courts 1 2 3 4 5 6 100 IF YOUR CASE WENT THROUGH A TALIBAN COURT, please indicate your level of satisfaction for each of the following where 1=very dissatisfied, , 2= satisfied; 3= neutral; 4=satisfied; 5=very satisfied and 6=not applicable – If you have not engaged with Taliban courts – SKIP TO Q. 101 1. Time waited before the Taliban court dealt with your case 1 2 3 4 5 6 2. Information regarding Taliban court’s procedures 1 2 3 4 5 6 3. Privacy 1 2 3 4 5 6 4. Justice fees 1 2 3 4 5 6 5. Safety in courts 1 2 3 4 5 6 Which of the following does your household own? Prompt: Multiple answers 1. House: number of rooms…./number of houses if multiple …. 9. VRC/DVD 16. Tractor 2. Land (cultivable/non cultivable): number of jerib ______ 10. Mobile phone 17. Thresher 3. Refrigerator 11. Landline phone 18. Jewelry 101 4. Stove/gas balloon 12. Computer (working) 19. Carpets (Khalin) 5. Sewing machine 13. Bicycle 20. Gilim, satrangi, namad, fash 6. Iron 14. Motorcycle 21. Blankets 7. Radio 15. Car 22. Kitchen utensils (dishes, pots and pans) 8. TV 23. None of the above How many of the following animals does your household own today? A. Cattle (Meat and dairy) B. Oxen, yaks C. Horses D. Donkeys 102 E. Camels F. Goats G. Sheep H. Chicken I. Turkeys, ducks, geese 103. How long does it take to get to this [FACILITY] walking? 1. Less than 15 minutes 2. Between 15 to 30 minutes 3. Between 30 minutes and 1 hour FACILITIES 4. More than one hour 999. No access A. Boys’ primary school B. Girls’ primary school C. Market D. Health Center E. Police station F. Government office G. Hoqooq H. Local courts 104 105 106 107 108 109 110 What is the major What is the major What is the major What is the What is the What is your Which main toilet construction material of construction material construction material household’s household’s main household’s main source facility does your the exterior walls of of the roof of of the floor of dwelling, main source of source of cooking of drinking water? household use? dwelling, in the main dwelling, in the main in the main living area lighting? fuel? PROMPT- ONE ANSWER PROMPT- ONE living area of the family? living area of the of the family? PROMPT- ONE PROMPT- ONE 1. Open public well, ANSWER PROMPT- ONE ANSWER family? PROMPT- ONE ANSWER ANSWER 2. Open well in 1. Fired brick/stone PROMPT- ONE ANSWER 1. None 1. Animal dung compound 1. None (open 2. Concrete ANSWER 1. Dirt/earth 2. Oil lamp 2. Bushes, twigs, 3 Public hand pump field, bush) or 3. Wood 1. Asphalt tiles 2. Concrete/tile 3. Candles branches 4 Hand pump in Sahrahi 4. Mud bricks/mud 2. Concrete 3. Wood 4. Electricity 3. Crop residues compound 2. Dearan (area 5. Tin/metal 3. Wood 4. Other from grid 4. Firewood 5. Bored wells inside or 6. Prefabricated 4. Tin/metal 5. Generator 5. Charcoal/coal 6. Unprotected spring outside 7. Other 5. Bricks 6. Battery 6. Kerosene or oil 7. Protected spring compound but 6. Other 7. Gas 7. Gas 8. Pipe scheme not pit) 8. Firewood 8. Electricity 9. Piped municipal, 3. Open pit 9. Other 9. Scavenged 10.River, lake, channel, 4. Traditional material/trash 11.Drainage, covered 10. Other 12.Bowser/water tanker latrine 13.Bottled 5. Improved water/mineral water latrine 14. Other 6. Flush latrine 7. Other, Does any member of your household take part in one of the following? PROMPT - MULTIPLE ANSWERS .LIST HOUSEHOLD MEMBERS’ PERSON ID CODES FROM ROSTER 1. Agricultural association or cooperative 7. Political Party 111 2. Health management committee 8. Youth/Student association 3. School management committee 9. Religious association 4. Community Development Council (CDC) 10. Trade unions/Professional organization 5. Justice Shura/Jirga 11. NGO/Civil Society Organization 6.Sports association 12. Water use association How often do you have access to the following items? A Radio PROMPT – ONE ANSWER PER LINE B TV 1. Never C Newspaper 2. Less than once every month D Mobile phone 112 3. At least once a month E Land telephone 4. At least once a week F Internet 5. Every day G Imam’s preaching 6. All the time END OF THE INTERVIEW 113. ENUMERATOR, PLEASE IDENTIFY RESPONDENT’S ID CODE FROM HOUSEHOLD ROSTER 2) Justice Service Providers Questionnaire – Judges WB – Gender & Justice Study Questionnaire – Justice Service Providers JUDGES Hello. My name is ____________________. I would be grateful if you could spend some time answering my questions. We are conducting a research for the World Bank, the Ministry of Justice, the Supreme Court and the Attorney General Office. The objective of this research is to help us better identify and understand the challenges that Afghan men and women encounter when trying to access justice. This interview is anonymous and your name will not be mentioned in any report or document. You are not obliged to answer any question, and you can stop at any moment you want. I thank you for accepting to help me. Do you want to ask me anything about the interview before you decide to participate? Questionnaire Number N°. Questions Answers A. Interviewer Name 1. …… …… June 2013 B. Date of interview 2. …… …… July 2013 1. Kabul (1) 2. Bamyan (10) 3. Nangarhar (6) Province Name & 4. Herat (32) C. Code 5. Logar (5) Name: Code D. District Name & Code …………………………. Name of village (if rural) / neighbourhood E. (nahie if urban) …………………………. 3. Urban F. Type of location 4. Rural 1. Central Primary Court 2. District Primary Court G. Institution 3. Appeal Court 1) Civil Court (specify Dewan) Specialization: court/ 2) Special Court (specify) H. Dewan within court 3) Criminal Court (specify Dewan, if any) SECTION 1: INDIVIDUAL PROFILE 1. Age ………… year old 1. Male 2. Gender 2. Female 1. No school 6. Teacher college 2. Primary School 7. University degree Highest level of education completed 3. 3. Secondary School 8. Post-grad DO NOT PROMPT – One Answer 4. Madrassa 9. Other: 5. High School 1. Degree from the Faculty of Law and Political Science Details on university degree held (if 2. Degree from the Faculty of Shari’a 4. applicable) 3. Other:………………… DO NOT PROMPT – One Answer 4. Not applicable Obtained at (type of faculty; city; 5. country) ……………………………………………………………………………………. 6. Degree completed in (year) …………………. Details on professional training 7. received (source; year) 1. Less than 3 months 2. 3 to 6 months (less than 6 months) For how long have you been a judge? 3. Between 6 months and a year (less than a year) 8. 4. 1 to 2 years DO NOT PROMPT – One Answer 5. 2 to 5 years 6. More than 5 years SECTION 2: ACCESS Over the last 6 months, how many civil 1. ________ If “0” SKIP TO 16 9 cases did you have on your docket? 2. Not applicable SKIP TO Q. 16 1. Land 2. Inheritance Of these, what types were most common? 3. Divorce 10. DO NOT PROMPT – Multiple Answers 4. Child custody 5. Alimony 1. other (Specify) Over the last 6 months, what percentage 1. ______ % If “0” SKIP TO 16 11 of civil cases on your docket would you 2. I don’t know say involved women? 3. Not applicable 1. Land 2. Inheritance Of these, what were the most common? 3. Divorce 12 DO NOT PROMPT – Multiple Answers 4. Child custody 5. Alimony 6. other (Specify) Over the last 6 months, what percentage 1. ________ If “0” SKIP TO 15 13 of civil cases on your docket would you 2. I don’t know say involved women as plaintiffs? 1. Land Of the cases involving women as 2. Inheritance 3. Divorce 14 plaintiffs, what types are most common? 4. Child custody DO NOT PROMPT – Multiple Answers 5. Alimony 6. other (Specify) Of the civil cases involving women as 1. Land 2. Inheritance 15 defendant , what types are most common? 3. Divorce DO NOT PROMPT – Multiple Answers 4. Child custody 5. Alimony 6. other (Specify) Over the last 6 months, how many 1. ________ If “0” SKIP TO 22 16 criminal cases did you have on your 2. Not applicable SKIP TO Q. 22 docket? 1. Domestic violence 2. Theft 3. Murder 4. Sexual assault/rape Of these, what types were most common? 5. Zina 17 DO NOT PROMPT – Multiple Answers 6. Non domestic violence 7. Running away 8. Forced/early marriage 9. Other (specify) 10. I don’t know Over the last 6 months, how many criminal cases 18 on your docket involved a woman as a victim? 1. .... If “0” SKIP TO 20 2. I don’t know 1. Domestic violence 2. Theft 3. Murder Of these cases involving women as victims, what 4. Sexual assault/rape 5. Zina 19 types are most common? 6. Non domestic violence DO NOT PROMPT – Multiple Answers 7. Running away 8. Forced/early marriage 9. Other (specify) 10. I don’t know Approximately how many of the criminal cases on 1. _____ If “0” SKIP TO 22 20 your docket in the past 6 months involved women 2. I don’t know as perpetrators? 1. Domestic violence 2. Theft 3. Murder Of these cases involving women as perpetrators, 4. Sexual assault/rape 5. Zina 21 what types are most common? 6. Non domestic violence DO NOT PROMPT – Multiple Answers 7. Running away 8. Forced/early marriage 9. Other (specify) 10. I don’t know 1. Non existent 2. Very low What level of awareness do you think women 3. Low 22 have of their inheritance rights? 4. Average PROMPT: One Answer 5. High 6. Very high 7. Other (specify) 1. Non existent What level of awareness do you think women 2. Very low have of their rights related to marriage and 3. Low 23 divorce? 4. Average PROMPT: One Answer 5. High 6. Very high 7. Other (specify) 1. Non existent 2. Very low What level of awareness do you think women 3. Low have of their rights according to the Elimination of 4. Average 24 Violence Against Women (EVAW) law? 5. High PROMPT: One Answer 6. Very high 7. I don’t know about the EVAW law 8. Other (specify) Do you think women are aware of the procedures 1. Yes and institutions which can help/ decide about 25 their claims? 2. No 3. Other (specify) 1. None What set of rules do women know the best? 2. Customs PROMPT: Multiple Answers 26 3. Shari’a 4. State law 5. I don’t know To your knowledge do women seek legal 1. Yes information and/or assistance before they pursue 27 their rights in court? 2. No 3. I don’t know 1. Radio, TV, media 2. Family 3. Other women What is women’s most frequent source of legal 4. NGO, information? 5. Private attorneys, 28 PROMPT: Multiple Answers 6. MoJ’s legal aid office, 7. hoqooq; 8. Other sources 9. I don’t know 10. None 1. Yes Can women find relevant information about 29 procedures, laws and rules in your court? 2. No 3. I don’t know Do you provide any form of assistance to women 1. Yes 30 who appear to be ill informed and/or are for 2. No different reason unable to defend their rights? What do you normally do in such situations to help women? 31 OPEN QUESTION What would you say are the main barriers that women face when seeking to access justice through the formal (state) system? DO NOT PROMPT (Record up to 3 answers by order of importance) 1. Inability to travel 2. Inability to leave their home 1st 3. Costs 32 4. Time constraints 5. Illiteracy 6. The court is too far 2nd 7. Insecurity on the road 8. A lack of familiarity with laws and rights 9. Lack of access to a lawyer 3rd 10. Complexity of procedures 11. Fear of being chastised by the community for taking a case to the formal system of justice 12. Attitudes of police unwilling to pursue cases 13. Incompetence of officials 14. Absence of accessible justice institutions 15. Corruption 16. Other: (specify) Add any additional remarks: What would you say are the main barriers that men face when seeking to access justice through the formal (state) system? DO NOT PROMPT (Record up to 3 answers by order of importance) 1. Inability to travel 2. Inability to leave their home 3. Costs of legal procedures 1st 4. Time constraints 5. Illiteracy 6. The court is too far 7. Insecurity on the road 2nd 8. A lack of familiarity with laws and their rights 33 9. Lack of access to a lawyer 10. Complexity of procedures 11. Fear of being chastised by the community for taking a case to 3rd the formal system of justice 12. Attitudes of police unwilling to pursue cases 13. Incompetence of officials 14. Absence of accessible justice institutions 15. Corruption 16. Other: (specify) Add any additional remarks: Do you think women face higher 1. Yes 34 barriers than men when trying to 2. No access justice? In your opinion, what could be done to improve women’s access to 35 justice? Open question SECTION 3: PROCESS Is it common for women to come 1. Yes SKIP TO Q. 38 36 personally to court? 2. No 1. Family member If women do not come to court 2. Friend personally, who comes in their place 3. Community member 37 most often? 4. Lawyer DO NOT PROMPT: Multiple Answers 5. Legal Aid 6. Other (Specify) Is it common for men to come 1. Yes SKIP TO Q. 40 38 2. No personally to court? 1. Family member If men do not come to court 2. Friend personally, who comes in their place 3. Community member 39 most often? 4. Lawyer DO NOT PROMPT: Multiple Answers 5. Legal Aid 6. Other (Specify) 1. Never How often would you say women 2. Sometimes 40 plaintiffs have legal representation in 3. In about half cases court? 4. Most of the time PROMPT: One Answer 5. Always 1. Never How often would you say men 2. Sometimes 41 plaintiffs have legal representation in 3. In about half cases court? 4. Most of the time PROMPT: One Answer 5. Always 1. Never 2. Sometimes How often would you say women 3. In about half cases 42 defendants have legal representation 4. Most of the time in criminal procedures? 5. Always PROMPT: One Answer 6. Not applicable 1. Never How often would you say men 2. Sometimes defendants have legal representation 3. About half the time 43 in criminal procedures? 4. Often PROMPT: One Answer 5. All the time 6. Not applicable 1. Never 2. Sometimes How often would you say women 3. In about half cases 44 defendants have legal representation 4. Most of the time in civil procedures? 5. Always PROMPT: One Answer 7. Not applicable 1. Never How often would you say men 2. Sometimes 45 defendants have legal representation 3. About half the time in civil procedures? 4. Often PROMPT: One Answer 5. All the time 6. Not applicable 1. It never happens To your knowledge, how common is 2. It happen rarely 46 it for women to need legal aid 3. It happens in about half cases lawyers in civil procedures? 4. It happens often PROMPT: One Answer 5. It happens all the time When they need it, is legal aid 1. No, it is usually not available 47 usually available? 2. Yes, it is usually available In general, who provides legal aid to 1. The Legal Aid Department of the MoJ women who need it in civil 2. National NGOs 48 procedures? 3. International NGOs PROMPT: One Answer 4. Other (specify) 5. I don’t know 1. The Legal Aid Department of the MoJ 2. National NGOs OTHER ANSWERS (MULTIPLE 3. International NGOs 48A ANSWERS: YES OR NO)i 4. Other (specify) 5. I don’t know 6. Department of Women Affairs (DOWA) How do you judge the quality of the legal aid women receive in civil 49 procedures? Open question 1. It never happens SKIP TO Q.54 To your knowledge, how common is 2. It happen rarely 50 it for women to need legal aid 3. It happens in about half cases lawyers in criminal procedures? 4. It happens often PROMPT: One Answer 5. It happens all the time When they need it, is legal aid 1. No, it is usually not available 51 usually available? 2. Yes, it is usually available In general, who provides legal aid to 1. The Legal Aid Department of the MoJ women who need it in criminal 2. National NGOs 52 procedures? 3. International NGOs PROMPT: One Answer- MAIN PROVIDER 4. Other (specify) 5. I don’t know 1. The Legal Aid Department of the MoJ 2. National NGOs OTHER ANSWERS (MULTIPLE 3. International NGOs 52A ANSWERS: YES OR NO)ii 4. Other (specify) 5. I don’t know 6. Department of Women Affairs (DOWA) How do you judge the quality of the legal aid women receive in criminal 53 procedures? Open question 1. Yes, always During the trial, are parties or their 2. Yes, most of the time 54 lawyers always allowed to present 3. Sometimes their arguments and evidence? 4. No, most of the time they are not PROMPT: One Answer 5. No, never 1 Non existent What level of awareness witnesses 2 Very low 3 Low 55 have of their role, rights and 4 Average obligations? 5 High PROMPT: One Answer 6 Very high Is there any kind of assistance 1. Yes 56 available to witnesses to explain 2. No their role, rights and obligations? 3. I don’t know 1. Yes, a woman can stand before court on her own 2. No, a woman can stand before court only if she is accompanied by a Can a married woman stand before mahram 57 your court without a mahram? 3. No, a woman cannot stand before a DO NOT PROMPT: One Answer court 4. Other (specify): ………………………………………………………… ………………………………………………………… 5. I don’t know 1. Never SKIP TO Q. 62 How often do you refer cases to other 2. Rarely (once or twice a year) institutions (prior to taking 3. Sometimes (once or twice a month) 58 decision)? 4. Often (once or twice a week) DO NOT PROMPT: One Answer – 5. Very frequently (on a daily basis) 6. I don’t know 1. Other court 2. hoqooq; To which institution do you refer 3. prosecutor, 59 them most often? 4. Jirga/shura; 5. malik; 6. Other 1. Land issues 8. Non domestic 2. Mahr violence Which kind of cases do you refer 3. Inheritance 9. Murder 4. Divorce 10. Forced/early most often? 60 5. Domestic violence marriage DO NOT PROMPT – Multiple 6. Sexual 11. Zina Answers harassment/rape 12. Running away 7. Theft 13. Other (specify) 14. I don’t know What are the reasons you refer cases 1. They are competent 61 to such institutions? 2. They are better equipped to deal with DO NOT PROMPT – Multiple Answers the case 3. We have too many cases 4. Other (Specify) 1. Never SKIP TO Q. 64 How often do you refer cases back to 2. Rarely (once or twice a year) the traditional justice mechanisms 3. Sometimes (once or twice a month) 62 (jirgas, shuras)? 4. Often (once or twice a week) DO NOT PROMPT: One Answer 5. Very frequently (on a daily basis) 6. I don’t know 1. Civil and Family cases: (specify):………………………………………… ……………………………………………………… ……. 2. Criminal cases Which type of cases do you typically 3. Commercial cases 63 refer to jirgas/shuras? 4. Traffic violations DO NOT PROMPT: Multiple Answers 5. Juvenile cases 6. Other (specify):………………………………………… ……………………………………………………… ……. 7. I don’t know 1. Land 2. Inheritance Which cases involving women you 3. Divorce refer to other institutions most often? 4. Child custody 64 DO NOT PROMPT – Multiple Answers 5. Alimony 6. Criminal cases 7. Traffic violations 8. Other (Specify) 1. Family Court 2. Juvenile Court To which institutions do you mostly 3. Women Protection Centres /Shelters 65 refer cases involving women? 4. Jirga/Shura DO NOT PROMPT – Multiple Answers 5. Hoqooq department 6. Other (Specify) 66 Are cases involving women referred 1. Yes to other institutions more often than 2. No those involving other litigants? 3. I don’t know 1. Statutory Laws Which set of rules do you refer to to 2. Islamic law judge a case? 3. Local customs and traditions 67 DO NOT PROMPT: Multiple Answers 4. Other: (Specify) ………………………………………………………… 5. I don’t know How do you access the laws, 1. I have personal copies jurisprudence and legal texts that 2. I have access to them at the library 68 you need? 3. I have access to them at government DO NOT PROMPT – MAIN Answer – One office answer 4. I have access to them at local courts 5. I have partial access to them, I lack (specify):__________________________________ _____________________ 6. I have no access 1. I have personal copies 2. I have access to them at the library 3. I have access to them at government office OTHER REASONS (MULTIPLE 4. I have access to them at local courts 68b 5. I have partial access to them, I lack ANSWERS: YES OR NO)iii (specify):__________________________________ _____________________ 6. I have no access 1. Yes 69 Do you have files for each case? 2. No Can parties and/or their lawyer 1. Yes 70 access the file you prepared for each 2. No case? 1. Only you 2. The defendant and his/her lawyer 3. All employees Who can access the case file? 4. Only Authorised employees 71 DO NOT PROMPT – Multiple Answers 5. Everybody 6. I don’ know 7. Plaintiff 8. Accused 9. Lawyers 10. Other (specify)iv Are there challenges in enforcing 1. Yes 72 your decisions? 2. No PROMPT – One Answer 1. Through police How are court decisions usually 2. Through Hoqooq enforced? 3. Through illegal means 73 DO NOT PROMPT – Multiple Answers 4. Parties usually enforce decisions voluntarily 5. Other (Specify) What are the main reasons for the lack of enforcement of court decisions? DO NOT PROMPT multiple answers 74 1. Unclear rules 2. Complex procedures 3. A lack of legal awareness 4. Unwillingness of litigants to comply with rulings 5. Lack of staff/ financial resources of enforcement agencies (police and hoqooqs) 6. Difficult collaboration with the police 7. Inefficiencies in court proceedings 8. Corruption 9. Insecurity/Fear of threats/retaliation 10. Influence of powerful actors in the province 11. Other (specify): Add any additional remarks: Do you think evidence collected 1. Yes 75 during Shuras/Jirgas and their 2. No decisions should be used in court. What are the main challenges you face in your work? DO NOT PROMPT multiple answers 1. Lack of staff 2. Lack of economic resources 3. Lack of logistical and administrative supplies 4. Limited access to technical resources (previous court decisions, laws and regulations, international treaties and other instruments) 5. Low capacity of justice institutions 6. Complexity of procedures 76 7. Lack of institutional legitimacy 8. Difficult coordination with the police 9. Inefficiencies in court proceedings 10. Corruption 11. Insecurity/Fear of threats/retaliation 12. Influence of powerful actors in the province 13. Other (specify): Add any additional remarks: SECTION 4: Practice 1. Evidence; How do you normally arrive to your 2. The law; 77 decision? 3. Consultation with your colleagues DO NOT PROMPT – Multiple Answers 4. Consultation with your superior possible 5. Other - specify 1. Yes 78 Are there women working in this court? 2. No SKIP TO Q80 1. Cleaner - Cook In which functions? 2. Administrative support staff 79 DO NOT PROMPT – Multiple Answers 3. Judge possible 4. Other (specify) Do you agree with the following statement: “It is my experience that female 1. Yes 80 parties/witness are more open with female 2. No prosecutors/lawyers/judges” ? Are there dedicated spaces (separate 1. Yes 81 rooms) to take the testimony 2. No of/interrogate women? SECTION 5: CASES We would like to present to you a series of cases and would like to know what you would do in each case and why. Case 1. A man has divorced his wife. Their two young children are 2 and 4 year old, and they are living with their father. You have to decide on the case brought by the woman who is asking for custody of her children DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case, as the is no legal ground for the women’s request 2. You refer the case back to the community for mediation 3. You decide in favour of the woman 4. You refer the case to the hoqooq department 5. You refer the case to another court (specify) 82 6. Other (specify) 7. Not applicable Why? On which legal grounds? Case 2 – A husband found his wife in the company of a man. The prosecutor brings a case of zina against the woman. A female relative corroborates the wife’s allegation that nothing happened between her and the man. DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case because there are no evidence of adultery 2. You convict the woman for attempted adultery 3. You convict the woman for zina 4. You convict the man for complicity in a case of run away 83 5. You ask for a mediation between the woman and her husband 6. Other (specify): 7. Not applicable Why? On which legal grounds? Case 3 - Upon the death of her husband, after the period prescribed by the law, a woman remarries. She brings a case claiming her mahr from her late husband’s 84 relatives , who have not yet given it to her. DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case, as the is no legal ground for the women’s request 2. You refer the case back to the community for mediation 3. You decide in favour of the woman 4. You refer the case to the hoqooq department 5. You refer the case to another court (specify) 6. Other (specify) 7. Not applicable Why? On which legal grounds? Case 4 – You have to decide on the case of a woman severely beaten by her husband. Witnesses confirm the violent behaviour of the husband. DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case as domestic violence is a family issue and the court is not required to get involved 2. You refer the case back to the hoqooq department for a mediation between the wife and the husband 3. You appoint 2 arbitrators to act as mediators between the wife and the husband 4. You suggest the parties to take the issue to community elder 85 5. You convict the husband based on the Penal Code 6. You convict the husband based on EVAW law 7. Other (Specify): 8. Not applicable Why? On which legal grounds? Case 5 – A 14 years old girl has been married by her family to a man to pay for their debts. One year into the marriage she leaves her husband. The prosecutor indicted the girl for running away. DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case as running away is not crime under Afghan law 2. You dismiss the case as the marriage is invalid 3. You convict the girl for the ‘crime’ of running away’ 4. You convict the father and/or the husband of the girl for child & forced marriage 5. You ask for a mediation to take place between the girl and her husband 86 6. You suggest the party to take the issue to community elders 7. Other: (Specify) 8. Not applicable Why? On which legal grounds? Case 6 – The prosecutor brings to you a case where a woman claims she has been married to a man who she did not want to marry. DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case, it is a family affair 2. You refer the case back to the Jirga/Shura 3. You refer parties to the hoqooq department for mediation 4. You convict the father and/or the husband of the woman for forced marriage 87 5. Other: (Specify) 6. Not applicable Why? On which legal grounds? Case 7 – A woman claims that her two brothers have grabbed the piece of land that she was to inherit from her father, claiming that women should not own land. DO NOT PROMPT – Multiple Answers possible 1. You dismiss the case – women should not own land 2. You send the case back to the hoqooq department to act as a mediator in this family business 3. You suggest the party to take the issue to community elders for mediation 4. You give a verdict in favour of the woman; she is entitled to get the portion of her 88 inheritance 5. You convict the brothers based on the EVAW law 6. Other: (specify) Why? On which legal grounds? Can you tell us about the most difficult case that you had to deal with? (Circumstances of the case and what you did) 89 Annex 5. Overview of Laws and Norms Regulating Matters Affecting Women’s Status in Afghanistan COMPARATIVE OVERVIEW OF LAWS AND NORMS REGULATING MATTERS AFFECTING WOMEN’S STATUS IN AFGHANISTAN CIVIL LAW STATE LAW SHARIA CUSTOMARY LAW NATIONAL LAWS SHI’A OFFICIAL OFFICIAL ILLUSTRATE PERSONAL INTERPRETATION INTERPRETATIO CUSTOMARY STATUS LAW (HANAFI N PRACTICE, PROVIDING JURISPRUDENCE) (JAFARI RELEVANT EXAMPLES LEGAL ISSUES JURISPRUDENCE SPECIFYING ) REGIONAL/ ETHNIC GROUP/ URBAN-RURAL VARIATIONS Do women have Yesv Yes Yesvi Yesvii NA majority status (legal capacity)? LEGAL CAPACITY AND What is the legal 18 years oldviii Pubertyix Pubertyx Pubertyxi NA CITIZENSHIP age of maturity for women? Do women lose Noxii Noxiii Noxiv Noxv Yesxvi their majority status upon marriage? Can a woman pass Yesxvii her citizenship to her children? Can a woman pass Yesxviii her citizenship to her husband? Are conditions for Noxix loss of citizenship different for men and women? Can a woman leave Law is silent No – except for No, she always No, she needs her Noxxiii the house emergency cases needs permission – husband’s Data shows that it varies unaccompanied (e.g health unless her life is in permissionxxii greatly between rural without her issues)xx dangerxxi and urban areas and husband’s across province. permission? Nangarhar and Logar rural areas: in majority no PERSONAL FREEDOM Kabul and Bamyan rural areas: yes, increasingly Herat City: increasingly Herat rural district: to a large extent, noxxiv. Can a woman travel Yesxxv Law is silent but Not more than the No Generally, no. Same unaccompanied? restricted by equivalent of 48 pattern as for question Article 133(3)xxvi miles (3 days and 3 above with even more nights) without a restrictions. mahramxxvii In Bamyan people noted that old women could potentially travel further unaccompanied. Can a woman work Yesxxviii With the Yes – with the Yes – with the Bamyan/Kabul outside the home? permission of permission of her permission of her City/Herat City: Yes, if her husbandxxix husband husbandxxx authorized by husband or family. Nangarhar/Logar/Her at rural districts: rarely and only if authorized by husband. Is there a dress Law silent Law silent Yes - hijabxxxi Yes - hijabxxxii Kabul City: code for women Hijab/Burqa. Kabul, sanctioned by law? Herat, NGR, Logar rural areas: mostly burqaxxxiii Bamyan city and rural districts: mostly hijab. Are women’s right Yesxxxiv Status is slient Yesxxxv Yesxxxvi Everywhere: depending to education on father’s guaranteed? permissionxxxvii. Right increasingly recognized everywhere but in most rural districts girls will loose the right to go to school after puberty. In Nangarhar, some villages where girls would not be allowed to go to schoolxxxviii. Bamyan is less conservative on thisxxxix. Can women own Yesxl Yesxli Yesxlii Yesxliii Everywhere community immovable assets, leaders recognized the such as land? right of women to own land.xliv Yet rarely the case in practicexlv. Nangarhar/Logar – seen as ‘shameful’xlvi. In practice Women would get access to land ownership in case they are sole heir to a landxlvii. Is there a Afghan Land *See xlix functioning title Administration – Plus In most rural districts: registration Registration No system? Departments at the provincial level.xlviii If yes, does it Yes if both owners. The NA require both the procedures requires to husband and the specify the shares of wife to be each party in the registered as propertyl OWNERSHIP owners (if appropriate depending on matrimonial regime) What is the 18 men No age limit but Puberty and No age limit but Majority of community MARRIA minimum age of 16 women – 15 for girls sexual pending on the sexual intercourse leaders in both rural marriage for girls with permission of intercourse approval of the prohibited before and urban areas said GE and for boys? father or grand prohibited girl’s guardian if pubertylv. A girl above 16 or 18lvii, yet fatherlilii before she is a minor, needs the consent because of the bride pubertyliii. freely is she is of her guardian Iif price early marriages adultliv minor, free if still very much common, adultlvi. especially in rural areaslviii What are the duties Treat his wife with Provide for Alimonylxii. Mutual Alimony Everywhere - Alimony – of men upon respect and wife’s respect. Not to stay away Men are responsible for marriage? consideration maintenancelx. from the house providing their wife with Pay for maintenance of Spend 1 night more than 4 basic needslxiv. his wifelix out of 4 with his months without Pay or promise to pay wifelxi wife’s the mahr Pay or promise permissionlxiii to pay the mahr What are the duties Treat her husband with Obey her Obediencelxvii Obey her husband Everywhere - Obeying of women upon respect and husband Mutual respect Stay in his their husbandslxviii. marriage? consideration Stay in his Sexual duties residence Nangarhar ‘obeying and Obey her husband residence Not leave the serving her husband’lxix Stay in his residence Not leave the house without Not leave the house house without permission without permissionlxv permission Husband’s sexual Husband’s enjoyment. sexual enjoymentlxvi Can marriage be Nolxx Nolxxi Nolxxii Nolxxiii Yeslxxiv imposed on a woman? Can a woman break Yeslxxv Yeslxxvi No data No data Urban areas: yes an engagement to Rural districts: Rarely. marry? Is the husband Yeslxxvii Yeslxxviii Yeslxxix Yeslxxx Everywhere: Yeslxxxi recognized as head of household? Does the husband Law is silent Child support is NA NA The husband is head of have the ability to the duty of both household and has the decide unilaterally parents but authority in everything on childbearing, father is the (see above). wife’s and head of children’s health householdlxxxii and children’s education? Does the husband Not according to the Yes lxxxiv Yeslxxxv Yeslxxxvi Everywhere: yes, a have the ability to EVAW lawlxxxiii but woman has to obey her interfere with his article 122 of the civil husband on all these wife’s professional code may be questionslxxxvii. choices or to interepreted as a prevent her from restriction to women’s working outside liberty of movement. the house? What are the rights Sole & exclusive Sole & exclusive Sole & exclusive Sole & exclusive In most cases, the mahr of women related ownershiplxxxviii ownershiplxxxix ownershipxc ownership is not paid at all. When to their mahr upon the mahr is paid, it is marriage? more likely to be paid to the bride’s family rather than to her directlyxci In most cases – urban & rural – women give up on their right to the mahr upon marriage. Only rarely women have marriage certificate stipulating the mahr. What is the Law is - Hanafi silentxcii Separatexciii Separation of Separation of NA matrimonial jurisprudence prevails propertyxciv propertyxcv property regime? and recognizes (communal or separate regime of separate property) property Do married women retain property rights to personal assets: 1) Land Yes Yes Yes Yes No 2) Cattle Yes Yes Yes Yes No data 3) Poultry Yes Yes Yes Yes No data 4) Jewelry Yes Yesxcvi Yes Yes No data 5) Income Yes Yesxcvii Yes Yesxcviii No Does the husband Noxcix No - with some Noci Nocii No data have the right to exceptionsc unilaterally dispose of his wife’s personal assets? Do women and Nociii Nociv Nocv No – she can get No men enjoy equal khul (that is Rural districts: Very rights to seek a obtaining the rarely may women ask divorce? approval of her for separation. More husband through frequent in Kabul, a compensation Bamyan and Herat (money, mahr)). provinces. Increasingly Or she can get women can seek separation based separation if the on one of the 4 husband cannot provide conditions. for their basic needs. Divorce is the Nangarhar and Logar: privilege of the a woman might not ask mancvi. for separation or may be killed. Separation is not an optioncvii. Urban districts: Increasingly women can seek separation based on the 4 legal conditions. How does the A man can divorce his Divorce depends A man can divorce Divorce depends Everywhere: main procedure to seek wife by repudiating her upon man’s his wife by upon man’s conditions recognized as divorce differ orallycviii. approvalcxi repudiating her approvalcxiii valid for women to ask depending on A woman can ask the Khul is also orally 3 times. A divorce were impotency whether the wife or court for separation on possible and woman can get and inability to pay for the husband legal grounds (tafriq): leads to an separation based the alimony, similar initiates it? child a) harm; b) absence; c) irrevocable on specific results for urban and non payment of divorcecxii circumstances or a rural areas. Divorce alimony; d) woman can mainly on men’s imprisonment; e) compensate her insitiative.cxiv. Increasing impotencycix. husband to get his recognition of right of If a woman ask for approval by paying women to divorce in separation without due money or her mahr case their husband is cause, she will need the (khul). addicted in the Westcxv. approval of her husband and to pay a compensation cx. What is the default Mother gets the Mother gets Mother gets the Mother gets Bamyan: When the custody regime? custody of boys until 7 custody of girls custody of boys custody of girls children are small (age and the custody of girls until the age of 9 until the age of 7 until the age of 7 where mother should be until 9. The court can and that of sons and the custody of and that of sons breatfeeding them) the extend the period of until age 7. After girls until the age of until age 2. After woman keeps custody, custody for 2 years. that the child’s 9. that the child’s then it to the husband. After that, the father custody belongs custody belongs Herat: Children remain gets the custodycxvi to the fathercxvii to the fathercxviii with the father Nangarhar: children remain with their fathercxix Whose Fathercxx Fathercxxi No info No info NA responsibility is it Until 18 for boys to pay for the Until marriage for girls fosterage and alimony for the child upon separation? How is property In case of divorce, In case of divorce, a In case of divorce, Women sometimes get divided upon women get her mahrcxxii woman is entitled a woman is their mahr but not the divorce? and her own to her mahr and entitled to her properties. properties. her own mahr and her own Nangarhar – ‘nothing In case of khul, she has propertiescxxiv. propertiescxxv. will be given to the to give a part of her woman’cxxvi property to the Bamyan – mahr husbandcxxiii. Is there an Yes: during Yescxxix Yescxxx Yescxxxi Everywhere – during obligation on the marriagecxxvii. marriage: Yes, it is the husband to pay Yes: upon divorce & main duty of the man, alimony to his separation: alimony for seen as the head of wife? the mother for three household. monthscxxviii Only in Bamyan was mentioned the fact that a woman may receive alimony upon divorcecxxxii. What are the Not clear in civil law for Loss of child If woman No data. NA consequences of child custodycxxxiii. custodycxxxiv remarries with remarriage in Alimony only lasts for 3 someone with terms of alimony months, during which whom there is no and child custody? the woman cannot marriage remarry. impediment (mahram), she may keep the custody of her boy(s) but has to give her girl(s) to her closest female relativecxxxv. Do male and female No: male children No: male No: male children No: male children No: often girls get no children have equal inherit twice as much children inherit inherit twice as inherit twice as property at all where rights to inherit as female children cxxxvi twice as much as much as female much as female there are male children from their parents? female children children cxxxviii children cxxxix as sisters would give up cxxxvii their rights to inherit in favour of their brothers.cxl Kabul: Rural & Urban: male children get twice as much as female children.cxli Do women have the Yescxlii Yescxliii Yescxliv No info. Rural Herat: no right to dispose of Nangarhar: no, or only their belongings by with the permission and will? with consultation with the husbandcxlv What rights does a ¼ of her husband’s ¼ of the estate if ¼ of her husband’s ¼ of her Rights denied widow have on her property if no children the decease has property if no husband’s Nangarhar: No rights. deceased husband 1/8 of her husband’s not children children; movable Widows’ access to patrimony? property if childrencxlvi 1/8th if 1/8th of her property if no inheritance varied a lot childrencxlvii husband’s property children; depending on family if childrencxlviii 1/8th of her situation. May be forced husband’s to marry a relative of her movable husband to keep the property if land in the family. childrencxlix Does a woman lose Yes – women lose their Refers to Islamic Noclii No info. No data. her inheritance inheritance rights after jurisprudencecli. rights upon re- the ‘divorce period’ marriage? during which she cannot re-marrycl Can widows Yes, she has the right to Yes, right to Yes, right to Yes, right to No, customs want remarry freely, or remarry freelycliii remarry freely cliv remarry freelyclv remarry freelyclvi widows to remarry with do they have to a relative of her late INHERITANCE marry within the husbandclvii late husband’s Nangarhar No, she must family (levirate select a new husband in marriage)? her deceased husband family or not marryingclviii. W M M Can a woman open Yes Noclix No – Needs her No – Needs her No – See above O R A A E C C L L I a business without husband’s husband’s husband’s/guardia permission permissionclx n’s consent? (see above) Can a woman enter Yes Noclxi No – Needs her No – Needs her No – See above a contract without husband’s husband’s husband’s/guardia permission permission n’s consent? (see above) (see above) CRIMINAL LAW Is zina (adultery) a Yesclxii Yesclxiii Yesclxiv Everywhere: Yes, and crime? amongst the most serious possible.clxv If yes, what is the If the crime involves between non- between non- Nangarhar, Logar, punishment for married people and is married married Herat: for married zina? proved beyond doubt, individuals: individuals: women, in general Shari’a punishment is flogging flogging death. If the girl is not applied: stoning. If individuals are If individuals are married she faces death If doubt or not all the married: death married: death penalty as well but circumstances to penalty (stoning) penalty (stoning) sometimes community qualify it as a hudud but strict condition but strict leaders may try to marry then penal code to prove the conditions to her to the boy. The boy’s applies: long crime.clxvii prove the family may have to pay imprisonmentclxvi crime.clxviii blood money or accept a baad. MORAL CRIMES Is running away a No but ambiguous Yesclxx Yesclxxi Everywhere: yes, seen crime? instructions of the as extremely shameful Supreme Courtclxix for the familyclxxii. If yes, what is the Frequent No info No info Everywhere: punishment for imprisonment for punishment may go running away? ‘moral crime or from beating, ostracism attempted zina’clxxiii from the community and/or the family to murder of the girl and the boy. Bamyan – between boys and girls – increasingly being married. clxxiv Is disobedience a No Yesclxxv Yesclxxvi Yes – see above. crime? If yes, what is the 1st: admonishment 1st: Beating punishment for 2nd: refuse to share admonishment disobedience? their beds 2nd: refuse to 3rd: beat them share their beds lightlyclxxvii 3rd: beat them lightlyclxxviii Is violence against Yesclxxix No information No information women a crime? CRIMES AGAINST WOMEN If yes, what is the If did not cause injury, punishment for short term acts of violence imprisonment not against women? more than one monthclxxx If caused injury, medium term imprisonment of not less than 3 yearsclxxxi Is domestic Yesclxxxii Noclxxxiii Noclxxxiv Widespread practice violence a crime? everywhereclxxxv If so, what is the If did not cause injury, NA NA Not applicable punishment for short term acts of domestic imprisonment not violence? more than one monthclxxxvi If caused injury, medium term imprisonment of not less than 3 yearsclxxxvii Is rape a crime? Yesclxxxviii Yes Yes Yes If yes, what is the 16 to 20 years of Same punishment Same punishment Women often have to punishment for prisonclxxxix. as for zina for the as for zina for the marry the rapist. rape? If victim dies, death perpetrator – death perpetrator – Further punishment penaltycxc penaltycxci. death penalty includes Baad, blood money or sometimes killings of the perpetrators and/or the victim. Is marital rape a Law is silent Nocxcii Nocxciii No No crime? Is forced marriage Yescxcivcxcv It is prohibited for It is prohibited for No, still a widespread a crime? adult womencxcvi. adult women. practice everywhere - Young girls may be Young girls may According to AIHRC, 60 married by their be married by to 80% of marriages in guardiancxcvii. their Afghanistan are guardiancxcviii. concluded without the consent or against the will of one of the spousescxcix If yes, what is the Criminal code: short- Not applicable Not applicable Not applicable punishment for term prison sentencecc forcing a man and a woman to marry? EVAW: Medium Term imprisonment not less than 2 yearscci Is criminal liability Yesccii Yescciii Yescciv Not always – ex: in case personal? of Baad. The practice of baad is more frequent in Pashtun areas (in our case in Logar, Nangarhar and rural parts of Herat) and relatively absent (but not completely) from Bamyan, Herat City or Kabul cityccv. Is Baad (i.e., the Yesccvi Yesccvii Yes – it is Noccix giving of a girl of haramccviii Most community leaders the perpetrator’s declared the baad to be family to the unlawful but the practice victim’s family as still exists and it would restoration for the not be considered a crime) a crime? crime in Pashtun areasccx. If yes, what is the Penal code: prison NA NA NA punishment? sentence of no more than 2 years (article?) EVAW: Prison sentence up to ten yearsccxi Is honour killing a Yes – But sentence for Yes ccxiii Yes ccxiv The practice of honour crime? murder is significantly killing still exists in reduced if ‘honour rural districs in killing’ccxii particular. The practice was reported in particular in Nangarhar.ccxv PROCEDURAL LAW Are procedural rules Yes – the Yes - the testimony Yes - the Kabul – 60% of concerning testimony testimony of a man of a man is worth testimony of a community leaders said different for female is worth twice that twice that of a man is worth that men’s testimony was PROCEDURES and male witnesses? of a womanccxvi womanccxvii twice that of a worth more than womanccxviii women’s testimony. In Nangarhar: 44 community leaders out of 48 declared that the testimony of a man was worth twice that of a woman; in Herat, the majority of elders said that it was worth ‘more’. In Bamyan, half of them thought that it was work half that of a man; and a quarter that it was worth less than that of a man.ccxix. Can women file a claim Yesccxx Women would Yesccxxi Kabul – 85% of and stand in court community leaders said without consent/ that women could stand representation of alone before their husband/guardian? Shuraccxxii. Nangarhar & Logar – Key infomants said that they had never seen a woman attending a jirga Bamyan & Herat city– increasingly, women can stand in front of shura Herat rural districts. i This question was not asked for respondents in Kabul. ii This question was not asked for respondents in Kabul. iii This question was not asked for respondents in Kabul. v Afghanistan’s Civil Code 1977. Art. 39 : “The age of majority is 18 solar years. Person attaining majority age shall be recognized as having full legal personality in business transactions.” vi ‘Within the Islamic framework, a Muslim woman possesses independent legal, economic and spiritual identity.’ Land, Law and Islam : Property and Human Rights in the Muslim World, Sait, S. & Lim, H. 2006. A hadith also confirms equality between men and women : ‘All people are equal as the teath of a comb. Only God-fearing people merit preference with God. Thus men and women are equal’. vii Shiite Personal Status Law. USAID. April 2009. viii Afghanistan’s Civil Code 1977. Art. 39 : “The age of majority is 18 solar years. Person attaining majority age shall be recognized as having full legal personality in business transactions.” ix Shi’a Personal Status – Article 26 states the grounds for legal incompentence : 1) being a minor ; 2) Insanity ; 3)Imbecility ; 4) Drug Addiction ; 5 Mental Illness. Art. 27 (Maturity) When a boy reaches the age of 15 or ejaculates and a girl sees the blood of her menstruation, they are considered to have reached puberty. x Based on KII with Ustad Fayez. xi ‘Once a person reaches the age of Taklif (estimated at completion of 15 years for boys and 9 years for girls) he is called a MUKKALAF. This means that that individual has reached a point where he has become answerable to Allah (S.W.T.) for all the obligatory actions and duties prescribed by Him.’ Islamic Culture and Religious Studies Book – Vol.1, lesson 18: Taklif and Taqleed. http://en.rafed.net/index.php?option=com_content&view=article&id=3755%3Aislamic-culture-and- religious-studies-book-volume-1&catid=182&Itemid=966&limitstart=19 xii However, articles 70 and 103 of the Afghan Civil Code provide for exceptions. xiii Shi’a Personal Status, article 26 stipulates the grounds for legal incompetency. Neither gender nor marriage are listed. xiv ‘None of the legal disabilities of married women, which were a feature in the past of Anglo -American law are not found in Islamic law’. Land, Law and Islam, Sait, S & Lim H. xv Idem xvi ‘’When a woman marries and goes to her husband’s house, she becomes his Namos (pride, property and responsibility)’. ILF, 2004, Customary Laws of Afghanistan, p.15 xvii Law on Citizenship of the Islamic Emirate of Afghanistan. xviii Afghan Law on Citizenship, Article 18 is not gender-specific : ‘If an alien marries a citizen of the IEA in accordance with the Islamic Shari’a Law, after forwarding application for Afghan citizenship in black and white considering the 7th article of this law, his/her Afghan citizenship can be approved with no consideration to the period mentioned in the 3rd part of the 15th article of this statute’. xix Articles 23 to 35, Chapter 3 of the law on Citizenship ‘Granting, Abandoning, Forfeiting and Restoring the nationality of the IEA’ are not gender-specific. xx Personal Shi’a Status, Article 133 : ‘A wife cannot leave the house without her husband’s permission unless she has urgent cause, or is in extreme difficulty, in this event, she may leave the house. In case of dispute, the issue shall be resolved by a court.’ xxi Based on KII with Ustad Fayez. xxii Based on KII with Ayatollah Mohsini xxiii UNAMA, 2010, Harmful Traditional Practices and Implementation of the Law EVAW in Afghanistan , p. 30 : ‘UNAMA HR found from discussions with Afghan men and women that women’s participation in public life is constrained due to restrictions on freedom of movement (…) In some Afghan communities, women who transgress accepted norms bring dishonour on the entire family or even the community’. xxiv Field observations & Household survey. xxv Art. 39 of the Constitution xxvi Personal Shi’a Status, Article 133(3) : ‘A husband can prevent his wife from any unnecessary action or actions, which are not according to her duties as specified by Shar’ia law and are contrary to the loc al customs and the husband’s benefits. xxvii ‘According to the Hanafi Ijtihad, the distance that is considered here is three days and three nights, for the narrations mentioning three days & three nights, for the narriations mentioning three days and three nights have reached the level of certainty. (…) Hency the Hanafi School considers the narrations that mention three days & three nights as the basis of prohibition. (Zafar Ahmad al-Tahanawi. Al Sunan, V.10, p.11). http://qa.sunnipath.com/issue_view.asp?HD=1&ID=1993&CATE=143 xxviii Art. 48 of the Constitution states that ‘Work is the right of every Afghan’. Art. 5 & Art.36 of the EVAW Law provides that ‘ a person who prohibits a woman from the right of education, work and exercising her other rights as provided by the law, considering the circumstance the offender shall be convicted to short term imprisonment not more than 6 months. xxix Personal Shi’a Status, Article 133(3) : ‘A husband can prevent his wife from any unnecessary action or actions, which are not according to her duties as specified by Shar’ia law and are contrary to the local customs and the husband’s benefits. xxx KII with ayatollah. xxxi Surah an Nur, Verse 30 & 31 ‘And Say to the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts) and not to show off their adornment except only that which is apparent (see the explanation below), and to draw their veils all over Juyubihinna" (Surah An-Nur, Verses #30 and #31)’ xxxii Surah an Nur, Verse 30 & 31 ‘And Say to the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts) and not to show off their adornment except only that which is apparent (see the explanation below), and to draw their veils all over Juyubihinna" (Surah An-Nur, Verses #30 and #31)’ xxxiii Field Observations. xxxiv EVAW Law, Article 36: ‘if a person prohibits a woman from the right of education, work and exercising her other rights as provided by law, considering the circumstances, the offer shall be convicted to short term imprisonment, not more than 6 months. xxxv Surah al-Alaq (Surah e iqra) tells every human to get education and is not gender-specific : 96.1 « Read ! In the Name of your Lord, who has created all that exists, Has created man from a clot. Read ! And your Lord is the Most Generous, who has taught the writing by the pen, has taught man that which he knew not. xxxvi Surah al-Alaq (Surah e iqra) tells every human to get education and is not gender-specific : 96.1 « Read ! In the Name of your Lord, who has created all that exists, Has created man from a clot. Read ! And your Lord is the Most Generous, who has taught the writing by the pen, has taught man that which he knew not. xxxvii 82.9% of respondents in Kabul said no to the xxxviii FGDs. xxxix Field observations & qualitative interviews with community leaders . xl Art. 40 of the Constitution: ‘Property shall be safe from violation. No one shall be forbidden from owning property and acquiring it, unless limited by the provisions of law. No one’s property shall be confiscated without the order of the law and decision of an authoritative court.’ xli Not explicit in the Shi’a Personal Status but no specific articles against it, especially in the chapter about inheritance, which does protect women’s rights to inherit part of the estate. E.g Article 219 :’ Mother is entitled to one third of the estate (…) ; wife is entitled to one fourth if the decseased has no children and one eight if the deceased has children’. xlii A Muslim woman possesses independent legal, economic and spiritual identity, and independence. The Qur’an notes that women “shal’l be legally entitled to their share” (Qur’an 4:7) and that “to men is allotted what they earn, and to women what they earn” (Qur’an 4:32). Only if women choose to transfer their property can men regard it as lawfully theirs (Qur’an 4:4 ). The Islamic laws supporting property rights of women are drawn from a variety of fields such as family law (marriage/dower, inheritance, and guardianship), property law (gifts, endowments/trusts (awaqf), sale and hire) and economic law (right to work, income) as well as public law. Islam unequivocally allows both single and married women to own property in their own right. (Horrie, Chris; Chippindale, Peter. What is Islam? A Comprehensive Introduction (1991). p.49 xliii Idem. xliv See Community Leader Survey, Q. 58 and Focus Group Discussions. xlv See FGDs. xlvi ‘Reportedly, under Afghan customary law, women are denied the right to own land. While ownership may exist for widows, daughters are deemed to surrender ownership to their brothers, often when they marry. The objective of this practice is less to deprive a woman from owning land than to preven losing land to another family through her’. LARA, 2012, Gender and Dispute Resolution Assessment, p.13 xlvii FGDs & KII with community leaders. xlviii Currently, all land Administration and registration (rural and urban) is the responsibility of the Department of Land (Amlak), which is part of the new Afghanistan Land Authority (ALA). Afghanistan has a deed registration system. See: http://www.landgovernance.org/system/files/Afghanistan%20Factsheet%20landac%20april%202011.pdf. ‘Many Afghans prefer to rely on customary law to register property transactions (…) as a means of avoiding paying tax or due to the general distrust of the official court system. It is estimated that only a small minority of land and property transactions are currently officially recognized.’ Manual of Property Law in Afghanistan, NRC & UNHCR, p.70. xlixcustomary law is important and has social legitimacy, it remains poorly integrated with formal law and policy (Alden Wiley 2003; Allan 2001; Gebremedhin 2007). Customary tenure systems, partly based on religious law, are the most relevant in rural areas. Protection of rights is weak. The skewed distribution of land and the impunity of land grabbing by the local elite are sources of frustration. See: http://www.landgovernance.org/system/files/Afghanistan%20Factsheet%20landac%20april%202011.pdf l Based on KIIs – to be double checked li Article 70 of the afghan Civil Code provides that “Legal capacity for marriage is accepted for boys when they have completed 18 years and for girls when they have completed 16 years”. However, Article 71, Su bsection 1 sanctions the validity of underage marriage “When a girl has not reached the age written in article 70 of this law, marriage can be completed only through her father or the competent court”. Subsection 2 however limits the exception as follows: “The marriage of a minor girl whose age is less than 15 shall never be permissible” lii Article 99 of the Shia Personal law. However, article 99 section (2) provides that “[a]pproval of adolescence and legal capacity for marriage prior to the mentioned ages, by guardian before the court is possible [valid]”. liii Shi’a Personal Status, Article 99 (1) ‘the marriage of an underage (male/demale), insane (male/female) is permissible through a natural guardian, who is not musfada (devious), authorized guardian or a court, completed by Article 100 : ‘Intercourse with the wife before she has reached puberty is prohibited.’ liv Age is not specified. However guardians may promise their children in marriage in their infancy. lv KII with ayatollah. lvi Cornell, V (ed), Voices of Islam, voices of life, Vol.III, Praeger Publishers, Westport, p.65 lvii See ‘Community Leader Survey’ – Q.55. lviii UNIFEM estimated that 57% of marriages in Afghanistan involved a party who was less than 16, UNIFEM, Fact Sheet 2008 Afghanistan ; the Women and Children Legal Research Foundation surveyed 200 girls who had been married and found that ‘40% of them had been married between the age of 10 and 13 years.’ Early Marriage in Afghanistan, WCLRF, 2008, quoted in UNAMA, 2010, Harmful traditional practices and Implementation of EVAW Law, p.19. lix Article 117(1) of the Civil Code. lx Shi’a Personal Status, Article 130 : ‘In accordance with the provisions of this law, the wife’s maintenance shall be undertaken by the husband. lxi Shi’a Personal Status, Articl e 132(4) : The husband is bound to spend at least one out of four nights with his wife when he is not travelling (…)’. lxii Verse 4 :34. ‘ Men are the protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them from their means (…)’ lxiii KII Ayatollah Mohsini lxiv KIIs with community leaders. lxv ‘These obligations of the wife are derived from the concept of Article 122 of the Civil Code, in accordance with which her right to maintenance will lapse if she does not fulfill her marital duties’. Manual on Afghan Family Law, Max Planck Institute, p.55. lxvi Article 177 (4) : tamkeen is the readiness of the wife to her husband’s reasonable sexual enjoyment, and her prohibition from oing out of the house, except in extreme circumstances, without her husband’s permission. If any of the above provisions are not followed by the wife, she is considered disobedient. lxvii Verse 4:34 of the Quran states: Men are the protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women devoutly obedient, and guard in (the husband's) absence what God would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (next) refuse to share their beds, (and last) beat them lightly but if they return to obedience, seek not against them means (of annoyance), for God is Most-High Great (above you all). lxviii KII with community leaders. lxix Community leader, Nangarhar. lxx EVAW Law, article 26 : ‘if a person engages a woman who has reached her legal age or marries her without her consent, in accordance to the law, the engagement shall be cancelled and nullified, and, considering the circumstances, the offender shall be sentenced to medium term imprisonment, not less than 2 years’. lxxi Article 105(1) of the Shi’a Personal Status : ‘Intention and consent of the parties are prerequisite to the marriage contract and it is required to be obtained explicitly by words, action or writing’. lxxii Al Nisa, Verse 18 & Hadith Al Bukhari 9/194, quoted by UNAMA in Harmful traditional Practices and the implementation of EVAW Law in Afghanistan, p.8. lxxiii Idem. lxxiv UNIFEM estimates that 70 to 80% of marriages are forced in Afghanistan. In UNIFEM, Factsheet Afghanistan, 2008 lxxv Article 64 of the Civil Code : ‘Engagement is a promise of marriage and each party may break it’. lxxvi Article 80 of the Shi’a Personal Status lxxvii Upon marriage it is a man’s duty t o provide residence (Suptopic 3, art.115 Civil Code) and alimony (Suptopic 4, art. 117). lxxviii Shi’a Personal Status, Article 133(1) : ‘The household’s supervision is the right of the husband, unless based on the husband’s mental deficiency, and by order of the court, it is given to the wife’. lxxix Verse 4 :34 of the Qur’an : ‘Men are the protectors and maintainers of women because God has given the one more strength than the oter and becayse they support them from their means.’ lxxx Idem. lxxxi Qualitative fieldwork : Interviews with community leaders. lxxxii Shi’a Personal Status, Article 133(1) the household’s supervision is the right of the husband (…) lxxxiii Article 36 of the EVAW Law. lxxxiv Shi’a Personal Status, Article 133(3) : A husband can prevent his wife from any unnecessary action, which are not according to her duties as specified by Shari’a Law and contrary to the local customs and the husband’s benefits. Article 133(4) A wife cannot leave the house without her husban’s permission (…) lxxxv Consequence of the man being the head of household. lxxxvi KII Shi’a Ayatollah : ‘A wife can go to work outside, can go to teach or to study at school, or at the university, but with the permission of her husband.’ lxxxvii Interviews with community leaders – Field observations. lxxxviii Article 110 of the Civil Code : ‘Mahr shall be considered the property of the wife. She can exercise any ownership power over her marriage-portion’. Completed by articles 14 to 17 of the Family Law. lxxxix Shi’a Personal Status, Article 114(1), ‘After the mahr has been spe cified in the marriage contract, and the woman submits to the husband is obligated to pay the specified mahr. Where the wife is divorced prior to sexual penetration, she shall be entitle to half of the specified mahr. xc Quran 4:5. xci LARA, 2012, Gender and Dispute Resolution Assessment, p.17. xcii ‘The marital property regime is not explicitly regulated in the Afghan Civil Code. However all schools of Islamic law have recognised the principle of separation of property’. Manual on Afghan Family Law, Max Planck Institute – 2012, p.68 xciii Shi’a Personal Status, Article 133(5) : ‘A wife is the owner of her own assets and can possess it in any form without her husband’s permission’. xciv However all schools of Islamic law have recognised the principle of separation of property’. Manual on Afghan Family Law, Max Planck Institute – 2012, p.68 xcv Idem. xcvi Shi’a Personal Status, Article 131(1) : Dowry : Household goods, clothes or things brought to the house by the wife from her own assets or her father’s. 131(2) The husband is not entitled to ownership or use fo the wife’s dowry, except if the wife consents to the husband’s use or contol of the content of the dowry, or if local custom otherwise allows. xcvii Shi’a Personal Status, Article 180 : the income derived from wife’s occ upation is hers, if she works, unless she pays some part of the home expenses with the permission of her husband.’ xcviii ‘According to the Hanafi School of law, the woman can dispose of her property as she pleases, without being obliged to obtain her husband’s permission.’ Manual on Afghan Family Law, Max Planck Institute – 2012, p.68. Qur’anic verse 4 :32 : ‘To the man is allowed what they earn and to women what they earn’. Qur’anic verse 4 :4 : ‘Only if women choose to transfer their property can men regard i t as lawfully theirs. xcix Article 40 of the Constitution : ‘Property shall be safe from violation. No one shall be forbidden from owning property and acquiring it, unless limited by the provisions of law. No one’s property shall be confiscated without the order of the law and decision of an authoritative court.’ c Shi’a Personal Status, Article 131(1) & (2) : Dowry : Household goods, clothes or things brought to the house by the wife from her own assets or her father’s. 131(2) The husband is not entitled to o wnership or use fo the wife’s dowry, except if the wife consents to the husband’s use or contol of the content of the dowry, or if local custom otherwise allow. ci Verse 4 :32 Surah an-Nisa : ‘To the man is allowed what they earn and to women what they earn’ cii Idem ciii Articles 132 to 197 of the Civil Code regulates the various types of separation available to men and women. A marriage can be annuled (faskh), the man can repudiate his wife (talaq), they can divorce by ‘mutual consent’ (khul), or there can be a judicial divorce (tafriq). civ Shi’a Personal Law – Article 155(2) & (3). cv ‘Sharia divorce is the right of the huband. He may surrender the power of divorce to his wife by a Sharia document’ LARA, 2012, Gender and Disupte Resolution Mechanisms, p.18 cvi KII with ayatollah. cvii FGDs with women. cviii Article 135 of the Civil Code. It must be noted that the repudiation is revocable, according to Article 136. According to Article 144, the man has the right to repudiate his wife three times. cix Article 176 of the Civil Code (defect) ; Article 183 of the Civil Code (harm) ; Article 191 (non payment of maintenance) ; Article 194 (absence for three years or more). cx Art. 135 grants the man with the right to divorce his wife. Subtopic 5 ‘Separation’ of the Civil Code. Separation due to harm (Art.183) ; due to nonpayment of alimony (Art.191) ; due to absence (Art. 194) ; due to defect (Art.176). The separation with no due cause is called khul and is regulated by Subtopic 4 of the Civil Code, as Art. 156 stipulates that ‘deposal is the dissolution of the marriage contract in return to the property that the wife may offer to the husband’. cxi Shi’a Personal Status, Article 155(3) If the husband has granted his wife the right to divorce, the wife can divorce. In this case the husband is required to perform all the commitments mentioned in §2 ( mahri and maintenance of the wife). cxii Shi’a Personal Status, Article 164(1) : Whenever the wife hates living with the husband, and both parties fear acting contrary to Sharia provisions, then the wife or her guardian may pay compensation to the husband and convince him to agree to a khul divorce. cxiii Based on KII with Ayatollah Mohsini cxiv See Community Leader Survey – Q. cxv Interviews of community leaders / FGD Men in Herat. cxvi Based on Article 249 of the Civil Code : ‘The care period of a male child shall be ended when he attains the age of seven and the care period of a female child shall be ended when she reaches the age of 9’. Art 250 stipulates that the court can extend this fosterage period described in Article 249 for a period that does not exceed two years. cxvii Shi’a Personal Status Law : Article 194(3). This article was amended. The original version stipulated that a mother gets custody of her daughter until age 7 and that of her sons until age 2. cxviii KII Ayatollah Mohsini cxix Interviews with community leaders. cxx Article 244 of the Civil Code : the child care charges are different from the fosterage charges and alimony and the child’s father is bound to pay them. Father is bound to pay for children’s maintenant based on Articles 256 and 257 of the Civil Code. cxxi Shi’a Personal Status Article 194(4) : the mother can demand expenses of child support from the father, unless the child has assets. cxxiiArticle 105 of the Civil Code. cxxiii Article 156 of the Civil Code : Deposal (khul) is the dissolution of the marriage contract in return to the property that the wife may offer to the husband. cxxiv Quran 2:229. Surat al-Baqarah. Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah . But if you fear that they will not keep [within] the limits of Allah , then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah , so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers. (http://quran.com/2/229) cxxv Idem cxxvi Interview with community leaders, Nangarhar. cxxvii Article 117 of the Civil Code. cxxviii Article 201 of the Civil Code stipulates that the ‘divorce period’ or Heddat (i.e. period during which neither spouse can remarry) is of three months. Alimony must be paid during this period based on the Art. 212 & 214, regardless of the reason for the separation. cxxix Shi’a Personal Status – Article 130. cxxx Quran, 2 :241 & Quran, 2 :231. cxxxi KII Ayatollah, ‘it is the responsibility of the man to pay for everything for his wife’. cxxxii KII community leader – Bamyan province. cxxxiii Article 238 of the Civil Code lays out the conditions for a mother’s custody over her child, she has to be sane, of full age, and ‘reliable to ensure that the well -being of the child is not compromised’. The Hanafi jurisprudence applies. cxxxiv Shi’a Personal Status, Article 195 (1) : Barriers to child support are as follows : (…) 3) marriage of a child’s mother to someone other than child’s father, unless it is in the best interest of the child, or if the child’s father is dead. cxxxv Manual on Afghan Family Law, Max Planck Institute, p. 105: ‘A woman who cares for the female child, regardless of whether it is the mother or another woman, will lose the right to custody according to Hanafi law if she marries or is married to a man between whom and the female child no marriage impediment exists’. cxxxvi Article 2019(2) of the Civil Code stipulates that male children will inherit twice as much as female children from a deceased parent. cxxxvii Shi’a Personal Status, Article 222(8) : If heirs of the deceased from the first class are confined to children, male and female, the entire estate shall be distributed among them based on the principle of one man equals two women. cxxxviii Surah al Nisa, 11: ‘God (thus) directs you as regards your children’s inheritance: to the male, a portion equal to that of two females (…) cxxxix KII, Ayatollay Mohsini cxl ‘Afghan customary practices rarely recognise the right of women to inherit any property when there is a male heir’ Manual of Property Law in Afghanistan, NRC & UNHCR, p.74 cxli See Community Leader Survey – Kabul : 19 out of 20 community leaders answered that female children were entitled to half what male children would get. cxlii According to Article 2108, the conditions for someone to make a will are not gender-specific. Article 2108 says that ‘the maker of the will should legally be in a position to bequeath and must be of majority age.’ A will can only cover 1/3rd of someone’s property. cxliii Shi’a Personal Status, Article 199(1) – Conditions to validate a will : ‘The testator must be sane, not acting under duress, and own the goods or financial rights that are the subject of the will. An executor or guardian of a ward cannot make a will on behalf of the ward. cxliv Personal Status, Art. 197 to 199. cxlv KII community leaders. cxlvi Article 2007(2) of the Civil Code : Wife (…) or wives, when lacking children or male offspring even tough of descending order, shall receive one fourth of the patrimony, and in case children or male offspring, even though of descending order, exist, shall be entitled to one eights of the patrimony. cxlvii Shi’a Personal Status, Article 219. cxlviii Qu’ran, Verse 4 :12. cxlix KII Ayatollah Mohsini, ‘the wife cannot get the house or the land, just the price of the land’. cl Article 2007 (2) & (3) : wife, even though conditionally divorced, when the husband dies prior to the expiration of the divorce period, or wives, when lacking children or male offspring even though of descending order, shall receive one fourth of his patrimony, and in case children, or male offspring, even though of descending order, exist shall be entitled to one eigth of the patrimony. cli Shia Personal Status, Art. 175. clii Based on KII with Ustad Fayez, Prof. Of Sharia cliii A woman cannot be forced into any form of marriage, based on Article 77 of the Civil Code, which stipulates that for a marriage to be valid ‘the offer and the acceptance myst be expressed either by the contracting parties or their legal guardians or proxies. Also protected by article 24 of the Law of Marriage. cliv Article 105(1) of the Shi’a Personal Status : ‘Intention and consent of the parties are prerequisite to the marraige contract and it is required to be obtained explicitly by words, action or writing’. clv ‘In Islam, only one kind of marriage – involving consent of both parties – is accepted.’ UNAMA, 2010, p. 17. clvi KII Ayatollah. clvii ‘Widows can only marry the brother or cousin of their deceased husband’, in IFL, Customary Laws of Afghanistan, p. 16 clviii Interviews with community leaders. clix Shi’a Personal Status, Article 133(3) : A husband can prevent his wife from any unnecessary action, which are not according to her duties as specified by Shari’a Law and contrary to the local customs and the husband’s benefits. Article 133(4) A wife cannot leave the house without her husban’s permission (…) clx KII Ayatollah Mohsini clxi Shi’a Personal Status, Article 133(3) clxii Article 426 of the Penal Code clxiii ‘Hudud crimes are the most serious crimes in Islamic penal law (…) Muslim jurists and Islam ic scholars agree on 5 hudud crimes : (1) theft ; (2) ; adultery ; (3) highway robbery ; (4) drinking alcohol, and (5) defamation’. ALEP , 2008-09, An Introduction to the Criminal Law of Afghanistan, p.88. clxiv Confirmed by Ayatollah Mohsini. Based on Qur’an – Verse 24:2 clxv Field observations. IFL, 2004, Customary Laws of Afghanistan, p.14 clxvi Articles 426 of the Penal Code : If in the crime of adultery the conditions of "Had" are not fulfilled or the charge of "Had" is dropped, because of double or other reasons, the offender shall be punished in accordance with the provisions of this Chapter. clxvii ALEP , 2008-09, An Introduction to the Criminal Law of Afghanistan , p.90. Yet ‘the execution of the punishment is condition upon fulfillment of a number of rigorous conditions that are difficult to meet. If these strict conditions are not met, the punishment ought to be commuted to a lesser punishment.’ Idem, p.100. Punishment for zina are based on the Verse 24 :2 for flogging and derived from the Sunna for stoning (not present in the Qur’an). The question of stoning is yet debated among Islamic scholars. See for example : Mir- Hosseini, Z. & Hamzic, V. ‘Control and Sexuality ; the revival of Zina laws in Muslim contexts’ published by WLUML, 2010. clxviii Idem clxix ‘Running away is not an offise in the Afghan Penal Code. (…) In 2010 and 2011 the Afghan Supreme Court issued an instruction to courts that running away is a crime’, I had to run away, Human Rights Watch Report, 2012, p.34 clxx No permission to leave the house without husband’s permission. clxxi Idem. clxxii FGDs and KIIs. clxxiii Cf. I had to run away, Human Rights Watch Report, 2012. clxxiv Cf. Focus Group Discussions clxxv Verse 4:34 of the Quran states: Men are the protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women devoutly obedient, and guard in (the husband's) absence what God would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (next) refuse to share their beds, (and last) beat them lightly but if they return to obedience, seek not against them means (of annoyance), for God is Most-High Great (above you all). clxxvi Idem clxxvii Idem ; verse 4 :34 – It must be noted that there are some debates within Islam on the exact translation of the arabic word ‘zar’ used in the Quran and usually tranlsated as ‘beating’. clxxviii Idem ; verse 4 :34 – It must be noted that there are some debates within Islam on the exact translation of the arabic word ‘zar’ used in the Quran and usually tranlsated as ‘beating’. clxxix Article 5 of the EVAW law. clxxx Article 23 of the EVAW law : ‘if a person beats a woman which does not result in damages or injury, the offender in view of teh circumstances shall be sentenced to short term imprisonment, of no more than a month.’ clxxxi Article 407(1) of the Penal Code : A person who intentionally beats and lacerates another such that some bodily member of the latter is cut, injured or defected, or that the person permanently becomes handicapped or that the latter is deprived of one of his senses, in addition to compensation, shall be sentenced to medium imprisonment of not less than three years. clxxxii EVAW Law. clxxxiii Verse 4 :34 of the Qur’an. The interpretation of this verse is controversial but a conservative interpretation says that women could be beaten in case of disobedience. clxxxiv Idem. clxxxv See FGDs with women. clxxxvi Article 23 of the EVAW law : ‘if a person beats a woman which does not result in damages or injury, the offender in view of teh circumstances shall be sentenced to short term imprisonment, of no more than a month.’ clxxxvii Article 407(1) of the Penal Code : A person who intentionally beats and lacerates another such that some bodily member of the latter is cut, injured or defected, or that the person permanently becomes handicapped or that the latter is deprived of one of his senses, in addition to compensation, shall be sentenced to medium imprisonment of not less than three years. clxxxviii The EVAW law is the first law that clearly defined and criminalized rape. Rape is defined through Article 3 : ‘Perpetrating adultery and pederasty on adult women with force or perpetrating taht with unerage even if the victim gives consent, or attack to the chastity and nonour of a woma n’. It is a crime based on Article 17 clxxxix Maximum continued imprisonment based on Art.426 of the PC. cxc EVAW LAW, Article 17. cxci Quran Verse 24 :2. cxcii Shia Personal Status, Article 177(4) : Tamkeen is the readiness of the wife to submit to her husband’s reasonable sexual enjoyment, and her prohibition from going out of the house, except in extreme circumstances cxciii KII with prof. Of Shari’a indicated that the sexual enjoyment of her husband was part of a woman’s responsibility upon marriage. cxciv See article 517 of the Afghan Penal Code (http://aceproject.org/ero- en/regions/asia/AF/Penal%20Code%20Eng.pdf/view ). The article, however, covers only widows and girls under the age of 18. cxcvArticle 26 of the law on the Elimination of Violence Against Women complements the provision of the penal code, providing that “If a person gets a woman engaged or married who has reached the legal marriage age without her consent, the perpetrator shall, depending on the circumstances, be sentenced to medium- term imprisonment, not less than 2 year, and the engagement and marriage is invalid, according to the provision of the law. cxcvi Kitab al Nikah Book 8, Hadith 3033: ‘Abu Huraira (Allah be pleased with him) reported Allah’s Messenger (may peace be upon him) as having said: a woman without a husband (or divorced or a widow) must not be married until she is consulted, and a virgin must not be married until her permission is sought. They asked the Prophet of Allah (may peace be upon him): How her (virgin’s) consent can be solicited? He (the Holy Prophet) said: that she keeps silence.’ See also Book 8, n° 3305 and n°3306. See also Narrated Abu Huraira: The Prophet said, "A virgin should not be married till she is asked for her consent; and the matron should not be married till she is asked whether she agrees to marry or not." It was asked, "O Allah's Apostle! How will she (the virgin) express her consent?" He said, "By keeping silent." (Bukhari Volume 9, Book 86, Number 98). cxcvii Equitas, Women’s rights in Muslim Communities : A resource guide for Human Rights educators, p. 43 cxcviii Equitas, Women’s rights in Muslim Communities : A resource guide for Human Rights educators, p. 43 cxcix Manual on Afghan Family Law, Max Planck Institute, p.32 cc The duration of the prison sentence is not specified by article 517 of the Afghan Penal Code, but it is unlikely to be more than one year (see HRW 2009 “We Have the Promises of the World”, p. 58) cci Article 26 of the law on the Elimination of Violence Against Women ccii Article 26 of the Constitution : ‘Crime is a personal act. Investigation, arrest and detention of an accused as well as penalty execution shall not incriminate another person.’ cciii Personal responsibility is one of the principle of ethics based on the belief that men will appear in the court of the Hereafter. Based on Verse 75:14-15. cciv Idem ccv Based on KIIs and qualitative data from the field. ccvi Article 25 of the EVAW Law. ccvii Islamic law is very clear on the fact that a marriage must be based on the consent of both parties (based on Al Nisa Verse 18), which the practice of Baad contradicts. ccviii Interview with the ayatollah Mohseni. ccix IFL, 2004, Customary Law of Afghanistan, p.11, 12, 13. ccx Cf. Community Leader Survey –Q. 59. ccxi Article 25 of the law on the Elimination of Violence Against Women: 1. If a person gives or takes a woman for marriage in retribution for a baad, the perpetrator shall, depending on the circumstances, be sentenced to a medium term imprisonment not exceeding 10 years. 2. In such case under paragraph (1) of this article, the involved persons (witnesses, counsel, mediator and solemnizer of marriage) shall, depending on the circumstance, be sentenced to a medium-term imprisonment, and the marriage contract shall be considered invalid at the request of the woman, according to the provisions of law. Article 517(2) of the Penal Code specifies that a forced marriage for the purpose of Baad should be sentenced to medium imprisonment (2 years). ccxii Article 398 of the Penal Code : ‘A person, defending his honour, who sees his spouse, or another of his close relations, in the act of committing adultery or being in the same bed with another and immediately kills or injures one or both of them, shall be exempted from punishment for laceration and murder but shall be imprisoned for a period not exceeding two years’. ccxiii If adultery is indeed a severe crime, Islamic law requires very strict justice procedures to punish perpetrators of zina, including 4 witnesses and does not allow individuals to carry out punishment. UNAMA, 2010, Harmful traditional practices and implementation of the law EVAW , p.34 ccxiv If adultery is indeed a severe crime, Islamic law requires very strict justice procedures to punish perpetrators of zina, including 4 witnesses and does not allow individuals to carry out punishment. UNAMA, 2010, Harmful traditional practices and implementation of the law EVAW , p.34 ccxv ‘See AIHRC National Inquiry on Honour killings, 2013. Confirmed by FGDs on the question of runnin g away. ccxvi Article 321 of the Afghan Civil Procedure Code. ccxvii Verse of debt (ayat al dayn), Qur’an 2 :282. ‘and call upon two of your men to act as witnesses ; and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses so that if one of them should make a mistake, the other could remind her.’ ccxviii Idem. ccxix Cf. Community leader Survey, Q. 47. ccxx Article 22 of the Constitution : ‘Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law’. ccxxi Kii Ayatollah – the visit of the Ayatollah office showed that a lot of women had come to plead their case before the ayatollah. ccxxii Cf. Community Leader Survey, Q. 48.