On Saturday the 18th May the future of the piece of legislation most treasured by women activists in Afghanistan looked more precarious than ever as a high stake parliamentary debate about it was brought to an end after only 15 minutes. After a series of inflammatory remarks from conservative MPs, which suggested that support for the Law on Elimination of Violence against Women ( EVAW law) was tantamount to being against the Sharia, and that even questioned the President’s judgment in issuing it as a decree in the first place, the speaker quickly declared the debate to be over and the law was  sent on for further review.

For years, the wisdom of presenting the EVAW law to parliament for ratification has split Afghanistan’s women’s rights community, with the majority seemingly strongly against the idea. Instead, they have argued that the law, which was signed into force by President Karzai in 2009, should be left as a presidential decree as it would never survive parliamentary ratification in an acceptable form. The constitutional grounds for this course of action are shaky, but the fact that it has been the preferred strategy highlights the tensions and dilemmas that have plagued  women’s rights promotion in Afghanistan since 2001.

Many Afghan women, be they MPs, activists or government officials have embraced the opportunities over the last 12 years to put in place stronger mechanisms and institutions that secure women better protection from violence and abuse. The EVAW law, hailed as the greatest single achievement in this regard had been in preparation since 2005. It lists 22 acts as violence against women and prescribes punishments for them as well as setting out various related government responsibilities. Although the country’s penal code, dating from 1976 and still in force, cover crimes such as bodily harm, forced marriage and murder, it makes no explicit references to violence within the family or to underage marriage. (The country’s civil code stipulates the legal marriage age for girls at minimum 15, but there are no punishments in the penal code for violators). The penal code also conflates rape with consensual adultery, both criminal acts. It was therefore felt that having a separate law specifically on violence against women would send a strong signal that there could be no impunity for abuses against women and force the Afghan government to take the issue more seriously.

In the years that followed, a somewhat drawn-out drafting process - occasionally diverted by the donor-fuelled competition between individual women - saw several drafts being prepared and presented to government ministries. By early 2009, however, the EVAW law was on the agenda of the Ministry of Justice for technical improvements. At this point in time, the law suddenly found itself fast tracked due to other developments. An international outrage was growing over the Shia Personal Status Law ( SPSL) , a new family law for the country’s Shia minority with a host of articles discriminating against women. Local activists and Western diplomats made frantic attempts to stop or alter the law, but the final version still sanctioned underage marriage, made women’s right to marry dependent on their fathers’ or grandfathers’ permission, and constructed a martial relation in which wives were meant  to submit to sexual relations on demand lest they forfeit claims of maintenance from their husbands.

It seems that the EVAW law was increasingly perceived as a counterbalance to the SPSL. US embassy cables from this period show that the US was closely following the status of the EVAW law, repeatedly reiterating their wish to see the law approved by the Afghan cabinet in meetings with government officials. Eventually the EVAW law was offered up as compromise to national and international opponents of the SPSL by the president, who curiously is reported to have signed them both into force on the same day. At this point, SPLS had already been ratified by the parliament, albeit in obscure circumstances, but the signing of the EVAW law was based on article 79 of the Constitution, which allows room for the president to adopt legislation during parliamentary recess in ‘emergency situations’ . Decrees signed by the president under this disposition become laws upon signing but are to be submitted to parliament within thirty days of the first session of the parliament that has the power to reject the laws decreed. Whether the EVAW law qualified as an emergency situation was perhaps debatable, but in fact, a number of laws (11, by one count) have been put into place in this way and remains in force even though parliament has not ratified them. Undoubtedly, an important factor in this ‘law-making by decree’ has been international pressure- for instance, it was even alleged that the US embassy one summer sent an email out to various international aid organizations and actors in the rule of law field, wondering if anyone had suggestions for laws that they wished to see enacted as presidential decrees before the parliament was due to return from their recess.

But with the EVAW law, an attempt to get parliamentary acceptance was made already in autumn 2009, spearheaded by the same MP Fauzia Kofi who was at the center of the controversial plenary debate on the 18th of May. Discussions on the law in the parliament’s joint commission, tasked with garnering as much consensus as possible before the debate in plenum, reached quite an advanced stage at this time. But the progress came at a cost; for instance, conservative male MPs were insisting on exempting fathers from punishments for underage marriage. Then, as now, maintaining fathers’ prerogatives over their young daughters’ sexuality appeared an overarching priority for conservatives. They were also up in arms about an attempt to make polygamy, outside certain conditions, a punishable offense. However, when discussions in the joint commission broke down in late 2009, it was not so much over substantial disagreements as over the trading of petty insults between two individuals that escalated into a shouting match. The result was that the debate was halted for the time being. The news was received with relief by many of the supporters of the law. They argued that the idea of seeking parliamentary approval had been misguided from the outset, because it would never get past the conservative MPs in an acceptable form, and might even lead to the law being declared null and void.

In any case, a large apparatus was set in motion to implement the EVAW law straight after it was signed into force in the summer of 2009. The International Development Law Organization (IDLO) organized the establishment of special prosecution units within attorney generals’ offices, workshops and trainings on the law were organized in many provinces and yearly reporting by the UN keenly monitored progress, although they struggled to obtain systematic data from Afghanistan’s secretive court system. By all accounts, implementation was sketchy, with the UN estimating that by autumn 2012, only 4 percent of all reported incidents were adjudicated on the basis of the new law. The patchy implementation of the law was one of the arguments presented by Fauzia Kofi, in her capacity as the head of the women’s rights commission in parliament, as she prepared to take the law to plenary debate on the 18th of May this year. She argued that the law would attain greater legitimacy with parliamentary approval, improving implementation rates. For weeks, others attempted to stop her, lobbying embassies and UN agencies, as well as the speaker and the President himself in a bid get the law off the parliamentary agenda.

The disagreements over the EVAW law speak of the larger strategic dilemmas facing proponents of women’s rights in Afghanistan: Do they seize the opportunities that have materialized through Western leverage and funds to put in place legal frameworks and infrastructure that are untainted by compromises with Afghan conservatives, or do they engage in long term negotiations with national groups, sacrificing both urgency and feminist ideals in the process? 

Many Afghan activists will protest that the notion that they should make compromises with conservative MPs is unreasonable and even hypocritical. As they point out, many of these MPs came to power twice on the back of Western military agendas; first as Western allies against the Soviet Union during the cold war, and secondly as rehabilitated partners to the US-led invasion in 2001. Qazi Nasir Hanafi, the head of the legislative commission during two parliamentary terms and an ardent opponent of the EVAW law seems a case in point. Reported to have risen to influence as an Islamic judge during the jihad against the Soviets, meting out severe punishments for religious non-adherence, post-2001, he again wields power as an influential member of the ulema council, boosted by his jihadi credentials. For many women’s rights activists, both inside and outside the parliament, the suggestion that they must reach a compromise with these kinds of actors is ludicrous, or at the very least, unhelpful. Two years ago, a similar kind of dilemma erupted over the women’s shelters. Against a growing conservative backlash against these institutions, accused by Hanafi and others of encouraging immorality and ‘destroying the family’, the Afghan government sought to nationalize the shelters, which are run by NGOs. One of the outcomes that this nationalization would entail was to subject abused women who sought access to the shelters to a local admission committee, where charges of adultery would serve as one disqualifying element. Shelter staff and women activists, mobilising international outrage, succeeded in getting the government to back down, leaving the shelters as independent entities, run with donor funds for the time being. However, Hanafi and others seem to be still smarting from the defeat, since the article referring to shelters has been added to their current set of objections to the EVAW law.

In the eyes of many women’s rights activists then, the EVAW law and the shelters are among the key achievements of the last 10 years and even though they have been secured through narrow deals and partly through external pressure, they are still important victories that have made a real impact on individual women’s lives. That is true despite the low implementation rates of the EVAW law- since the law has become a symbol of the end of impunity and a tool of advocacy.

From this perspective, the insistence by Fauzia Kofi that the EVAW law needed parliamentary approval to be secure was a high risk gamble, and the whole attempt to equip the law with parliamentary approval so superfluous that it could only be explained by Kofi’s personal interest in taking the credit for the law.  But even if Kofi is a very ambitious woman whose bid for the presidency partly via international fame cultivates the clichéd image of the quintessential Afghan woman lone heroine, her argument that parliamentary approval would strengthen the EVAW law should not be categorically dismissed, even if in this case, it was hastily and poorly executed.

One would do well to be alert to the possibility that the willingness of many women activists to dispense with democratic procedures are not merely an ends-justifies-the-means pragmatism of the moment, but something that also hints at a more enduring disinterest in broad-based politics. Grassroots or party-based politics never had strong support in Afghanistan, and the preference that many woman activists have displayed for executive favor over the parliamentary route reinforces the top down manner in which  change has often been conceived. Although it remains something of a taboo topic, there are strong ethnic overtones to this issue, with old guard Pashtun elites particularly hostile towards more democratic impulses.

But as international leverage and resources diminish, there seems to be no way around a more nationally- orientated political strategy for women activists. On a positive note, new possibilities might emerge as the international withdrawal could create a more level political field; the former jihadis will have neither the anger against foreign troops to play up nor the off the books resources flowing to armed strongmen to build their political platform. What we saw on the 18th of May was the curious power of a small number of MPs to hold an entire nation hostage simply by declaring something to be against Sharia. If sustainable progress is to be made, that power will have to be curtailed. Otherwise, women will face the same obstacles again and again, next time perhaps in the shape of a president.

This article was first published in May 2013.  It is republished here as part of 50.50's series of articles during 16 Days: activism against gender violence