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Afghanistan

Courts to Address Violence Against Women (AF0003)

Overview

At-a-Glance

Action Plan: Afghanistan Action Plan 2017-2019

Action Plan Cycle: 2017

Status: Inactive

Institutions

Lead Institution: Supreme Court

Support Institution(s): MoWA, AIHRC, AIBA, women rights networks and women rights advocacy networks

Policy Areas

Gender, Judiciary, Justice, Public Participation, Subnational

IRM Review

IRM Report: Afghanistan Design Report 2017-2019

Starred: Pending IRM Review

Early Results: Pending IRM Review

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information Civic Participation

Potential Impact:

Implementation i

Completion:

Description

What is the public problem that the commitment will address?: Given the socio-cultural context of Afghanistan, women would feel comfortable if their VaW cases are addressed through especial VaW courts in presence of female judges. Currently, VaW cases are addressed through Criminal Department (Dewan-e Jaza) in 19 provinces of Afghanistan and in the remaining 15 provinces, VaW cases are addressed by VaW special courts. This situation can undermine inclusive access to justice within the country.; What is the commitment?: In order to address this challenge, Supreme Court of Islamic Republic of Afghanistan committed, during the consultative meetings of Open Government Partnership-Afghanistan Forum, to establish 12 more VaW special courts in 12 provinces of the country in collaboration with CSOs. Established special courts to address VaW crimes are expected to increase women’s access to justice in the mentioned provinces, address and reduce VaW crimes.; How will the commitment contribute to solve the public problem?: First, implementation of this commitment would contribute to inclusive access to quality judicial services in the 12 provinces. Second, the special courts in the provinces will be supported by legal organizations such as Afghanistan Independent Bar Association (AIBA), women rights networks, women rights advocacy organizations, MoWA and AIHRC to ensure women access to justice. Supreme Court of Islamic Republic of Afghanistan will organize training sessions for CSOs in Kabul and 12 provinces to raise their awareness about the mandate and jurisdiction of VaW special courts, and will request them to transfer this information to the general public. This will prevent VaW cases from staying on the table and encourage people to use these courts to address VaW crimes. Third, these courts will better address VaW crimes according to applicable laws of Afghanistan, contributing to decreased VaW crimes and enhanced rule of law in the country.; Why is this commitment relevant to OGP values?: Establishment of the special courts will ensure that women have unhindered access. Further, the functionality of special courts will prevent the accumulation VaW cases in the supreme court thereby not only increasing access but also the accountability. These courts are mandated to work with AIBA, women rights networks and AIHRC to make sure cases are dealt with in just and timely manner. Moreover, the aforesaid CSOs can attend the trials within the scope of law. Given all said, the commitment is relevant to public participation, accountability and transparency.; Additional information: Necessary fund for implementing this commitment will be provided from the budget of Supreme Court and through international donor agencies. This commitment is relevant with National Justice and Judicial Reform Program.

IRM Midterm Status Summary

3. Establishing Special Courts to address Violence against Women

Language of the commitment as it appears in the action plan:

“Given the socio-cultural context of Afghanistan, women would feel comfortable if their VaW cases are addressed through especial VaW courts in presence of female judges. Currently, VaW cases are addressed through Criminal Department (Dewan-e Jaza) in 19 provinces of Afghanistan and in the remaining 15 provinces, VaW cases are addressed by VaW special courts. This situation can undermine inclusive access to justice within the country.

In order to address this challenge, Supreme Court of Islamic Republic of Afghanistan committed, during the consultative meetings of Open Government Partnership-Afghanistan Forum, to establish 12 more VaW special courts in 12 provinces of the country in collaboration with CSOs. Established special courts to address VaW crimes are expected to increase women’s access to justice in the mentioned provinces, address and reduce VaW crimes.

Milestone activities and verifiable deliverables
  • Supreme court designs the organizational structure of special courts for VaW crimes in the 12 provinces based on the law.
  • The courts will hold 13 awareness raising sessions (one session in the center and 1 session in each of the 12 provinces) with representatives of AIBA, women rights networks, women rights advocacy organizations, MoWA and AIHRC with a purpose to communicate the mandate of the courts. These organizations will then be encouraged to provide awareness to citizens with the intention of achieving the following: increase the women’s knowledge of the existence of the special courts and their mandate and procedures and how women can file their cases to these courts.
  • Establishing special courts for addressing VaW crimes in 12 provinces”

Start Date: January 2018

End Date: August 2019

Editorial Note: This is a partial version of the commitment text. For the full commitment text from the Afghanistan National Action Plan see: https://www.opengovpartnership.org/commitment/03-courts-address-violence-against-women

Context and Objectives

The objective of this commitment is to establish Violence Against Women Special Courts in 12 provinces. Prior to the commitment, only 15 provinces, out of 34, have had such courts.

Violence against women (VaW) constitutes one of the most serious human rights challenges in Afghanistan. It is practiced in many forms, the most prevalent of which are physical, verbal, sexual, psychosocial and economic. [17] According to Afghanistan Independent Human Rights Commission, in 2017-2018, 4,340 cases of VaW were registered across the country, which shows a twofold increase in reporting cases of VaW in comparison to the year before. [18] The report further notes that VaW in Afghanistan is a “social phenomenon with deep root in the culture and tradition of society.” [19] Considering this reality for women in Afghanistan, many donor countries have conditioned their financial support to Afghanistan on the development of projects to combat VaW, and have since the fall of the Taliban in 2001 continuously asked the Afghan government to seriously address women’s issues. [20] As part of the government’s efforts to do so, the government promulgated a law on the Elimination of Violence Against Women (EVAW law) by a Presidential decree in 2009. [21] However, the Afghan Parliament never ratified the law due to presence of many conservative members who considered some elements of the law “un-Islamic” and out of line with Afghan norms. [22] Due to pressure from various women’s rights CSOs and the international community, the government acted outside of parliament to begin implementing several provisions of the law. As part of these efforts, Afghanistan established special courts in 15 provinces, which have better security conditions and infrastructure, to address violence against women (VaW). In the remaining 19 provinces, violence against women is addressed through the Criminal Department (Dewan-e Jaza), which limits women’s access to justice due to prevalence of corruption, abuse of power, lack of professionalism, and cultural and family pressure. [23]

This commitment stipulates that the Supreme Court will design and establish 12 additional special courts in 12 provinces (with women judges) to address VaW crimes, with CSOs spearheading related awareness-raising campaigns. Both the government official and CSO representative, interviewed for this commitment, stated that more women are willing to bring their cases to the special courts instead of referring them to the Dewan-e Jaza, a division within the criminal justice department. [24] The CSO representative, however, noted that such access has clearly augmented in Kabul and a few other major cities, but in most provinces women still prefer to resolve their cases through traditional systems rather than referring to courts. This is mainly due to the cultural Nang and Ghairat issues, which can correspond to traditional customs around oneself and one’s family’s honor. She highlighted the challenge that many women are unaware of the existence of such courts and their mandates, thus emphasizing the important role of public awareness-raising campaigns, which is one of the central activities of the commitment. [25] The government representative acknowledged the vital role that CSOs, especially women’s groups, have played and need to continue to play in this initiative.

The commitment has relevance to civic participation because CSOs are involved in awareness raising campaigns. The commitment can be considered relevant for access to information by broadening women’s access to information on the court system and the overall women’s rights agenda.

The commitment as written is specific enough to verify its completion. However, stakeholders interviewed by the IRM Researcher raised a number of challenges and concerns that could affect its implementation. First and foremost is weak security in certain provinces, which stakeholders have argued makes the establishment of the VaW courts very slow, if not outright impossible. Given that one of the objectives of the special courts is to hire women judges, stakeholders pointed out that woman judges should be trained in Kabul and dispatched to the provinces. However, due to security challenges in the provinces, especially for women, many women may decide to opt out upon completion of their training and remain in Kabul instead. The CSO representative also highlighted the challenges that women judges will face in an extremely patriarchal and conservative society that has not traditionally viewed it as appropriate to have women serving as judges.

The IRM Researcher considers the potential impact of this commitment to be moderate if implemented as designed. Currently, there are 15 VaW courts in place (out of 34 provinces), which covers less than 50% of provinces. The additional 12 VaW courts will bring this number to a total of 27 provinces, which covers roughly 80% of the provinces.

In a latest report, the Afghan Supreme Court announced that in three years, 7246 cases of VaW have been examined, which they consider to be an achievement linked to the establishment of the special VaW courts. [27] Nevertheless, according to a BBC report, people in one third of districts (142 out of 400 districts) in Afghanistan do not have access to any court, let alone VaW courts. [28] This means, in the best case scenario only women in the main cities will have access to the VaW courts. Coverage and accessibility therefore constitute another important challenge for this commitment to have more potential impact.

Next steps

Given the prevalence of violence against women in Afghanistan, The IRM Researcher suggests that this commitment should be implemented fully and its continuation be ensured by prioritizing it for inclusion again in the next action plan. The stakeholders interviewed by the IRM Researcher suggested a series of actions and recommendations for the implementation of this commitment. These include:

  • A future action plan could aim to significantly increase coverage and accessibility of VaW courts. Where possible, prioritize inclusion of districts that do not have access to any court.
  • Donor countries or entities could consider the specific needs on the ground, considering the existing realities (including cultural practices) as opposed to realizing their objectives independent of the local context. The government representative highlighted this challenge with the donor community, particularly in relation to the importance of building women-only residences for female judges. [29] In his view, the donor community did not see this as a priority, whereas in the government representative’s view (and those of the CSO representatives as well), this is a pre-condition for the VaW courts to function successfully. [30]
  • The Afghan government, donor communities and CSOs could proactively take steps to enhance connectivity in order to expedite communications with VaW courts in provinces. As it is, sometimes it may take up to two months for a simple communication between Kabul courts and those in the provinces. [31] This system can facilitate and expedite communication between WaV courts and the Supreme Court in Kabul and VaW courts in other provinces who may be in need of consultation and guidance, particularly at the initial stages of their establishment.
[17] AIHRC (2017-2018). Summary of the Report on Violence Against Women: The causes, context, and situation of violence against women in Afghanistan. Retrieved on 23 January, 2019 from https://www.aihrc.org.af/media/files/Research%20Reports/Summerry%20report-VAW-2017.pdf
[18] Ibid.
[19] Ibid, p. 4.
[20] At the 2016 Brussels’ donor conference on Afghanistan, women’s empowerment played an important role for the donor community to continue their support. For more information, see: https://www.europanu.nl/id/vk81pvtcwbu3/nieuws/brussels_conference_on_afghanistan?ctx=vgaxlcr0dzzr&s0e=vhdubxdwqrzw
[21] Islamic Republic of Afghanistan, Ministry of Justice. (2009). Elimination of Violence Against Women. Retrieved on 19 November 18, from: http://moj.gov.af/content/files/OfficialGazette/0901/OG_0989.pdf
[22] Roehrs, Christine and Kouvo, Sari (16 May 2013). On a Knife’s Edge: The looming parliamentary debate about the Elimination of Violence against Women Law. Afghanistan Analyst Network. Retreived on 19 November 18, from: http://www.afghanistan-analysts.org/on-a-knifes-edge-the-looming-parliamentary-debate-about-the-elimination-of-violence-against-women-law/
[23] UNAMA (April 2015). Justice through the Eyes of Afghan Women: Cases of Violence against Women Addressed through Mediation and Court Adjudication. Retrieved on January 23, 2019, from https://unama.unmissions.org/sites/default/files/unama_ohchr_justice_through_eyes_of_afghan_women_-15_april_2015.pdf
[24] Personal interview, Director of Policy and Planning, Supreme Court, 23 October 2018, Kabul.
[25] Personal interview, Head of Advocacy, Afghan Women Network, 28 October 2018, Kabul.
[27] Daily 8AM (6 March 2019). Supreme Court: More than 7000 cases of VaW have been examined. Retrieved March 6, 2019, from https://8am.af/supreme-court-more-than-7000-cases-of-violence-against-women-have-been-raised/?fbclid=IwAR1itGMYKMzPURvD-ixSwEfO9clsFbjD9OB8mqIIK80zvBU5WeUdgzoR_h5
[28] Hussaini, A. (23 February 2019). BBC investigation: Courts do not exist in one third of Afghan districts. Retrieved February 26, 2019, from http://www.bbc.com/persian/afghanistan-47089204
[29] Personal interview, Director of Policy and Planning, Supreme Court, 23 October 2018, Kabul.
[30] Such residential have never been built before, which the government official considers as one of the reasons for the slow pace of the VaW courts function. (Communicated via e-mail to the IRM researcher by the director of policy and planning at the Supreme Court, 25 January 2019).
[31] The UN E-Government knowledgebase ranks Afghanistan 177 out of 193 on the E-Governance Index and 145 out of 193 on the E-Participation index. Please see: UN E-Government Knowledgebase. (2018). Retrieved November 8, 2018, from https://publicadministration.un.org/egovkb/en-us/Data/Country-Information/id/1-Afghanistan 

Commitments

  1. Mechanism of Public Partnership in Inspection Process

    AF0001, 2017, Capacity Building

  2. Law on Processing, Publishing and Enforcing Legislative Documents

    AF0002, 2017, Legislation & Regulation

  3. Courts to Address Violence Against Women

    AF0003, 2017, Gender

  4. Public-Police Partnership Councils

    AF0004, 2017, Capacity Building

  5. Registering Assets of Government Officials

    AF0005, 2017, Asset Disclosure

  6. Scheme for Establishing Health Service Accreditation Entity

    AF0006, 2017, Capacity Building

  7. Urban Improvement National Policy

    AF0007, 2017, Infrastructure & Transport

  8. Protection Policy for Women Under Conflict and Emergency Situations

    AF0008, 2017, Gender

  9. Civil Society Monitoring Plan for Education and Higher Education

    AF0009, 2017, Education

  10. Plan for the Establishment of a Joint Committee Overseeing the Implementation of the Anti-Corruption Strategy

    AF0010, 2017, Anti-Corruption Institutions

  11. Strengthen the Information Mechanism in 60 Governmental Agencies

    AF0011, 2017, Capacity Building

  12. Implementing Open Contracting

    AF0012, 2017, E-Government

  13. Public Participation in Road Network Projects

    AF0013, 2017, Infrastructure & Transport