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Max Planck Institute for Comparative and International Private Law

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Background

After decades of war, Afghanistan is facing a complete new beginning: the political system, administration, judiciary and higher education have to be rebuild from the ground up. As a result of the high level of illiteracy in Afghanistan, estimated at 60%, as well as a comprehensive failure of information dissemination, the existing statutory provisions on family law which are anchored in the still valid Afghan Civil Code of 1977 remain widely unknown to the vast majority of the population. Additionally, the coexistence of codified state law, uncodified Islamic law and local customary law poses a significant obstacle to the enforcement of the law. The legal uncertainty developing as a result fosters widespread distrust in the population towards state institutions. Difficulties in enforcing codified family law are further exacerbated by the absence of specialised family law courts outside of Kabul, even though the Afghan Code of Civil Procedure specifically prescribes their existence.  

 

The first part of the project was aimed at Afghanistan’s basic structures. On the occasion of Afghanistan’s new constitution adopted in 2004, the Institute organised an international symposium entitled “The Shari’a in the Afghan Constitution and Its Implications for the Legal Order” which was attended by Afghan jurists as well as legal scholars from other Islamic countries. It became clear that a focused treatment of family law in Afghanistan is considered to be of crucial importance from the Afghan side in light of the numerous problems and challenges. In autumn 2005, the debates and legal discussions from the symposium were published by the Institute in a bilingual anthology (Dari and English, see publications: The Shari’a in the Constitutions of Afghanistan, Iran and Egypt).  

 

Subsequently, family law in Afghanistan was reviewed. The objective of the project was to research the Afghan family law and to assist the process of the upcoming family law legislation by seminars and workshops in close cooperation with Afghan legal practitioners and by involvement of legal practitioners from other Islamic countries, in order to submit concrete proposals on how to provide sustainable assistance in this very sensitive field.

 

Thus, from 2006 to 2008, the focus of the department has lain on the preparation of a textbook on Afghan family law. The book is intended for legal practitioners as well as law students in Afghanistan. The primary motivation for the creation of the textbook was not only the lack of legal teaching material on Afghan family law but also the desire to identify possible approaches towards family law reform. The concept of the department was based on a stepwise approach aimed at sustainability of the project and the implementation of the results by multipliers in Afghanistan.

Field Research

In winter 2004/2005, the Institute initiated a field research project on family law in nine Afghan provinces (Kabul, Kandahar, Herat, Balkh, Badakhshan, Bamyan, Nangarhar, Kunduz and Paktia) in order to ensure that the information presented in the textbook is well-grounded in Afghan legal reality.

 

On the basis of questionnaires prepared beforehand, a team of Afghan legal practitioners interviewed more than 200 judges, prosecutors, law lecturers of the faculties of law and sharia, employees of state institutions, members of various international organisations and NGOs, members of local jirgas and councils as well as local residents of all genders, ages and social strata. Official governmental structures as well as informal dispute resolution mechanisms have been included in the research. The interviews centred on such subjects as the legal sources, matchmaking, engagement, marriage and polygamy. In 2005, a report on the field research has been prepared (see downloads: Family Structures and Family Law in Afghanistan).

Comparative Law Analysis

In a second phase from June to December 2005, the results of the field research have been evaluated and a comparative law analysis of the family law in other Islamic countries has been made by Dr. Nadjma Yassari, Prof. Dr. Irene Schneider (Universität Göttingen), Dr. Martin Lau (London University), Prof. Dr. Mohammed Hashim Kamali (International Islamic University of Malaysia) and Dr. Najibullah Kamali (Kuwait).

Workshop

Another step was the three-day workshop on Afghan family law in June 2006 in Kabul organised by the Institute. In preparation of the workshop, a collection of articles and reports on Afghan family law in Dari had been assembled for the participants, accompanied by the field research report. Approximately 50 jurists from Kabul, Nangarhar, Balkh and Logar as well as representatives of state institutions, universities, women’s organisations and other non-governmental organisations participated in the workshop. Focal points of the conference were substantive family law issues such as marriage and divorce law, particularly child and  forced marriage as well as  polygamy and procedural law, particularly the non-registration of personal status matters:  

 

- Child and forced marriage: according to the accounts of participants, child marriage, forced marriage and exchange of female family members as a means of feud settlement remain widespread in Afghanistan despite being inconsistent with either state or Islamic law. The physical and psychological consequences of these practices are disastrous.  

 

- Registration of personal status matters: matters of personal status, such as a birth or a marriage, are not being registered, because of the inadequate number of registration offices throughout the country and the general ignorance in the population as to the responsible office. Consequently, child marriage cannot be effectively combated, since the age of an individual cannot be conclusively established in the absence of identification documents.  

 

- Divorce: for fear of social ostracism and economic distress, a divorce is out of the question for the majority of wives in Afghanistan.  

 

- Polygamy: under the provisions of the Afghan Civil Code, polygamy is allowed only under certain conditions. Specifically, a husband must treat his wives equally and provide adequate maintenance for each of them. Furthermore, he has to prove a legitimate interest in a second marriage, for example, the infertility of the first wife. However, in practice, the observance of these conditions is difficult to verify and wives are frequently subject to grossly disparate treatment and financial disadvantage.

 

For all topics discussed, the dire economic situation, the catastrophically low level of education, the enormous unfamiliarity with applicable law in addition to its inadequate enforcement were identified as the main causes for the current precarious and alarming state of family law in Afghanistan. Participants increasingly advocated more action initiatives by the government, which, as a result of the new constitution of 2004, has been furnished with a significant role in the protection of the family and the safeguarding of fundamental rights.

Textbook

Finally, the entire material gathered within the research program has been incorporated into the textbook on family law in Afghanistan, which was finalised and published in Dari in October 2008, an English translation ensued in 2010 (see downloads: Max Planck Manual on Afghan Family Law). All topics relevant in terms of family law, which are mostly stipulated in the Afghan Civil Code of 1977 as well, are included, such as matchmaking, engagement, marriage, divorce and child law. The textbook is based on the results of the field research in winter 2004/2005 and the workshop in June 2006 in Kabul (see above).

 

However, the textbook is not confined to a detailed illustration of the different topics as such; it also discloses contradictions of selected family law provisions and customary practices in relation to the Afghan Constitution of 2004 and certain international agreements entered into by Afghanistan. Since a reform of the family law is considered indispensable, the textbook also contains a comparative law analysis of reforms already implemented in the family law of other Islamic countries. Thereby, the legislator is meant to be shown different possible approaches for an individual reform of the Afghan family law in the near future.

 

In cooperation with the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, the Dari version of the textbook has eventually been used during a one-week seminar at the Institute in Hamburg to train Afghan lecturers of the Kabul University. Since November 2008, training units on family law are being held on the basis of the textbook for judges, judicial officers and university lecturers in Afghanistan.

Yassari, Nadjma (Hg.), The Sharia in the Constitutions of Afghanistan, Iran and Egypt – Implications for Private Law (Materialien zum ausländischen und internationalen Privatrecht, 45), Mohr Siebeck, Tübingen 2005, 571 pp.