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Lack of Female Lawyers in Eastern Afghanistan

When women are prosecuted, they are unlikely to tell male lawyers key facts that could count as extenuating circumstances.
By Hijratullah Ekhtyar
  • Women in Nangarhar say they need equal access to legal protections. (Photo: Malalai Abdali/Internews Network)
    Women in Nangarhar say they need equal access to legal protections. (Photo: Malalai Abdali/Internews Network)

Women accused of crimes in Afghanistan’s Nangarhar province say the lack of female representation in the legal profession is obstructing equal access to justice.

Female law graduates exist in the eastern province, but they are not choosing to enter the mainstream legal professions.

All cases in Nangarhar are handled by male lawyers, prosecutors and judges.

Some of the approximately 50 women now in prison in the province say they were too ashamed to tell defence lawyers and prosecutors the full facts about their cases, which might have mitigated the verdicts passed on them.

Habiba is currently serving a ten-year sentence for murdering her husband, but says there were serious extenuating circumstances which she felt unable to disclose to the male lawyers she dealt with.

“My husband had sexual relations with my 17-year old daughter. I repeatedly told him to stop it, but he threatened to kill me. My Islamic beliefs and my conscience meant I could not bear the shame of it, so I killed my husband,” she said. “I couldn’t tell male lawyers all the details, but I could have confided in female lawyers. I am sure I would have been released, as such actions are punishable by execution under Islamic law.”

Breshna is in jail for setting her mother-in-law on fire, and she too claims she would have been able to present a better defence if her lawyer had been a woman. Men, she said, just did not want to listen.

“The lack of female judges and lawyers is a big problem,” she said. “Out of a sense of shame, we cannot tell men the truth about our cases. Female lawyers and judges would understand the problems facing women better. No matter how much I complained about my mother-in-law’s cruelty, the male lawyers wouldn’t show mercy.”

Abdol Satar Khalil, a defence lawyer working for Women For Women, an NGO in eastern Afghanistan which hires defence lawyers for female defendants, said these suspects often omitted personal details when talking to defence and prosecution lawyers.

“They say nothing, out of shame. But they don’t realise how detrimental it is for them to hide the truth,” he said, explaining how his organisation employed female family counsellors who could get suspects to open up to them.

Abdul Qayum, head of the prosecutor's  office for Nangarhar, said having female prosecutors question defendants of the same sex would be better for ensuring justice.

“It is true that many female suspects conceal the truth from male lawyers, particularly in ‘moral’ and family cases. The lawyer doesn’t get told the whole story. That also has an impact on the punishment imposed on the defendant,” he said.

In Afghanistan, the loosely-defined term “moral crime” is often applied to women who run away from home or refuse to get married. These are not offences in the written criminal code, but it is common for courts to impose jail sentences of up to a year on women deemed guilty of them.

Although levels of female participation in public life in Afghanistan have increased dramatically since the Taleban government was ousted in 2001, progress has been slower in the provinces.

“It is unfortunate for [Nangahar] that we have no female interrogators in the police, in the prosecutor’s office or in the judiciary,” Khalil said. “Female interrogators and [defence] lawyers for women are the foundations for fair justice.”

Anisa Omrani, head of the Nangarhar provincial department for women’s affairs, said it was not clear why female graduates in both mainstream and Islamic law were not coming into the profession.

“We are prepared to work with them on getting them appointed,” she said.

A lecturer in law and politics at Nangarhar university, Sherzad, called for efforts to encourage more women into the law.

“The religious scholars should motivate our female students and their families, because there’s a need for them to work in the police and legal institutions, as a religious obligation… it is something our society is in dire need of,” Sherzad said.

Other commentators cited more fundamental reasons why women did not become lawyers – conservative prohibitions on women working outside the home, and the low wages offered in the public sector.

Fazal Ali Fazil, head of the appeals courts in Nangarhar, said pay was a major issue when the limited number of women with qualifications could get work elsewhere.

“The main problem is the low salaries,” he said. “The non-government organisations pay high wages in dollars to female professional lawyers, so they aren’t prepared to work for the low salaries offered by the government.”

Abdol Qayum acknowledged this was the case. “We had a female lawyer until last year, but she left the post because the pay was low wages,” he said.

While female students do graduate every year from the law and sharia faculties of Nangarhar state university, as well as from the the Ariana private university, they seem unwilling or unable to enter the legal professions.

For Shafia Weqar, a law student at Nangarhar university, conservative attitudes are the main obstacle.

“Our society takes a negative view not only of female judges and lawyers, but also of all women who work in offices and outside the home,” she said. “People believe that these women are involved in moral corruption. But the truth is that women can contribute a great deal to society. In particular, they are very much needed as judges and lawyers. I don’t believe that’s even counter to Islam.”

Weqar will not be taking up a career in the law, as she believes she can make more of a difference if she gets involved in politics.

“That is the way I want to defend and protect the rights of women in my society,” she added.

Masuda, a third-year student in the law and politics faculty of Nangarhar university, wants to move into the judiciary when she graduates.

She is critical of women who avoid legal careers in favour of other areas, but admits her family background has given her a head start.

“I have no problems with my family,” she said. “My father is a judge. He has encouraged me to finish my education and become a judge or a legal officer in future.”

Hijratullah Ekhtyar is an IWPR-trained reporter in Nangarhar, Afghanistan. The prisoners quoted in the story were interviewed by a female journalist asked to remain anonymous.

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