Post on 30-Apr-2023
Inheritance in Afghanistan:
The Plight of Female Heirs in Behsud
Behsud, Afghanistan
Sheila Turabaz June 1, 2015
1145762
Thesis Supervisor: Prof. J.M. Otto Bachelor Thesis Law
Van Vollenhoven Institute Faculty of Law
Leiden University Word Count: 4898 (excl. Table of Contents and Bibliography)
2
Table of Contents I. Introduction 3 II. Background: Behsud 5 2.1 Geography 2.2 Political Overview 2.3 Demography 2.4 Economy 2.5 Governance Structure III. The Formal Justice System 8 3.1 Institutions 3.2 Women’s Rights IV. Inheritance and Property Law 11 V. Informal Dispute Resolution Mechanisms 18 VI. The Social Reality of Inheritance in Behsud 20 VII. Conclusion 24 Glossary 25 Bibliography 27
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I. Introduction
“(…)Even though it is a while that I am silent,
I haven’t forgotten singing
What a day when I break the cage
Take my head out from this isolation and
sing joyfully
I am not that weak willow that shivers from
a wind
I am the daughter of Afghan, so it is
suitable that I must be crying”.1
Women’s inheritance rights in Afghanistan are surrounded with
highly contextual legal and cultural obstacles. It is impacted by
formal and customary laws and practices, which govern family and
social relations. The personal laws concerning inheritance evolve
from the interplay of statute, religion, customs and the judicial
interpretation of these laws. 2 Afghanistan has a pluralistic legal
system. 3 This has as its consequence that there is more than one set
of rules (codified or uncodified) that operates in a specific area or for
a specific group of people. There are both formal bodies of law and
unwritten rules and practices that are engrained in the society. The
aim of this thesis is to discuss the interplay between these laws in
more detail and shed light on the obstacles concerning inheritance
that Afghan women are currently facing. The district Behsud in the
1 Anjuman 2006, p. 7. 2 Scalise 2009, p. 7. 3 De Lauri, 2012, p. 5.
4
province Nangarhar, which is located in eastern Afghanistan will be
used as a case study and this thesis will be narrowed down to this
district only. This is due to the fact that the status of Afghan women
with regard to inheritance varies across the country, and because of
valuable data published in a research report by The Liaison Office
(hereinafter referred to as TLO), a non-‐governmental organisation
active in Afghanistan, in 2014. Therefore, my research question will
be the following:
“What is the legal status and social position of women in Behsud
district, Afghanistan concerning inheritance law?”
In subsequent chapters, the formal justice system, informal dispute
resolution mechanisms and the relationship between these two will
be explained. Further on, the essential aspects of the laws
concerning women’s rights, inheritance and property will be
discussed. Finally, by looking at the social reality of Behsud, it will
become clear how the formal legal system has been translated in to
the society by evaluating to what extent Afghan women living in
Behsud are able to inherit and settle related disputes. All these
elements combined and evaluated will make up the final conclusion
determining the legal status and social position of Afghan women
living in Behsud.
5
II. Background: Behsud
2.1 Geography
Behsud district is located in the north of the province Nangarhar,
and to the north and east of the provincial capital Jalalabad. The
district is well connected with the centre of the province and
Pakistan through two highways (both paved and unpaved). Most
transportation is made possible through these highways. Overall, it
is considered a ‘rapidly evolving peri-‐urban area’. 4
2.2 Political Overview
Before the communist revolution in 1978, the area, which now
constitutes Behsud district, was close to the government. There
were very few supporters of the Communist regime and the new
measures introduced by the communists (such as limiting a
women’s dowry) were considered against Islamic (Shar’ia)
principles. Behsud remained in control by the government until the
fall of the government run by president Najibullah in 1992. During
the Taliban era, the Taliban did not have as much presence
compared to other places in Afghanistan. After the fall of the Taliban
in 2001, resistance and bloodshed was also less than in other parts
of the country and security was reportedly relatively good. 5
Nowadays, there are a few commanders (having authority over a
4 Van Drumpt, Linke, 2014, p. 11, 32. 5 Ibid. p. 34.
6
group) who enjoy a powerful position and are able to exercise
influence in (especially land-‐related) conflicts. 6
2.3 Demography
Behsud is one of the most populous districts in Nangarhar province.
According to a 2011 field research project by TLO, around 500,000
Afghans live in the district, spread across 60 villages. The ethnic
composition is quite heterogeneous; the majority of its inhabitants
are Arabs, who have settled in this area for centuries, the second
largest group are the Pashtuns, and there are a group of Kuchi
nomads living in this area as well. The relationship between the tribes
is considered to be good. 7
2.4 Economy
Around 60% of the people living in Behsud work in the agricultural
sector, providing related products to both Jalalabad and the nation’s
capital Kabul. Approximately 30% work in Jalalabad by doing daily
labour and a minority works in administration or own a private
business. 8 It must be noted that Behsud has relatively good access
to education facilities, which has as its consequence that there is a
high rate of both girls and boys attending elementary, middle and
high school. 9
6 Ibid., p.35. 7 Van Drumpt, Linke, 2014, p. 36-‐37. 8 Ibid. , p. 39. 9 Ibid, p. 40.
7
2.5 Governance Structure
In the Behsud district, there is a District Governor’s Office, a District
Primary Court, and the Afghan National Police (ANP) headquarters.
At provincial level, there is the District Court, the Huqooq
Department and the Police. There is also a shura, registered by the
government that is called the ‘District Development Assembly’
(DDA) composed of maliks and local elders (including women) who
represent the various tribes in the district. 10
10 Ibid. p, 41.
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III. The Formal Justice System
3.1 Governance Structure
The State’s official legal institutions of Afghanistan consist of the
courts, prosecutors, police, justice and Huqooq (district-‐level civil
law offices) departments, the bar of law and prisons. The Supreme
Court, Attorney General’s Office, the Afghan National Police, the
Ministry of Justice and the Prison Service are the most important
central institutions, all of which are headquartered in the capital
Kabul. These central institutions, which are represented at
provincial and district levels. 11 , are responsible for drafting,
upholding and enforcing laws and administering justice in
Afghanistan. 12
The Afghan judiciary comprises the Supreme Court (the highest
judicial body, it consist of nine judges including the Chief Justice who
is the leader), the Courts of Appeal, and the Primary Courts. The
Provincial Appeal Court is the second highest judicial authority
(established in all 34 provinces), responsible for reviewing judicial
decisions of the Primary Courts and decide on cases regarding
commercial, public security and public rights disputes at appellate
level. All 364 districts in Afghanistan contain a Primary Court
(which is the lowest tier of the Afghan Judiciary) and Urban Primary
Courts (courts of first instance) and are located in every provincial
11 Wardak 2015, p. 4. 12 Hamidzada 2007, p. 69.
9
centre. There are also specialized courts for crimes against national
security, property issues, military courts, and for drug offenders (the
Counter Narcotics Criminal Justice Task Force).
The judiciary is considered to be the most corrupt institution within
Afghanistan, according to public perception surveys (such as the
2014 Justice & Security report by TLO). 13 Because of the problems
within the judiciary, Afghan citizens are reluctant to settle disputes
through the formal justice system and instead prefer to do so via
informal dispute resolution mechanisms, 14 which shall be discussed
in more depth in chapter VI.
3.2 Women’s Rights
Nationwide, women’s rights have always been violated to a certain
extent, with the degree of violation varying with who ruled the
country at the time. 15 Nevertheless, there have been periods of
progression in women’s rights from a legal perspective, but
enforcing these rights however, has always been a challenge. In
1923, King Amanullah Khan created Afghanistan’s first constitution,
consisting of a list of ‘basic’ freedoms. For women that meant that
they had the right to educate themselves and travel abroad for
purposes of getting a higher education. Child marriage had been
abolished and polygamy was restricted. Furthermore, the King
transferred jurisdiction with regard to family matters from the
Religious Courts to civil courts. 16 Article 22 of the Constitution of
1977 contained a provision stating the equality of men and women 13 See footnote 4. 14 Ibid., p. 71-‐73. 15 Shah Niaz, 2005, p. 240. 16 Sabboory, Yassari, 2010 , p. 277-‐278.
10
and the Afghan Civil Code of 1977 brought a progressive dimension
to the rights of women in general. For example, women have the
right to inherit or own property, have the freedom to choose whom
they want to marry and specific legislation guarantees legal aid for
Afghan women. 17 During the Taliban era, the Constitution was
suspended and basic human rights were taken away. In 2004, the
Constitution was restored again, but the exercise of these rights has
always been somewhat difficult, which will be explained in the
following chapters.
There is a special type of law for Sh’ia muslims, which is called ‘The
Code of Personal Status of Shi’i Afghans (CPS)’. It contains provisions
based on the school of jurisprudence for most Sh’ia muslims, the
Jafari law. In some ways, the CPS is more liberal than the Hanafi law.
Article 123 CPS for instance states that while the husband in
principle is the head of the family, in some cases the court can
appoint the wife as head of the household if the husband is
‘intellectually unable’ to fulfil this position. 18
In 2009, the Elimination of Violence Against Women (EVAW) law
was passed by presidential decree. The essence of this law is to
”criminalize acts of violence against women including rape, domestic
violence, child marriage, forced marriage, (…) baad and other violent
acts against women” 19, which in total are 22 identified specific
forms. However, due to resistance of politicians and the complexity
17 Hozyainova 2014 , p. 2. 18 Sabboory, Yassari, 2010 , p. 307-‐308. 19 Canadian Women for Women in Afghanistan 2013, p. 1.
11
of enforcement, the parliamentary committee is still reviewing the
law. 20
IV. Inheritance and Property Law
The basis of women’s inheritance rights in Afghanistan does not
consist solely of formal personal laws but is also to a large extent
influenced by customary practices. As is the case with property rights,
women’s inheritance rights are granted at the intersection of formal,
customary and religious laws (Islamic law) through a personal
relationship. 21 The Afghan Civil Code states that statutory law
generally prevails, but where there is no statutory law in a specific
case, Islamic law applies, and where Islamic law is silent, customary
law applies, ‘provided the convention does not contradict the
provisions of the law or principles of justice’. 22 The Afghan Civil Code
contains provisions on inheritance law mainly based on the Hanafi
school of law. 23 The intersection of different laws and the lack of
enforcement of these rights by the authorities make it more difficult
to determine the exact social status that Afghan women have with
regard to inheritance. The legal status can be derived from the
relevant provisions in the Afghan Civil Code.
20 Ibid, p. 2. 21 Scalise, p. 12. 22 The Civil Code of the Republic of Afghanistan, Kabul, Afghanistan, 1977, Article 2. 23 Sabboory , Yassari, 2010, p. 301.
12
The Afghan Civil Code consists of many detailed provisions with
respect to property rights. It is divided in several topics, such as legal
guidance on the handling of contracts, mortgages, rights of
possession, severance of joint rights; inheritance, marriage rights and
procedures for leasing, purchase, renting and sale of property. 24
Despite having a dynamic political history, the courts have continued
to deal with most property and land issues in a similar way because of
the close links between the Afghan Civil Code and Islamic
jurisprudence and the recognition of the role of the Shari’a law by
past governments. 25
The Afghan Constitution (2004) and the international treaties to
which Afghanistan is a party provide formal protection to Afghans
against (wrongful) eviction and deprivation of property and a right
to restitution. The courts in Afghanistan are legally obliged to
protect these rights. Practices that contravene these rights must be
declared illegal, regardless of whether they are based on customary
or Islamic law. However, in reality this does not seem to be the case. 26
Due to the pluralistic nature of the Afghan legal system, a history of
different land reform policies and an unreliable record system, there
is a multiplicity of ownership documents. Spanning a period for over
30 years, private land could have been transferred in various ways,
such as being purchased, expropriated, abandoned by its original
24 The Civil Law of the Republic of Afghanistan, Kabul, Afghanistan, 1977, Articles 1554-‐2416. 25 Flyktningeradet (Norwegian Refugee Council) and UNHCR 2005, p. 14. 26 2004 Constitution of Afghanistan, Article 5.
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owner, granted to another individual, illegally occupied by someone
else, inherited etcetera. The basis of these transfers lies in civil,
customary law and documents. This means that there are different
procedures depending on whether parties choose to follow civil law
or customary law. Therefore it is very difficult to determine who is
the rightful owner of land and property. 27
Formal land ownership documents will be recognized by the court
under the condition that it must be legally registered through a
specific process in the book of ownership and taxation, with no other
legal claims on the land. 28 Unregistered documents are not
considered illegitimate by default, unless the only proof of
ownership consist of tax payment documents. 29 The law concerning
land containing the previous mentioned provisions was created by
the Taliban and is still considered to be valid. Until this day there are
still many properties that remain unregistered.
It often occurs that an occupant has no official or customary
documents and no records to prove he/she is the rightful owner of
the land or property. The occupant may nevertheless still be
considered the rightful owner if no one else claims being the rightful
owner instead and the occupant is using the land or property
productively.30
27 Flyktningeradet (Norwegian Refugee Council) and UNHCR 2005, p. 27-‐28. 28 Law on Land under Decree No. 57, Taliban Islamic Emirate of Afghanistan, Ministry of Justice, Issue No. 795, 2000, Article 4(5). 29 Ibid. , Article 4(6). 30 Ibid. , Article 9.
14
The Afghan Civil Code regulates inheritance and has based it on four
principles. This can be found in Articles 2001-‐2023 of the Afghan
Civil Code. The first principle is that spouses, parents and children
have an inherent right to inherit. The second principle is that the
inheritance will be divided according to the proximity of the family
relationship. The third principle is that female members of a family
must receive a precise part of the inheritance. Widows are entitled
to receive one-‐eighth of the property or one-‐fourth if they have no
children. In case there is more than one wife, the property is shared
among them equally. This is based on Shar’ia law, and can also be
found in chapter 4, Surah 4 Al-‐Nisa .
The fourth principle is that male family members are entitled to
receive a relatively larger share of the inheritance, because males
are considered responsible for covering future family expenses,
whereas females do not share this obligation.
Article 1997 and 1998 of the Afghan Civil Code states that before the
inheritance is divided among the family, the funeral costs and
possible debts of the deceased have to be deducted.
If the deceased husband did not (fully) pay the mahr (a marriage gift
the wife is entitled to receive after marriage), she will receive it
before all other debs are paid because mahr is considered very
important. The property that remains will be divided among the
rightful heirs, as specified by Articles 2001-‐ 2023.
Naturally, direct family members (which is the father, mother, son,
daughter, wife and husband) have a priority right to receive
inheritance and other family members (brothers, sisters, their
15
children, cousins, aunts, uncles, etcetera) will receive the portion of
the inheritance that remains after it has been divided among the
direct family members.
The wife will inherit a quarter in case there are no sons and is
entitled to receive one-‐eighth in case there are sons. The parents of
the deceased person will also receive one-‐eighth.
However, these are ‘just’ the statutory rules. In practice, the
situation is different. Considering the fact that customary practices
play a bigger role in Afghan society, the right of women to inherit is
seldom recognised when there is a male heir instead. In reality, the
entire property is often divided between the sons or goes solely to
the eldest son, however, it must be noted that this depends on the
socioeconomic status a family. In case there are no sons, the father
or brother of the deceased claims the property. There is a practice
among Pashtuns that is codified in the ancient tribal code
Pashtunwali, where the widow is allowed to continue using her
deceased husband’s property, but is required to marry the brother
of her deceased husband. This practice has been declared illegal
under Shar’ia law, the Afghan Civil Code, the Afghan Constitution
and other legal sources. 31 Generally, widows do appear to receive
their share of the land, but then proceed to pass it on to their sons. 32
While it is not common, in some cases the deceased person has made
up a will. This will is considered a priority and will be implemented
31 Flyktningeradet (Norwegian Refugee Council) and UNHCR 2005, p. 53-‐54. 32 Grace,2005, p. 17.
16
(as long as it does not exceed one third of the property). This can be
found in Articles 2103-‐ 2195 of the Afghan Civil Code. Both men and
women can set up a will and are allowed to transfer their property
to whomever they wish, regardless of family relationship, religion or
nationality. However, there is one exception: non-‐Muslims are not
allowed to inherit property from Muslims and foreigners cannot
own immovable property in Afghanistan, which means that they will
receive a payment which has the same financial value as the
property in question. 33
There are a multitude of factors that restrain (mostly rural) Afghan
women from exercising their right to inherit. 34 For example, women
are not allowed to inherit under many versions of the Pashtunwali. 35
Culture also plays a significant role. It is not considered culturally
appropriate for Afghan women to inherit property. Women consider
accepting the inheritance a too masculine act to do, and daughters
do not want to upset ‘their brothers’ by accepting these rights, this
goes along with the point of view that men need it more than women
do because they have a bigger responsibility (according to them). A
third reason could be the lack of land that is available to give to both
daughters and sons (due to the fact that Afghan families are
relatively large). A fourth reason is that the deceased person has set
up a will declaring that all of its property will go to the son. A fifth
reason is that widows living in joint households with other relatives
face a lot of difficulties claiming their inheritance rights, because
33 Ibid, p. 55. 34 Grace, 2005, p. 18-‐19. 35 Strickland, 2007, p. 52.
17
property of the deceased will be shared instead of divided. In some
areas there is a custom where widows are only entitled to inherit
moveable property, this is the case in the province Bamiyan, where
the majority of its people are Sh’ia muslims and follow Jafari Law
(the school of jurisprudence for most Sh’ia muslims) and another
custom where widows without children are forced to remarry and
will not inherit from her first husband. 36 There are also specific
cases where women have been deserted by their husbands or their
husbands are missing, are unable to remarry for a period up to 10
years and at the same time cannot inherit any property if there is no
proof that the husband is deceased. 37
36 Grace, 2005 ,p. 22. 37 Ibid. , p. 23.
18
V. Informal Dispute Resolution Mechanisms
The informal dispute resolution mechanisms most commonly used
are shuras and jirgas, which is an ad hoc council of important people
(mostly rishasafidan/elders) from the village who gather to settle a
specific dispute between individuals, families, villages or tribes.
While trying to resolve the dispute, they use their knowledge of
Shar’ia and customary law.
The general purpose of a shura or jirga is to ‘restore community
harmony’. 38 It becomes more difficult when problems arise between
different ethnic groups inhabiting a village. The informal dispute
resolution mechanisms in Afghanistan are not considered “static,
centuries-‐old traditions, but rather dynamic processes that continue
to evolve based upon shifting social, political and economic
condition”. 39 However, the mechanisms are reflective of local
cultural norms.
There are a variety of informal dispute resolution mechanisms in
Afghanistan, due to the differences (historically, politically and
culturally). However, differences in local stability also seem to be a
key factor in the creation of such mechanisms. 40 Because there is a high level of corruption within Afghanistan and
the government and state court system is of a weak capacity, there is 38 Barfield, Nojumi, Thier 2011, p. 7. 39 Coburn 2013, p. 11. 40 Ibid. , p. 11.
19
no properly functioning system of ‘checks and balances’ within these
institutions. Which has as its consequence that Afghans are
dependent on accountability mechanisms set up by non-‐state actors
(such as the media, civil society and human rights groups) to
monitor and investigate these institutions and their performance. 41
Because of the popularity of the settlement of disputes through
informal procedure, the question arises whether the agreements
that result out of these informal dispute resolution mechanisms can
be recognized as legally binding and registered officially at the State
justice system. According to an experienced judge in Nangarhar,
such agreements could be considered legally binding on both parties
to the dispute. He based his argument on Article 231 (1) of the
Afghan Civil Procedural Law, which states that “if parties to a claim
settle their dispute prior to the official commencement of the claim
and court proceedings, their settlement can be put into wasiqa-‐e-‐
shara’ee (formal court certified document) and the dispute is
brought to an end”. 42
41 Hamidzada 2007, p. 91. 42 Wardak 2015, p. 13.
20
VI. The Social Reality of Inheritance in Behsud
The earlier mentioned inheritance laws and women’s rights
generally do not translate well in to the Afghan society and justice
system. There is a large discrepancy between the envisaged Afghan
society and Afghanistan’s reality. The Afghan justice system and
society still act within a framework of conservative norms that limit
women’s rights. 43
According to the data published in the TLO report, most disputes in
Behsud are over land, women, and family related issues (including
inheritance) and minor criminal cases. TLO surveyed 268 cases in 25
villages in the Behsud district. Around 96% of the cases were solved
by the shura or jirga in the village, with the remaining few cases
being solved by the DDA, the District Governor and one by the
District Court. 44 Informal dispute resolution in Behsud district is
considered to be the rule rather than the exception. There were
both positive and negative sentiments towards this, with the
positive side being that “elders had a higher capacity for dispute
resolution” while on the other hand there were mentions of
corruption and nepotism.45 Another reason why the informal route
is considered to be favourable is because that way –especially with
regard to family issues-‐ the case will not be publicized and elders are
considered to have more information to adequately resolve the
43 Hozyainova 2014, p. 2. 44 Van Drumpt,, Linke 2014 ,p. 57. 45 Ibid., p .61.
21
dispute comparing to the formal authorities. 46 The formal justice
system in Behsud is perceived as being “slow, inefficient and plagued
by corruption”. 47 The District Governor of Behsud stated that
“Afghanistan is the home of jirgas. If the mediators are sincere and
neutral, then the jirga system is better than most government laws”. 48
In general, women explained that their protection was first ensured
by the family, second by the (village) elders and third (as a last
resort) by the district authorities. The Chief of Police of Behsud
district explained that there are around five cases formally issued
by women (but in practice initiated by a male relative) , which are
for a large part concerning inheritance disputes. 49 When such cases
are brought to the court, often times it is being directly referred to
the rishasafidan and jirga members, and in the case of inheritance
disputes, to a religious scholar because of his “relative technical legal
proficiency”. 50
Female respondents reported that when claiming their inheritance
rights, they often times were being restricted by their male family
members, which results in a dispute. 51 What makes it more complex
is the limited access that women in reality have to justice and
security services. In order to get access, they are dependent on male
family members (women are only allowed to go to governmental
46 Ibid., p 15. 47 Ibid. p,57. 48 Ibid.,p.58. 49 Ibid, p. 50. 50 Ibid. p. 58. 51 Ibid. p, 51.
22
institutions with a moharram), a male chaperone, if they do not
adhere to these requirements, it is considered to be a “breach of the
honour of male family members”.52
An exception is in case of widows or women without any male
members present. If she does not have a male family member to
represent her, community leaders will choose a representative for
her.
Furthermore, female respondents admitted that they have no equal
rights to men in the jirga and expressed the need for institutions run
by females to receive complaints and provide advice to women on
how to resolve their problems, which can only be set up with prior
consent of male members of the community and “full respect by
community leaders and their constituents”. 53 An exception is the
custom of nanawaty, a formal apology custom that is seen as
“keeping the peace and preventing disputes from becoming violent”,
where women play an important role. 54
In Behsud district only a few women get their inheritance on rare
occasions. Some female respondents claimed that they were able to
exercise their inheritance rights, while others stated that this was
only possible because of court interference. Inheritance cases
therefore do get settled in court instead of the informal way (if it is
not being settled in the private sphere by dividing the inheritance
between the sons, which is a common practice as mentioned in
chapter IV). When issuing court proceedings, women need the
52 Ibid. p., 15. 53 Ibid. p., 61. 54 Checchi and Company Consulting Inc., p. 3.
23
support of a male family member, especially her husband if she is
married. Claiming these inheritance rights is associated with shame
for a woman. They are also rarely involved in dispute resolution. 55
On a more positive note, the U.S government sponsored a campaign
of television and radio ads and billboards in Kabul province, with a
series of workshops around Nangarhar’s capital Jalalabad, informing
Afghan women of their right under Shar’ia law to inherit a share of
the property when their parents or husband dies. As a result, legal
proceedings against male relatives have increased and more women
are seeking legal advice on inheritance. The campaign is aimed at
both men and women, because men often lack legal awareness and
assume women are not allowed to inherit. 56 Increasing legal
awareness regarding inheritance is crucial to narrow the gap
between theory (the law) and practice and stimulate Afghan
women’s economic independence.
55 Van Drumpt, Linke, 2014, p. 62. 56 Price, J., “In Afghanistan, Women Denied Their Inheritance now have a Champion” , 4 June 2013, www.mcclatchydc.com/2013/06/04/192962/in-‐afghanistan-‐women-‐denied-‐their.html [accessed on 30-‐05-‐2015].
24
VII. Conclusion
Despite formal guarantees, there is still a large discrepancy between
the envisaged Afghan society and Afghanistan’s reality. The Afghan
justice system and society continue to act within a framework of
conservative norms that limit women’s rights. While women have
constitutional and civil rights in Afghanistan, many women are subject
to customary law and therefore cannot access the formal justice
system. This also seems to be the social reality in Behsud. The
settlement of inheritance disputes proves to be a challenge, and the
involvement of Afghan men in this process seems to be crucial.
Without the interference of a man, women are severely limited to
bring an action. Therefore the problem does not lie in the fact that the
law restricts women from exercising their rights, but because the
system doesn't enforce it, society doesn't endorse it and a lack of legal
awareness. Nevertheless, with more NGO's working in (rural) areas,
awareness of inheritance is increasing and more Afghans publicly
express the desire for a better functioning formal justice system.
Overall, it can be concluded that the formal laws are sufficient, but
enforcement is insufficient to protect the rights of female heirs in
Behsud, and that (legal and normative) pluralism remains the
Achilles’ heel of Afghanistan.
25
Glossary Baad The giving of women in marriage by the family of the perpetrator to the family of the victim in compensation of a murder.
Hanafi One of the four sunni Muslim jurisprudential schools of thought Huqooq District-‐level Civil Law Offices under the Ministry of Justice.
Jirga Traditional decision-‐making body created for solving disputes among tribes, clans, villagers, families or individuals and between government and the tribes Jirgamar Traditional local mediators Kuchi (Pashtun) Nomads
Mahr The nominal bride price Malik Traditional village leader serving as a representative for outside interactions
Moharram A woman’s husband (or other close relative with whom marriage is prohibited, such as father, brother and son) to accompany a woman on trips outside the home Nanawaty A formal apology custom
Pashtunwali The Pashtun code of behavior including aspects of customary law which is used as a guide in tribal/local dispute resolution
26
Rishasafidan Greybeard/elders Sha’ria Islamic law Shura A body of local elders and leader which convenes regularly in order to make decisions on behalf of the community. Wasiqa-‐e-‐shara’ee Formal court certified document
27
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28
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Security: Practices, Perceptions, and Problems in Kabul and
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Flyktningeradet (Norwegian Refugee Council) and UNHCR, A Guide to
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Grace, J. , Who Owns the Farm? Rural Women’s Access to Land and
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University, Jamal Mena, Kabul Afghanistan, Army Press, Islamabad,
Pakistan.
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Hozyainova A. , Sharia and Women’s Rights in Afghanistan, 2014,
United States Institute of Peace (USIP), Washington, DC, United States.
Scalise, E. , Women’s Inheritance Rights to Land and Property in South
Asia: A Study of Afghanistan, Bangladesh, India, Nepal, Pakistan and
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Wardak, A., Civil Dispute Resolution in Afghanistan, Justice and
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