Inheritance in Afghanistan: The Plight of Female Heirs in Behsud

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

3

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.

8

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.

13

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

Bibliography

Articles:

Barfield, T., Nojumi, N. The Clash of two Goods: State and Nonstate

Dispute Resolution in Afghanistan, Customary Justice and the Rule of

Law in War-‐torn Societies, 2011 Washington, DC: United States

Institute of Peace Press.

De Lauri, A. , Inaccessible Normative Pluralism and Human Rights in

Afghanistan, 2012, Fondation Maison des sciences de l’homme,(

FMSH)-‐ WP-‐ 2012-‐21.

Shah Niaz, A., The Constitution of Afghanistan and Women’s Rights,

2005, Feminist Legal Studies, August 2005, Vol 13/2, pp. 239-‐258.

Strickland, R. , The Way of the Pashtun: Pashtunwali, 2007, Canadian

Army Journal, Volume 10/3. 2013-‐2015, p. 44-‐55.

Internet:

Canadian Women for Women in Afghanistan, Afghanistan’s EVAW

Law, 2013, www.cw4afghan.ca (accessed on 22 May 2015). p. ,1.

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].

28

Reports:

Checchi and Company Consulting Inc., USAID: Rule of Law

Stabilization Program – Informal Component, Behsud and Surkh Rod

Nangarhar, 2010,The United States Agency for International

Development), Washington D.C, United States,

Coburn, N. , Informal Justice and the International Community in

Afghanistan, 2013, United States Institute of Peace (USIP), Washington,

DC, United States.

Van Drumpt, F. , Linke, L., , The Liaison Office and Cordaid, Justice &

Security: Practices, Perceptions, and Problems in Kabul and

Nangarhar, 2014, The Liaison Office, Kabul, Afghanistan.

Flyktningeradet (Norwegian Refugee Council) and UNHCR, A Guide to

Property Law n Afghanistan, 2005, Afghanistan.

Grace, J. , Who Owns the Farm? Rural Women’s Access to Land and

Livestock, 2005, Afghanistan Research and Evaluation Unit (AREU),

Afghanistan.

Hamidzada, H. Afghanistan Human Development Report 2007:

Bridging Modernity and Tradition: Rule of Law and the Search for

Justice, 2007, Center for Policy and Human Development, Kabul

University, Jamal Mena, Kabul Afghanistan, Army Press, Islamabad,

Pakistan.

29

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

Sri Lanka, 2009, Rural Development Institute (RDI, Brandon, Manitoba,

Canada.

Wardak, A., Civil Dispute Resolution in Afghanistan, Justice and

Human Rights in Afghanistan (JHRA) Project, 2015, United Nations

Development Project (UNDP), Kabul, Afghanistan.

Books:

Anjuman, Nadia. Gul-‐e Dudi, 2006 (Kabul: Association of Afghan

Writers),Kabul, Afghanistan.

Sabboory, M.H , Yassari, N., Sharia and National Law in Afghanistan, in

Sharia Incorporated A Comparative Overview of the Legal Systems of

Twelve Muslim Countries in Past and Present edited by J.M Otto, 2010,

Leiden University Press, Leiden, Netherlands.

Inheritance in Afghanistan: The Plight of Female Heirs in Behsud

Documents

Transcript of Inheritance in Afghanistan: The Plight of Female Heirs in Behsud