Out of the Shadows, onto the Bench: Women in ’s Justice Sector

EXECUTIVE SUMMARY Forword

The International Development Law Organization (IDLO) is an intergovernmental organisation devoted to empowering people and enabling governments to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity. Front cover image: World Bank_Graham Crouch

02 ForEword

t the September 2012 United in Afghan women – in ensuring respect Nations General Assembly, for their rights, in their educational and IDLO pledged to undertake a professional opportunities, and of Aglobal survey of the role of course, in their role in the judiciary women in justice institutions. We did so and the legal community. because we believe that the quality of justice women receive cannot improve This report does not provide an off- until and unless there are more of them the-peg solution to what is an working as judges, lawyers, prosecutors enormously complex problem. Our and investigators. recommendations are based on what we have heard from Afghan women Irene Khan Given the magnitude of the challenge, themselves. The issue is not just more Director-General, IDLO and our long-standing commitment to international aid – although additional the country, there could be few better funds are undoubtedly needed to places to start than Afghanistan, where improve and expand ’ education. IDLO first launched its rule of law Some measures do not require much program in 2002. money: reforming curricula, particularly at Shari’a faculties; providing safe This report is not a crude female transport for women students; headcount, although it contains a wealth instituting affirmative action in law of data on the low visibility of women school admissions or scholarships – in Afghanistan’s justice sector. Nor is all of these steps would be relatively it an indictment: it acknowledges and quick, inexpensive and highly effective. welcomes progress where progress has been made. We appreciate that judicial Finally, in a traditional society like reform is tough in post-conflict settings, Afghanistan, it will take time to and it has been particularly so in demolish gender stereotypes. And as Afghanistan, with its decades of our report makes clear, for things to conflict and turmoil. change – dramatically, irreversibly – political will is essential. As What our report does is give an overview Afghanistan prepares for a new phase ›This report is not of the legal underrepresentation of in its political life, investing in the talent Afghanistan’s women; detail the and potential of its female citizens a crude female obstacles – social, academic, cultural will be crucial. – that they confront; enjoin the Afghan headcount, although authorities to press on with their This report is dedicated to all the Afghan commitment to enhance women’s women who are courageously working representation in the judiciary and legal for justice in their country. it contains a wealth profession; and reaffirm that justice for of data on the low women also means justice by women. This report is a reminder that the rule visibility of women in of law cannot prevail when one half of society is excluded. Afghanistan’s Afghanistan’s justice struggle against gender violence, discrimination and marginalization will sector ‹ not be won without greater investment

03 FOREWORD

Significant progress has been made own security, it is crucial that women in strengthening judicial institutions, play their full part in the transition while improving access to justice and process. But despite widespread justice delivery. Although much remains agreement in principle, there remain to be done, women, as one of the most significant obstacles to ensuring that vulnerable groups in Afghan society, women’s voices are heard. have greatly benefited from this progress. IDLO’s report on Women’s Professional Participation in Afghanistan’s Justice The establishment of an Independent Sector: Challenges and Opportunities National Legal Training Center, is therefore extremely timely: it makes GIAMPAOLO CANTINI the enactment of legislation on the clear that the participation of women in Director General, Elimination of Afghanistan’s justice sector is essential Italian Development (EVAW) and the establishment of EVAW both for the country’s sustainable Cooperation, Ministry units in the Attorney General’s Office are development and for improving access of Foreign Affairs, important markers of success. to justice in general. We are pleased Government of Italy to note that the Afghan Government In 2012, confirming Italy’s long-term acknowledges the contribution of support for the Afghan people, our two women in the field of justice, and A MESSAGE FROM THE Governments signed a comprehensive is committed to increasing their long-term bilateral partnership professional participation as part of ITALIAN GOVERNMENT agreement in the areas of political, its national development strategies. economic, security, development and he last decade has seen the cultural cooperation, and in the fight There is clearly still a long way to go. Government of Italy contribute against drugs. In June-December of The focus group discussions with female significantly to justice sector 2013, under the Italian co-Presidency Shari’a and law students poignantly Treform in Afghanistan. Our of the Board of Donors of the Justice illustrate the challenges faced by country’s engagement came as part sector, National Priority Program 5 (Law women as they try to access and excel in of international efforts to implement and Justice for All) was adopted. Co- the legal profession. Not only do women Security Council ordination was meanwhile stepped up face discrimination in the classroom, Resolution 1378 of 2001, which led to between donor countries, international they are also disadvantaged in their the establishment of a new Afghan organizations and other actors, and career progression, and are often Government. Italy has also consistently strong relationships established with forced to drop out of law school or pursued improvements in the condition Afghanistan’s Ministry of Justice, legal employment because of social of Afghan women and the protection Supreme Court and Office of the pressure or family obligations. of their rights. Attorney General. For these reasons, the Italian Great attention has been paid – and As stated by Resolution 64/116 adopted Development Cooperation is proud to significant resources invested – by the by the General Assembly of the United support the publication of this report. Italian Development Cooperation to Nations in 2009, the advancement We strongly believe that if acted upon, address the development needs of both of the rule of law is essential for its recommendations will help open up people and institutions in Afghanistan. sustained economic growth, sustainable the Afghan justice system to women Whether through bilateral projects or development, the eradication of poverty wishing to put their talent in the support to multi-donor programs, Italy and hunger, and the protection of service of their country. has sought to build institutional as well all human rights and fundamental as professional capacity in freedoms. In Afghanistan, as the country Afghanistan’s justice sector. prepares to take responsibility for its

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Image: World Bank_Graham Crouch

05 ’s Justice Sector

Executive Summary

omen’s Professional impediments, including lack of safe Participation in transportation to universities, or Afghanistan’s Justice appropriate accommodation for women WSector: Challenges and to attend compulsory legal training in Opportunities is the first national study . Women often do not have equal following IDLO’s gender pledge. Based access to legal education curricula and on a unique participatory methodology professional development opportunities and featuring an entirely Afghan-led compared to their male counterparts, data collection process, the report resulting in a gap between the number has been welcomed by justice actors of women graduating from Law and as the first of its kind in Afghanistan’s Shari’a faculties and the number of history and an important contribution to women actually employed in the justice ongoing discussions concerning gender sector. equality, women’s rights and women’s empowerment. It also comes at an Some of these obstacles to women’s important time: having emerged in 2001 participation in the legal profession from five years of devastating are complex and not easy to address, rule, Afghanistan is now working hard such as the ongoing travel risks for to rebuild institutions and make them women legal professionals, particularly sustainable and responsive to the needs in areas controlled by insurgents. Yet of its men and women. in many cases, some of the barriers identified by female respondents could At the quantitative level, the capacity be readily removed, for instance through and service delivery of the justice the implementation of affirmative sector in Afghanistan have progressed action programs or the provision of since the fall of the Taliban in 2001. women-friendly transport and housing Justice institutions nonetheless for Law and Shari’a faculties. Above Image: Bill and Melinda Gates Foundation_Kate Holt still struggle to recruit and retain all, strategies must address the qualified professionals, in particular unique political, cultural and economic women legal professionals. As of dimensions of these barriers, both to 2013, women constituted only a fifth tackle deeply entrenched discrimination of lawyers and fewer than a tenth of and to ensure lasting results. judges and prosecutors registered with the Afghanistan Independent Bar The paucity of professional women Association (AIBA). Afghan women in all aspects of the Afghan justice also remain underrepresented as law process, from police officers to judges, students, although the number of is one of the factors contributing to women enrolled in law schools has the widespread reluctance of many increased. Afghan women to approach the formal justice system and report civil wrongs At the substantive level, there are and criminal acts. Taking measures to considerable barriers encountered address the low levels of professional › by Afghan women, both in trying to participation of Afghan women in the Women often lack enter the justice sector and in their justice sector is not simply a matter of equal access to legal daily work as legal professionals. equal opportunity and fairness – such Although some of these constraints measures are also essential to improve education curricula come from social pressure and the overall accessibility of the Afghan traditional stereotypes about women’s justice system for women. and professional role in society, others are practical development ‹

06 IDLO

Progress in Empowering Women to Participate in the Justice Sector

ollowing the expulsion of the Taliban regime in 2001, Afghanistan “emerged as a truly Fdevastated State with its human, physical and institutional infrastructure destroyed or severely damaged” and was ranked second to last in the UN Human Development Index.1 Since then, it has undertaken efforts to rebuild sustainable, responsive institutions that are more inclusive of women. There is still much more to accomplish however, especially in the recruitment of women into the justice sector.

Although the participation of women in the labor force has improved since the fall of the Taliban in 2001, this has taken place mostly in urban areas with better employment opportunities and access to education. In the provinces, where the bulk of the Afghan population resides, far fewer women have (re) joined the labor force. And with their overall labor market participation still quite low – at only 16% in 20112 – this means the majority of Afghan women Image: Flickr_J McDowell remain economically dependent on their husbands or families. high rates of forced and/or underage great opportunity for many women marriage, and low numbers of female from traditional families. However, the The resulting gender gap in teachers (as cultural traditions often curriculum taught is not always the Afghanistan’s workforce is particularly require gender segregation in schools). same for female and male students, evident in the justice sector. Government High rates of illiteracy, combined with leaving many female graduates under- and UN data from 2008 to 2010 point to lack of access to basic schooling, prepared for their legal careers. In single digit percentages of women as contribute to lower numbers of women addition, Shari’a schools have almost no lawyers (about 6%), prosecutors (6.4%- entering universities and pursuing a female professors, making it difficult for 9.4%), and judges (4.7%-5.4%). Data legal education. As the legal job market female students to discuss sensitive or from 2013 show that women are still becomes more competitive, legal controversial law topics. underrepresented, although they have degrees in either Law or Shari’a are made some gains, particularly in the increasingly being required as pre- number of female lawyers and judges requisites to careers in the justice sector. (19.3% and 8.4%, respectively). In spite of these challenges, the › Afghan women have also made gains proportion of women graduating Afghan women have in , with the current rate at 22% from Law and Shari’a faculties has high illiteracy and low according to recent estimates.3 But increased in recent years, from 12% there are still constraints that deter of all graduates in 2008-2009 (lunar schooling. Few go to many families from sending their girls year) to 18% in 2010-2011.4 The Shari’a university or receive to school. These include insurgent faculties in particular, with their gender- attacks on schools and transport routes, segregated environments, provide a legal education ‹

1 Islamic , Afghanistan National Development Strategy 1387 – 1391 (2008-2013), 3. 2 The World Bank’s definition of labor market participation is ‘all people who supply labor for the production of goods and services during a specified period’: World Bank, Labor participation rate, total (% of total population ages 15+), available at: http://data.worldbank.org/indicator/SL.TLF.CACT.ZS. 3 Independent Evaluation Group, World Bank, Evaluation of World Bank Programs in Afghanistan, 2002-2011, (2013) 6. 4 Data collected from the MOHE in July and August 2013.

07 Women in Afghanistan’s Justice Sector

Why do women in justice matter?

The mere presence of women legal sector of law enforcement. The EVAW › professionals does not guarantee that Units are accessible precisely because Rural women women will obtain justice when they they are mainly staffed by women, know very little seek it through formal institutions. But and this has helped victims from the it does make the justice sector more provinces, who may be skeptical or about the formal approachable for women. A study by the unaware of the formal justice system, ‹ Women and Children Legal Research to come and seek justice. justice system Foundation (WCLRF) found that the lack of women legal professionals In addition to improving access, Finally, as noted by Afghanistan’s discourages women from coming increasing women’s participation can National Action Plan for Women 2007- forward to access the justice system.5 also ensure that the justice process is 2017 (NAPWA), the low representation This is especially the case when the fair. A 2013 study on female prisoners of women in the justice sector is an matter is sensitive, for instance in in Nangarhar province showed that obstacle to the formulation of an cases of sexual violence. many women defendants were too appropriate government response to ashamed to tell male defense lawyers crimes against women, and contributes The IDLO-supported Elimination of and prosecutors the full facts about to women’s lack of access to justice.7 Violence Against Women (EVAW) Units, their case, especially in family cases, Without the inclusion of women’s set up in 2010 to improve awareness, influencing the outcome of the case perspectives – whether in urban areas, investigation and prosecution of violent and even the severity of the sentence the provinces, or the courtroom – the crimes against women, underscore the handed down by the court.6 justice sector cannot serve their needs. value of having women working in this

5 Women and Children Legal Research Foundation (WCLRF), Women’s access to justice: problems and challenges, (2008) 28. The WCLRF was established by Afghan women lawyers in 2003. 6 Hijratullah Ekhtyar ‘Lack of Female Lawyers in Eastern Afghanistan’ Institute for War and Peace Reporting, 5 April 2012. 7 Government of the Islamic Republic of Afghanistan, National Action Plan for the Women of Afghanistan 2007-2017 (2008), 14.

Image: IDLO_Paul Hutchings

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Image: Unitarian Universalist Service Committee

09 Women in Afghanistan’s Justice Sector

Barriers Facing Women Legal Professionals

he men and women surveyed for institutions they are often taught 3. Unequal access to educational this report highlight a number unequal curricula, both in content opportunities and practical legal of barriers facing women legal and quality, compared with their male training Tprofessionals: counterparts. Consequently, such Family, community and safety female students lack the level of skills restrictions significantly affect girls’ 1. Bias against women needed for legal practice after they and women’s abilities to access higher in the legal profession finish their education, and subsequently education. High rates of forced and While women’s rights and opportunities only work as teachers in primary school. underage marriage9 reinforce traditional have improved greatly since the fall of perceptions of women’s roles, which the Taliban in 2001, women in the legal In Law faculties, female professors are are seen as primarily domestic, profession must contend with gender- very much in the minority, and few if making families reluctant to allow their based perceptions of their roles and any can be found in Shari’a faculties daughters, sisters or wives to get an abilities. Societal norms still dictate that or as full instructors in the stage education. In addition, there is still the women remain in the home for domestic (internship) training programs, which risk of insurgent attacks on girls’ school and familial obligations. In the male- are a requirement for entering the legal faculties or school transport routes, dominated legal profession, the capacity profession. Without female professors, including cases of en masse poisoning to fulfill their job duties is also called women find it difficult to openly discuss of girls attending school. into question on the basis of negative sensitive or controversial points of gender stereotypes. This creates a bias personal and family law. Having mostly The stage training for recent legal in the justice sector, with less qualified male professors can also mean female graduates constitutes a requirement men being offered legal positions over students are not given equal respect for the practice of law, whether in women candidates. for their opinions and views in the public institutions or private practice. classroom. Some male professors But the location of the program, at the 2. Unequal legal education for men and discourage women from participating in National Legal Training Center (NLTC) women, because of unequal curricula class, by telling them that women are on campus, excludes and gender dynamics “irrational” or “emotional” and therefore many women graduates from attending. Some Afghan women are only allowed unable to make sensible decisions.8 Graduates residing outside Kabul by their families to enroll in Shari’a Such comments have negative flow-on must arrange for their own travel and faculties because they offer a gender- consequences for women’s confidence accommodation in order to enroll in the segregated environment. But in these to enter the legal profession. mandatory nine-month program; >

8 Data collected by survey in May and June 2010. 9 Interviews conducted with Afghan women NGOs in July and August 2013.

Image: UN Photo_Eric Kanalstein

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Image: UN Photo_Tim Page

11 Women in Afghanistan’s Justice Sector

Barriers Facing Women Legal Professionals (Continued)

> those able to do so generally have marriage, to support their choices relatives in Kabul who can house them. to attend school or work outside the › Some Afghan But many women (especially unmarried home. Even when women succeed in women) are not able to do so, because becoming legal professionals, they are women have never their families will not allow them to overly burdened by family obligations seen a female legal travel to other provinces without a close (including childcare), which remain male relative or legal guardian. their sole responsibility. Except for professional ‹ some government institutions, most These travel restrictions also mean that employers do not provide childcare most women cannot avail themselves assistance, but still expect their female of scholarship opportunities, because staff to perform as though they do prisons and witnesses outside of city these also require them to travel outside not have such family obligations. This centers. Female respondents working their country, hometown or province. creates a bias among families and in legal aid and women’s NGOs cite For this reason, scholarship awarding communities towards women working insecurity as a key reason why they agencies may not even consider women as teachers – which is viewed as part- cannot travel to remote districts. This applicants because it is assumed that time work, and thus easier to balance prevents them from speaking with their families will not allow them to take with domestic responsibilities – rather villagers, undertaking legal awareness advantage of the opportunity. In addition, than as legal professionals with public programs, conducting investigations, many survey respondents believe that responsibilities. interviewing witnesses, and preparing scholarships have been mostly awarded case files and reports. Consequently, to men because they have more 5. Lack of safety and women in more remote locations may personal or political contacts. freedom of movement never meet women who are legal Whether due to security concerns professionals or become aware of their 4. Lack of social and cultural norms to or social and familial pressures, the rights under Afghan law. In addition support women legal professionals inability of Afghan women to travel to travel risks, legal aid and defense Many women feel that Afghan traditional alone restricts their access to legal lawyers frequently experience physical society still does not see the justice education and the obligatory stage intimidation designed to prevent them sector as an appropriate profession for training program. It also prevents from interviewing victims of violence them. They also feel they lack decision- them from carrying out professional or from sheltering women escaping making authority, particularly after duties which require them to visit abusive home situations.

Image: UN Photo_Eric Kanalstein

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Policy Recommendations

Improve access to education for women through targeted affirmative 1action strategies, especially for rural women. Encourage school attendance through dormitories for women and/or safe transportation to educational institutions. The establishment of distance learning centers could improve access to required foundational courses.

Take into account special needs of women in education and the justice 2sector when designing affirmative action and capacity building programs. Specific requirements include, inter alia, increasing security at girls’ schools, housing for women in stage training programs, and providing women legal professionals with day care/crèches.

Eliminate discrimination in women’s higher legal education. 3U niversities should review their legal curricula and recruit more women faculty members to ensure parity between courses provided to male and female students. International scholarships should be earmarked for female Law and Shari’a graduates to offset the preference given to male students with kinship and political connections.

Address knowledge gaps for women in their general and legal 4education. Strategies should include focusing on specific course requirements, such as religious and Arabic classes, or providing professional training programs to improve leadership and communication skills.

Promote entry of women into the legal profession. Enhance their 5career opportunities through affirmative action programs at all levels of the justice sector, and increase awareness of successful women in the justice sector through public awareness campaigns.

Image: UN Photo_Eric Kanalstein

13 AFTERWORD

to the country’s reconstruction after intimidation and discrimination on decades of war. The report is a refreshing one hand, and disparaging reactions example of the enthusiasm and desires of from a male-dominated society and a this Afghanistan’s younger generation and prevailing conservative attitude on the demonstrates that empowering Afghan other. Yet the report also shows that every women is key to establishing the rule of female lawyer who joins the ranks of the law, peace and democracy in Afghanistan. profession and fights against oppression, The reader is left with little doubt that every female judge who challenges Afghan women are raising their voices discrimination, every prosecutor or female for justice in my country, a country where police who provides support to a victim justice often proves far too elusive. of family violence, contributes to a better Afghanistan, an Afghanistan where justice, Chairwoman, Yet the report also lucidly documents human rights and equality prevail. Afghan Independent some of the challenges women legal Human Rights Commission professionals continue to face in IDLO must be congratulated for bringing Afghanistan. While some of these increased attention to these women’s s Chairperson of the challenges are specific to the legal aspirations and the obstacles they face Afghan Independent Human profession, many ring true for all in pursuing their goals. However this Rights Commission, as the female professionals in Afghanistan. report is not enough. We must act now Aformer (first) Minister of The report shows that we need to tackle to translate this important research Women’s Affairs and as a human long enduring discriminatory social into concrete outcomes for women rights defender, it is a great pleasure norms that plague Afghan society legal professionals, especially given for me to read the International and hold back women’s professional what we know about the role women Development Law Organization’s report advancement and their human right to legal professionals play in addressing Women’s Professional Participation participate in political and social life. the barriers women face in accessing in Afghanistan’s Justice Sector: The issue of and child justice. I challenge the international Challenges and Opportunities. marriage is just one example of how community and Afghan government Afghan women are far too often unable to work together to ensure that the IDLO’s report encapsulates some of to continue their professional life, due to many laws and policy commitments the progress we have made in women’s social expectations that cannot to support women’s rights, including rights since the fall of the Taliban, and should not work. the recommendations contained in showing that the number of women this report, do not just exist on paper, legal professionals and female law While many reports have been produced but that they become a reality, and are and students has increased about Afghanistan in recent years, practiced on the ground. It is a critical exponentially since 2010. We have IDLO’s report stands out because it time for concrete and collective action, clearly come a long way since the provides some practical suggestions as Afghanistan begins to take charge Taliban regime, where there were for ways to address some of these of its own security. Afghan women, who very few academic primary schools challenges and to give women legal continue to be discriminated against, for girls, and almost no professional professionals the space to succeed have been striving for a peaceful and opportunities for women lawyers. professionally. What is important now decent life in Afghanistan for far too long is that these recommendations are – they deserve to live with rights and The report also gives me great hope for put into practice. As an Afghan dignity. More importantly women should my country’s future. It highlights that and human rights activist, I am aware be recognized, included and supported young Afghan women (and indeed, men) that defending the basic human rights to have a social justice and democratic enter the legal profession for altruistic of my country-women is not an easy Afghanistan. Because injustice for the reasons, to address discrimination, to endeavor. IDLO’s report shows that women in Afghanistan is injustice to promote human rights and to contribute women continue to face risks, threats, women everywhere.

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Image: United Nations Development Programme

This report has been the work of a team of researchers, under the supervision of Ilaria Bottigliero, IDLO’s Chief of Research and Learning. IDLO would like to acknowledge the contribution of the Centre for Conflict and Peace Studies (CAPS) to the collection of data and recommendations contained in this report. We are particularly thankful to the many Afghan legal professionals who participated in the data collection process and provided their expert insights. Special thanks go to IDLO’s Afghanistan team and to Renee Chartres for her input into the final report. IDLO expresses its gratitude to the Government of the of America and the Government of Italy for their financial contribution to this report.

15 The International Development Law Organization (IDLO) is an intergovernmental organization devoted to empowering people and enabling governments to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity.

IDLO works along the spectrum from nation- and peace-building to economic recovery in countries emerging from conflict or striving towards democracy. It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity.

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ISBN number: 978-88-96155-13-4