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Statements Special Procedures
24 August 2021
On the 17th of August, and in its first televised press conference since entering Kabul, the World heard the Taliban's assurances that it would not harm anyone or take reprisals against anyone who resisted them or may have worked against them. More importantly, it assured Afghan society that women could continue to work, and girls could continue to go to school "as long as such activities are in accordance with Sharia law".
It is important to clarify that there is no such thing as one unified, monolithic body of interpretation over which anyone has ownership or control. One of the important ways in which the Islamic tradition is distinguished from other scripture-based traditions, is the absence of ordained clergy; no priests, rabbis, or ministers, with all believers being equal like the teeth of a comb.
According to the Quran, no one has the right to impose religion, including religious law, on anyone else (verse 2:256). This egalitarian approach to religious authority has found expression in the rich plurality and diversity of religious understanding and schools of jurisprudence (madhahib) which we have until today. Notably, women, like men also have an equal right and responsibility to interpret Sharia. It would be important that this rich diverse heritage would be allowed to continue all over the Muslim World, including in Afghanistan.
All authorities in Afghanistan, both de facto and de jure, are surely aware of the clear distinctions between Sharia and Fiqh in Islamic legal tradition. Sharia (literally 'the way', the path to a water source) is the divine message, the sum of the religious values and principles, sent to humanity to guide people on how to lead their life. These are universal for all Muslims. Collectively, they constitute the indisputable objectives of the Sharia, as revealed in the Quran, and practiced by the Prophet. Muslims believe Sharia to be sacred, eternal, and relevant for all times and places.
On the other hand, the science of jurisprudence or Fiqh (literally meaning 'to understand'), is the manmade effort to understand this divine message and translate it to worldly laws and rules. That is why fiqh changes with time, place and people. Unlike Sharia, fiqh is human not sacred and changing, not eternal. It is thanks to fiqh that the meanings of Sharia are continuously unfolding across Muslims' changing, contexts keeping it relevant to their times.
It is a common and dangerous misinterpretation to equate divine Sharia and the power it has over hearts and minds, with manmade fallible fiqh. Many pretend to discuss Sharia, while in effect they are discussing fiqh, bestowing a sacredness on fiqh that does not belong to it. Fiqh always comprised multiple human understandings and interpretations of Sharia. In fact, Ikhtilaf, which means difference in opinion, is widely recognized and respected in Islamic legal tradition. The Prophet Muhammad is reported to have said: "Ikhtilaf ummati rahma" i.e., differences in my community is [a form of] mercy. This encouragement and acceptance of "dissent" and differences in opinion explains in part why there are also different madhahib.
As Afghanistan is entering a new chapter in its existence, one where Sharia will continue to play an important role, it is crucial not to lose focus of its true values, principles, and objectives, particularly the following:
These values, contained in the corpus of Sharia, are consistent with universal human rights principles and values. When followed, these values would lead to gender equality and justice in law and in practice. In that sense, Sharia is closer to the concept of ethics that guide humans in the direction of justice and the right set of conduct.
Across the ages, Muslim jurists have continuously attempted to address the changing contexts and needs of their societies. To find solutions to new issues, they have gone back to the sacred texts, examined the knowledge that had been developed, and considered the new experiences and issues that may have emerged – all this while applying Islamic juristic methods and principles (usul al-fiqh) (literally meaning 'the rules of understanding'). This rich trajectory of creating Islamic knowledge that is relevant to every time and place, can continue to thrive in today's Afghanistan, in a way that is adapted to its needs, including when addressing issues related to gender equality and justice.
One may wonder, how? Today, jurists could do so using Ijtihad (literally meaning self-exertion and in this case; to form a judgement on a legal question), a core method in Islamic jurisprudence to find solutions to new issues, guided by the overriding set of values (Sharia). This was the practice of classical jurists as well, which allowed them to develop solutions to meet the new needs of their societies. Their assumptions were rooted in the knowledge, normative values and institutions of their time which were very different from the realities and needs of our societies today, including Afghan society.
The principles of justice and equality between the sexes mean that women and girls are entitled to seeking and accessing education on an equal footing as men. The first verses of the Quran that were revealed to the Prophet commanded all human beings, both man and woman to "learn" (Iqra') (verses 96:1-5) and to seek knowledge (verses 16:78; 17:85, and 20:114). Furthermore, several Hadiths, i.e. sayings attributed to the Prophet, call on men and women to seek that knowledge (e.g. "Seek knowledge from the cradle to the grave", and "seek knowledge even [if it is found as far as] in China"). Many women companions of the Prophet were narrators of the Hadith, which pointed to the acceptance of their status as sources of knowledge. Since the early days of Islam, many Muslims, men, and women, in many different periods and countries contributed to producing knowledge in different fields.
As reports have been recently resurfaced of increased forced marriages, including child marriages, it is important to underline that for a Muslim marriage contract to be valid it needs to fulfill several requirements – key being that both individuals give their free consent. The Quran clearly prohibits forced marriage when it stated: "It is not lawful for you to inherit women by force" (4:19). Furthermore, and in a Hadith attributed to the Prophet, and verified as authentic, the Prophet stated explicitly that a woman should not be married until her consent has been obtained. Often, a guardian's consent is also requested, even though there are no verses in the Quran, nor evidence in the Sunnah, requiring a guardian. Several human rights instruments, including the Universal Declaration on Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) guarantee the right to enter marriage with free and full consent by both parties and give the right to choose a spouse freely, This right is also repected in Muslim countries such as Algeria, Morocco, Pakistan, Saudi Arabia and Tunisia.
For two individuals to give their consent, those entering a marriage contract need to be fully aware of its implications. Islamic jurisprudence on this is clear: All marriages must be carried out by mature individuals who have the mental, legal, intellectual, and physical capacity to give consent. This requirement means that child marriages are by definition null and void. In essence, a forced marriage is equivalent to rape, which is an abhorrent crime that is strictly forbidden in Islamic law and considered as hiraba (unlawful societal warfare), and for which the prescribed punishments are severe. Forced marriage, including child marriage would also be incompatible with the consideration of Al-Maslaha al-Mursalah (equivalent to the principle of "contemporary principle of public interest"), given the detrimental effects that they would have on the health of women and girls. This includes but is not limited to: Psychological damage, early pregnancy-which is harmful to both mother and child-and reduces access to education. It also limits their potential to earn their own income just as men - a right given to them by the Quran (verse 4:32) This position is consistent with international human rights standards which guard against the marriage of children under the age of 18. Several Muslim countries, such as Algeria, Bangladesh, Morocco, Sierra Leone and Turkey have revised the provisions in their legislation on the minimum age of marriage upward to 18, 19 and even 21.
Finally, and with regards to the important right of political participation, women have a right to political participation on equal footing with men in line with Article 7 of CEDAW, which was ratified by Afghanistan in 2003. It commits States Parties to it to eliminate discrimination against women in the political and public life of the country, and to ensure that women are given the right to participate in the formulation of government policy, on equal terms with men. Islamic history and practice is fully in line with this international obligation. Accounts from the Prophet's life are full of political events in which women played a prominent role, the first being Khadija, his first wife. One such account is the report that the Prophet was not satisfied with the pledge of allegiance (bayi'a) to the men when he wanted to migrate to Medina (hijra), so he requested the pledge of allegiance from the women too (verse 60:12 of the Quran). The Prophet's wife Umm Salama was his legal and political advisor and advised him during the Treaty of Hudaybiyya as well as during the conquest of Mecca. Moreover, there are no reports whatsoever attributed to the Prophet's Companions or the Caliphs that a woman's opinion was belittled or prevented from participating in politics because she is a woman. Rather, women's opinions were always valued and appreciated.
To conclude, it should be emphasized that international human rights standards are intrinsic to Islamic teachings and must jointly lead to national guarantees of equality and non-discrimination. Acts of discrimination, including against women and girls, legitimizes further violence against them. Given the centrality of equality to achieve justice today, there can be no justice without gender equality to the philosophy of law in Islam, and no justice without gender equality in our contemporary times.
Any legislative reform needs to integrate Islamic teachings, universal human rights and national constitutional guarantees of equality and non-discrimination, in such a way that it takes into consideration the actual lived realities of men and women and meets their needs and that of their changing societies.
UN Special Rapporteur on violence against women, its causes and consequences