Article created by the The Century Foundation.
“Clerics Call for Christian Convert’s Death. . . . Kabul Judge Rejects Calls to End Trial. . . . U.S. Christians outraged over Afghan case.”
These unwelcome headlines last week covered dispatches not from Taliban-ruled territory but from U.S.-liberated Afghanistan, a country that President Bush last month
called a “key partner” and “an inspiration” that will lead other nations “to demand their freedom.”
Abdul Rahman last week faced the death penalty for converting to Christianity and was only released for reasons of “mental health” (he has since taken asylum in Italy.) His escape from Islamic “justice” triggered outrage among conservative Afghans.
The case broadcast to the world that while Afghanistan may have held two elections, it remains a long way from joining the ranks of liberal democracies. It suggests four trends in Afghanistan’s reconstruction:
First, the case highlights a central tension in Afghan society: that between Islamic law, or sharia, and Western law. This conflict dominated negotiations over the 2004 constitution, a “compromised document” that in one article guarantees religious freedom while in another states that no law may supersede Islam.
UCLA legal scholar Khaled Abou El Fadl, because Western advisers feared “opening up the Pandora’s box of Islamic arguments,” the Afghan constitution intentionally sidesteps conflicts between sharia and human rights law. “What was needed in the writing of the constitution was a fuller discussion of what sharia means, not just paying lip service to Islam,” argues Abou El Fadl. “All that was done was to postpone the issues.” Postponement has placed the verdict in the hands of the courts, which remain a stronghold for Islamic hardliners.
Second, the case is further evidence of the centrality of legal reform in post-conflict societies. In Afghanistan, efforts to establish rule of law have received far too little external support and funding. One result is that Afghanistan has no independent judiciary: judges are selected based on their connections to power holders rather than on their legal qualifications.
Failure to establish rule of law—from slow police training to a lack of prisons—has impeded reconstruction and reconciliation, as detailed by a May 2004
United States Institute of Peace special report. This is especially true in legal reform. Of the pillars of responsibility divided among countries under the “lead donor” model, the “justice sector” is perhaps the most contentious because it cuts to the heart of what Afghans think their society should be. Building an effective and independent judiciary cannot be achieved quickly or on the cheap, especially when legal reform depends on progress in political and security sector reform. The failure of the much maligned Italians is as much symptom as cause.
Third, the case reveals a growing antipathy to foreign occupation. The mass protests against Abdul Rahman’s release remind us that among Afghans there exists an influential minority that view Western influence as the problem, not the solution. Moreover, because many Afghans feel besieged by foreign influence—and by Christianity in particular—Rahman’s case has particular resonance: he was, after all, a Muslim lured from his faith by an aid agency.
Most Afghans have an ambivalent relationship with international aid workers and military forces. They recognize that these outsiders have provided security and critical services but have also brought with them brothels and alcohol. Last summer, coalition forces sparked nationwide outrage when they taunted the Taliban by burning their corpses in a violation of Islamic custom. Reports of United States abuses in Guantanamo and Bagram have not helped. While polls show that most Afghans still support the presence of foreign troops on their soil, these forces may soon overstay their welcome.
Finally, the failure to implement reform of the Supreme Court shows the weakness of President Karzai’s hand. His reform agenda has failed to deliver discernable results, especially in the regions where hardliners draw their support. This is in large part the result of a donor aid strategy that circumvents the Afghan government by delivering assistance through contractors and NGOs.
Karzai’s weak political position has made it necessary for him to enter tactical alliances with power brokers hostile to his (and his foreign backers’) goals. One is conservative cleric Fazl Hadi Shinwari, whom Karzai appointed to head the Supreme Court. Shinwari heads the Council of Islamic Scholars and is the nation’s leading religious figure but lacks a secular legal education (a constitutional requirement).
Shinwari is an ally of fundamentalist warlord
Abdul Rasoul Sayyaf and, like Sayyaf, favors rolling back the advances of secularism and modernity. In 2003, he declared that Sima Samar, Karzai’s nominee to head the women’s affairs ministry, was ineligible to hold office because she had made statements opposing sharia law; the charges were eventually dropped but she declined the nomination in fear of retribution. Shinwari has made rulings against cable television and co-education, and
stated in a recent interview that all women “should cover their whole body apart from their faces and hands.” Predictably, Shinwari has promoted his allies to positions of power.
Karzai’s Western backers have long demanded that he replace the conservative clerics. But they may be asking for something he cannot deliver. Afghanistan still has one of the world’s weakest governments, a brittle, over-centralized state with little legitimacy in the eyes of its citizens.
Karzai finds himself on a tightrope between Afghanistan’s influential Ulema, or Islamic scholars, who have yet to render judgment on the Islamic legitimacy of the new regime, and his
international supporters. “The international community is saying you must stop this,” notes
Barnett R. Rubin, an Afghanistan expert at NYU’s Center for International Cooperation. “The Ulema is saying, ‘Are you an Islamic ruler?’”
In the past Karzai has defused conflicts with the judiciary through backroom compromises, or by declining to implement their rulings. This week he’s taken a more proactive stance, by presenting to the Parliament a new slate of ministers and Supreme Court justices. The president has indicated his desire to reform the Supreme Court—but will he have the clout to get Parliament’s approval?
This week’s “insanity” clause took Karzai—and Washington—off the hook. But their respite will be brief: Abdul Rahman will not be the last case of this sort. Depending on how the courts rule on future trials, Afghanistan could join Iran, Saudi Arabia, and Sudan as one of a few states in which apostasy from Islam a capital crime. If that happens, donors will start wondering whether Afghanistan is still worth the blood and treasure they have committed.