The Taliban has not clarified the state of the laws from the former regime as it relates to family and protection of women from violence. It is not clear whether those laws have been repealed, amended or if parts of them are still applicable. The Taliban has passed several decrees affecting family matters, and taken drastic actions to restrict women’s free and equal participation in all aspects of Afghanistan’s social, economic and political life. As limitations on women’s free and equal participation is the current context in Afghanistan, and will affect future legislative reforms in Afghanistan, the table below focuses on the same.

Restrictions on women’s role in the political leadership of Afghanistan, and their right to work.

The UN Secretary General^{https://digitallibrary.un.org/record/3956568?ln=en} reporting on the situation of Afghanistan in January 2022 stated: “As at 20 December [2021], all 34 provincial governors were male and predominantly Pashtun, with limited representation of other ethnic groups. Numerous reshuffles of subnational positions took place to address internal divisions, but all appointees continue to be Taliban affiliates, mainly religious scholars and clerics, many of whom are on the sanctions list pursuant to Security Council resolution 1988 (2011).” 

Though the Taliban committed to include other groups in the future government of Afghanistan, they ruled out the possibility that women could serve as ministers. Through August and September 2021, women in civil service were told not to return to work. The Ministry of Women’s Affairs was also closed (WJO Country Factsheet April 2022). By September 2021, Afghanistan was declared one of only a few countries in the world with no women in top ranks of government. ^{https://edition.cnn.com/2021/09/09/asia/taliban-government-women-global-comparison-intl/index.html}

When asked why women could not serve as ministers by a local TV presenter, Taliban spokesperson Sayed Zekrullah Hashimi said: ^{https://www.youtube.com/watch?v=ktIbgPa9cxc&ab_channel=AfghanistanTV}“A woman can’t be a minister, it is like you put something on her neck that she can’t carry. It is not necessary for women to be in the cabinet – they should give birth (…) The four women protesting in the streets do not represent the women of Afghanistan. The women of Afghanistan are those who give birth to the people of Afghanistan, educates them on Islamic ethics.”

Before August 15th, Afghan women were serving in the government in positions ranging from cabinet minister to police officer. In addition, 100,000 women were enrolled in public and private universities and many Afghan women were running their own businesses.

Now the situation has substantially changed. Sima Bahous, the UN Women Executive Director, quantified the economic impact of restrictions on women’s work on 5 May 2022,^{https://www.unwomen.org/en/news-stories/statement/2022/05/statement-on-afghanistan-by-ms-sima-bahous-un-women-executive-director} stating: “Current restrictions on women’s employment have been estimated to result in an immediate economic loss of up to $1bn – or up to 5% of Afghanistan’s GDP. 

Mandatory hijab and mahram

The Taliban has passed decrees and taking drastic actions to limit women’s presence and free participation in society. The limitations were enforced through mandatory hijab with face covering, restrictions on women’s travel without mahram and requirement for women’s mahrams to accompany them during working hours. These restrictions are enforced in different ways depending on sector (health, education) and provinces.

On 19 September 2021, the Taliban issued guidance advising the media to refrain from publishing issues that were contrary to Islam. Amongst this included, dress codes for female journalists; and banning women from acting in films.^{https://www.reuters.com/news/picture/taliban-release-media-guidelines-ban-sho-idUSKBN2I814J}

In November 2021, the Ministry for the Promotion of Virtue and Prevention of Vice issued media guidelines banning films or shows ‘against Islamic or Afghan values’ and in which Afghan media were called to stop broadcasting ‘soap operas or dramas featuring women actors’.^{https://www.dw.com/en/afghanistan-taliban-issue-guidelines-against-women-actors/a-59895874}  The guideline also ordered women presenters to wear hijab.

On 12 December 2021, the Taliban spokesperson Zabihullah Mujahid, stated the “Islamic Emirate” would hold a meeting with Afghan ulama on how to govern the country, noting that the ulama “will share their views on controversial issues, including women’s rights”.^{https://tolonews.com/afghanistan-175858}

Women protested against the restrictions but this led to, in some cases, violent repression of the protestors. The UN Secretary General reported on the Taliban’s response to the peaceful protests^{https://unama.unmissions.org/sites/default/files/sg_report_on_afghanistan_january_2022.pdf} stating: “The de facto authorities clamped down on peaceful protests (including by women claiming their right to work, to freedom of movement, to education and to political participation) and issued an instruction on 8 September prohibiting unauthorized assemblies.” (para 38)

On 26 December 2021, the Ministry for the Promotion of Virtue and Prevention of Vice issued a guidance saying that women should not be offered transport of more than 45 miles (72 kilometres) if unaccompanied by a close male relative. ^{https://english.alarabiya.net/News/world/2021/12/26/No-trips-for-Afghan-women-unless-escorted-by-male-relative-Taliban-issue-guidance-}

Videos circulated showing Taliban fighters patrolling on the streets and ordering drivers to not offer rides to women that are not wearing hijab (WJO Country Factsheet April 2022).   

In May 2022, Haibatullah Akhunzada Afghanistan’s Supreme Leader ordered the country’s women to cover their faces:

“They should wear a chadori (head-to-toe burqa) as it is traditional and respectful.” ^{https://www.aljazeera.com/news/2022/5/7/taliban-orders-afghan-women-to-cover-their-faces-in-public}

Failure to comply with the decree would result in reprimand (threat), termination of employment and for the mahram, they could be fired from their government jobs or imprisoned. 

Since the occupation of Taliban in Afghanistan, women have reported harassment, intimidation and physical abuse by Taliban fighters^{https://rukhshana.com/en/women-face-verbal-and-physical-abuse-in-the-streets-by-the-talibans-religious-police} for their presence and dressing in public.

Taliban guards were also stationed outside the gates of universities, bearing arms. Girls who were allowed to return to universities to complete their exams were blocked from entering their universities if they were not fully garbed in black, and sometimes, if their faces were not covered. (WJO Country Factsheet April 2022)

Closure of schools for girls and restrictions on women’s education

Taliban has severely limited and restricted women’s access to education, or, created conditions which make access to education difficult. For most of 2021 and 2022, secondary education for girls remained closed in most parts of the country. 

50 % of private education centres have closed since the Taliban takeover as a result.^{https://tolonews.com/afghanistan-175668} In 2022, graduating university students, male and female, were permitted to return to university to sit for their final exams.^{https://www.dailymail.co.uk/news/article-10252761/Female-students-Afghanistan-graduate-private-university-watched-Taliban-leaders.html} However, they reported high hostility in the educational environment with Taliban fighters commenting on their dress^{https://gandhara.rferl.org/a/taliban-dress-code-segregation-women/31446726.html} and they were restricted from using certain educational facilities such as the libraries, or forced to wait outside the university until male students cleared off. Some faculties also closed women’s admission as a result of lack of female teachers, or, female students not reaching the required quota. (WJO Country Factsheet April 2022)

In his 28 January 2022 report, the UN Secretary General said:^{https://digitallibrary.un.org/record/3956568?ln=en} “Education for girls continues to be severely curtailed in much of the country, owing mainly to the lack of a clear policy granting girls the right to education but also owing to a shortage of teachers, the reluctance of some families to send girls to school, and economic hardship, as well as inconsistent Taliban policies at the local level.” (para 10)

After warnings and backlash from the international community, the Taliban promised to reopen girls school on 22 March 2022. ​​However, hours after schools reopened, as girls were streaming into schools for the first time in 6 months, the Taliban ordered for the closure of all girls’ high schools.

Michelle Bachelet, the United Nations High Commissioner for Human Rights responded swiftly stating officially:^{https://www.ohchr.org/en/statements/2022/03/failure-adhere-commitments-re-open-schools-all-girls-deeply-disappointing-and} “the profound frustration and disappointment of Afghan high school girls and women, who after six months of anticipation were prevented from returning to school today. The de facto authorities’ failure to adhere to commitments to reopen schools for girls above the sixth grade – in spite of repeated commitments towards girls’ education, including during my visit to Kabul two weeks ago – is deeply damaging for Afghanistan.”

She went on to state: “The denial of education violates the human rights of women and girls – beyond their equal right to education, it leaves them more exposed to violence, poverty and exploitation. This is of grave concern at a time when the country desperately needs to overcome multiple intersecting crises. Disempowering half of Afghanistan’s population is counterproductive and unjust. Structural discrimination such as this is also deeply damaging for the country’s prospects of future recovery and development.”

The statement was followed by a similar condemnation by UN Experts on 24 March 2022^{https://www.ohchr.org/en/press-releases/2022/03/afghanistan-un-experts-condemn-taliban-decision-deny-girls-secondary} and accompanied by various statements and campaigns by Afghan civil society and students in and outside of Afghanistan. 

My daughter told me ‘I don’t need new clothes for the New Year but papa buy me a new uniform and please a longer one because I don’t want the Taliban to bother me’. I bought for her some new cloth. We went to a tailor shop to sew her a uniform. She tried the uniform and was very happy. She prepared to sleep early the night before and went to school with fresh mood. Then she was told to go home. Schools are closed. Since she came home, she went to bed, put the blanket over herself, and is not speaking with anyone.” J Noori, the father of a 15-year-old girl (excerpt from WJO’s Open Letter to the international community on 24 March 2022)

Shrinking civic space

Women’s NGOs were instrumental behind the substantial gains in the promotion and protection of women’s rights in Afghanistan. Under Taliban rule, women human rights defenders have been targeted, attacked and forced into hiding and isolation. Women-led NGOs are also facing increasing financial and administrative pressures from the conditions of the Taliban, or, in consequence of the Taliban’s occupation in Afghanistan. 

The Taliban has passed a regulation permitting NGOs to work. However, the law on operation of NGOs is unclear. UN agencies fund few NGOs to work in the field of health, livelihood support and humanitarian aid but organisations with legal aid have not sufficiently funded and struggling to pay basic expenses. As such many NGOs have abandoned their original mandate and moved to providing humanitarian aid, in order to survive. Generally, WHRDs are threatened and intimidated for conducting advocacy around the protection of human rights.

Today, the work of women-founded civil society organisations is at risk. They may not be recognized by the de facto authorities. Their independence has been compromised. Other challenges are separation of men and women staff, inability to pay staff; shift from women’s rights programming to humanitarian programming; difficulties resolving banking signatories’ issues and obtaining authorisation to work. In some provinces, women directors have been replaced by men. This led to a significant loss of female leadership and women intellectuals who were drivers of democracy and human rights in Afghanistan. (WJO’s Country Factsheet April 2022)

Amongst UN entities and other INGOs, as of 25 December 2021, 9 provinces in the country had only partial agreements with the Taliban to allow women humanitarian staff to work in the health and education sector. “That leaves 3,492,666 women (more than 18 percent of Afghan women and girls) without or with limited access to women aid workers.”^{https://reliefweb.int/report/afghanistan/afghanistan-crisis-update-women-and-girls-displacement} This has led to concerns on effectiveness of equitable aid and gender-blind interventions.

Positive Feature(s) Under Muslim Family Law

Decrees by the Taliban which have apparent positive features for women are not meaningfully positive. The systems and structures which were built in the last 20 years to protect women have been abolished. The Taliban has systematically restricted women and girls in all aspects of their lives including their right to be educated, to work, to serve in leadership positions in government, and, participate in all aspects of social, economic and political life in Afghanistan.

Administration Of And Access To Justice On Marriage And Family Matters

After the Taliban takeover of Afghanistan, the family and criminals courts and generally, the justice infrastructure collapsed. On 7 September 2021, Abdul Hakim Ishaqzai, a graduate of a fundamentalist seminary in Pakistan attended by Taliban founder, was appointed as Minister of Justice. ^{https://gandhara.rferl.org/a/taliban-courts-public-executions/31449392.html}

The UN Secretary General, in his report of January 2022 describing the situation of Afghanistan stated in para 8:^{https://digitallibrary.un.org/record/3956568?ln=en} “In the justice sector, a de facto Minister of Justice and a de facto Chief Justice and head of the Supreme Court have been appointed. The applicable legal framework remains unclear, although a review of the compliance of existing legislation with Islamic law is ongoing. On 16 December, the Taliban leader issued a decree appointing 32 directors, heads of departments, judges and other key officials related to the de facto Supreme Court. On 25 December, he appointed a de facto Attorney General, who committed to promoting the accountability and independence of his office under sharia.” 

Judicial positions have been filled by clerics who have been indoctrinated by a fundamentalist brand of Islam. Women judicial staff, who were in leading positions were amongst those removed and replaced (WJO Country Factsheet April 2022).

Though Afghanistan remains in desperate need of professionals and literate persons, former judges, prosecutors, and court personnel have not been integrated to fill the justice gap. Instead, many have been persecuted in targeted attacks and killings by the Taliban and other unknown armed men. Many judicial staff remain forced into hiding. Some former judicial staff are coping with the economic crisis by drafting petitions for litigants outside the court for a couple hundred Afghanis. (WJO Country Factsheet April 2022)

Trials are not based on any objective, fair-trial principles and in some criminal cases, defense lawyers have not been allowed to represent their clients. Some lawyers are sent away and told that their role is not necessary in criminal cases. Hearings are so disorganized due to poor scheduling and communication of hearing dates. There are issues in hearing and analysis of evidence and in the form, style and contents of court decisions. Court decisions are so poorly written it is not clear what the case issues were, how a decision was reached, who reached it, and, whether the decision was made by a primary, secondary, or supreme court. It is not clear if decisions can be appealed and who they are appealed to. (WJO Country Factsheet April 2022)

Existing structures for women to report violence or seek protection have collapsed. The Taliban has shut down or dissolved structures, such as Elimination of Violence Against Women (EVAW) Prosecution Units, the EVAW High Commission, Family Court, and Family Response Units (WJO Country Factsheet April 2022).

In Kabul, women lawyers can still practice law and represent their clients in court. However, the court environment is extremely hostile and discriminatory against women lawyers and women seeking a court resolution. For example, female lawyers were forced to bring a male companion to court with them and male companions had to be dressed in a Pashtun turban. Female lawyers were also subject to multiple abuses. For example, they have been labelled a western agent and treated with suspicion and contempt; condemned if their clients were not appropriately attired; humiliated if their clients did not speak Pashto; accused of prostituting their clients who were trying to get a divorce. Courts, which are meant to be places of resolution, have become a site of violence and discrimination against women and other marginalized groups. (WJO Country Factsheet April 2022)

The UN Secretary General in his report of 28 January 2022 described the impact of the total collapse of the justice system and services for women:^{https://digitallibrary.un.org/record/3956568?ln=en} “Survivors currently have no recourse to formal justice, given the still unclear legal and judicial system in force across Afghanistan, nor to services supporting survivors of gender-based violence.” (para 37)

On the ground reports indicate sharp increase in domestic violence as a result of social, political and economic crisis.^{https://www.hrw.org/news/2021/09/24/afghan-women-fleeing-violence-lose-vital-protection} This is evident in the rise in child marriages and sales of babies for adoptions and use of violence within the family.

Most shelters were no longer operating and the few that remain have limited capacity.^{https://gandhara.rferl.org/a/afghanistan-taliban-women–shelters-disappearing/31477947.html}

Prior to the fall of Afghanistan to the Taliban, the 2004 Constitution of the Islamic Republic provided for gender equality and family welfare in Articles 22 and 54. The Constitution was abolished after the fall of Afghanistan and these provisions are no longer applicable.

On 9 September 2021, Abdul Hakeem Sharaee, the Taliban’s Acting Minister of Justice announced:^{https://www.voanews.com/a/taliban-say-they-will-use-parts-of-monarchy-constitution-to-run-afghanistan-for-now/6248880.html} “The Islamic Emirate will implement the constitution of the era of former King Mohammad Zahir Shah for the interim period without any content that is in conflict with Islamic Sharia and the principles of the Islamic Emirate.” The statement was made in a meeting with China’s Ambassador to Kabul Wang Yu, according to a statement on the Facebook page of the Justice Ministry.  The adoption of the 1964 Zahir Shah Constitution was not officially gazetted by the Taliban, and it is not clear if its contents have been amended. As such, it is not clear if the equality provisions in the 1964 Constitution have been adopted. The 1964 Zahir Shah Constitution (in its original form) is referred to as the current constitution in the Taliban’s Ministry of Justice website, however on another page, the 2004 Constitution is also listed as law. 

The 1964 Constitution is regarded as one of the most ambitious and progressive constitutions in Afghanistan’s history. It was however likely chosen by the Taliban over other alternatives as it predicated a country ruled by a supreme leader, unmitigated by checks and balances based on separation of powers. The Taliban has also recruited its leadership from its militant-movement, and, to the exclusion of ethnic, religious minority groups and women, in an attempt to set up an authoritarian rule by a singular group over all of Afghanistan’s diverse groups. It is unlikely given the Taliban’s ideology that any future legislative and adjudicative processes will allow for inclusive, gender-equal and diverse of interpretations of Islam.

Other National Laws Related To Marriage & Family Matters

Prior to the fall of Afghanistan to the Taliban, matters regarding marriage and family relations were codified under the Civil Code (for Sunnis) and Shiite Personal Status Law (SPSL) (for Shiites). Criminal laws were codified in the Penal Code 2017, Elimination of Violence Against Women Law 2009 and Criminal Procedure Code 2014. Structures such as specialist courts and prosecution units were also set up to investigate and try crimes against women across most of Afghanistan provinces. 

Under Taliban rule, it is not clear if the laws of the former regime have been repealed, amended or if parts of them are applicable. Certain provisions can be presumed repealed. The Taliban has abolished many of the structures of the former regime. As such, there is no continuity of structures (and to that regard, laws, policies, national strategies and plans) that commonly occurs during peaceful transfer of power (some structures are still used, though not for the advancement and protection of women). Further, transitional measures have not been enacted which would give rise to continuity of those structures. 

Human rights/defence lawyers who have returned to Taliban courts to follow up on their clients’ cases state that Taliban courts are using a varied mix of laws and there is no certainty what is law.  

1. Al Rad ul Mukhtar (الرد المختار)
2. Alfotawi Altanqih al hamidia ( الفتاوی التنقیح الحامدیه)
3. Alfotawi Alhindia (الفتاوی الهندیة)
4. Alfotawi Alkamilia ( الفتاوی الکاملیة)
5. Al Bahr ul Raheq ( البحر الرائق)
6. Mujalatul Ahkam ( مجلة الاحکام)
7. Al-Ahkam Magazine
8. The book of Hanafi jurisprudence of Imam Alwaldin Kasani
9. The book of Sham (no further details provided)
10. Hedayeh. 

The Taliban courts also use administrative and legal principles in the following books: Administrative Principles of the Courts of Justice of the Islamic Emirate of Afghanistan (2014) and Principles of Execution of Judicial Legal Trials (2014). These books describe how and when cases are handled. None of the abovementioned sources have been officially gazetted by the Taliban.

As regard the SPSL, according to a statement from the Shiite Ulema Council,^{https://8am.af/the-taliban-violently-disrupted-a-meeting-of-the-shiite-ulema-council-and-threatened-to-kill-them/} the Jafari (Shiite) religion is not recognized by the Taliban.

Afghanistan ratified CEDAW without reservations in 2003. The ratification remains. The last CEDAW review was held in February 2020. 

• Links to CEDAW reports that refer to Muslim family laws and practices ^{https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fAFG%2f1-2&Lang=en}
• Links to concluding observations that refer to reform of Muslim family laws and practices ^{https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fAFG%2fCO%2f3&Lang=en}
• Link to Musawah’s CEDAW reports on Afghanistan ^{https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCEDAW%2fCSS%2fAFG%2f41112&Lang=en}

Any other relevant regional or international treaty or convention signed by Afghanistan

• Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment
• Optional Protocol of the Convention against Torture
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• Convention of the Rights of the Child ^{https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=1&Lang=EN}