Let Afghans lead the way out of their own political impasseWritten by Mohammad Hashim Kamali
On Oct 15, 2022 the Afghan Taliban ruler, Mulla Hibatullah Akhundzada, sent another message from his headquarters in Kandahar to call for the nullification of all existing laws in the country and enforcement only of the Sharia, adding that the existing laws be repealed and replaced and that Afghanistan's relations with other countries should also be based on the Sharia.
This is not the first time he has said this and the reason for repeated emphasis is probably the difficulty of implementing a sweeping order of this nature.
Rumour also has it that some internal dissension in the Taliban ranks in Kabul is developing due to Hibatullah's unruly decrees. This order to enforce only the Sharia throws the country, its government and justice system into an unprecedented legal vacuum.
Afghanistan's government and court practice are entrenched in its previous constitutions, its Civil Code 1976 (over 2,300 articles) and its Criminal Code 1977 (over 523 articles and a large number of other statutes). Setting all these aside at a moment's notice is irresponsible especially for a government that lacks professional background and experience.
The order is also oblivious of history in that past governments normally enforced the Sharia side-by-side with government decrees and policy decisions. These had existed in various names such as Nizamnama, Firman, Qanun, etc. Hibatullah's decree insisting that only the Sharia and nothing else should apply in Afghanistan is, therefore, ill-informed and unrealistic.
Except for some banking laws that are also changing due to the progressive introduction of Islamic banking, all the laws of Afghanistan are either Sharia based or Sharia compliant. Besides, most of Afghanistan's constitutions contain the so-called Repugnancy Clause, providing that no law in Afghanistan may be contrary to the Sharia and basic principles of Islam.
At a time when Afghanistan is grappling with poverty and economic problems, the Taliban are focused on religious and gender issues that are oblivious to the people's needs. Many of Mulla Hibatullah's previous decrees have similarly been problematic.
The Taliban decision over a year ago to close secondary schools for girls blatantly violated their fundamental right of education. The girls' schools remain closed to this day despite persistent public demand to reopen them.
The general public, including religious leaders, parents, women and girls, have emphasised education as a basic right and an Islamic requirement - all of which have fallen on deaf ears.
The UN Secretary-General Antonio Guterres, the European Union, Afghanistan's neighbours and numerous other countries have urged the Taliban to reopen the girls' schools immediately – all to no avail.
Earlier on July 29, 2022 (7 Thawr 1401 of the Afghan calendar), the Afghan people celebrated the National Flag Day of Afghanistan with the traditional tricoloured (black, red and green) flags, but contrary to expectations, the Taliban government ceremonially raised their own white coloured flag and the matter became a media issue.
Commentators noted that the Taliban government should have also celebrated the public event together with the people. But they followed their own agenda regardless. It was publicly emphasised that the tricolour flag was not changed by any other government ever since its adoption under Amir Habibullah in 1899 CE.
The Taliban's latest addition to the rising number of restrictions they have been imposing on women was the ban on women's entry to parks and recreation centres announced on Nov 12, 2022.
The retrogressive trail of Taliban decrees began on day one of their takeover of the Kabul government on Aug 15, 2021 when they banned secondary schooling for girls who were forced to stay at home ever since.
The public plea within Afghanistan and internationally to reopen the schools has fallen on deaf ears. Instead, the Taliban Supreme Leader Mulla Hibatullah Akhundzada added further restrictions that limit women employment opportunities and exclude them from taking leadership positions in government.
Women who appeared on tv screens and the media were compelled to wear black attire and cover their bodies except for their face and hands. On Nov 14, Hibatullah issued another decree on the implementation of hudud and qisas (prescribed penalties and retaliation), adding that his new decree applied to all existing incomplete cases that qualify for these punishments.
He further declared that obeying him was an obligation of all citizens. The Afghan women have resisted all this and continued their protest demonstrations on the streets of Kabul and other cities, notwithstanding the Taliban authorities persistent intimidation and risk of arrest.
Domestic trade and international finance collapsed for extended periods. Following the Taliban's recent decrees, the leader of the Islamic Party, Gulbuddin Hekmatyar, commented in a Friday sermon that most professionals and skilled workers had left the country and those still remaining were now leaving in droves.
He added that many also leave for fear of their safety as media workers and news correspondents were being killed and tortured, including for instance, Ilyas Daa'i who was blown up in his car.
Afghanistan's short-lived freedom of expression is under attack. Publication licences of 24 periodicals have hitherto been cancelled or not renewed.
United Nations Assistance Mission in Afghanistan's (UNAMA) special representative in Kabul, Roza Otunbayeva, said in an interview with a ranking Taliban official, Shihabuddin Dilawar, that Afghans who were returning to Afghanistan in response to the Taliban invitation should be given a role in the country's affairs and government.
She said this knowing that the Taliban were not likely to do that. They have kept all government positions to themselves, notwithstanding the promise they made 15 months ago to form an inclusive government.
UNAMA's deputy representative in Kabul, Markus Potzel, observed, in turn, that Afghanistan needs to engage in an all-inclusive socio-political process to create a meaningful context for government to people relations. No country has officially recognised the Taliban government even after 15 months in office.
For this to happen, it was rightly said at a recent United Nations meeting on Afghanistan that the government should engage with the people first. They have not done that. The Foreign Minister of Norway hit the nail on the head when he said on Nov 14 that instead of improving the conditions of their people, Afghanistan's government leaders were prioritising other matters.
The other matters mostly included imposing more and more restrictions on women and implementation of the Shariah. This latter move was mentioned many times before but singling out hudud and qisas will most likely bring back death by hanging, mutilation of the hand for theft and lashing.
Hudud and qisas provisions exist in the Afghan Criminal Code 1976 but were to be converted to long prison sentences.
Serving the people, attending to poverty and hunger issues and unemployment have evidently not engaged the focus of the Taliban government. After 15 months and a persistent refusal to reopen the schools for girls and form an inclusive government, it is almost certain that the Taliban will not change.
Taliban representatives were able so far to participate in the numerous international events and conferences that Afghanistan's neighbouring countries and the international community have held on Afghanistan.
That was not the case, however, in the mid-November international conference of Afghanistan's neighbouring countries in Moscow. Russia did not invite the Taliban.
The Russian Foreign Minister Sergey Lavrov indicated that the Afghan leaders had not listened to the international community's demand to change its negative stance on human rights and form an inclusive government. The Taliban have continued to deny their girls their right to go to school.
The Afghan public, the United Nations and the international community are not repeating their demands. A state of political impasse now seems certain.
The United States that used to be an active participant in Afghanistan affairs has left and disengaged itself, while China and Russia that are thought to be filling the gap are in a wait-and-see situation without taking any important initiative, and the Taliban seem to be internally paralysed by their dogmatic Supreme Leader and his courtiers in Kandahar.
International conferences are being held but seem to pass and go most likely still looking up to the United States for any headway.
Hekmatyar's suggestion, also essentially voiced by UNAMA'S Potzel, is that the Afghan people and civil society should suggest solutions. That may be the way forward.
The writer is a professor and Very Distinguished Fellow at the International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Published in: The New Straits Times (online), Thursday 1st December 2022