A. Origins of the Honour Defence
It is often thought that laws reflect and embody society beliefs and ideals. According to this argument, the law should provide for a legal defence, on the basis of honour, because it reflects how society values honour and responses to dishonour. However, historically, “honour” in contemporary penal codes was a result of the imposition, or influence, of the penal codes of previous colonial powers. This is true of many countries across the Middle East, North Africa and South Asia, including Article 398 of the Afghan Penal Code.
For example, the antecedents of many penal codes allowing for the mitigation of murder, such as Article 398 of the Afghan Penal Code, can be traced back to Article 188 of the Ottoman Penal Code of 1858 which was inspired by Article 324 of the French Penal Code of 1810:
Article 324 French Penal Code 1810
“He who catches his spouse, his female ascendant, female descendant or his sister in the act (en flagrant délit) of adultery or illegitimate sexual relations with a third party and commits unpremeditated homicide or wounding against the person of one or the other of them may be exempted from liability.*
He who commits murder or wounding may be liable to a lesser penalty [in view of extenuating circumstances] if he has surprised his spouse, female ascendant or descendant or sister with a third person in a suspicious situation.”**
Article 188 Ottoman Penal Code 1858
“He who has seen his wife or any of his female mahrams* with another in a state of disgraceful adultery and has beaten, injured, or killed one or both of them will be exempted [from liability] (ma`fu).
He who has seen his wife or one of his female mahrams with another in an unlawful bed and has beaten, injured or killed one or both of them will benefit from an excuse (ma`dhur).”
Article 398 of the Afghan Penal Code 1976
“A person, defending his honor, who sees his spouse, or another of his close relations, in the act of committing adultery or being in the same bed with another and immediately kills or injures one or both of them shall be exempted from punishment for laceration and murder but shall be imprisoned for a period not exceeding two years, as a “Tazeeri” punishment.”
Article 398, permitting the mitigation of honour crimes, appears to have evolved from the French and Ottoman Penal Codes, which are very similar in form and content. Therefore, that honour defence has always been a legal norm in Afghanistan is a historically inaccurate statement. Although it has been historically practised, the defence in law itself is an import of colonial culture into the legislation - whereas this defence is prohibited in Islam by strict laws on the crime of suspecting women of zina and zina itself. On this basis, retaining such legislation that effectively allows for murder is certainly not an accurate reflection of this society, but of an alien and antiquated colonial culture that prioritizes male jealousy and anger over protection of women’s safety and life.
Other countries with colonial influence upon their legislation have, upon independence, revised their penal code to better reflect and protect their society. Evidence of this can be seen in Article 82(k) of Turkey’s Penal Code, which as of 2004 criminalises killing in the name of ‘custom’
B. How is honour defence a discrimination under the laws of Afghanistan?
Those who commit ‘honour’ crimes are predominantly men; whereas the victims of these crimes are almost always women- a mother, sister, or wife. By allowing mitigation, often upon spurious claims as discussed, the law results in outcomes that discriminate against women and encourages a society of discrimination and impunity towards the murder of women.
In the Preamble to the Afghanistan Constitution, it is stated that, “We the people have ‘approved this constitution in accordance with the historical, cultural and social realities as well as requirements of time. . .’” Thus, bearing in mind the prevailing “historical, cultural and social realities” of honour killings of women, the law must take a stricter stand against these murders by recognizing the rights under Article 22 and 24.
Article Twenty-Two and Twenty-Four of the 2004 Constitution reinforce this equality and right to liberty, which the mitigation for honour crimes obviously violates:
Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.
Liberty is the natural right of human beings. This right has no limits unless affecting others freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity.
The Qur’an also speaks explicitly about the equality and non-discrimination of women:
And their Lord has accepted of them and answered them, “Never will I suffer to be lost the work of any of you, whether male or female, you are members, one of another… (Qur’an: 3:195)
Therefore, Article Three of the constitution, upholding shari’a law is also violated:
In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam. It is clear that the equal treatment before the law is not being afforded to women, yet protects the perpetrators of such crimes, who, as has been shown, can commit murder for ulterior motives under the term of ‘honour’. Allowing mitigation for such murders is therefore inherently discriminatory and violates the whole purpose of constitutional and criminal law.
C. Honour Defence for women who kill?
It has been proposed that the Committee can resolve this debate by allowing the honour defence to be equally available to women – as has been implemented in Algeria (Article 279 of the Penal Code of 1991).
The question arises: if the honour defence was equally available to women who kill, will this remove the issue of gender discrimination? Does the law become gender-equal?
It is important to note that discrimination is not removed by simply changing the words of the provision to include “her”. Under international law and even by interpretation of Shariah law, discrimination occurs when regardless of formal equality, inequality still results due to historical, cultural and social realities of a society. Discrimination also occurs when there is an inequality of opportunities, such as the opportunity to access the justice system and obtain just outcomes.
Where access to justice is concerned, women are not likely to have equal access to justice due to practical implications and societal ramifications. The primary reason for this is the “fear of male members of the family” and for fear of being a “disgrace” to family or wider society. Women encounter obstacles at every level of the justice system. This is in stark contrast to the availability of this so-called ‘justice’ to the men who commit these crimes. Thus, at the level of “equality of opportunities”, the right of the honour defence for both women and men, does not by itself, fulfill non-discrimination and equality. Additionally, it fails to substantively protect women from such murders. The equal availability of the honour defence simply does not address some of the arguments addressed earlier in this opinion on the malicious motives behind the frivolous murder of women.
The current ‘culture’ that we speak of to protect “men who react emotionally”, by retaining the honour defence:
a) does not reflect how and why honour killings occur and,
b) operates to sustain power and control over a wide range of actions and behavior of women, where non-compliance results in justified murder.
Issues such as these have been brought to our attention in Afghanistan as well, as seen in a recent report by the Afghanistan Independent Human Rights Commission (AIHRC) on sexual assault and honour killings. The report cited 243 cases of sexual assault and honour killings in the reported year. The commissioner of the AIHRC stated that the primary reason for the killings were associated with allegations of out-of-wedlock sex (nearly 50%), some unproven, i.e. merely suspected cases. It was also noted that ‘runaways’ were likely victims, and that 15.4% of such killings were a result of this. 3.8% were due to forced marriages and 1.9 % due to refusing to marry.
It can therefore be seen from the combined data above, that a great number of the ‘reasons’ for committing honour crimes are based on suspicion and the woman’s perceived ‘dishonourable’ behaviour, whatever that may be interpreted as by the perpetrator. In many such cases, it was discovered that the ‘reason’ given for murder is unrelated to the act of zina and that the murder was committed for financial incentives.
See two cases in point:
Case in Pakistan
“In November 1997, Mussarrat Bibi, a mother of three children, pregnant and married for 11 years, was reportedly beaten to death by frenzied villagers in village Chehel Khurd near Qilla Deedar Singh in Sheikupura district after rumours of her immoral behaviour spread. Inquiries, however, revealed that she had refused to work for the local landlords without any payment. Her father reported that on 3 November, Mussarrat who was visiting friends in a neighbouring village was told that her husband was ill; she immediately returned to her village where the landowner’s men started shouting that she was immoral and beat her with sticks and clubs and threw stones at her; villagers reportedly readily joined in. She died of head injuries on the spot. Two people were reportedly briefly detained.”
“[A] girl's father and brother killed her. She was mentally retarded and suffered from psychological disorders. She used to go out of the house without permission. She also used to spoil the food when cooking and ruin some of the household equipment. Her father and her brother could not tolerate her any longer. After her mother's death, they took her to far away place so that nobody could see them or hear her voice. They both strangled her with a red shawl she was wearing; they also hit her hard on her back and tummy with a stick and left her dead.”
“[A] man committed murder of first degree against a girl who married someone who was not from her family. He obtained a weapon and waited for her and then fired against her to kill her. After investigation, the court found that the man was the girl's ex-fiance. The two used to have fights with one another; the girl broke the engagement and got married to someone who used to work with her without the consent of her family. The family got very angry. Her ex- fiance took his gun, waited for the girl on the road she used to take to go to the school where she used to teach. Her ex fiance killed her and ran away and hid himself in a nearby house and stayed there until he was captured by the police. He admitted that he killed the girl because he wanted to marry her without her approval.”
Honour Crimes’ are also being “commercialized”, committed in an effort by families to:
Retain property rights;
Gain compensation from the individual accused;
Settle a personal vendetta; to prevent women from claiming inheritance rights;
Hide the exposure of incest.
This enables murderers a criminal defence that opposes Islamic and constitutional provisions of this country that was created to protect human life and dignity.
D. What is the Islamic legal approach?
Islamic law has a different approach in how it instructs us to deal with women suspected zina or fornication.
To begin with, Qur’an Chapter 49, Sura Hujuraat verse 12, states how suspicion can be a sin and should be avoided:
O you who believe! Avoid most of suspicion, for surely suspicion in some cases is a sin, and do not spy nor let some of you backbite others. Does one of you like to eat the flesh of his dead brother? But you abhor it; and be careful of (your duty to) Allah, surely Allah is Oft-returning (to mercy), Merciful.
If there is, however, a strong reason for faulting a woman on a basis of suspicion of zina, there is a specific procedure requiring a strict burden of proof on those who accuse a woman of being unchaste, as given in Q 24 (4—9).
The accuser must bring forward four honourable witnesses (Q4:15 and 24:4), who can testify to the act of zina. The credibility of the witnesses and their statements is of utmost importance to avoid false accusations. This is illustrated by the harsh punishment given to those who falsely testify against a woman and are subsequently prosecuted under the crime of qadf, for which the punishment of the witnesses is eighty stripes and rejection of their testimony forever (Q24:4).
However, he who accuses his wife but lacks witnesses, must testify four times by Allah that he has spoken the truth (Q24:6). The fifth testimony should invoke the curse of Allah unto him, if he is untruthful (Q24:7). However, her punishment is averted if she also bears witness four times by Allah that her husband is telling an untruth (Q24:8), and the fifth testimony she will too invoke the curse of Allah upon herself if she is speaking an untruth (Q24:9).
Thus, what can be learnt from these Qur’anic provisions, is that before any action can be taken based on suspicion, it is necessary that four credible witnesses are required; or alternatively, if the suspicion arises by a husband towards his wife, a series of oaths invoking Allah’s wrath upon the individual speaking the untruth, allowing the woman her defence to be heard before any actions are taken. And if both parties are insistent in their oaths, the consequence prescribed by the Quran is: divorce, and not death. Such provisions are necessary, as the mislabelling of a woman of being an adulteress is a grave sin.
Even upon being found guilty of zina or fornication, the punishment delegated to the guilty party is not death. It is also worth noting that, Islam does not condone individuals or family members taking the law into their own hands, but that should there should be evidence of four witnesses to support suspicion of the offence, which should be taken to a higher and better educated authority to decide, lest there be killing and chaos between us all.
Thus, the Qur’an does not condone the killing of a female for such an act. In the event of an honour killing, the murder must be dealt with the relevant laws and the case should be prosecuted against the man without mitigation.