Introduction
Afghanistan’s Penal Code was revised and officially Gazetted in an extraordinary issue (1260) on May
15, 2017 by the Presidential Decree No. 256, pursuant to Article 79 of the Constitution. Nine months
after its promulgation, during which judges and attorneys had an opportunity to become acquainted
with the new provisions, the Penal Code came into force on February 14, 2018. Apart from
incorporating new laws and provisions such as crimes against humanity and war crimes, the revised
Penal Code has also attempted to incorporate all criminal laws and decrees of Afghanistan into one
Penal Code (in almost 800 pages in Dari and Pashto languages).
One of the most controversial aspects in the process of revision and reform was the incorporation of
the Elimination of Violence Against Women (EVAW) Law into the new Penal Code, with strong
opponents and proponents. At present the EVAW law will continue to be implemented on an ad hoc
basis as a separate and special law, only with a few of its provisions, including provisions on rape,
which is also included in the new Penal Code.
This paper examines the decision-making process of the incorporation of the EVAW Law provisions,
into the revised Penal Code, highlighting the merits and drawbacks of the EVAW Law
implementation on an ad hoc basis, given the realities of Afghanistan. In particular, considering that
many controversies surrounded the process and the general lack of clarity that prevails around the
issue, this paper aims to investigate the rationale for the non-incorporation of the EVAW Law into
the Penal Code. The paper also to examines the impact of this decision on the implementation of
Afghanistan’s National Action Plan for the implementation of the United Nations Security Council
Resolution 1325 (NAP 1325), which came into effect in June 2015.
The research also examined the institutional practices of Afghanistan in law making and the manner
in which various actors such as legislatures, civil society, and policy makers interact. This aspect of
the process is particularly significant given its impact on and implications for governance. To this
end, this paper attempts to identify the main actors, institutions and other factors that have
collectively been in motion in the process of revising the Penal Code.
Objectives and Methodology
The main purpose of this research is to contribute to a more in-depth understanding of the
institutional process of law making in Afghanistan with a focus on the process to revise the Penal
Code. This research sought to:
• Synthesize existing information on the legislative processes and laws with direct impacts on
women
• Gain in-depth insights on the stakeholders and their interactions in the process to revise the
Penal Code
• Establish the current status vis-à-vis the EVAW Law and new Penal Code and implications for
the implementation of NAP 1325, in particular through the lenses of the Protection and
Prevention pillars of NAP 1325.
• Generate recommendations, given the regulatory and legislative environment, on protection
and promotion of women’s rights in Afghanistan.
www.appro.org.af
The desk research entailed an extensive review of the relevant literature such as policy documents,
legal provisions, evaluative reports, other official documents such as decrees, and position and
research papers by non-government organizations.
Interviews with key informants were conducted with legal experts, civil society women’s rights
activists, and the international donor community with presence and mandates in Afghanistan. The
semi-structured interviews were carried out using guiding questions, to allow for additional probing
as and when necessary and appropriate. Seventeen key informants were interviewed in two phases.
Eleven interviews were carried out between December 15, 2017 and January 7, 2018. The additional
seven interviews were carried out between March 27, 2018 and April 3, 2018.
See Appendix 1 for the coding system used for the key informants. See Appendix 2 for the guiding
questions used in the interviews with key informants.
Limitations
Given the sensitivity of the subject it was extraordinarily difficult to secure interviews with the key
informants with many potential key informants not willing to engage or canceling appointments
after agreeing to meet.