The constitution and other laws and policies expressly restrict religious freedom. Full and effective enforcement of the 2004 constitution is a continuing challenge due to its potentially contradictory commitments and the lack of a tradition of judicial review. The constitution explicitly states followers of religions other than Islam are “free to exercise their faith and perform their religious rites within the limits of the provisions of the law.” However, the constitution also declares that Islam is the official “religion of the state,” that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam,” and that “the provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.”
The constitution also includes a mandate to abide by the Universal Declaration of Human Rights to “create a prosperous and progressive society based on social justice, protection of human dignity, protection of human rights, realization of democracy, and to ensure national unity and equality among all ethnic groups and tribes.”
Although the constitution expressly protects free exercise of faith for non-Muslims, in situations where the constitution and penal code are silent, including apostasy and blasphemy, courts relied on interpretations of Islamic law, some of which conflict with the country’s international commitments to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The constitution states that when there is no provision in the constitution or other laws that guide ruling on an issue, the courts’ decisions shall follow Hanafi jurisprudence in a way that best serves justice. Judges decide whether they will use Hanafi jurisprudence when other laws are deemed not to be clear. The Office of Fatwa and Accounts within the Supreme Court interprets Hanafi jurisprudence when a judge needs assistance in understanding its application. The constitution also grants that Shia law be applied in cases dealing with personal matters where all parties are Shia. There was no separate law applying to non-Muslims.
The constitution requires that the president and vice president be Muslim and does not distinguish in this respect between Shia and Sunni. This requirement was not explicitly applied to government ministers or members of Parliament, but each of their oaths includes swearing allegiance and obedience to the principles of Islam.
The first version of the Shia Personal Status Law (SPSL) was passed in April 2009. Some prominent Shias praised the law for officially recognizing Shia jurisprudence, and some groups hailed the law for officially recognizing the Shiite minority. However, it was controversial both domestically and internationally for its failure to protect women’s rights, specifically to protect women from marital rape. Additional articles of particular concern in the law included polygamy, limits on inheritance rights, limits on the right of self-determination, restricted freedom of movement, guardianship rights, and forced sexual obligations to one’s husband. After reviewing the law, the Ministry of Justice removed some of the controversial articles in the original version; President Karzai signed the amended version in July 2009, which became public law. Many observers within and outside the country continue to object to articles in the law that conflict with women’s constitutionally protected rights and international human rights treaties and conventions to which Afghanistan is a signatory.
Conversion from Islam is considered apostasy and is punishable by death under some interpretations of Islamic law in the country. The criminal code does not define apostasy as a crime, and the constitution forbids punishment for any crime not defined in the criminal code; however, the penal code states that egregious crimes, including apostasy, should be punished in line with Hanafi religious jurisprudence and handled by the Attorney General’s office. Converting from Islam to another religion is considered an egregious crime under Islamic law. Male citizens over age 18 or female citizens over age 16 of sound mind who convert from Islam have three days to recant their conversions or possibly face death by stoning, or deprivation of all property and possessions, and/or the invalidation of their marriage.
Although there is no reference in the penal code to spoken or written utterance of insults or profanity against God, religion, sacred symbols, or religious books, blasphemy--which in the Afghan context can include anti-Islamic writings or speech, or the “defamation” of Islam--is a capital crime under some interpretations of Islamic law in the country. The civil law is silent on blasphemy and the courts therefore rely on Islamic law to address this issue, based on Article 3 of the constitution. An Islamic judge may impose a death sentence for blasphemy, if committed by a male over age 18 or a female over age 16 of sound mind. Similar to apostates, those accused of blasphemy are given three days to recant or face death.
The General Directorate of Fatwas and Accounts under the Supreme Court ruled in May 2007 that the Baha’i Faith was distinct from Islam and a form of blasphemy. It held that all Muslims who converted to the Baha’i Faith were apostates and all Baha’is were infidels. Baha’is who accepted the Muslim declaration of faith, however, were not expected to be subject to the ruling. The ruling created uncertainties for the country’s small Baha’i population, particularly on the question of marriages between Baha’i women and Muslim men. Citizens who converted from Islam to the Baha’i Faith faced risk of persecution, similar to that of Christian converts, in theory up to and including the death penalty. Also unclear is how the government would treat second-generation Baha’is born into Baha’i families. Although technically not converts, second-generation Baha’is could still be viewed by some as having committed blasphemy. The ruling is not expected to affect foreign national Baha’is.
The government does not designate religion on national identity cards and does not require individuals to declare belief in Islam in order to receive citizenship; however, the state, including the courts, traditionally considers all citizens to be Muslim. Therefore, some basic citizenship rights of non-Muslims are not explicitly codified. As a result, non-Muslims are not exempted from Islamic jurisprudence and can be tried, like any Muslim, under Hanafi law when the constitution does not provide guidance. In practice, courts do not always accord Muslims and non-Muslims the same rights. For example, non-Muslims can be married to each other as long as they do not publicly acknowledge their non-Muslim beliefs. In addition, judges stated that a Muslim man may marry a non-Muslim woman, but the woman must first convert if she is not “of the book,” meaning neither Christian nor Jewish. Moreover, a Muslim woman is not allowed to marry a non-Muslim man.
The government continued to update the existing criminal and civil legal codes to bring them in line with the country’s international treaty obligations. The 1976 penal code addresses “Crimes against Religions” and states a person who attacks a follower of any religion shall be sentenced to a short-term prison sentence of not less than three months and a cash fine of between 3,000 and 12,000 Afghanis ($62 and $240), although it does not address blasphemous remarks. The penal code also says persons who forcibly stop the conduct of religious rituals of any religion and those who destroy or damage permitted places of worship where religious rituals are conducted or who destroy or damage any sign or symbol of any religion shall be subject to a medium-term prison sentence (defined in the criminal code as confinement in a jail for not less than one, nor more than five years) and/or a fine of between 12,000 and 60,000 Afghanis ($240 and $1,200).
The constitution protects freedom of expression and of the press; however, the Mass Media Law of Afghanistan (media law), passed in 2006 and amended in 2009, includes articles detrimental to the freedoms of religion and expression. The media law prohibits publicizing and promoting religions other than Islam. Many authorities and most of society view proselytizing by adherents of other faiths to practicing Muslims as contrary to the beliefs of Islam.
Article 45 of the media law prohibits production, reproduction, printing, and publishing of the following materials: works and materials contrary to the principles of Islam; works and materials offensive to other religions and sects; works and materials humiliating or offensive to real or legal persons; works and materials considered libelous to real and legal persons and that may cause damage to their personality and credibility; works and materials contrary to the constitution and considered a crime by the penal code; publicizing and dissemination (promotion) of religions other than Islam; disclosure of identity and pictures of victims of violence and rape in a manner that damages their social dignity; and articles and topics that harm the physical, spiritual, and moral well-being of persons, especially children and adolescents. Also under the media law, the proprietors of newspapers, printers, and electronic media companies must be licensed by and registered with the Ministry of Information and Culture.
The ambiguity surrounding what constitutes offensive material offers the potential for restrictions on and abuse of press freedom and intimidation of journalists. These rules also apply to non-Muslims and foreign-owned media outlets. An amendment to the media law instructs National Radio and Television Afghanistan (RTA), the state run media outlet, to provide balanced broadcasting that reflects the culture, language, and religious beliefs of all ethnic groups in the country. According to the law, RTA was obligated to adjust its programs in light of Islamic principles and national and spiritual values.
The Ulema Council is a group of influential Sunni and Shia scholars, imams, and Muslim jurists from across the country. Its senior members meet regularly with the president and advise him on Islamic moral, ethical, and legal problems. The Council is nominally independent of the government, but its members receive financial support from the state. Through contacts with the presidential palace, the Parliament, and ministries, the council or its members advise on the formulation of new legislation or the implementation of existing law. Although it is well represented in provincial capitals, the council has much less outreach in villages and rural areas, where decisions are made based on tradition and local interpretations of Islamic law.
The council urged individuals to avoid conduct that could be perceived as insulting local traditions and religious values on the grounds that “safeguarding our national honors and Islamic values is the obligation of every citizen.”
The Ministry of Hajj and Religious Affairs is the primary ministry handling religious affairs. The ministry’s responsibilities include sending citizens on the Hajj and Umrah pilgrimages, collecting revenues for funding religious activities, identifying and acquiring property for religious purposes, providing religious teaching to children, issuing fatwas, testing imams, and raising public awareness of religious problems. Both Sunnis and Shias are permitted to go on pilgrimages, and the government imposes no quota for either group. During the year, an estimated 30,000 pilgrims made the Hajj.
The licensing and registration of religious groups is not required, although the government registered mullahs (religious leaders). Mullahs working for the Ministry of Hajj and Religious Affairs are generally proposed for registration by local residents and approved by the ministry. The number of mullahs working in the country is unknown, but estimates range up to 120,000. The Ministry of Hajj has registered approximately 3,500 imams, who receive a government monthly salary of 3,350 Afghanis ($70). The ministry hired 160 additional mullahs during the year. In some registered provincial mosques, local residents paid the salaries of mullahs. Many other mullahs are not registered due to lack of capacity and funding to support more mullahs at mosques, as well as security problems in the provinces. New mosques are opened or built based either on the government’s development plans or on proposals by local residents, which must subsequently be approved by the Ministry of Hajj and Religious Affairs.
There are no explicit restrictions on religious minority groups to establish places of worship or to train clergy to serve their communities; however, very few public places of worship exist for minorities due to a strapped government budget and small congregations.
The Ministry of Education’s Directorate of Curriculum Development has responsibility for creating curriculum guidelines for public schools. A member of the Afghanistan Independent Human Rights Commission participates in these meetings. Since 2007 the government has run its own madrassahs to reduce the number of children studying at extremist madrassahs abroad and to counter the influence of extremist elements operating in the countryside, including through independent madrassahs. A number of government-affiliated madrassahs in the capital and other provinces where there is sufficient security offer Islamic and secular education in accordance with Ministry of Education curricula that include 60 percent religious education and 40 percent general education. There are 800 Ministry of Education-sponsored madrassahs throughout the country, including several in Kabul, Balkh, Nangarhar, and Herat provinces. Of these, 30 madrassahs are devoted to teaching female students and 80 others are registered, but do not receive government funding. Graduates from government madrassahs are eligible to attend state universities. The country has 60 higher level madrassahs (madrassahs that bestow a degree equivalent to a bachelor degree), including four for female students.
The Ministry of Education requires that independent madrassahs be accredited and disclose their funding sources. During the year, there were no additional madrassahs built using private funds; however, it is difficult to account for all madrassahs, since many continue to operate without registering with the government. Madrassahs must route funding from private or international donations through the ministry or risk being banned. This system allows the government to monitor assistance to institutes of learning funded by known entities. According to the Ministry of Education, the government solicited donations for the support of madrassahs at all levels from Muslim countries and private individuals. Saudi Arabia and other countries have supported madrassahs in the past.
The educational curriculum, which survived more than 30 years of war, places considerable emphasis on religion. The constitution states, “The state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam, national culture, and in accordance with academic principles, and develop the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.” The public school curriculum includes Islamic content, but no content from other religious groups. The national curriculum and textbooks that emphasize moderate Islamic terms and principles steadily replaced the preaching of jihad in schools. However, late in the year, media reports and independent analysts suggested that departments of education at the district level had made agreements with the Taliban to teach the pre-2001 curriculum in provincial schools in return for halting attacks against students and teachers, including attacks on girls’ schools. The Ministry of Education denied those reports. There is no restriction on parental religious teaching, and non-Muslims are not required to study Islam in public schools.
There are schools for Sikh children in Ghazni and Helmand, and one in Kabul that teaches a few classes. The government provides limited funding for Sikh schools, including for teachers for the basic curriculum. For example, the government assigned one teacher to a Sikh gurdwara in Kabul to teach Dari and mathematics to Sikh and Hindu children. However, the Sikh community is responsible for hiring a teacher to address religious subjects. A few Sikh children attend private international schools. There are no Christian schools in the country. Hindus do not have separate schools, but sometimes their children attend Sikh schools. The government took limited steps to protect and integrate Hindu and Sikh children into the classroom environment.
The government has not banned any political parties for religious reasons. The constitution allows for political parties provided that “the program and charter of the party are not contrary to the principles of the sacred religion of Islam.”
The government observes the following religious holidays as national holidays: Prophet Mohammed’s Birthday, First Day of Ramadan, Eid-al-Fitr, Eid-e-Qurban, and Ashura. The Shia community openly celebrated the birthday of Imam Ali.