Legal reform or erasure of history? The politics of moral crimes in Afghanistan

ABSTRACT

In this article we reflect on our efforts to study the prosecution of moral crimes in Afghanistan. In the process of collating information about men and women imprisoned for moral crimes such as adultery, we found evidence that pointed to large-scale incarceration of men for the uncodified crime of elopement. After establishing this fact through a careful review of official data, the article considers two interrelated themes. First, we argue that government attempts to conceal its extralegal practices cannot be reduced to the question of a corrupt bureaucracy or weak governance. Rather, they reflect a fundamental tension between a modern state’s interest in projecting the rule of (codified) law and societal expectations arising from both Islamic and customary law. Second, we suggest that officials seek to address this conceptual tension between the different bodies of law through a complex process involving both accommodation and concealment. In day-to-day judicial practice, ‘assimilation’ refers to attempts to rely on sharia provisions to accommodate customary practices which have no counterpart in statutory law. ‘Dissimulation’ refers to bureaucratic actions aimed at concealing the actual practices which make such extralegal accommodations possible.

KEYWORDS:

• Afghanistan
• moral crimes
• elopement
• legal pluralism
• gender
• judiciary

Introduction

This article reflects on our research effort to obtain information about men and women imprisoned for moral crimes in Afghanistan and the Afghan government’s response to these efforts. In 2017, we set out to ascertain the number of men imprisoned for ‘moral crimes’, specifically men charged with or convicted for consensual heterosexual relations outside of marriage, such as zina (pre- or extramarital intercourse).¹ The imprisonment of women and girls for moral crimes had been receiving attention from human rights activists for some time. In particular, these groups criticized the Afghan government for imprisoning women for the act of ‘running away’ from home (farar az manzil), which in contrast to zina is not criminalized in written law. In 2010, responding to the mounting criticism of this practice, the Supreme Court stated that women and girls who ‘run away’ from home and seek shelter in the house of ‘strangers’ were committing a crime under sharia, even if their actions were not punishable under codified law (Wimpelmann 2017). Therefore, they could be arrested and prosecuted for ‘escaping’ from home or ‘attempted’ adultery.²

However, subsequent government statements were more restrictive and suggested that only acts of actual zina were to be pursued by state prosecutors. Certainly, no criminal charges were to be filed under the elopement category concerning cases of actual zina. In other words, police and prosecutors should refrain from referring to elopement as a crime and only concern themselves with zina, a statutory crime which is most likely to occur in the context of elopement, when couples who run away from their families spend time together outside the supervision of their families or the state.³ This position was further reinforced following the appointment of the new attorney general (AG), Mohammad Farid Hamidi, in 2016. A former human rights commissioner, the AG is said to have issued formal instructions to state prosecutors to end the prosecution of runaways and to focus on zina only.⁴ Over time, this administrative order banning the prosecution of elopement was elevated to institutional policy and became the official line, namely that the Afghan government had ceased the prosecution of runaways after 1395 (2016–17).

However, as documented by Human Rights Watch (2013, 2016), the prosecution of women and girls for running away, now often called ‘attempted zina’,⁵ has continued. Moreover, when we started to gather systematic data from government case files at the AG’s office, we found that in addition to women, men were also prosecuted for this uncodified crime. This was a surprising finding given that the debates on moral crimes had focused exclusively on women. As we argue elsewhere, that many men were also incarcerated for running away, and that this had not been publicly known or documented before, and thus had not been the subject of government clarifications or legal justifications in the way that the imprisonment of female elopers had been, constitutes both an empirical and an analytical oversight.⁶

In this article we detail how our attempts to examine the issue further and obtain more reliable official information on elopement gradually led to heightened government intransigence and paranoia in officialdom. In the end, state archives were partly shuttered and access to elopement data was blocked by the government, a heavy-handed approach to ensure that evidence of the illegal prosecution of runaways was kept locked up. As a result, researchers and activists can no longer access the data on elopement. Nor is it possible for police or prosecutors to register new elopement cases in the national database of criminal cases, whether or not they continue to prosecute such cases in reality. Although this specific intervention was presented to us by the AG’s office as a temporary corrective (to allow time for review of individual case files and correction of case-related information in the database) and an act of reform (to prevent police and prosecutors from registering new cases under the elopement category), there appeared to be other, more complex reasons behind it.

We argue that the Afghan government attempts to conceal its extralegal practices cannot be reduced to the question of a self-serving and corrupt bureaucracy or lack of technical capacity in state institutions. Rather, this case reflects a fundamental tension between a modern state’s interests in projecting the rule of (codified) law and societal demands to accommodate customary or Islamic traditions in the country’s justice system, where the collective (family, tribe) make claims over individual members that often supersede statutory law. Furthermore, we suggest that the government seeks to address this conceptual tension between different bodies of law (Islamic, customary and statutory) through two interrelated moves. Assimilation involves relying on sharia provisions to accommodate customary practices which have no counterpart in statutory law or the formal legal system, such as the prosecution of runaways. But reliance on sharia to punish offenders in breach of codified law means that such extralegal practices cannot be openly named or acknowledged. Dissimulation refers to the state’s interest in covering up the actual practices which make such extralegal accommodations possible, for example, through attempts to relabel the extralegal prosecution of runaways ‘elopement plus zina’, a formulation suggesting to link a statutory crime such as zina with an uncodified crime such as elopement. This kind of normative syncretism evident in the criminal justice system points to the interesting dilemmas inherent in Afghanistan’s plural legal system.

In the first part of this article, we engage with the different sets of numbers we have obtained from the AG’s office and what they tell us about the state’s treatment of runaway men and women. In the second part, we document the shift in the AG’s position in light of evidence of the continued prosecution of runaways, and the government’s desperate attempts to smooth over the contradiction between its official position and the reality reflected in official statistics. In the next section, we provide a brief account of Afghanistan’s legal history and rely on the conceptual categories of assimilation and dissimulation to explain the underlying causes of this contradiction and the paradoxical ways in which the government sought to manage conflict between the different bodies of law in judicial practice. Finally, we reflect on the ethical implications of our work, and offer a few insights on the future prospects of research on gender and criminal law in Afghanistan.

The article is based on extensive archival and ethnographic research at the AG’s office in Kabul in 2017 and 2018, supplemented by additional interviews with government officials (police, prosecutors, judges, prison personnel) during the same period.

The game of numbers

As part of our research on moral crimes we sought data from three key justice-sector institutions: the Supreme Court, the AG’s office and the Central Prisons Directorate (under the Ministry of Interior). The Supreme Court statistics (obtained in early 2017) were not very useful for our purposes since they did not disaggregate the data into gender or type of moral crimes, a large category which could also include drinking and gambling. The data we obtained (informally) from the AG’s office in mid-2017 were better tabulated and more specific.⁷ They had been compiled by the AG’s office with the technical help of our researchers. These data were based on a partial reading of information in the Case Management System (CMS),⁸ an interagency database set up to contain up-to-date information on all criminal cases filed in the country. It showed both the gender and place of detention of the offenders.

However, officials at the AG’s office said that the data contained errors and required further review before they could be officially handed over to us. While they vaguely implied that the data contained errors to justify withholding the information, what had really concerned officials in private was the existence of one particular data column under which elopement information from all over the country had been regularly compiled. The data in this column suggested that there were significantly more male prisoners than female prisoners in elopement cases. As we would later learn, this was why the official statistics on moral crimes were withheld from us in mid-2017. In a meeting in early 2017 (before we had obtained the AG’s data), the AG had dismissed our questions related to the prosecution of elopement, then based on media reports and conversations with human rights activists. He advised us against further researching the issue,⁹ stating that the Afghan government had stopped prosecuting runaways after 1395 (2016–17),¹⁰ a policy decision which anyhow related to female and not male elopers.

Nonetheless, the data we obtained from the AG’s office a few months later (the same data that officials claimed contained errors) not only showed the continuing incarceration of women for elopement but also suggested that men were being incarcerated for this uncodified crime, and at a much higher rate than women. In fact, the number of male prisoners was typically three times that of female prisoners. To get a better idea of the extent of the prosecution of moral crimes in Afghanistan and find a comparative basis for the AG’s data, we proceeded to obtain data from the Central Prisons Directorate in mid-2017. These data also showed hundreds of men and women serving prison terms for running away, and three times as many male as female prisoners.

When we presented the initial findings from the AG’s data as well as the data from Central Prisons Directorate, both of which pointed to the prosecution of male (and female) elopers, officials in the AG’s office dismissed the findings and once again stated the official line that the Afghan government had ceased the prosecution of elopers. Given that the AG’s stance on elopement stood in sharp contradiction to the data, officials at the AG’s office insisted that the Central Prisons Directorate data contained errors, that elopement cases should not have been compiled under a separate heading. From their perspective, these elopements were in all likelihood actually cases of zina, which must have been mistakenly registered under the elopement heading. In other words, the system should not be generating new data on elopement now that the government had stopped prosecuting elopers, and that men and women continued to be arrested and prosecuted for elopement seemed to be an anomaly. As for the AG’s own data, they asked for more time to review them before handing them over to us. As we show below, this process turned out to be less than straightforward, and eventually brought an outcome we did not anticipate at the start of the research.

Veiling the data

The AG’s office’s position on elopement would gradually shift as evidence of continuing prosecution of elopement emerged a few months later. While reviewing its own statistics on rape, zina and elopement, more senior officials began to show unease about what they had observed in the data. A sense of alarm set in. A key problem with the data was how to explain the existence of such a large number of both male and female prisoners, considering the AG’s official stance that the Afghan government had stopped prosecuting runaways, and that in principle this concerned only female elopers. Moreover, the statistics also showed a much greater number of male prisoners than female prisoners serving jail terms of up to one year or longer. With few good options at its disposal, the AG’s office proceeded by questioning the validity of its own data. To gain additional time, senior officials again cited the need for further review and verification of the data before handing them over to us.

Weeks turned into months, and we continued to visit the AG’s office to seek updates and demand the release of the data. When the delaying tactics failed to deter us, the authorities’ focus then shifted to damage control and finding ways to ‘manage’ the data. For example, when we asked the clerical staff responsible for data management to explain the delays in processing the data we had requested, they blamed the higher-ups. According to one account, senior officials were putting pressure on clerical staff to ‘handle’ the data and ‘make the problem go away’.¹¹ Such demands, which were anyhow beyond their technical ability or administrative authority, were responsible for the delays in data processing. There were, of course, important political and institutional interests and legacies which needed to be protected by such actions. Around the same time, the US Department of Defence watchdog, the Special Inspector General for Afghanistan Reconstruction (SIGAR), published a damning report accusing the AG of turning a blind eye to high-level corruption. Significantly, the report also criticized the AG for ‘resisting’ proper implementation of the CMS database. Greater transparency, the report said, might have shown how ‘unproductive, corrupt and patronage-laden’ the AG’s office was (SIGAR, 2018, p. 124).

Finally, in mid-2018, the AG’s office informed us that a partial review of the data had found that in a large number of elopement cases the gender of the offender had been wrongly registered. In one specific year, for example, 140 female prisoners had been mistakenly registered as male. Apparently, the mistake had since been corrected. The ‘discovery’ of problematic data in this one instance was then used by officials to explain the higher number of male than female prisoners in the statistics more generally. It was taken as an indication of the extent to which ‘clerical errors’ had misrepresented the extent of the entire problem: if the gender of offenders could be wrongly registered, it was perhaps also possible that clerical staff had mistakenly put statutory crimes such as zina in the elopement category, or so the thinking went. From our perspective, this meant that the AG’s office had ostensibly accepted the basic premise of our research, namely that both men and women continued to be prosecuted for elopement by the government.

In view of this ‘finding’, the AG’s office again asked for more time to review the remaining data and rectify the problems before we were given the full data set we had requested. But since the office lacked the technical capacity and operational authority to undertake a full review of the entire data set and make the necessary interventions, the responsibility for ‘correcting’ the data was assigned to a US-funded private contractor, Tetra Tech / JSSP. Meanwhile, we were informed that the task could take many months to complete, if it was possible at all.

Worried we might never obtain the statistics we sought, we increased pressure on the AG to release whatever data his office had compiled so far. Although we had requested a full set of moral crimes data, including data on rape and zina, in the end we were only given elopement statistics for the years 1390–97 (2011–18).¹² These were the data that had most concerned the AG, which also meant that his office had spent the time and resources to compile it. When we asked for information on the other types of moral crimes such as zina and rape, the office responded that it lacked the technical capacity, including problems of access to the CMS database, to process such a large data set. Since Tetra Tech/JSSP had operational control over the CMS database, we were advised to approach the private contractor for the remaining data. Like so much else in Afghanistan, the AG’s office seemingly had control over its own data only in name.

We were also informed that the elopement data we had received from the AG’s office in mid-2018, although extracted from the CMS, might still contain ‘errors’. As shown below, this elopement-only report encompassed a seven-year period, 1390–97 (2011–18). This was the first time independent researchers had obtained officially sanctioned (though still problematic) elopement statistics from the Afghan government. We were obviously elated that after two years we had finally acquired government statistics showing the extent of the problem faced by runaways in Afghanistan (Table 1).

Table 1. Elopement statistics 1390–97 (2011–18)

Year	Arrested, detained or imprisoned				Convicted/imprisoned
	Men		Women
	Cases	Men	Cases	Women	Men	Women
1390	336	451	167	175	318	97
1391	382	494	176	182	342	111
1392	301	399	148	155	301	100
1393	342	440	156	171	387	91
1394	261	341	146	152	291	115
1395	277	330	164	166	229	103
1396	278	357	145	15	298	103
1397	66	70	49	54	37	18

Source: Case Management System, Attorney General’s office.

Like the previous data sets we had obtained, these data showed many more men than women prosecuted under the elopement category. Two weeks after we received these data, we organized a meeting with the head and members of Directorate of Oversight over Places of Detention of the AG’s office to review and make sense of them.¹³ As they studied the numbers, the mood of the officials dramatically changed. Expressions of surprise such as ‘How could this be possible?’ and ‘Why did no one on our side notice this problem?’ were solemnly uttered. We were promised that the continued prosecution of elopement and the high percentage of male elopers in the data would be immediately brought to the attention of the AG himself. But this was not the first time such statements had been made, and we suspected that the AG was already aware of the issue.

Over time, other senior officials also grudgingly accepted the validity of the data, but only partially. They would, for example, accept that the numbers indicated many men and women being imprisoned for running away, but only up to 2016 (coinciding with the appointment of the new AG), and not after. They refused to believe the numbers that showed that the prosecution of both men and women for running away had continued after 2016. One commonly held assumption was that clerical staff most likely had mistakenly registered actual zina cases under the elopement category in the CMS database. As a result, officials put more pressure on clerical staff and Tetra Tech/JSSP with responsibility for maintaining the CMS database to ‘find a solution’ to the problem. They wanted to know why elopement cases had been registered in the CMS database, after the AG had issued instructions banning the prosecution of runaways. In effect, this represented an attempt to fix a political problem with technical methods.

Meanwhile, as we were nearing the end of our fieldwork in late 2018, we began to observe signs of official procrastination. It appeared that the AG’s office had backtracked on its earlier promise to hand over a set of fully ‘audited’ elopement data, following a final review by Tetra Tech/JSSP. To obtain a full set of moral crimes data, including a more reliable set of elopement statistics, we had to directly approach Tetra Tech/JSSP. With this purpose in mind, in September 2018 we submitted a formal information request to the Monitoring Board of CMS. In this instance, we requested a comprehensive set of moral crimes statistics, including zina, pederasty, rape and elopement for the years 1390–97 (2011–18).

Two months later we received the first batch of officially sanctioned statistics on zina and pederasty, based on information in the CMS database.¹⁴ At the same time, we were informed that on the insistence of Afghan authorities on the CMS board, the data related to rape and elopement needed another round of verification, including reviewing and comparing the information in the CMS database with individual case files in the government archives, before the rest of the data could be handed over to us. Obviously, we welcomed this kind of rigorous commitment to data processing. Barely a month had passed, however, when we were informed that our request for information related to rape statistics had been approved.¹⁵

However, through the same communication we learned that the CMS Monitoring Board,¹⁶ which counts among its members a senior official from the AG’s office (whose office is primarily responsible for compiling and storing case-related information), had decided to withhold the data on elopement ‘because [elopement] is not a crime under Afghan laws’.¹⁷ This seemed deeply paradoxical. Through its actions the government had in effect acknowledged that systematic, official data on the prosecution of runaways existed in state archives. But because it provided clear confirmation of the government’s extralegal actions, it was presented as justification for withholding information about this practice from the public. Put differently, the Afghan government decided to block our access to elopement data to cover up its own illegal actions.

As shown below, this was not the only action that the Afghan government, and the AG’s office more specifically, took between the summer and winter of 2018 to hide the extralegal prosecution of runaways in Afghanistan.

The art of inconclusive investigations

In a parallel investigation, we sought to make sense of the statistics we had already obtained from the AG’s office. Confronted with the fact that these data showed the widespread prosecution of male elopers, the AG’s office had committed to identifying all the male elopers who were serving jail terms at the time of the investigation. Once these individuals had been identified, the next step was to locate their case files in the government archives and conduct individual investigations to ascertain the actual legal grounds for their incarceration: whether they had been wrongfully convicted for running away or in reality charged with other codified crimes, such as zina. This process was considered a critical step in the overall effort to review and verify the elopement data in the CMS database.

But this effort also met with political resistance and bureaucratic procrastination. We had hoped that the AG’s office would provide a convincing explanation as to why so many men had been featuring, year after year, in official statistics – men who appeared to have been wrongfully prosecuted and imprisoned for running away, in clear breach of state law. Despite initial signs of official commitment to investigate the matter, the AG’s office ultimately failed to address this problem. As it transpired, this process was never given the attention, the resources or the priority it deserved. When we pressed officials for the results of the investigations they had promised to conduct, we received only token information on a few selectively targeted investigations they had carried out. And evidence showed that these investigations were undertaken for reasons other than justice. They appeared to have been carefully managed and designed mainly to compile counter-evidence that could be used to challenge our research findings. In hindsight, we believe that the government went along with our suggestion to conduct case file investigations to strengthen its own claim that the AG’s office had ended the prosecution of runaways, and that the evidence extracted from official data could not support any definitive conclusion. However, as shown below, this argument stood on rather shaky grounds.

One of these investigations which we closely followed was supposed to be focused on 25 male elopers who were serving jail terms in Kabul at that time. We had acquired information about these men from the Central Prisons Directorate, and we had relied on this information to make a case for reviewing the CMS data and investigating individual cases. The results of the investigation which were shared with us showed that instead of focusing on the 25 men in jail for elopement, the AG’s office had instead compiled a list of two dozen female elopers who had been convicted of zina. When we pointed out the discrepancy, we were told that the AG’s office could not locate these men, either in its own database or in state prisons. Another investigation, focused on 14 male elopers who were imprisoned in Kabul, showed that they were prosecuted or convicted for ‘elopement plus zina’. The elopement-plus-zina category is an interesting formulation; although it suggested that the men were tried for the codified crime of zina, they were initially taken into custody for running away. A third investigation, apparently carried out in two northern provinces, furnished similar results: the few dozen cases which had been reviewed by prosecutors reportedly belonged to the elopement-plus-zina category. As it happened, not a single case where conviction had been obtained on the basis of elopement was ever reported. Although male elopers appeared in abundant numbers in official statistics, prosecutors could not locate them in state prisons.

We concluded that instead of credible investigations, the politically convenient position for officials may have been to fall back on denial. As demonstrated, in spite of official evidence, high-ranking officials and senior bureaucrats at the AG’s office continued to blame the whole affair on errors of recording and the incompetence of clerical staff. This was meant to suggest that the elopement data we had so painstakingly acquired and analyzed was suspect and could not be trusted, because it had not been properly recorded. Instead of elopement, they argued, those cases should have been registered under a different heading, such as zina, to correctly reflect the actual codified crime on the basis of which convictions had been obtained.¹⁸ Senior officials and prosecutors handling the cases with whom we have spoken have held on to the assumption that (but never properly investigated whether) the elopement cases recorded in the statistics must have involved a statutory crime such as zina, hence the ‘elopement plus zina’ formulation.

This argument was based on the correct interpretation of the codified law: on its own, elopement was not a legally recognized statutory crime in Afghanistan. Therefore, senior officials insisted ‘we don’t prosecute elopement’ and refused to entertain the idea that some men (and women) could have been wrongly imprisoned for running away, for example, through invocation of sharia provisions to punish elopers. Yet, conversations with prosecutors and judges handling actual cases proved otherwise; many admitted to prosecuting and convicting both men and women for running away. They did this by invoking Article 130 of the Afghan constitution, which provides for the application of sharia (specifically, Hanafi fiqh ¹⁹) in cases where there are no clear provisions in codified law.

Legal pluralism and prosecution of moral crimes

This conceptual tension between statutory law and Islamic law (fiqh) is woven into the very fabric of the Afghan legal system. The Afghan monarch Abdul Rahman Khan (1880–1901) made the first attempt to codify sharia and establish state-sponsored sharia courts as a tool of centralization of state power. Centralization of justice involved the replacement of local mechanisms of dispute resolution by sharia courts, curbing the autonomy of the religious establishment (ulema), and breaking the power of local tribal elites (khans). The state assumed jurisdiction of criminal cases and family law by appointing judges to sharia courts. Privileging sharia rather than Pashtunwali²⁰ helped state efforts to undermine the position of the tribal aristocracy by suppressing customary justice (Ghani 1978, 271).²¹ The enforcement of sharia law ostensibly ‘represented a modernizing and centralist impulse in a context where customary tribal law prevailed’ (Kandiyoti 2007, 173).

In Ahmed’s (2017) account of the historical development of the modern legal system in Afghanistan, Afghan ruler King Amanullah (1919–29) is credited with the consolidation of a unique legal system based on a pioneering combination of Islamic fiqh and statutory (codified) law.²² The 1923 constitution, an important component of King Amanullah’s broader modernization programme, provided the earliest recognition of Islamic law in and alongside codified state law, opening the way for judicial officials to rely on both sharia principles and statutory legal codes (Kamali 1987). The 1964 constitution stipulated that in the event that statutory law contained no specific ruling for a particular situation, judges should refer to the Hanafi fiqh for guidance in imposing punishments, a provision retained in the 2004 constitution. As a result, the relationship between fiqh and codified law has been understood in radically different ways by the country’s legal scholars and practitioners.²³ Whereas some saw a circumscribed and limited role for uncodified fiqh, within the limits of codified law, others have held that codified law is merely one part of Afghanistan’s applicable legal framework, most if not all of which proceeds from divine sources.

In light of this particular historical development of the Afghan legal system, the underlying conflict between different understandings of Afghan law was easily recognizable to us during conversations with senior officials from the different branches of the AG’s administration. In 2017 and 2018, we held a number of meetings with judicial officials to review the statistical information, to find answers to our questions about the information we had received and to agree on specific interventions. It was evident that whereas the leadership expressed confidence in the rule of (codified) law, insisting that the prosecutions of runaways by the AG’s office had ceased since some time, the more conservative prosecutors insisted on the primacy and applicability of sharia law when justifying the state’s continued prosecution of runaways, a stance well reflected in official statistics. Different conceptions and judicial interpretation of the law signify a sharp contrast between the liberal rhetoric of a political leadership mindful of their power and position (and dependence on foreign donors) and the views of judicial staff inspired in part by the unique historical development of the legal system in Afghanistan.²⁴

Our investigation centred on the prosecution of runaways, and the conversations we have had with judicial officials in that regard clearly reflect the tensions inherent in Afghanistan’s plural legal system. On the one hand, there are demands for reform, including by donors, in line with a liberal understanding of justice based on individual rights enshrined in statutory law, compliance with international standards and the demand for transparency. This sort of thinking is reflected in the scale of financial and technical investment by key donors, such as the US government, who support the CMS database to streamline the workings of justice-sector institutions. The need to satisfy donors and keep aid resources flowing necessitates maintaining a façade of full compliance with the liberal project even if this is not achieved in practice. On the other hand, the expectations arising from both Islamic and customary traditions create additional demands (especially with more powerful complainants, such as tribal leaders, local commanders and religious figures), necessitating some sort of accommodation by the state of local customs, which often have no counterparts in the formal legal system. This does not only reflect the issue of individual versus collective rights; more importantly, it speaks to the inherent tensions between statutory law, Islamic jurisprudence (fiqh) and local customs in Afghan law.²⁵

We argue that the Afghan government’s attempts to conceal the extralegal prosecution of runaways, for example, through (extra)legal contortions such as ‘attempted zina’, cannot be reduced to the question of a corrupt bureaucracy or weak governance. Rather, they reflect a fundamental tension between a modern state’s interests in projecting the rule of (codified) law and societal demands for the accommodation of customary (or Islamic) traditions in the country’s justice system, where the collective (family, tribe) make claims over individual members which often override or supersede statutory law. This might involve, for example, a female eloper’s parents pressuring the police or prosecutors to convict her male counterpart, in an attempt to rehabilitate their reputation. The fact that parents see themselves as violated parties in an elopement case illustrates how family members, particularly fathers and brothers, seek to uphold control over female sexuality. Our ethnographic work in the Kabul courts has unearthed clear evidence of this practice, which we have addressed in a separate article (Wimpelmann, Hakimi, & Sa’adat, forthcoming).

In such cases, prosecutors and judges are restricted in their use of statutory law, since elopement is not a recognized crime under the Afghan penal code. Instead, they rely on Article 130 of the Afghan constitution to permit the applicability of Hanafi fiqh in matters not covered by statutory law. In other words, some prosecutors and judges use sharia provisions more or less as a ‘flexible resource’ to accommodate customary practices, pointing to the tendency of judicial officials to defer to (and maintain) the principle of kin (or parental) authority over women’s bodies when dealing with men accused of moral crimes such as elopement. Although this reflects a fundamental tension between statutory law and Islamic law (fiqh) in Afghan law, this conceptual tension can be a useful tool for accommodating customary law in judicial practices and to ensure justice in accordance with the Hanafi tradition.²⁶

We suggest that the government seeks to address this conceptual tension between the different sources of Afghan law through a two-step process that involves, on the one hand, the assimilation of certain practices, for example, relying on sharia provisions to accommodate customary practices which have no counterpart in the formal legal system, such as the extralegal prosecution of runaways; on the other hand, the reliance on sharia law (through assimilation) to punish wayward members of society, such as elopers, in violation of codified law means that such extralegal practices cannot be openly acknowledged. Put differently, the demands from certain sections of society for extralegal punishments, such as the imprisonment of runaways, which state authorities collude with but at the same time cannot afford to acknowledge, means that the state’s interest in covering up such extralegal practices necessitates a second but related move, one we might call dissimulation. In a sense, dissimulation may involve, among other things, relabelling the state’s extralegal practices, such as the prosecution of runaways, ‘elopement plus zina’ in an attempt to link a statutory crime such as zina with an uncodified crime such as elopement. As we will describe in the final section, dissimulation might also involve blocking the registration of elopement cases in the criminal justice database (CMS), regardless of whether the prosecution of such cases continues in practice. In other words, the official cover-up of the government’s own extralegal practices must be understood in relation to both the assimilation (borrowing from and accommodating cultural and religious expectations) and the dissimulation (masking or concealing the actual practices that make such extralegal accommodations possible) processes discussed in this article.²⁷

In a sense, by focusing on the contradiction between the state’s interest in projecting the rule of codified law and the everyday workings of the lower rungs of the Afghan judiciary, marked by reliance on Hanafi fiqh and the need to accommodate societal customs, this article works to unmask the ‘hidden script’ on which societal dynamics (and state power) are based. This is an important analytical consideration, given the tendency of some scholars and legal practitioners to view the history of law in Afghanistan in terms of a binary opposition, where ‘formal’ or state justice is opposed to ‘informal’ or customary justice.²⁸ The tendency to view the relationship between the different sources of law in Afghanistan (Islamic, customary and statutory) in terms of a clash or conflict has in effect masked the many ways in which different normative traditions tend to merge (and borrow from one another) in day-to-day judicial practices. By contrast, by focusing attention on the normative interconnections in the criminal justice system, this article has provided an illustration of the synthesis and ways of addressing the inherent conflict between Islamic jurisprudence (sharia), customary law and official statutory law in a Muslim-majority state such as Afghanistan.

Shutter the archive, ignore the problem

In the last instance, our research into moral crimes, particularly our investigation of the fate of male elopers imprisoned by the Afghan government, not only unmasked the tensions and contradictions inherent in the country’s legal system (discussed in the previous section) but also served to reinforce the paradoxical ways in which the government sought to manage these contradictions. In January 2019, in a meeting with senior officials at the AG’s office, we were informed that it was no longer possible for prosecutors (or anyone else) to enter new case information under the elopement heading in the CMS database. As explained to us, the dedicated data column under which information about runaway cases from all over Afghanistan were being regularly compiled had been ‘blocked’. This step, taken between November and December 2018, was presented to us an act of reform, to prevent the police and prosecutors from registering new cases under the elopement category. This meant that it was now no longer possible to access the existing data in the system or to register new cases in the CMS.

We tried to piece together some information which might explain this sudden and drastic move by the Afghan government. The information we gathered helped us put into context some of the government’s earlier actions, including the reasons for blocking our access to the elopement data we had requested through the CMS Monitoring Board. The reader will recall that during this period (November and December 2018) we had obtained government-approved statistics pertaining to zina, pederasty and rape, but our request for elopement data was initially delayed and was eventually denied by the CMS Monitoring Board, apparently at the insistence of Afghan authorities on the board. Our information indicates that it was after this decision that Tetra Tech/JSSP, the US contractor managing the CMS database, was instructed by Afghan authorities on the CMS Monitoring Board to block all access to elopement data in the CMS database, an order which Tetra Tech/JSSP duly carried out.

The decision to shut down the elopement data column in the CMS was apparently made after previous attempts to verify the data and correct ‘errors’ which had come to the notice of officials had repeatedly failed, which is not surprising because the Afghan authorities were trying to solve a political problem with technical interventions, by tinkering with statistical information. Apparently, an agreement had been reached between the AG’s office and Tetra Tech/JSSP in light of which the AG’s office had committed itself to reviewing all the elopement case files in its archives to establish the proper legal grounds for conviction, to be inferred from the court’s ruling in each case. After this determination had been made, the correct information, case-wise, was to be passed on to Tetra Tach/JSSP to be entered under the elopement column in the CSM. It was envisioned that at the end of this ‘audit’, the elopement data column would be ‘unblocked’, and access to the data would be restored. However, almost a year after this agreement, our investigation (in November 2019) indicates that there has been little progress in reviewing the case files and that the elopement column remains blocked.

This unexpected outcome of course raises questions about our own role in reinforcing the very government dissimulation tactics that we have analyzed in this article. Although we cannot be held responsible for the Afghan government’s actions, at the same time it cannot be denied that our research efforts in this case directly led to information about our subject being rendered more inaccessible for the future. While there is a large body of literature on the complexities of conducting research in conflict zones, including the need for methodological flexibility (Malejacq and Mukhopadhyay 2016), relying on one’s common sense and knowledge of the context (Wood 2006), and recognizing that local-global knowledge-power regimes have a bearing on research and the process of knowledge production (Goodhand 2000), and the myriad ethical and practical implications of research in conflict settings (Campbell 2017; Sriram et al. 2009), these works offer limited insights on dealing with the dilemmas we encountered when conducting this research.

As we have demonstrated in this article, in pursuing this topic we followed government procedures for accessing official information. Our research at the AG’s office was guided and conducted according to a joint memorandum of understanding. Beyond this, we attempted to obtain reliable, government-approved statistics through the Monitoring Board of the CMS, the highest decision-making body responsible for granting access to criminal justice data. There was never a question of having violated protocol or acted illegally, actions that might have justified the government’s repressive response.²⁹ Access to official data on moral crimes was always strictly regulated by the government. In the face of restricted access, or more commonly due to unavailability of properly tabulated data, human rights organizations have compiled their own data sets from government files (Hakimi and Wimpelmann 2018). As discussed, ours was the first, if partially, successful attempt to obtain official data on prosecution of moral crimes, and importantly the only known attempt to have addressed the situation of men prosecuted for elopement. It forced the government to stop the pretence and finally address the plight of male elopers, although the results of that endeavour happened to be deeply paradoxical.

We must also consider the possibility that blocking the elopement column to prevent new entries, while existing case files were being reviewed to correct the information in the CMS database, as had been agreed, could have a long-term positive effect. It might stop the police and prosecutors from pursuing new elopement cases and reduce prosecution and conviction rates. At the same time, government failure to date to properly audit the existing elopement data has ensured that state archives (CMS) remain closed to researchers. As a consequence, it may become even more difficult for researchers and advocacy groups to try to persuade the Afghan government to decriminalize elopement. In the absence of official information, the government can more easily dismiss any data compiled by independent researchers, as we discovered at the start of our investigation. As we have shown, access to official data, however incomplete, made it possible to challenge the government’s narrative that it had ended the prosecution of runaways. But such work may not be so productive in the future. There is no doubt that this episode is a setback for research and advocacy work.

We hope, however, that by documenting the one-time existence of data on elopement prosecution in Afghanistan, and of the process which led to its being erased from official records, we have taken some small steps towards rectifying this unintended impact of our research. If it turns out that data on elopement prosecution will remain permanently unavailable, then at least in this article it has been recorded for posterity.

Conclusion

This article has explored the prosecution of ‘runaways’ in Afghanistan, particularly the role and status of elopement in the country’s criminal justice system. The core argument of the article is that Afghan officials seek to navigate the inherent tensions and contradictions between different bodies of law (Islamic, customary and statutory) through a complex process of assimilating certain practices and dissimulating others.

As demonstrated, the move by the government to sweep the problem of runaways under the carpet, for example by blocking access to elopement data, points to remarkable, if vexing, dilemmas inherent in Afghanistan’s plural legal system. It is certainly more complicated than a story of weak statehood or a corrupt bureaucracy. What we are seeing is a judiciary caught between demands from families and powerful groups in society to punish their wayward members in accordance with customary law and the standards of a modern legal system.

To relieve the tension and to some extent reconcile these competing expectations, the authorities resort to assimilation, using Islamic law to smuggle in customary practices which have no counterpart in the formal legal system (such as prosecuting runways on the basis of ‘attempted zina’), and dissimulation, concealing the government’s own illegal actions by relabelling them, to give them the pretence of legality (for example the use of (extra)legal contortions such as ‘elopement plus zina’), or blocking access to official information. It also means that government officials must continue to peddle the rhetoric of legal reforms and transparency aimed at donors while continuing with business as usual to accommodate societal demands.

We believe that our investigation of moral crimes is a point of entry for investigating a much broader problem in the Afghan judiciary, where many other illegal or non-legal transactions may be couched in the language of ‘reform’ to accommodate sectional interest in a society still enmeshed in what one might call customary law. As we have attempted to show, there is much to gain from the study of the justice sector and the complex and historically informed intersections between gender, law and governance in Afghanistan. At the same time, our experience might serve as a cautionary tale of how efforts to produce knowledge might lead to its opposite – the blocking of data in government records instead.

Acknowledgements

We thank Deniz Kandiyoti and Torunn Wimpelmann, as well as the two anonymous reviewers, for reading through and offering critical comments on an earlier version of this article. The research on which this paper is based would not have been possible without funding from the Research Council of Norway. The fieldwork on which it is based was conducted in 2017 and 2018 in Kabul, made possible by the outstanding support we received from colleagues at Peace Training and Research Organization. We gratefully acknowledge the support of prosecutors and support staff at the AG’s office and judges in the Family Court in Kabul.

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Aziz Hakimi http://orcid.org/0000-0003-3608-8107

Additional information

Funding

This work was supported by the Research Council of Norway [grant no. 24970].

Notes

1 In the Afghan penal code, zina is a crime. In the Islamic legal tradition, zina is invested with special significance given its status as one of a handful of hudood crimes: acts whose definition, punishment and evidentiary requirements have been specified in Islamic doctrinal sources. By contrast, the punishment for crimes defined as tazeer are left to the discretion of the judge, or more commonly in modern times, the provisions of codified penal codes. Under the Afghan penal code, zina may be punished either as a hudood crime (by lashing or stoning) or as a tazeer crime (by imprisonment), although in practice state courts only use imprisonment (for up to five years).

2 The Supreme Court’s ruling criminalizing elopement relied on the principle of sa’d-e zaraye (prevention of vice) in sharia to argue that when a woman runs away to the house of a person who is not a close relative, the possibility of immoral acts such as zina cannot be ruled out. Therefore, any act that may lead to vice is itself prohibited. This reasoning led to the formulation of ‘attempted zina’ as a moral crime category.

3 In everyday practice, the police and prosecutors continued to refer to the initial act of escaping from home as a crime, regardless of whether zina had taken place during the elopement. This stance is clearly reflected in official data.

4 Despite repeated requests of senior officials, we could not obtain a copy of the AG’s instruction calling for an end to the prosecution of runaways, following his appointment in 1395 (2016–17).

5 The invocation of ‘attempted zina’ was due to potential exposure of runaway women to unrelated men. Marriageable women need credible witnesses of their chastity. Women who have spent time in the company of strangers or outside the supervision of family (or government) are considered suspect, and their chastity may be questioned by male relatives. For more details on the concept of ‘attempted zina’ and how it has been variously interpreted and enforced through regulatory or police action, see Hakimi and Wimpelmann (2018).

6 For more on this, see Wimpelmann, Hakimi, and Sa’adat (forthcoming).

7 Obtained 19 May 1396 (corresponding to 10 July 2017); on file with the authors.

8 The CMS is a centralized interagency database financed by the US State Department and operated by a private contractor, Tetra Tech/JSSP (Justice Sector Support Project). It is specifically designed for the use of a few select justice-sector institutions (Ministry of Interior / Police, Ministry of Justice, AG’s office, Supreme Court). The criminal justice data it contained were not meant for the public, and outside this interagency group access to CMS data was tightly regulated.

9 Meeting with AG Farid Hamid, AG’s office, 14 March 2017, Kabul.

10 In the Afghan solar calendar, 1395 corresponds to 21 March 2016 to 20 March 2017; 1396 corresponds to 21 March 2017 to 20 March 2018; and so on.

11 Interview with clerical staff, AG’s office, 11 November 2019, Kabul.

12 Officially approved elopement data received from the AG’s office, 15 August 2018; on file with the authors.

13 Authors’ meeting with Aziz Ahmad Sarbaz, head of Riyasat-e Mahalat-e Salb Azadi, 30 August 2018, PTRO office, Kabul. Riyasat-e Mahalat-e Salb Azadi (Directorate of Oversight over Places of Detention) has overall responsibility for detention facilities and prisoners in the country.

14 Received from Tetra Tech/JSSP 14 November 2018; on file with the authors.

15 Received from Tetra Tech/JSSP 18 December 2018; on file with the authors.

16 The CMS Monitoring Board is the joint Afghan-international governing body overseeing the CMS system, including approving requests for data sharing with outside sources, including researchers and other government departments.

17 Official communication from the head of the CMS database, an employee of Tetra Tech/JSSP, 18 December 2018; on file with the authors.

18 When asked to explain the regular appearance of female elopers and their male ‘counterparts’ in official statistics, prosecutors insisted that such cases had been ‘wrongly’ registered in the elopement-only category, and should have been filed under elopement-plus-zina, to reflect the actual crime for which the accused had been prosecuted, that is, zina perpetrated in the context of elopement. As our research shows, it was not always possible to prove zina in the context of elopement, yet some of our informants ended up being charged under the elopement-plus-zina category and served prison terms for a year or more.

19 Although we use the terms sharia and fiqh interchangeably in this article (as do many legal officials and others in Afghanistan), sharia refers to the divine rules set by God, whereas fiqh refers to the human endeavour of ascertaining those rules. There are several recognized fiqh schools; one of them is the Hanafi school, which is predominant in Afghanistan.

20 For a context-specific discussion of Pashtunwali, the Pashtun code of honour among the Swat Pathans (Pashtuns) in north-western Pakistan, see Barth (1969).

21 On the Afghan state’s centralizing tendencies through reform of the legal system and the use of sharia courts to downgrade the power of tribal or customary justice, see Ghani (1978).

22 For more on the historical development of Afghanistan’s modern legal system and particularly its conceptual linkages with legal and constitutional reform initiatives in Ottoman Turkey, see Ahmed (2017).

23 For a brief comparative analysis of how Afghanistan and Pakistan have approached the relationship between these three bodies of law, see Ahmed (2007).

24 For a historically informed account of the unique development of the justice system in Afghanistan in the late nineteenth and early twentieth centuries, see Ahmed (2017) and Olesen (1995). For a more recent treatment of the subject, see Kandiyoti (2007).

25 For a contemporary account of Islamic law and its place in and relationship to statutory law in Lebanon, see Clarke (2018). For a historical analysis of family law, and especially a contemporary ethnography of the Shia personal-status law in Afghanistan, see Wimpelmann (2017).

26 On the significance of the Hanafi fiqh in Afghan statutory law and broader discussion of constitutional and statutory law development in Afghanistan, see Kamali (1987).

27 We are indebted to Deniz Kandiyoti for suggesting these analytical terms.

28 For a sample of works viewing the legal system in Afghanistan in terms of ‘formal’ and ‘informal’ or ‘state’ and ‘non-state’ justice, see Barfield (2003), Barfield, Nojumi, and Their (2006), and Wardak (2011).

29 The project, funded by the Research Council of Norway, strictly followed the ethical guidelines drawn up for this research.