Politics Before Law: The Penal Code of 2017 and Its Limited Protections for Ethnic Minorities in Afghanistan

Abstract

As a multiethnic nation, Afghanistan is home to several ethnic, linguistic, religious, and regional groups. Despite some constitutional accommodation of these diverse groups during the Islamic Republic, political conflict and violence continued to plague the landscape as anti-discriminatory laws fail to protect minorities. This chapter reveals that despite some major developments in Afghan criminal laws to regulate different forms of discrimination and protect minorities, the laws remained limited and unresponsive in some major respects. Neither the government nor the courts were invested in enforcing the laws to protect minorities at the perils of state-society relations and ultimately the Islamic Republic regime. In this chapter, we first examine the context and history behind the Penal Code of 2017, which is now abrogated under the Taliban. Next, we examine a few prominent cases of discrimination and hate in detail. The themes that these cases have in common are that (a) the enforcement agencies began investigations and arrests only after the offenses drew media attention and massive protests; (b) the offenders were likely to be released without due process soon after the media and street protests ended; and, therefore, (c) the offenses continued to target and harm various groups. As a result, ethnic tensions heightened, social cohesion was disrupted, and the regime lost society’s support at a time when the regime needed it the most to fortify its standing against the Taliban’s advances.