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

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Criminal Legalities and Minorities in the Global South

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.

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Notes

  1. 1.

    Members of a number of guerrilla groups operating in Afghanistan during the Afghan War (1979–1992) that opposed the invading Soviet forces and eventually toppled the Afghan communist government.

  2. 2.

    The issue even divided the leadership in the government, as President Ghani inaugurated the issuance of ID card while CEO Abdullah declared his opposition to the distribution, which he considered an act without “national consensus.”

  3. 3.

    As a result, a joint committee was convened to decide about the amendment. The committee approved the law in the absence of its four members from the WJ, which led to criticism of its decision by the WJ members, who suggested that the Chief Executive Officer (CEO) must order the distribution of e-Tazkiras based on the pre-amendment law. The issue apparently divided even the leadership in the government, as President Ghani pushed for e-Tazkiras with group affiliations, while CEO Abdullah declared his opposition to this decision, which he considered an act without “national consensus”.

  4. 4.

    In addition to Gen. Taqat, the AG also arrested the head of the Ansar periodical.

  5. 5.

    Article 17 of the new Penal Code asserts that, “[t]he perpetrator of a crime shall be punished based on a law which is in effect prior to Commission of the crime, unless a new law is passed which favors the accused before a final verdict is issued. A law is considered to be in favor of the accused in the following circumstance. (1) When it reduces the minimum punishment; (2) While it maintains the minimum punishment, it reduces the maximum punishment; and (3) When it reduces the punishment to a lower degree; […] (6) Other circumstances in the new law which favor the accused.

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Correspondence to M. Bashir Mobasher .

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Mobasher, M.B., Nezaami, N. (2023). Politics Before Law: The Penal Code of 2017 and Its Limited Protections for Ethnic Minorities in Afghanistan. In: Radics, G.B., Ciocchini, P. (eds) Criminal Legalities and Minorities in the Global South. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-17918-1_3

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  • DOI: https://doi.org/10.1007/978-3-031-17918-1_3

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  • Publisher Name: Palgrave Macmillan, Cham

  • Print ISBN: 978-3-031-17917-4

  • Online ISBN: 978-3-031-17918-1

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