Apostasy includes acts in the forms of “blasphemy, heresy, and mockery of the Islamic community”[i]. This article by Farshad details the legal codes that are used to address apostasy cases in Afghanistan, the injustices they inflict and calls for a few actions to protect the life and freedom of Afghans from its ailing justice system.
Zaman Ahmadi’s Case
Mohammad Reza Zaman Ahmadi is the face of contemporary controversy surrounding apostasy. According to Etilaatroz (Shaheed, 2019), Zaman had written an article about perpetrators of the destruction of famous Buddha statues in Bamyan. The local magazine had avoided publishing the article, and in-stead, had reported Zaman to the local police.
Documents obtained by the Etilaatroz show the attorney involved in the case maintaining that Zaman had confessed being a Buddhist. Jurists of the 3rd District Court in Kabul had deduced that Zaman had committed blasphemy and that his infidelity was obvious. He was sentenced to 20 years of prison by the court in 2012. As of now, he has served 7 years of the term.
After months of advocacy by human rights groups, independent advocates and Zaman’s lawyers, the Supreme Court of Afghanistan reversed the 20 years jail sentence on December 4th, 2019. It is expected of the Attorney General to reassess the case and refer it for a retrial[ii].
The Bigger Picture
Mohammad Ali Farhang—a renowned lawyer—says[iii] that there isn’t any law and penal code concerning apostasy in Afghanistan. As a result, jurists refer to article 130 of the Constitution of Afghanistan that reads:
“In cases under consideration, the courts shall apply provisions of this constitution as well as laws. If there is no provision in the constitution or other laws about a case, the court shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this constitution, rule in a way that attains justice in the best manner[iv].”
“Another Afghan, Pervez Kambaksh, was sentenced to death in 2007 for “blasphemy and distribution of texts defamatory of Islam” (Azami, 2014).
Hanafi School rules [https://www.dawn.com/news/1215304] that “a Muslim blasphemer of the prophet PBUH will be killed under hudd and his pardon won’t be acceptable.” – (Ibn Abidin, Kitab al Jihad, Bab al Murtad). This school of Islamic thought also requires female apostates to be imprisoned, rather than killed[v]. “Blasphemers who ask for a pardon would be spared the death penalty[vi]“.
“In 2006, an Afghan, Abdul Rahman, who announced his conversion to Christianity escaped a possible death sentence” (Azami, 2014).
Ironically, while the Constitution does not provide any code concerning apostasy, it does explicitly support freedom of expression in the article 34 that reads “Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to press, radio and television as well as publications and other mass media shall be regulated by law”, (the Constitution).
Loopholes and added injustice
1. In order for blasphemy codes to be applicable, “the accused must no longer consider himself a Muslim[vii]”. In Zaman’s case, the documents show, that he had denied being a Buddhist, and had confirmed in writing that he was a Muslim. Despite that, the court had deduced that he had committed blasphemy and that his infidelity was obvious! It is evident that starting from the print magazine, the police, public attorney and the jurists collectively misinterpreted his article, ignored the obvious and misused their authority in Zaman’s case.
2. Mohammad Ali Farhang maintains that “article 130 of the constitution is ambiguous. Judges can impose sentences as different as 20 days or 20 years”.
Further, “given the divergence between the two camps, other punishments have been adopted and are intended to affect an offender’s civil status. For example, apostates can have their marriages annulled. Anyone punished in this way can re-unite with their spouse if and when they recant to Islam. Similarly, an apostate can no longer serve as a marriage guardian for his daughter unless he comes back to Islam. Third, an apostate loses the right to inherit property from relatives and those relatives also lose the right to inherit from him. The Hanafi School regards an apostate’s property as spoils for the community. These spoils are kept as part of the public treasury and are utilized for Muslim community interests[viii]”.
The legal ambiguities surrounding apostasy makes individuals at increased risk of being disproportionate targets. Past incidences have involved false cases motivated, possibly, by personal vendettas. On March 19th 2015, a clergy at a mosque in Kabul accused Farkhunda Malikzada, 27 year female religious scholar, of burning Quran after she had picked up a religious argument with the clergy. Savage mob lynched her to death and set her on fire. In Farkhunda’s case, an anti-Western sentiment was also reported. “Some attackers shouted that she was working with foreigners. By the next day, imams and government officials were denouncing her as having colluded with infidels”.
“Acts for which individuals have been charged with blasphemy range from condemning the treatment of women in Islamic societies, to condemning crimes committed by individuals who claimed to be acting in the name of Islam, to publishing an unofficial translation of the Qur’an. Additionally, as stipulated by the Afghan Supreme Court, belonging to the Baha’í faith is an act of blasphemy[ix]”.
“In October 2005, Afghan journalist and editor Ali Mohaqiq Nasab was imprisoned after being found guilty of charges of blasphemy and “insulting Islam.” The purported “crime” of Nasab, editor of the journal Haqooq-i-Zan (Women’s Rights), was to question discrimination against women and the use of certain harsh punishments under traditional Islamic Law, including amputation and public stoning”.
3. Despite the Constitution of Afghanistan ensuring freedom of expression, the media law passed in March 2004[x] prohibits ”writings deemed anti-Islamic”. This empowers police to detain writers and journalists with the approval of 17-member commission.
4. Taliban’s probably strong return to power makes the situation grimmer. They have been the ultra-right movement who publicly executed Afghans for even minor behaviors that went against teachings of orthodox Islam.
Call for Actions
1. Zaman Ahmadi has already spent seven years of his precious life becuase of the illegal and unjust ruling by the 3rd District Court. I commend Etilaatroz’s initiative in publicizing his case. This ignited a growing call for action by independent human rights activists and the general public, resulting an ongoing appeal of his case. Although we have came a long way, justice has yet to prevail. In his case, he should not only be set free but also should be compensated for the undeserved harms inflicted upon him in the process. Social media, journalists and rights advocates will be able to act as formidable saviors, Zaman and previous cases of blasphemy proved.
2. Article 34 of the Constitution that ensures freedom of expression should be upheld. In order to so, the Afghan government should repeal the media law that goes against this article of the Constitution, in that it prohibits freedom of expression and legalizes detention of journalists.
3. Mohammad Ali Farhang says that according to an enactment of the high council of the Supreme Court, no judge is allowed to refer to article 130 of the constitution[xi]. If so, rulings based on referral to article 130 must be revisited and nullified.
[i] STANFORD LAW SCHOOL, ALEP (2016, March). An Introduction to the Criminal Law of Afghanistan . Retrieved January 1, 2020, from https://www-cdn.law.stanford.edu/wp-content/uploads/2016/03/ALEP-Criminal-Law-2d-Ed_English.pdf.
[ii] Shaheed , A. (2019, December 4). Court Reverses 20-Year Sentence, But Process Not Over. Tolonews. Retrieved January 1, 2020, from https://tolonews.com/afghanistan/court-reverses-20-year-sentence-process-not-over.
[iii] Mehryar, S. (2019, August 28). 20 Years in Prison for an Unreleased Memo; is it a Fair Trial. Etilaatroz. Retrieved January 1, 2020, from https://www.etilaatroz.com/82815/20-years-in-prison-for-not-releasing-a-memo-is-it-fair-trial/
[iv] The Constitution of Afghanistan. (2004, January 26). Retrieved January 1, 2020, from http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf
[v] STANFORD LAW SCHOOL, ALEP (2016, March). An Introduction to the Criminal Law of Afghanistan . Retrieved January 1, 2020, from https://www-cdn.law.stanford.edu/wp-content/uploads/2016/03/ALEP-Criminal-Law-2d-Ed_English.pdf.
[vi] [Kingston, J. (2019). The Politics of Religion, Nationalism, and Identity in Asia. Retrieved January 1, 2020, from https://books.google.ca/books?id=rHahDwAAQBAJ&dq=Hanafi+blasphemy&source=gbs_navlinks_s%5D rce=gbs_navlinks_s.
[vii] STANFORD LAW SCHOOL, ALEP (2016, March). An Introduction to the Criminal Law of Afghanistan . Retrieved January 1, 2020, from https://www-cdn.law.stanford.edu/wp-content/uploads/2016/03/ALEP-Criminal-Law-2d-Ed_English.pdf.
[viii] STANFORD LAW SCHOOL, ALEP (2016, March). An Introduction to the Criminal Law of Afghanistan . Retrieved January 1, 2020, from https://www-cdn.law.stanford.edu/wp-content/uploads/2016/03/ALEP-Criminal-Law-2d-Ed_English.pdf.
[ix] Berkley Center for Religion, Peace and World Affairs at Georgetown University. (n.d.). National Laws on Blasphemy: Afghanistan. Retrieved January 1, 2020, from https://berkleycenter.georgetown.edu/essays/national-laws-on-blasphemy-afghanistan
[x] Berkley Center for Religion, Peace and World Affairs at Georgetown University. (n.d.). National Laws on Blasphemy: Afghanistan. Retrieved January 1, 2020, from https://berkleycenter.georgetown.edu/essays/national-laws-on-blasphemy-afghanistan
[xi] Mehryar, S. (2019, August 28). 20 Years in Prison for an Unreleased Memo; is it a Fair Trial. Etilaatroz. Retrieved January 1, 2020, from https://www.etilaatroz.com/82815/20-years-in-prison-for-not-releasing-a-memo-is-it-fair-trial/