prison – Working Paper Series

Afghanistan’s new Penal Code: Whether or Not to codify Hudud and Qisas

by Murtaza Rahimi

Afghanistan, in an attempt to modernize and unify the statutes regulating crimes and their punishments, enacted a new Penal Code in May 2017.[1] Problematically, article 2 of the new Code permits judges to rule on certain Islamic crimes and decide the punishments of such crimes in accordance with Hanafi jurisprudence of the Islamic law. The inclusion of these offenses and punishments undermine fundamental principles of criminal law, and are inconsistent with Afghanistan’s 2004 Constitution.

The Code could be praised for several reasons. First, it defines crimes that were absent in the previous Penal Code like cyber, environmental, international, electoral, corruption, cultural, and intellectual property crimes. Second, the Code attempts to more realistically adhere to the principle of proportionality, allowing for fines rather than incarceration for misdemeanors and petty crimes, and offering a range of alternatives to prison that were absent from the previous Penal Code.[2] Further, the long-term imprisonment is increased from 20 years to 30 years in order to restrict the death penalty to very serious crimes namely murder, crimes defined in the Rome Statute, terror and suicide attacks, crimes that seriously affect the territorial integrity, kidnapping/abduction, hostage taking, highway robbery that results in murder, and group rape. Finally, the new Code introduces much-needed nuance into the range of mitigating circumstances, accounting for gender issues and mitigation for those who commit crimes under a threat to their personal safety.

That said, the Code is not immune from criticism. One of the main criticisms is that the new Penal Code, like the 1976 Penal Code, only defines punishments that fall under the Tazir, which are punishments that are not defined in the Quran or Sunna and are executed under the discretionary power of the judge, in article 2(1). Further, in article 2(2) it states that Hudud, Qisas and Diyyah (blood money) will be implemented in accordance with the Hanafi Jurisprudence of the Islamic Law. Hudud offenses are crimes against God whose punishment is clearly specified in the Quran and the Sunna (prophetic traditions), and Qisas are physical assault and murder punishable through retaliation by the victim or heirs of the victim or through the payment of blood money.

Although legislators had first sought to include Hudud and Qisas in the new Penal Code, they later decided that this inclusion contradicted the spirit and the principles of the Penal Code and excluded them. However, the Code still gives judges the authority to implement such punishments in accordance with Hanafi jurisprudence of Islamic Law. This raises serious concerns and criticisms among legal scholars, human rights organizations like Human Rights Watch, and activists. Human rights activists oppose the incorporation of Hudud and Qisas in article 2(2) because they see these punishments, like stoning and lashes, as “cruel, inhuman or degrading punishments” prohibited in international human rights law, particularly article 7 of International Covenant on Civil and Political Rights and article 16 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and note that the prohibition against torture is considered as a jus cogens norm. Afghanistan is a party to the above conventions since 1983 and 1987, respectively. In addition to these central human rights concerns, the inclusion of article 2(2) raises other legal concerns, which are briefly listed below.

First, section 2(2) of the Penal Code is incompatible with article 2 of the Constitution from an originalist point of view. The 2004 Constitution, unlike the 1964 and 1976 constitutions, only recognizes Islam generally as the state religion regardless of Sunni and Shiite sectarian differences. In drafting the new constitution, representatives agreed not to follow the 1964 and 1976 constitutions, which regarded Islam with Hanafi jurisprudence (a Sunni school of jurisprudence) as the state religion. This was done mainly to prevent regimes from declaring other sects infidels or to systematically violate their freedom of religion. Both the Abdul Rahman regime in the late 1800s and the Taliban in 1990s had relied on fundamentalist interpretations of the state official sectarian religion to announce the Shiite sect followers infidel and conducted, arguably, genocide against them. The 2004 Constitution, thus, served to respect the Sunni and Shiite sects within Afghanistan. Therefore, the codification of article 2(2) of the Penal Code—that gives preference to Hanafi jurisprudence over, for example, Jaffari, Maliki, Shafi‘i, Hanbali and Ismaeli jurisprudence—is inconsistent with the Constitution. It, arguably, is not justifiable to say that the new Penal Code only followed the 1976 Penal Code, for the latter was adopted when the 1976 constitution was in force, while the former was adopted under the 2004 Constitution.

Second, the Constitution, to overcome sectarianism, only admits Islam alone as the official religion . It clearly means that no sectarian law, like Hanafi or Jafari, shall be considered the law or “the” source of law. Consequently, any Islamic norms including sectarian jurisprudence can become law only if they are approved by both houses of the National Assembly and endorsed by the President.[3] Therefore, referring generally to a sectarian law ignores explicit constitutional norms that not only violates the non-sectarian nature of the Constitution, but also undermines the rule of law.

In addition, article 2(2) of the Code undermines the principle of nullum crimen, nulla poena sine lege [no crimes and punishments without law]. According to this principle, the crimes and their punishments shall be prescribed clearly so that all citizens can predict what actions/omissions are crimes and what exact punishments they may face if they commit certain crimes. By including a general reference to Hanafi jurisprudence, where there is usually more than one interpretation regarding the punishments, the Code permits judges to sentence the offenders to punishments that are not prescribed clearly. Punishments will be much more serious if the offender is a non-Hanafi Muslim or a non-Muslim citizen; the freedom of religion of the offender will be violated if they are punished under a religious law to which they do not adhere.

Finally, the lack of regulation prescribing the procedure for the execution of Hudud and Qisas has resulted in multiple practices. There are at least two concerns regarding this argument. First, although under article 129 of the Constitution, only “final decisions of the courts shall be enforced,” there are instances in which the orders of the primary courts regarding Hudud are carried out before the defendant has an opportunity to appeal them; once a punishment like lashing is executed, or when the hands of a person convicted for serious theft are cut, the request for appeal is meaningless. Thus, like death penalty punishments, the Hudud punishments shall be enforced when the decision is finalized and is not subject to any further appeal(s). Second, under article 303 of the Criminal Procedure Code, it is the Prosecution and Police who shall execute the courts’ decisions. However, the execution of the Hudud and Qisas are routinely carried out by the judiciary. For example, in cases where an unmarried person engages in a form of adultery, it is the judge who both decides and executes the lashing. To illustrate, in 2014-15, at least the primary courts in Bamiyan, Uruzgan and Ghor provinces convicted young unmarried men and women for committing adultery and sentenced each of them to 100 lashes. Later the same judges who decided the cases, executed the 100 lashes against the offenders; their judgments were subject to appeal despite the punishment already having been carried out.

The parliament should effectively respond to the concerns raised by human rights activists and organizations and related legal critiques, and bring the Code in line with the state’s obligation under the Constitution, particularly article 7 of the Constitution, to observe and adhere to the international human rights instruments to which Afghanistan is a party.

[1] The new Penal Code replaced the 1976 Penal Code along with 34 other statutes. See article 916 of the new Penal Code. see Afghanistan Official Gazette No. 1260, (May 15, 2018).

[2] Articles 148-168: The alternatives for prison is applicable only for crimes that are punishable by less than five years imprisonment and includes home confinement, community control, community service, and temporary deprivation from social rights.

[3] In accordance with article 94 of the Constitution.

Murtaza Rahimi is a LLM at the University of Texas School of Law. He is a member of the 2017-2018 Working Paper Series Committee and a Fulbright Scholar from Afghanistan.

Legalized Slavery in the United States Implemented Through the “Justice” System

by Courtney McGinn

26 APR 2017

The prison system in the United States equates to modern-day slavery due to its targeting of racial and ethnic minorities. There are 2.2 million people in the nation’s prisons and jails, which amounts to a 500% increase over the last 40 years. One in seventeen black men, aged between thirty and thirty-four, were in prison in 2015, as were one in forty-two Hispanic males, and one in ninety-one white males in the same age group. Today, people of color make up thirty-seven percent of the United States population but sixty-seven percent of the prison population. African Americans are “more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.” Similarly, African American men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men. One in three African American males are expected to go to prison, while one in seventeen white males are expected to do the same.[i] In fact, no other country in the world imprisons as many of its racial or ethnic minorities as the United States does, even the highly repressive regimes in Russia, China, and Iran.[ii] Currently, the United States imprisons a larger percentage of its African American population than South Africa did at the height of apartheid.[iii]

The increase of the incarcerated population, especially the population of incarcerated minorities, is a result of a series of law enforcement and sentencing policy changes in the “tough on crime” era, not a result of more crimes committed by these individuals. Since the official beginning of the “War on Drugs” in 1982, the number of people incarcerated for drug offenses in the United States drastically increased from 40,900 in 1980 to 469,545 in 2015, with most of those incarcerated being African Americans. The War on Drugs was allegedly in response to the crack cocaine epidemic, but this has been dispute by several civil rights activists. For example, Michelle Alexander, a highly acclaimed civil rights lawyer and the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, points out that President Ronald Reagan officially announced the current drug war in 1982, well before crack even became an issue in the media or a crisis in poor black neighborhoods.[iv] It was actually a few years after the drug war was declared that “crack began to spread rapidly in the poor black neighborhoods of Los Angeles and later emerged in cities across the country.”[v] In Michelle Alexander’s view, shared among others, this drug “epidemic” was created by the United States to continue the oppression of African Americans.[vi] In fact, the CIA admitted that the guerrilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States – “drugs that were making their way onto the streets of inner-city black neighborhoods in the form of crack cocaine.”[vii] The CIA also admitted that during the War on Drugs era, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.[viii]

As the War on Drugs continued, law enforcement began focusing on urban areas, on lower-income communities, and on communities of color. Therefore, minorities became a target for incarceration. While crack cocaine was considered an inner-city issue mostly affecting African Americans, whites were directly tied to the use of powder cocaine.[ix] Since the 1980s, federal penalties for crack were 100 times harsher than those for powder cocaine, with African Americans disproportionately sentenced to much lengthier terms. In 2010, the crack/powder sentencing disparity reduced from 100:1 to 18:1, but the disparity still remains, leaving minorities vulnerable to inequitable treatment by the criminal justice system.

Studies show that people of every color use and sell drugs illegally at substantially similar rates to their white counterparts.[x] Such studies even frequently suggest that whites, particularly white juveniles, are more likely to partake in drug crime than people of color.[xi] Although African Americans comprise only fourteen percent of regular drug users, they account for thirty-seven percent of those arrested for drug offenses. Despite this, minorities, specifically African Americans, are far more likely to be stopped, searched, arrested, prosecuted, convicted and incarcerated for drug law violations than are whites. Today, there are more African Americans behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980. If current trends continue, one in three young African-American men will serve time in prison.[xii]

Once incarcerated, most “criminals” are required to perform mandatory, essentially unpaid, labor. While not all prisoners are “forced” to work, most “opt” to because they have no other choice – they need the pay, no matter how low, in order to purchase food, toiletries, and other basic necessities not provided to them. Some individuals experience additional financial strain by having to pay legal fees or support their families. In places like Texas, however, prison work is mandatory and unpaid. According the Texas Department of Criminal Justice, prisoners start their day with a 3:30 a.m. wake-up call and are served breakfast at 4:30 a.m. All prisoners who are physically able are required to report to their work assignments by 6 a.m. For prisoners who refuse to work, they are placed in solitary confinement. The Texas Department of Criminal Justice states that one of its goals is to reduce operational costs by having prisoners produce their own food, but also admits that the prison system earns revenue from “sales of surplus agricultural production.” This is all too familiar to the slavery practices that occurred years ago – the “slave” works tirelessly with no pay while the “slave master” reaps those benefits.

After incarceration, individuals continue to be marginalized by their status as “criminals.” Once labeled a felon, the older forms of discrimination that were deemed illegal after the collapse of the Jim Crow era become legal again; employment and housing discrimination, denial of the right to vote, denial of educational opportunities, denial of food stamps and other public benefits, and exclusion from jury service. [xiii ] Because of these realities, it is hard to view the prison system in the United States as anything but a modern form of slavery. As Michelle Alexander stated, “[w]e have not ended racial caste in America; we have merely redesigned it.[xiv]

Work Cited

[i] Film: 13^th.

[ii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[iii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[iv] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5.

[v] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5 (citing “The Crack Attack: America’s Latest Drug Scare, 1986-1992,” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995), 152).

[vi] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5.

[vii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[viii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[ix] Film: 13^th.

[x] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 7.

[xi] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 7.

[xii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 9.

[xiii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 2.

[xiv] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 2.

Courtney McGinn is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.