The following article was written by Masuda Sultan, an Afghan-American and the Director of Programs at Women for Afghan Women (http://www.womenforafghanwomen.org), a grassroots organization based in New York City whose mission is to empower Afghan women and girls.

The opinions expressed here are those of the author and in no way represent the views or opinions of the Woodrow Wilson International Center for Scholars.

Afghanistan's new constitution deserves acclaim for granting women equal rights. But the document also provides an opening for conservatives to implement religious law in some of the same ways that the Taliban did.

Afghanistan’s new constitution is a success for Afghan women. It deserves commendation for guaranteeing women something that looks very much like an equal rights clause, which still eludes women in the United States.

But we should not be fooled by the celebratory headlines we have been reading over the last few days. We cannot yet indulge in a comfortable sense of Afghan women enjoying freedom and equal rights. There is still the problem of the country--and the new constitution--deferring to discriminatory application of religious law.

The Constitutional Loya Jirga, or grand assembly, ratified a constitution that declares that "any kind of discrimination and privilege between the citizens of Afghanistan are prohibited. The citizens of Afghanistan--whether man or woman--have equal rights and duties before the law."

That language represents an incredible victory for Afghan women. In the draft constitution released in November 2003, women were not granted equal rights under the law. The draft gave equal rights to “citizens,” without guaranteeing women full rights of citizenship. It was almost silent on the subject of women’s rights.

When the Constitutional Loya Jirga began, the Chair proclaimed aloud to women delegates, "Even God has not given you equal rights because under his decision two women are counted as equal to one man."

Malalai Joya, a female delegate denounced the attendance of ”those criminals who have brought these disasters for the Afghan people," referring to those responsible for the civil war that killed tens of thousands of Afghans in Kabul. When she stated that they should be tried for their crimes against the Afghan people, she was threatened with death, and ordered to be thrown out of the event.

It is an incredible accomplishment for the women of the Loya Jirga to overcome these disconcerting events at the beginning of the Loya Jirga. The final constitution secures equal rights to women before the law. It also reserves for women delegates twice as many seats in the Afghan version of the House of Representatives than the draft did, or 25% of that body, along with 17% of the Afghan Senate.

As encouraging as these passages may be, however, it should not blind anyone to other sections of the document that can undermine women’s rights.

First, the final constitution could be used to implement Taliban-like sharia law. Before the equal rights clause appears, Article III of the constitution states that in Afghanistan, "no law can be contrary to the beliefs and provisions of the sacred religion of Islam." Afghanistan’s 1964 constitution, by comparison, was less forceful about application of Islamic law. It required conformity to Islamic “principles,” rather than its “beliefs and provisions,” as the new constitution does.

The new language begs the question of what constitutes a law contrary to the “provisions” of Islam. It will be up to the Afghan judicial system to decide. The review of Afghan laws for conformity to the provisions of Islam will be left to the Afghan Supreme Court, which consists of nine judges who will be appointed by the president, with approval by parliament.

A commission appointed by President Hamid Karzai is currently reforming the judicial system, which is in shambles with much of the rest of Afghanistan. This process is critical to the country's future, because the battle for human rights will ultimately be waged in the Afghan courts. The constitution stipulates certain requirements for these judges, and says that they "shall have a higher education in law or in Islamic jurisprudence." This language allows many judges held over from the Taliban era to remain in office, including those who have ordered women accused of adultery to be stoned, for example. As a result, Afghan Supreme Court judges may have no training in law or in Islam from an institution of higher learning, having been trained by a village mullah, or local religious leader.

The constitution also provides: "When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence.” Hanafi is one of the four main schools of thought in Islam. The Talibaninterpreted Hanafi lawto punish theft with amputation of hands, and adultery with stoning. Some forms of Hanafi law give women's testimony only half the value of men's in certain court cases.

Second, guaranteeing equal rights to women before the law does not mean that women do not need specific protections against discriminatory laws and customs. I learned this from attendees at Women for Afghan Women’s second annual conference, which was held last year in Kandahar, Afghanistan. The conference was a groundbreaking event. Forty five grass-roots female activists from all over Afghanistan, from varying ethnic backgrounds--literate and illiterate--gathered in a city where, only two years before, they could not have met without being imprisoned or even killed.

Conference attendees insisted that an equality clause—although necessary--would not be enough. The conference produced a document called The Afghan Women’s Bill of Rights [see below] that sets forth20 demands, including an abolition of forced marriages, property and inheritance rights, and equal pay for equal work.

In September 2003, Women for Afghan Women presented the bill of rights to President Karzai, the Minister for Women’s Affairs, and the body in charge of drafting the constitution, the Constitutional Commission of Afghanistan.

President Karzai proclaimed his support for the principles of the document, and announced that half of his 50 appointments to the Constitutional Loya Jirga--the assembly that ratified the constitution--would be women. Members of the drafting commission welcomed our work and told us that all of the items in the Afghan Women’s Bill of Rights would be included in the draft constitution, except one item relating to minimum age of marriage, which they said would be resolved bylegislation.

Despite these assurances, Afghan women repeated their demand thatspecific rights be provided for women in the constitution. We distributed the Afghan Women's Bill of Rights throughout the country, fueled with the positive energy of our meetings. Unfortunately, the specific protections the women insisted on have not been included in the final constitution.

Finally, and above all, women need security, especially outside Kabul. Implementation of a constitution--whatever its merits--in a country that has suffered 23 years of war and that is marked by systematic violation of women is perhaps themost important challenge facing Afghanistan.

Security remains the number-one concern. The former NATO chief, and the United Nations have recently warned of disastrous consequences if adequate resources are not provided to expand peacekeepers throughout the country.

These warnings from high-level officials echo what Afghan women have been saying since the fall of the Taliban and must finally be heard.

So let's not close the books on Afghan women because they have struggled and won--at great personal risk—equal rights before the law. Let's take the qualified victory instead for what it really is; a sign that people in the country need ongoing and real support if the country is to pursue a better course, and leave behind the tyranny of the Taliban.

What can Americans and the rest of the world do to help Afghan women fight for their rights? They can lobby the President and their representatives in Congress for funding to expand international peacekeepers outside of Kabul and send the message that Afghan women are important to Americans. They can join and contribute funds to grassroots Afghan women’s organizations that are helping Afghan women fight for their freedom and equal rights.

Because Islam and Islamic jurisprudence are central to the new constitution, Afghan women must be educated in Islamic history and law, so they can be able to argue the rights of women in an Islamic framework. To defend themselves against extremists, Afghan women must learn more about Islam.

In this cause, support from the international community is as important as ever. Women in the West, for their part, must recognize that most Afghan women are faithful Muslims who take their religion very seriously. Afghan women must be trusted to defend themselves with strategies that they--not others--see fit. Women in Afghanistan and the Afghan Diaspora have an important role in leading the effort to take back the Islam we know, which does not force women to stay indoors or remain uneducated and poor.

Afghan Women’s Bill of Rights

On September 5, 2003, in the historic city of Kandahar, we, the Afghan Muslim

participants in the conference “Women and the Constitution: Kandahar 2003”, from Kabul, Mazar-e-Sharif, Kandahar, Herat, Wardak, Jousjan, Badakhshan, Samangan, Farah, Logar, Gardez, Kapisa, Uruzgan, Paktia, Helmand, Baghlan, Sar-e-Pul, having considered the issues of the constitution that affect the futures of ourselves, our children, and our society, make the following demands on behalf of the women of Afghanistan. Moreover, as representatives of all of Afghan women, we demand that these rights are not only secured in the constitution but implemented.

1. Mandatory education for women through secondary school and opportunities for all women for higher education.

2. Provision of up-to-date health services for women with special attention to reproductive rights.

3. Protection and security for women: the prevention and criminalization of sexual harassment against women publicly and in the home, of sexual abuse of women and children, of domestic violence, and of “bad blood-price” (the use of women as compensation for crimes by one family against another).

4. Reduction of the time before women can remarry after their husbands have disappeared, and mandatory government support of women during that time.

5. Freedom of speech.

6. Freedom to vote and run for election to office.

7. Rights to marry and divorce according to Islam.

8. Equal pay for equal work.

9. Right to financial independence and ownership of property.

10. Right to participate fully and to the highest levels in the economic and commercial life of the country.

11. Mandatory provision of economic opportunities for women.

12. Equal representation of women in the Loya Jirga and Parliament.

13. Full inclusion of women in the judiciary system.

14. Minimum marriageable age set at 18 years.

15. Guarantee of all constitutional rights to widows, disabled women, and orphans.

16. Full rights of inheritance.

Additional demands affecting the lives of women:

1. Disarmament and national security.

2. Trials of war criminals in international criminal courts and the disempowerment of warlords.

3. A strong central government.

4. A commitment to end government corruption.

5. Decisive action against foreign invasion and protection of the sovereignty of Afghanistan.