Afghanistan’s new Penal Code: Whether or Not to codify Hudud and Qisas
By Murtaza Rahimi
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.
Afghanistan, in an attempt to modernize and unify the statutes regulating crimes and their punishments, enacted a new Penal Code in May 2017. 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. 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. 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.
 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.
 In accordance with article 94 of the Constitution.