AFGHANISTAN: Children's Rights References in the Universal Periodic Review

8. The Government of the Islamic Republic of

Afghanistan (GIRoA) has strived for inclusion of provisions of the conventions that it has ratified in its domestic laws. Provisions of the conventions were adopted in 10 legislations that were enacted within past years. Juveniles Code, Law on Elimination of Violence against Women, Law on Financing Terrorism, Labour Law, Law on Anti-corruption Strategy, Law on Juveniles Rehabilitation Center, Law on Abduction and Human Trafficking, Law on Commercial Mediation, Law on Private Investment, and Law on Prisons and Detention Centers are the legislations which were passed and enforced in this period. Provisions of Convention on Civil and Political Rights, Convention on Prevention of All Types of Discrimination against Women, Convention on Child’s Rights, Convention on Economic, Social and Cultural Rights, and other relevant conventions were considered.

 

9. The GIRoA, during periodic reporting, has developed three comparative reports on national laws in the light of international conventions of human rights; 1) report on comparative review of national laws in the light of Convention on Child’s Rights; 2) report on comparative review of national laws in the light of Convention on Economic, Social and Cultural Rights; 3) report on comparative review of national laws in the light of Convention of Prevention of All Types of Discrimination against Women. All similarities, differences and flaws in the national laws have been identified and highlighted, and specific recommendations have been made through the above reports to address such discrepancies.

 

10. The GIRoA has so far reviewed about 73 laws, 34 regulations and 27 strategies in the light of international human right conventions, some of which are: 

27. Based on provisions of article (52) of the Constitution and article (2) of Public Health Law of The Islamic Republic of Afghanistan, the Government duty bound to provide free health services for all Afghan citizens without any discrimination. Therefore, the Government of Afghanistan has performed in two areas in order to improve and increase public access to food and fair health services: 

 

(b) Practical Measures: health services were provided in two packages, basic health service and hospital health services, such as: establishment of consultation centers; establishment of national influenza center and its official recognition by World Health Organization; development of online information and consultation system for the youth; establishment of family support centers for treatment of victims of gender-based violence; research on maternal mortality; identification of impediments related to gender; nutrition survey to identify malnutrition of children below 5 years; establishment of midwifery schools to have access to health services in remote areas; establishment of nursing schools for 2 years; establishment of treatment centers of serious cases of malnutrition across the country and local treatment centers of addicts; establishment of mobile clinics to provide health services for nomads.

 

37. Afghan constitution guarantees observation of human rights for all citizens as article (54) of the Constitution considers child’s high interests and stipulates "family is the fundamental pillar of the society, and shall be protected by the State. The State shall adopt necessary measures to attain the physical and spiritual health of the family, especially of the child and mother, upbringing of children, as well as the elimination of related traditions contrary to the principles of the sacred religion of Islam.” 

 

38. The Afghan Civil Code approved on 1977 has several indications on observing child’s rights. In the law there are provisions on defining family, importance of marriage, parents’ responsibilities toward their children, children alimony, inheritance, and guardianship.

 

39. Juvenile Code approved on 2004, considering provisions stipulated in the Constitution and observing international conventions, is endorsed to ensure the interests of children while examination of cases of juvenile violators, children exposed to danger, children in need of protection and guardianship and observe their rights during investigation. 

 

40. The Law on Juvenile Rehabilitation Centers was ratified in 2008; the aim of this law is to correct and rehabilitate suspected, accused and convicted children, and also to observe the rights of these children in rehabilitation centers. 

 

41. The Labour Law ratified in 2006 has clearly stated support for the protection of children and juvenile against forced and harmful labour. The Law sees permissible easy works and working hours of less than 25 hours per week for the juvenile aged 15 to 18 years. 

 

42. Human Trafficking Law which was ratified in 2008 aims to fight human trafficking and protect victims, especially women and children. Law on Rights and Privileges of the Disabled was ratified in 2010, underlying all rights and privileges of the disabled that also includes children.

 

65. Article 43 of Constitution of Afghanistan states that: “Education is the right of all citizens of Afghanistan. Education shall be provided to the level of the B.A. free of charge by the State. The State shall devise and implement effective programs for a balanced expansion of education in Afghanistan, and provide compulsory intermediate level education. The State shall provide the opportunity to teach indigenous languages in the areas where they are spoken.” According to the Constitution, no discrimination shall exist with respect to education of girls and women. According to the article 3 of Education Law, access to education shall be provided throughout the country without any discrimination for all including girls and boys. 

 

66. Article 52 of Constitution states: “The State shall provide, free of charge, the means of preventive health care, medical treatment, and proper health facilities to all citizens of Afghanistan in accordance with the law. The State shall encourage and protect the establishment and expansion of private medical services and health centres in accordance with the law. The State shall adopt the necessary measures to promote physical education and encourage national and local sports.”

 

80. In accordance with point 2, article 5 of Police Law, ensuring security of individuals and the society and protecting their legal rights and liberties shall be one of the duties of police. In this regard, adopting necessary measures for the prevention of murdering and threatening of female teachers and students have also been included in the duties of police, and police has been performing its duties in accordance with the adopted measures and prepared security plans.

 

81. The GIRoA has tried to equally protect all its citizens against any kinds of violence, but has made more efforts for protecting the vulnerable groups such as women and girls. In this regard, the government has taken specific measures, especially in its approval of the Law on Elimination of Violence against Women. In order to practically implement the Law on Elimination of Violence against Women, the government has recently established a Special Prosecution Office as well as the Commission for Elimination of Violence against Women. 

 

82. Considering the commitments that the GIRoA has made in relation to implementation of the additional protocols to the Convention on the Rights of Child, the government has also drafted the national strategy for protection of children at risk with the cooperation of UNICEF in 2006. The mentioned strategy has identified children at risk in 26 categories, one of which is children in armed conflicts. The MoLSMD has conducted technical and professional training courses for the employment of those children who are introduced to this Ministry through the military ranks. Also this Ministry through the Ministry of Interior Affairs has drafted a policy based on which recruitment of underage children will be prevented in the national police. 

 

83. The GIRoA has conducted public awareness campaigns, workshops and seminars, via mosques Mullahs and schools on children in armed conflict and illegal use of children in the armed conflicts. 

 

84. Afghanistan currently has the Law against Abduction and Human Trafficking that includes children; the mentioned law is used for protecting the victims of trafficking and abduction and prosecuting the perpetrators of abduction and trafficking crimes. 

 

85. The High Commission on Combating Crimes of Abduction and Human Trafficking has been established under the chair of the Ministry of Justice and other organs such Ministry of Labour, Social Affairs, Martyrs and Disabled, Ministry of Interior Affairs, Ministry of Public Health, Ministry of Education, Ministry of Information and Culture, Ministry of Hajj and Religious Affairs, Ministry of Refugees and Repatriation, Ministry of Women’s Affairs, Office of Attorney General, National Directorate of Security, AIHRC and representatives of the civil society have its membership.

 

87. The following actions have been carried out to address the issue of child labour: 

 

• Approving the Law on Rights and Privileges of Persons with Disabilities and the Children; 

 

• Law on Social Protection;

 

• The National Strategy for Child Street Labour and Preparing its Action Plan; 

 

• Work on drafting a comprehensive Law on Children: 

 

• Protection of such children by the Children Support Networks; 

 

• Provision of health services and training courses for the children of families working in factories;

 

117. The GIRoA has taken the following steps for health strategy and to reduce poverty: 

 

• adoption of law on the rights and privileges of people with disabilities and children; 

 

• social protection law; 

 

• National strategy for children at work and on the streets and preparation of action plan; 

 

• work on compilation of Child Protection Law;

 

• protection of children through child protection networks;

 

• provision of health services and training courses for children of worker families; 

 

• establishment of day training centers for recruiting children on the streets and enrolling them in public schools; 

 

• establishment of protection centers to protect victims of human trafficking and kidnapping and protection of 294 victims; 

 

• establishment of control centers in border areas with the assistance of neighboring countries;

 

• establishment of communication network to control/prevent trafficking of women and children;

 

• enhancement of the effectiveness of child protection network in identifying children involved in armed conflicts and enrolling them in training centers.

 

120. The new educational curriculum is prepared by experts based on the educational needs of the country. This curriculum addresses the problems students face. Methods of using the new technology have also been included in this curriculum. Also, issues such as human rights are included in all teaching curricula and issues related to civic life are incorporated in the curriculum of secondary schools.

 

122. In accordance with article 46 of Afghanistan Constitution, GIRoA is obliged to provide equal free education for all its citizens without any discrimination. 

 

123. The growth and development of the citizens are ensured on the basis of and in the light of specific Islamic guidance, respect for fundamental human rights, with a view to respect national values of Afghanistan, economic growth, maintaining security, a progressive educational system and equal access to education for all. 

 

124. Afghanistan has taken serious measures during the past four years to improve the quality and quantity of education. 

 

125. Since article 43 of the Afghan Constitution has guaranteed education up to the BA level for all its citizens without any discrimination, the GIRoA has taken measures that are mentioned as bellow:

 

(a) The adoption of Education Law; 

(b) Providing the new educational curriculum. 

 

130. Ministry of Refugees and Repatriation, in the light of International Convention of 1951 and protocol of 1967, has signed tripartite agreements (The Islamic Republic of Afghanistan, Host Country and UNHCR) with 10 host countries to improve social, economic, and educational status of refugees and further protection of their rights. Of these 10 host countries, Afghanistan has held 18 meetings with Islamic Republic of Iran and 23 meetings with Islamic Republic of Pakistan that hosts a bulk of Afghan refugees to solve refugees’ problems. These agreements are revised annually for better and effective support of vulnerable groups like children, widows and sick persons whose treatments are not possible in the host country.

 

138. The GIRoA under its international obligations provides reports for United Nations bodies on Human Rights. Instances of such reports are the second and fourth reports of Afghanistan regarding implementation of United Nations Convention on Social, Economic and Cultural rights, reports about general situation of human rights in Universal Periodical Review Mechanism Framework, Afghanistan’s initial report about Convention on Child Rights and second periodical report regarding Elimination of All Kind of Discriminations against Women.

 

144. The GIRoA is committed to human rights values and regularly does its best to implement human rights values in Afghanistan. However the main challenges that human rights faces in Afghanistan are, insecurity, and challenges on the way of good governance.

(f) Limited access to quality education due to insecurity and low professional capacity;

 

(g) Embedded social violence practices against women and children; 

 

(j) Low culture of human rights in Afghanistan’s social and cultural structure; 

 

(m) Failure to establish sustainable social security services for vulnerable segment of society especially women, children, disabled and martyred family members;

 

 

A. Scope of international obligations

 

2. The Committee on the Rights of the Child (CRC) encouraged Afghanistan to accede to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. CRC and CEDAW recommended that Afghanistan ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.

 

B. Constitutional and legislative framework 

 

4. CRC urged Afghanistan to establish a strategy to implement the Law.

 

6. CRC was concerned that the EVAW Law did not criminalize honour killings and that article 398 of the Penal Code exempted perpetrators of honour killings from punishment for murder and that they often enjoyed impunity. 

 

8. CRC was concerned that children’s rights were negatively affected by the application of codified, customary and sharia laws and that legislation that contradicted the Convention remained in force. It urged Afghanistan to bring its domestic legislation, including customary or sharia laws, into compliance with the Convention and to enact a comprehensive Child Act.

 

9. CRC was concerned about the limited measures taken to date to implement the 2010 Law on the Rights and Privileges of People with Disabilities and Martyrs’ Families.

 

C. Institutional and human rights infrastructure and policy measures 

 

11. The High Commissioner recommended that the Government promptly appoint commissioners to the AIHRC on the basis of a genuinely transparent, impartial process, in line with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles). CRC and CEDAW raised the same issue.

 

13. CRC noted with concern that little had been done to implement the National Plan of Action on Combating Child Trafficking.

 

15. CRC urged Afghanistan to ensure that appropriate child-specific provisions and resources were included in all peace and reconciliation negotiations and treaties.

 

16. While welcoming the National Strategy for Children with Disabilities (2008), CRC was concerned about the limited measures taken to date to implement it.

 

17. CRC welcomed the Afghan National Development Strategy (2008–2013) and CESCR strongly recommended adopting a holistic human rights-based approach when implementing it.

 

III. Implementation of international human rights obligations, taking into account applicable international humanitarian law

 

A. Equality and non-discrimination 

 

21. CESCR was concerned about discrimination against women. It regretted the discrepancy between the legal framework and inequality in practice in work, public life, education and health. It urged Afghanistan to take more effective measures to counter inequality between the sexes and discrimination against women, implement a national public awareness campaign and take temporary special measures to redress the gender imbalance. CRC raised similar concerns and recommendations.

 

22. CEDAW was concerned that the multiple legal systems regulating marriage and family relations discriminated against women, as did civil law provisions and customary practices, such as the husband’s legal right to have authority over his wife and children.

 

23. According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), in April 2009, a new law had been about to be adopted by the Afghan parliament on the status of Shiites, undermining the right to education, the principle of gender equality and children’s rights. International experts had warned the Government that the Shia Personal Status Law violated the human rights of minority Shia women and girls, breached Afghanistan’s national and international obligations, and would further entrench discrimination and violence against women, girls and members of religious minorities.

 

B. Right to life, liberty and security of the person

 

35. CRC and CEDAW urged Afghanistan to repeal article 398 of the Penal Code to ensure that perpetrators of honour killings were not given legal concessions.

 

38. CRC was concerned that the crime of rape was not clearly defined and separated from the offence of zina (sexual intercourse outside of wedlock/adultery).

 

39. The High Commissioner noted that children continued to suffer disproportionately as a result of the ongoing armed conflict. On average, more than 20 children had been killed or injured every week across the country during 2012. 

 

40. CRC expressed deep concern at the death of hundreds of children as a result of attacks and air strikes by insurgent groups, international military forces and the Afghan National Army.

 

41. CRC was extremely concerned at the level of violence against children and the fact that child victims of abuse and violence, especially girls, were often treated as perpetrators and sent to juvenile rehabilitation centres, while most of the perpetrators enjoyed impunity. 

 

42. The Special Representative of the Secretary-General for Children and Armed Conflict highlighted ongoing reports of ill-treatment of children in detention facilities and called for children who were detained for alleged association with armed groups to be treated as victims, and if prosecuted, treated in line with international juvenile justice standards. 

 

43. The Special Representative also reported on the continued recruitment and use of boys, some as young as 8 years old. Concern remained about the informal recruitment of children by Afghan National Security Forces and armed groups. The Special Representative recommended that the Government end all recruitment and use of children. CRC and CESCR raised similar concerns. 

 

44. CRC noted that a large proportion of child workers started working between the ages of 5 and 11.

 

C. Administration of justice, including impunity, and the rule of law

 

53. CRC was deeply concerned that virginity testing was imposed on girls in judicial proceedings, 90 and that there was no mechanism through which child victims of sexual abuse could lodge complaints and obtain protection and recovery services.

 

D. Right to privacy, marriage and family life 

 

54. CRC was concerned that the majority of children remained unregistered. It urged Afghanistan to ensure that all children, including children born out of wedlock, were registered at birth.

 

56. CESCR and CEDAW remained concerned at the persistence of forced and child marriages. CRC was particularly concerned at the absence of effective measures to prevent and eliminate early and forced marriages. 

 

57. CRC urged Afghanistan to raise the minimum age of marriage for girls to 18. 

 

58. CEDAW was concerned about unequal and limited rights for women to divorce and obtain guardianship of children under the Civil Law, and that they were deprived of their inheritance rights.

 

59. CRC expressed concern that Afghanistan did not have a system that provided special protection and assistance to children deprived of a family environment.

 

60. CRC was concerned at the increase in the institutionalization of children. CESCR noted that a high number of children who had a living parent remained unnecessarily in care institutions and recommended that Afghanistan implement social protection programmes to enable the most disadvantaged families to care for their children.

 

F. Right to work and to just and favourable conditions of work

 

69. CESCR was concerned at the lack of employment opportunities for young people, returnees and internally displaced persons (IDPs).

 

H. Right to health 

 

77. According to the World Health Organization (WHO), the right to health remained a challenge in Afghanistan; the health of women and children continued to be very poor. There was a high incidence of communicable diseases such as tuberculosis which caused a serious health problem, with an unusually higher prevalence among women. The main causes of ill-health were underdevelopment and low economic status.

 

78. WHO noted that the long period of conflict had caused anxiety and depression among many Afghans; over 2 million were currently affected by mental health problems, with high rates of post-traumatic stress disorder, depression and severe anxiety, particularly among women (121). CESCR, CEDAW and CRC shared that concern. Several treaty bodies recommended addressing those health problems.

 

79. CESCR remained concerned about the high maternal, infant and child morbidity and mortality rates and the lack of a gender-sensitive approach in health service provision. 

 

80. CRC, CESCR and CEDAW were concerned that limitations on women’s and girls’ movements, imposed by traditional norms, and the lack of female medical staff impeded the provision of essential health care to women and girls. CESCR urged Afghanistan to Improve basic health services and recruit female medical staff, especially in rural areas.

 

81. CRC recommended fully including girls and children from the most marginalized groups in all health strategies and programmes.

 

I. Right to education 

 

82. According to the United Nations Children’s Fund (UNICEF), conflict and fragile security impeded delivery of school supplies, enrolment, monitoring, and school supervision. Those challenges were exacerbated by entrenched cultural norms that opposed the education of girls; some 60 per cent of the 4.2 million out-of-school children were girls. Moreover, early marriage often interrupted girls’ education. A general shortage of teachers and an acute need for female instructors made attendance difficult for girls, particularly in rural areas. 

 

83. CESCR noted with concern that the right to education was not guaranteed without discrimination and was concerned about the throwing of acid to prevent girls and female teachers from going to school.

 

84. UNESCO reported that, despite an increase in the number of teachers since 2001, only 24 per cent of teachers had the minimum qualifications to teach. The country lacked common and appropriate standards for certifying teachers and accrediting teacher training institutions. Consequently, the quality of education in Afghanistan was poor.

 

85. UNESCO recommended that the Government strengthen its efforts to combat illiteracy, particularly in rural areas, implement measures to ensure girls and women had access to all levels of educational, and direct its efforts towards gender equality and eliminating discrimination against girls and women in education.

 

86. CEDAW was concerned about the high illiteracy rate among women and the high dropout rate for girls.

 

87. CRC expressed extreme concern at attacks by insurgent groups on school facilities, which had killed many schoolchildren and teachers and led to school closures, and at the use of schools as polling stations and their occupation by international and national military forces. It recommended that Afghanistan protect schools, teachers and children from attacks. CEDAW recommended prosecuting the perpetrators of attacks on girls’ schools. The High Commissioner had similar concerns.

 

K. Persons with disabilities 

 

91. CRC expressed serious concern at the extent of maltreatment of children with disabilities in families and institutions. It recommended ensuring that those children were not exposed to violence or neglect and had access to education, including inclusive education.

 

L. Minorities 

 

92. CRC was concerned that children from minorities, notably Hindu and Kuchi children, had limited access to education. It recommended that Afghanistan create an inclusive educational system that welcomed children from all minorities.