Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Death penalty
Penal Code 2017, Section 645 Musahaqah

Section 645 criminalises same-sex intimacy between women with imprisonment for up to one year.1

Penal Code 2017, Section 646 Sodomy

Section 646 criminalises sodomy, punishable with imprisonment for up to two years.2

Penal Code 2017, Section 649 Tafkhiz

Section 649 criminalises Tafkhiz – same-sex intimacy between men absent penetration – punishable with imprisonment of between three months and one year.3

Penal Code 2017, Section 650 Ghavadi

Section 650 criminalises inciting two or more people to commit sodomy by introducing them to each other and finding them a place to do so.4

Sharia Law

Article 130 of the Constitution allows for the implementation of Sharia Law which prohibits same-sex sexual activity in general. The maximum penalty is death and is applicable in cases of sex between men or between women.5

Enforcement

2017

The US Department of State has consistently reported that members of the LGBT community face harassment and arrest by state authorities. In 2017 “members of the LGBT community reported they continued to face discrimination, assault, rape, and arrest by security forces and society at large.”  In 2016 NGOs reported police arrested, detained, robbed, and raped gay men. In 2013 US Report on Human Rights Practices in Afghanistan noted a significant increase in police detentions during that year, as well as increased rates of violence and harassment.]

2015

It was reported that a parallel justice court sentenced three gay men (including one 17 year old) to execution by “wall-toppling”. The 17 year old survived and was allowed to live.

2013

The UK Country of Origin Report on Afghanistan indicated that the death penalty has not been applied since the end of Taliban rule.

In March, An English language Afghan news source, Khaama Press, provided statistics on the number of gay men prosecuted during the year, provided by Major General Zahir Zahir, the Commander of Kabul City Police and one-time recipient of a EUPOL Best Practice Award. According to the General, Afghan police forces arrested 97 individuals in relation to homosexuality. It is not immediately evident whether this statistic comes from the country at large, or Kabul city alone.

Statements by Public Figures

2016

In October the BBC reported that prominent cleric Shams-ul Rahman stated that: “An old wall should fall on them [LGBT persons] and they should be killed in the harshest of manners.”

They should be killed in the harshest of manners.

Cleric Shams-ul Rahman

2014

A gay Afghan academic received thousands of death threats due to his sexual orientation. A Fatwa was reportedly issued against Nemat Sadat, a former professor of political science at the American University of Afghanistan: “(They) have placed a fatwa on my head and have ordered Muslims to assassinate me. My crime: being an out and proud homosexual and campaigning for LGBT rights in my beloved homeland.” The former professor had previously spoken out for LGBT rights and discussed the difficulties faced by those living within the country: “living a gay lifestyle in Afghanistan is impossible when society is ignorant about gay rights and homosexuals, under the current laws, can be put to death for simply being who they are.”

2013

Afghanistan’s president, Hamid Karzai, distanced himself from proposals to introduce stoning to the Afghan Penal code for extramarital sex, stating that “the minister of justice has rejected it.” Whilst stoning is already a punishment for sex outside of marriage applicable under sharia law and can be targeted at LGBT individuals, it is not, at present, contained within the penal code.

Persecution and Discrimination

2019

It is reported that “LGBT people face significant violence and discrimination from the State, their own families, and society at large. However, there is sparse evidence, anecdote and date being reported on the situations of sexual and gender minorities in the country, and there are no SOGI advocacy organisations or networks known of.”

2017

The UK Home Office was criticised for issuing asylum application guidelines that stated, “While space for being openly gay is limited, subject to individual factors, a practising gay man who, on return to Kabul, would not attract or seek to cause public outrage, would not face a real risk of persecution.” The guidelines issued by the Home Office were at odds with United Nations guidelines on refugees which state a person should not be required to conceal their identity in order to avoid persecution.

2016

The BBC reported on the experiences of four Afghans who belonged to the LGBT community. All four reported hiding their identities for fear of reprisal and even death. One interviewee stated, “In Afghanistan, being lesbian is seen as un-Islamic. If people found out, the result would be death.”

In Afghanistan, being lesbian is seen as un-Islamic. If people found out, the result would be death.

2013

Whilst persecution and discrimination has been recognised by a number of bodies, there is a particular problem of underreporting. The UN High Commissioner for Refugees (UNHCR) has issued guidance on this issue:

“Given the pervading social taboos related to same-sex relations, there is little information available on the treatment of LGBTI individuals in Afghanistan. What little information there is pertains to gay men and male transvestites; the situation of lesbians, and that of bisexual, transgender or intersex individuals is largely undocumented. The absence of information should not be taken to mean that there is no risk for LGBTI individuals… In light of the strong social taboos, as well as the criminalization of same-sex relations, UNHCR considers that LGBTI individuals are likely to be in need of international refugee protection on account of their membership of a particular social group based on their sexual orientation and/or gender identity, since they do not, or are perceived not to conform to prevailing legal, religious and social norms. It should be borne in mind that LGBTI individuals cannot be expected to change or conceal their identity in order to avoid persecution. Furthermore, the existence of significant criminal sanctions for same-sex relations is a bar to State protection, including where persecutory acts are perpetrated by non-State actors such as family or community members.

In January a gay man from Afghanistan was granted asylum in Denmark on account of the ‘high risk of persecution’ he would face, were he to return to his home country. A similar decision was reached by the UK Asylum and immigration tribunal.4

2009

A document prepared by the Country Research Section (CRS), Onshore Protection Branch of the Department of Immigration and Citizenship, Canberra; notes a number of instances of state-sanctioned execution whilst the country was under Taliban rule; including instances of men being executed on account of their sexuality by having a wall pushed on top of them by a tank. Whilst the death penalty has not been carried out in recent years, the report emphasises that this remains a possibility: a fact made particularly salient by recent attempts to introduce the death penalty into the Afghan penal code.

Legislative News

2017

Afghanistan’s new Penal Code 2017 came into force on 14 February 2018. Previously Article 427 of the 1976 Penal Code had imposed “long imprisonment” for ‘pederasty’ (encompassing same-sex intimacy).

2014

During its Universal Periodic Review the government rejected recommendations to repeal penal provisions criminalising same-sex sexual relations and to ensure non-discrimination on the grounds of sexual orientation.

Footnotes
1. Penal Code 2017, Section 645 Musahaqah

A person who commits “Mosahege”4 with another person, each of the former shall be sentenced to small imprisonment, not exceeding one year. (ILGA 2019 translation)

2. Penal Code 2017, Section 646 Sodomy

“(1) A person who commits sodomy with another female or male, shall be punished in accordance with the provisions of this chapter.
(2) For the purpose of this section, sodomy happens by the penetration of a male sexual organ into a female or a male anus, not considering the depth of the penetration.”

Section 647, Penalty for Sodomy

“Those who commit sodomy shall be sentenced to medium imprisonment not exceeding two years.”

Section 648, Aggravation of Sodomy

“In on of the following cases commitment of the acts, specified above, is considered to be aggravating conditions and shall be sentenced to medium imprisonment, exceeding two years.

(1) In the case where the person against whom the crime has been
committed is one of the temporary or permanent “Maharem” (with
whom marriage is prohibited according to rules of Islam) of the offender.
(2) In the case where the offender is a tutor, teacher, or servant of the
person against whom the crime has been committed or the latter has,
one way or another, has authority or influence over the former.
(3) In the case where the person against whom the crime has been
committed is affected by the genital disease because of the offenders
disclaim of having sexually transmitted diseases.”

(ILGA 2019 translation)

3. Penal Code 2017, Section 649 Tafkhiz

“When the male offender commits “Tafkhiz” with another man, the former shall be sentenced to small imprisonment (three months to a year).” (ILGA 2019 translation)

4. Penal Code 2017, Section 650 Ghavadi

“(1) “Ghavadi” is to incite two or more people to commit adultery or “sodomy” by introducing them to each other or finding them a place to do so. In recognition of the crime “Ghavadi”, repetition is not important.
(2) Those who are convicted of “Ghavadi” shall be punished in accordance with the provisions of this chapter” (ILGA 2019 translation)

5. Constitution of Afghanistan 2004, Art. 130

“In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts 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.” Full text.

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