Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Death penalty applies
Penal Code 1976, Article 427(1) Pederasty

Article 427(1) criminalises adultery and pederasty. In Afghani legal terminology “pederasty” does not only refer to paedophilia or sexual relations under the age of consent but also to homosexual conduct. The law allows for a sentence of “long imprisonment.”1

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.2

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.

2013

The UK Country of Origin Report on Afghanistan records 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

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.3

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

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.5

Footnotes
1. Penal Code 1976, Article 427(1) Pederasty

“A person who commits adultery or pederasty shall be sentenced to long imprisonment.” Full text.

2. 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”
Available here.

3. United Nations High Commissioner for Refugees

United Nations High Commissioner for Refugees (UNHCR) 6 August 2013. UN Doc HCR/EG/AFG/13/01

4. AJ (Risk to Homosexuals) Afghanistan CG [2009] UKAIT 00001
5. UNHRC ‘Report of the Working Group on the Universal Periodic Review’ (4 April 2014) UN Doc A/HRC/26/4

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