Looking at the history of Afghanistan, the image that emerges is that of a country that is often split and fragmented, devastated by conflicts that have made it politically unstable and in which different systems of law coexist more or less harmoniously, which can refer to sources which are very different from each other. It is in Islam, the official state religion according to what the Constitution states, that the country has often found its unity. If these are the premises, however, it is quite obvious to expect a very difficult life for LGBTQ+ people. In fact, sexual minorities in Afghanistan live in a dramatic condition in a country that hardly tolerates anything that deviates from the Islamic morality established and reaffirmed by political and religious authorities. Without the possibility of living one’s condition openly, without a public debate that reaffirms the needs and requirements of people who are not necessarily hetero or cis, without laws and guarantees that protect the most vulnerable categories, being queer in Afghanistan means living outside the law and society in a space of isolation on the edge of the country where risk and danger are always around the corner.
Legislative Framework and Impact in Civil Society
Article 6 of the Afghan constitution affirms the importance of the commitment to respect human dignity and civil rights, however it is possible to note that not all categories of citizens are considered worthy of such protection. The LGBTQ+ community, together with other minorities, is oppressed every day not only by the Islamic tradition, but also by the judicial system, which often resorts to religion without clear limitations. The Afghan Republic is in fact an Islamic republic, which therefore bases its values on this religion, referring to sharia or “God’s law”, which can also be applied in the judicial field. The art. 130 of the Constitution in fact states that “in the absence of a legal provision applicable to the specific case, the courts judge… in accordance with the Hanafi jurisprudence”. Sharia is based on two main sources: the Koran and the Sunna, composed of the hadith, or what was transmitted (through actions, behaviours or words) by the Prophet Mohammed, and which is not derived from written documents, but from testimonies indirect and interpretations; among the various legal schools, the Hanafi one is nowadays the most widespread within the Islamic world and is considered the most liberal and tolerant, as it provides for punishments less frequently than the other madhahib (law schools). This is certainly not reassuring since, with the spread of Islamic fundamentalism since the 19th century, what was previously generally tolerated, such as same-sex relationships, has now become liable to hudud (corporal punishment) and harsher sanctions, including capital punishment, in use during the Taliban regime but in disuse since its fall. The so-called “secular” law within the Afghan republic criminalizes homosexuality. Although the penal code was reformed in 2017, no new protections aimed at LGBTQ+ minorities were introduced, indeed all the articles that punish non-heterocompliant behaviours were maintained. The Penal Code, in fact, in the Fourth Chapter (“Crimes against Chastity and Public Morals”) legislates in these terms:
– the art. 398 legitimizes the crime of honor, the explicit justification of which can be, in addition to adultery, the discovery of a homosexual relationship, as it compromises the honor of the entire family.
– sections 647, 648 and 649 instead provide for long prison sentences for the crimes of sodomy, with aggravating circumstances in the event of differences in age, power, and violation of the honor of the family of the subjects involved.
-section 645 punishes those who commit “musahaqah“, or those who engage in a sexual relationship between two women.
-sections 649 and 650 not only criminalize the “tafkhiz” (homosexual relationship without penetration), but also those who favour it, i.e. those who introduce the two subjects to each other or who gets them a place to commit the act.
In addition to these crimes, given the country’s mixed judicial system, penalties deriving directly from the sharia can be added at the discretion of the individual judge, which can culminate in serious humiliation and corporal punishment. The death penalty itself, which the Taliban regime routinely used to punish such crimes, is a largely abandoned practice. However, we must not delude ourselves that it is no longer universally applied. The great fragmentation of Afghanistan and from a political point of view and from a legal point of view helps to create many different centers of power, local and central, secular and religious, institutional and subversive, and it can therefore happen that whoever holds the reins of power can also dispose of the right of life and death over the citizens he administers. If the sharp aversion carried out by the judicial authorities were not enough, the LGBTQ+ community in Afghanistan is still heavily oppressed also due to the many obstacles that prevent the emergence of a public debate on the issues of sexual minorities; in fact, the law prohibits publications that go “against the morals of the country” and even postal exchanges with “obscene content” are not permitted, which greatly complicates the work of activists and makes it illegal and dangerous to support and contribute to the advancement of civil rights.
Perception and Social Status
A country with a deep religious sentiment such as Afghanistan in which over 99% of the population professes the Islamic faith and within which different systems of laws coexist which, despite their contradictions and internal conflicts, all agree in condemning homosexuality and any other conduct judged contrary to the morals derived from Islam is certainly not the context in which the LGBTQ+ community can thrive in peace. Afghan sexual minorities, in fact, not only do not enjoy any type of guarantee or protection (egalitarian marriage, civil unions, gestation for others, adoption for same-sex couples are all practices prohibited by law) but are also openly opposed by the government’s institutions, by public opinion and by the citizens who make up the Real Country. Not surprisingly, then, a 2017 US State Department report claims that people belonging to a sexual minority in Afghanistan have experienced bullying, discrimination, assault, sexual violence, as well as arbitrary arrests and other abuses of power by of the authorities. Upstream of this clear aversion to LGBTQ+ issues in Afghanistan we certainly find Islamic fundamentalism that permeates the social fabric of the country and discourages any progressive aspirations, not only for homosexual, bisexual, transgender people, etc. However, placing the whole blame on bigotry and narrow-mindedness on the influence of Islam would be superficial and incorrect. A good part of the vehemence and fury with which certain “crimes” are prosecuted is due to the macho and sexist culture that has its roots in the depths of Afghan society. This type of culture sanctions the clear distinction between men and women, favoring the former and devaluing the latter, affirming the superiority of one sex over the other and consequently condemning the feminine and all that refers to it as something weak and all in all harmful, especially when attitudes and ways universally considered feminine are present in a man. Homosexual people, therefore, are also and above all judged according to the “betrayal” of masculinity which should distinguish them, as well as for the deviation from the Islamic morality prescribed in the texts and reaffirmed by the political and religious authorities. For the same reason, practices such as transvestism and cross-dressing (the practice of wearing clothing and underwear of the opposite sex to one’s assigned sex), which could be viewed with less seriousness, are instead considered equally serious and punished with equal intensity. If this is the social framework in which the lives of LGBTQ+ people develop, it will come as no surprise to learn that discussion of sexuality and gender identity is practically non-existent in Afghanistan. By way of example, we mention the 2011 news episode in which an Afghan newspaper interviewed a man because of the rainbow, LGBTQ+-friendly stickers on his car. The man didn’t know they were symbols of the LGBTQ+ community and once he discovered it, he promptly got rid of them to avoid passing for a supporter or a member of the community. The level of education and instruction on issues of sexuality and gender studies is therefore extremely low and this clearly affects awareness of sexually transmitted diseases as well. Just think that the first AIDS-HIV treatment center was opened in Kabul only in 2009, with the exponents of the social democratic party, the most liberal political force in Afghanistan, who, only under international pressure, declared that they were directing their efforts to fight the AIDS pandemic and only for this, still considering the requests of the LGBTQ+ community unacceptable. Yet, there is a cemented historical tradition in the country that deviates from the heterosexual norm imposed by society and religion. Bacha Bazi is an institutionalized form of sexual slavery which involves the exploitation of young men in conditions of hardship (orphans, the poor, etc.) by armed militias who are prohibited by law from having relations with the opposite sex. This practice belongs to a very ancient tradition which has been tolerated and promoted by society from time to time but also condemned and forbidden under the Taliban regime.
Also, for this reason, in Afghanistan homosexuality is often associated with paedophilia and prostitution, contributing to the great social stigma that LGBTQ+ people suffer. In a social context such as the one described, organizations of LGBTQ+ people that promote initiatives in favor of the community are prohibited by law and meeting within realities of this type can be a real danger. The work of activists is therefore nipped in the bud, however there are still personalities and initiatives worthy of being mentioned. Among these we cite the case of Hamid Zaher, an activist and writer who took refuge in Canada to escape a marriage with a woman imposed by his family, and that of Nemat Sadat, professor of Political Science at the American University of Afghanistan, who in 2013 became the first Afghan public figure to come out as gay. The struggle for the liberation and emancipation of LGBTQ+ people also and above all passes through the efforts of these people who are joined by the voice of Large Movements in the hope that one day, hopefully soon, anyone in Afghanistan too can live their own life and your identity in the light of the sun.
The LGBTQ+ community since the August takeover of Kabul
With the entry of the Taliban into Kabul and the conquest of the country which took place last month, the situation for minorities in Afghanistan, although it was already not the most rosy, has further worsened. It was above all women and LGBTQ+ people who paid the price, who since mid-August have experienced a drastic reduction in their fundamental rights and the few freedoms they enjoyed under the previous administration, already known for not being particularly inclusive. Violence, oppression and a sudden and worrying suspension of human rights are the tools and methods through which all this has happened. In fact, since the establishment of the Taliban, there have already been many reports of disappearances of people believed to be dead because of their sexual orientation and/or gender identity. Sexual minorities in Afghanistan, who have already experienced discrimination and oppression before, live in fear of being discovered and killed on the spot.
On August 25, various newspapers reported the news that the Taliban in Kabul exposed the dismembered body of a homosexual man with the intention of sending out a very clear message: this is the end of all those like him. Other reports include incidents of sexual violence perpetrated against homosexual men and transgender people by Taliban militias.
The LGTQ+ associations present in the country, which before August could only operate clandestinely, have been completely dissolved. Even protected by anonymity, the activists who were part of it are now refusing to make statements fearing for their lives. In response to this emergency, several activists who fled Afghanistan have taken action in this regard but their appeals to Western countries to include LGBTQ+ people in the lists of vulnerable categories have remained unheard. Nemat Sedat declared that the Taliban will implement a “bait, kill, dump” policy on the bodies of LGBTQ+ people. Chat rooms and community websites are not used for romantic encounters but for organizing escapes from the country. However, there are already testimonies of people lured through these channels and later ended up in the hands of the Taliban.
With the humanitarian crisis continuing to escalate and the death toll continuing to climb, the @afghanlgbt Instagram page continues its activism by sharing calls to welcome LGTBQ+ people and get them out of the country.
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