Legal framework on freedom of religion and actual application
According to the latest estimates of religious demography, Sunni Muslims represent 85 to 89 percent of the Afghan population. The rest is mostly Shi‘a Muslims (10-15 percent), who are largely ethnic Hazara. The country’s constitution officially recognises 14 ethnicities, including the Pashtun, Tajik, Hazara and others. The Pashtun make up the largest group (estimated at 42 percent of the population), followed by Tajik (27 percent), Hazara (9 percent), Uzbek (9 percent), Turkmen (3 percent), Baluchi (2 percent) and other groups (8 percent).
The return to power by the Taliban more than 20 years after their ouster, and the consequent establishment of an Islamic emirate has totally changed the country's legal framework. The 2004 Constitution of the Islamic Republic of Afghanistan is no longer in force and many doubts remain about the current legal framework, which can be ascertained mostly from statements by the new rulers.
A few weeks after the fall of Kabul, a Taliban spokesman announced that they had restored the emirate as the country's political system, putting an end to the post-2001 republic, and that Amir ul-Muminin, the Commander of the Faithful, would be the head of the Afghan state. The leadership also announced that a provisional government, composed exclusively of Taliban members, headed by a prime minister, would manage the country’s affairs. However, little is known of the emirate’s institutional structure.
Already during the first emirate (1996-2001), an ulema council drafted a constitution aimed at formalising the form of government. It was never implemented and was largely based on the 1964 constitution adopted under former King Mohammed Zahir Shah. In September 2021, the Taliban declared that they would temporarily apply the same document.
The announcement came after a meeting in Kabul of the Taliban's acting Justice Minister Abdul Hakeem Sharaee with the Chinese ambassador. Sharaee said, in order to govern the country, the Islamic emirate would temporarily adopt the royal constitution wherever it is “not in conflict with Islamic Sharia (law)”.
However, in practice, the Taliban have not used the 1964 constitution, which provided for a constitutional monarchy with elections and separation of powers, elements always rejected by the Taliban, and included a Bill of Rights as a limit to state power. Since August 2021, important appointments and decrees in the administrative, legislative and judicial spheres have been issued by the amir on his own authority, without any separation of powers. Moreover, compared to the 1964 charter, the Islamic component is predominant.
In his latest report on Afghanistan released on 16th December 2022, UN Secretary General Antonio Guterres said that the country must “deliver on its commitments to international principles, norms and standards against discrimination, inequity, inequality, injustice and impunity.” The de facto authorities have not yet addressed the persistent ambiguities on the parameters of the political and legal system, although Taliban spokesman Zabihullah Mujahid stated in October 2022 that “efforts to draft a new constitution were ongoing.”
Despite promises made after the taking of Kabul, the new Taliban government failed to be inclusive in terms of respect for women and minorities. The lack of women and ethnic plurality in the Taliban government stands out. The Constitution of the Islamic Republic of Afghanistan (Article 4) named 14 different ethnic groups as being part of the Afghan nation, but 30 out of the 33 appointees were selected from only one ethnic group, the Pashtuns.
In May 2022, the Taliban published a 312-page manifesto titled “Al Imarat al Islamiah wa Nizamuha” or Islamic Emirate and its Nizam (the latter means administration, system, institutions or order). The document attempts to provide the Taliban with a basic document, answering two questions: What is an Islamic emirate and how is it managed? The manifesto is authored by Abdul Hakim Haqqani, the Taliban's acting Minister of Justice, who defines three constitutive elements of a Taliban-led state: 1) independent judiciary; 2) Islamic army; 3) divine law. The author also warns that an Islamic state will not succeed without the implementation of the laws of the Qur‘an and the Sunnah.
In the document, particular reference is made to the school of Islamic jurisprudence that should be followed in the country, which, according to Haqqani, should be that of the majority, namely the Hanafi school. This constitutes a step backwards compared to the 2004 constitution, which for the first time in the country’s history recognised a limited role for Jaʿfarī (Shi‘a) jurisprudence in the legal area.
The Shi‘a minority make up about one about one sixth of the Afghan population. For its part, the Shi‘a Ulema Council of Afghanistan has publicly demanded that Shi‘as be exempted from paying a tax on agricultural produce (ushr) imposed by the Taliban in accordance with Hanafi jurisprudence. However, there is no indication of any accommodation or exemption for Shi‘a Muslims in this regard.
There are also reports that Taliban authorities have removed Jaʿfarī jurisprudence from the curriculum of universities in Bamiyan, a Shi‘a -majority province in Afghanistan.
From a judicial point of view, the Taliban have shown no regard for due process of law. Many of the rules are laid down through decrees that are not properly communicated to those who are supposed to apply them. In some cases, a statement by a group leader is sufficient for the decree to become effective. Moreover, few cases actually reach the courts and punishment has mostly been left to Taliban fighters and local commanders who punish people accused of a crime on the spot or after a brief trial. Punishments range from public shaming to corporal punishment and, in the most serious cases, death.
The Ministry for the Propagation of Virtue and Prevention of Vice (MPVPV) issues the majority of directives. Disbanded in 2001, this government department, notorious for its harsh policing methods, was re-established in September 2021 taking over from the Ministry of Women's Affairs. Through its directives, the MPVPV often enforces certain provisions that it considers mandatory for Afghan Muslims (or subjects of a Muslim state, in the case of non-Muslims).
Women have suffered the most from these restrictions. Taliban leaders have de facto banned girls’ secondary education. In March 2022, they stated that secondary schools for girls would remain closed until proper Islamic and cultural conditions were established for female students aged 12 and older. They also issued a series of decrees that restrict women’s freedom of movement, dress, sports activity, right to work, and healthcare. The situation of women is so dire that the World Economic Forum’s 2022 Global Gender Gap Report ranked Afghanistan 146 out of 146.
The Taliban also banned music. According to their spokesman, Zabihullah Mujahid, “Music is forbidden in Islam... but we hope we can convince people not to do these things, instead of pressuring them.” However, instead of convincing people, the Taliban have targeted musicians and artists, and even those who play music in their cars.
The death penalty for crimes such as apostasy and blasphemy remain in place. In addition, the Taliban reintroduced corporal punishment for minor offences and mutilation, such as amputation of limbs, in case of theft. “Cutting off of hands is very necessary for security,” said Nooruddin Turabi, a founder of the Taliban, speaking to the Associated Press. During the first Taliban regime, Turabi became notorious for his harsh application of the law.
The Taliban have done very little to include religious minorities or uphold their rights, or protect them from the numerous attacks by groups such as the Islamic State-Khorasan Province (IS-KP). Yet, the Taliban refuse to be labelled as oppressors.
On 5 June 2022, in response to a report by the United States Commission on International Religious Freedom (USCIRF), Zabihullah Mujahid tweeted: “The religious and civil rights of all minorities in Afghanistan are protected. In this regard, the State Department's report is incomplete and based on false information. All our Sunnis, Shiites, Sikhs and Hindus practice their religion freely. We reject the State Dept. report.”
Interestingly, Christians are not mentioned because, according to a Taliban spokesman, “There are no Christians in Afghanistan. [The] Christian minority has never been known or registered here.”
In 2022, the Taliban administration removed Ashura and Nowruz as national public holidays from the Afghan calendar but allowed minority communities to publicly celebrate their holidays.
Under both the old and new Taliban regimes, Shi‘a Hazaras are the most persecuted minority. They are Afghanistan’s third-largest ethnic group after Pashtuns and Tajiks, and are mostly Shi‘a Muslims. During the period under review, they suffered numerous attacks by both the Taliban and the IS-KP.
Sufi Muslims have also been targeted during the period under review. The group has played an important spiritual role in Afghanistan for centuries, but now their religious views are in sharp contrast with those of the Taliban and the IS-KP.
In May 2022, after a mission to Afghanistan, Richard Bennett, the United Nations special rapporteur on Human Rights in Afghanistan, called for an investigation into the attacks against the Hazara, Shi‘a and Sufi communities, noting that they “are becoming increasingly systematic and reflect elements of an organisational policy, and therefore have the characteristics of crimes against humanity”.
Already persecuted under the previous Taliban government, the Ahmadis fare no better now since they are considered heretical, non-Muslims. Before August 2021, an estimated 450 lived in the country. Some were allegedly detained by the Taliban. Quoting the Ahmadi leader, Caliph Hazrat Mirza Masroor, Press Ahmadiyya tweeted: “Ahmadi Muslims in Afghanistan are undergoing extreme difficulties and some have even been detained.” The International Human Rights Committee (IHRC) reported that at least 13 Ahmadi Muslims remain imprisoned after being arrested during Eid-ul-Adha in 2022.
Most non-Muslim Afghans fled after the Taliban ruled between 1996 and 2001, but a few remained. They now live under the threat of persecution, particularly Bahai’s, Buddhists, Zoroastrians and Christians.
Christianity is seen as a western religion and alien to Afghanistan. Even before the Taliban seized power, Christians reported strong hostility in public opinion, on social media and elsewhere towards converts to Christianity and the concept of Christian proselytising.
Afghan Christians used to worship alone or in small groups in private homes. In 2019, as converts had more and more children, many decided to include their religion in their identity papers so that their offspring would not have to hide their faith, but only 30 Christians managed to do so before the Taliban were back in power.
After one hundred years, Afghanistan is left without a Catholic presence. Father Giovanni Scalese, a Barnabite priest and superior of the sui iuris mission in Afghanistan, which has been present in the country since 1921, was forced to return to Italy on 26 August 2021, along with five nuns, some from Mother Teresa's Missionaries of Charity, plus one nun serving with Pro Bambini di Kabul (PBK), an inter-congregational NGO. The latter said of her last days in Afghanistan: “It was a very difficult time, we were locked in our houses and we were scared.” At the time, Fr Scalese was the only Catholic priest still present in Afghanistan.
According to the Sikh and Hindu Council of Afghanistan, their community had approximately 550 members in 2020, down from 900 members in 2018. Even before the Taliban came back, Sikh temples had been targeted, with IS-KP claiming responsibility, like the attack against the Har Rai Sahib Gurdwara in Kabul on 25 March 2020 that killed 25 people. As the Taliban advanced towards Kabul in August 2021, some Hindus and Sikhs took refuge in a Sikh temple in the capital, while others tried to flee, especially to India, whose government helped Sikhs and Hindus leave Afghanistan.
In October 2021, fewer than 250 Hindus and Sikhs are believed to have remained in the country. Reports reached the United States Commission on International Religious Freedom (USCIRF), noting that soon after the Taliban takeover, armed men from the new authorities visited the Sikh Gurdwara in Karte Parwan, a Kabul neighbourhood, asking Sikhs and Hindus not to leave Afghanistan,
By the end of the 20th century, almost all Afghan Jews had emigrated to Israel because of the lack of security. After the Taliban took over, what was believed to be the last Jew still in the country, Zebulon Simentov, tried to stay, but in September 2021, he too left Kabul. However, weeks later, a woman who had fled abroad after the seizure of Kabul, a Simentov's distant cousin, also claimed to have always kept her Jewish faith, despite being married to a Muslim.
Regarding the Baha’i community in Afghanistan, there is little information. The community has lived in relative anonymity after the 2007 statement by the General Directorate of Fatwas and Accounts of the Supreme Court of Afghanistan, which declared that the Baha’i faith is blasphemous and that its followers are infidels.
Afghanistan’s Uyghur Muslims, who number around 2,000 to 3,000, are also an endangered minority. Given the Taliban’s close relations with China, which the group described as their “main partner” to rebuild the country, Uyghur now fear both for their lives in Afghanistan and possible repatriation and persecution in China.
Incidents and developments
The period under review saw a radical change in the country’s situation, following the Taliban's seizure of power, with very serious consequences for human rights, especially those of minorities, including religious freedom.
On 20th July 2022, the United Nations Assistance Mission in Afghanistan (UNAMA) released a report outlining the human rights situation in the country in the first 10 months since the Taliban takeover.
UNAMA recorded 2,106 civilian casualties, mainly attributed to targeted attacks by IS-KP against ethnic and religious minority communities, in places where they go to school, worship, and conduct their daily lives.
UNAMA expressed particular concern about the impunity with which members of the de facto authorities appear to commit human rights violations. The report details extrajudicial killings, as well as cruel, inhuman, and degrading punishments and extrajudicial executions of persons accused of “moral” crimes and the use of excessive force by law enforcement agencies.
In their first 10 months in government, the Taliban were responsible for 237 extrajudicial killings, 113 arbitrary arrests and detentions as well as 118 instances of excessive use of force. They also violated the human rights of 163 journalists and media workers and 65 human rights defenders. In addition, 217 instances of cruel, inhuman and degrading punishments were reported after 15th August 2021. These include punishments inflicted on people accused of zina, i.e., unlawful sex; case in point, on 14th February 2022, a man and a woman were stoned to death in Badakhshan province, north-eastern Afghanistan, because they were found guilty of adultery.
In December 2022, the United Nations issued a statement calling on the Taliban to immediately stop public flogging and executions, which included doubts about the legal process that led to these punishments, which do not seem to have met the basic guarantees of a fair trial.
As pointed out, many of the attacks on religious minorities have been the work of IS-KP. Shi‘a Hazara have been the most affected by assaults claimed by or attributed to this jihadi group.
A recent episode was the attack at the Kaaj Education Centre in Kabul's Dasht-e-Barchi neighbourhood, a predominantly Shi‘a Hazara area, scene of several gruesome attacks in recent years. On 30th September 2022, a suicide bomb attack ripped apart the educational facility, killing 54 people, mostly young Hazara women.
According to Human Rights Watch, since the Taliban took over Afghanistan, the Islamic State affiliate has claimed responsibility for 13 attacks against Hazaras and has been linked to at least three more, killing and injuring at least 700 people. The Taliban’s growing crackdown on the media, especially in the provinces, means additional attacks are likely to have gone unreported.
Among the major attacks against the Hazaras, of note was that of Friday, 7th October 2022, when a suicide bomber blew himself up at a mosque in the north-eastern province of Kunduz, killing dozens of worshippers in what was the third attack on a religious site in a single week. The Islamic State claimed responsibility in this case, which is believed to have killed between 70 and 80 people. The following week, more than 40 people were killed and dozens more wounded after blasts tore through a Shi‘a mosque during Friday prayers in the city of Kandahar.
The Taliban also continued to target the Hazaras, as they did when they were in power in 1996-2001. According to Human Rights Watch, in early October 2021, the Taliban and associated militias forcibly evicted hundreds of Hazara families from the southern Helmand province and the northern Balkh province. These followed earlier evictions from Daikundi, Uruzgan, and Kandahar provinces. An investigation by Amnesty International blamed the Taliban for the brutal murder of 13 ethnic Hazaras – including nine former government soldiers who had surrendered, and a 17-year-old girl – in Daykundi province on 30th August 2021.
The Sufi Muslim group was also targeted during the period under review, particularly in the early months of 2022. On 29th April, the Sahib Khalifa Mosque, one of the most popular Sufi sites in Kabul, was full of worshippers preparing for the Eid al-Fitr festival, when a powerful explosion killed more than 50 after the Friday prayer.
A few days earlier, the Mawlawi Sekandar Sufi Mosque in Kunduz province was also attacked during Friday prayers, resulting in the death of at least 33 people. In August 2022, a prominent Sufi scholar was killed. Just a week later, another attack occurred, an explosion inside the Siddiquiya Mosque in Kabul, killing 21 people. After the last attack, The United Nations Assistance Mission in Afghanistan (UNAMA) called on the Taliban authorities to take concrete steps to prevent all forms of terrorism in the country and bring to justice those behind such attacks.
Prospects for religious freedom
Even before 15th August 2021, Afghanistan was a country on its knees after 40 years of war, recurring natural disasters, chronic poverty, drought and the COVID-19 pandemic with more than 24 million people in need of humanitarian assistance. The coalition forces, during their time in Afghanistan, did not see to it that human rights were regulated, promoted or protected. Additionally, the coalition forces did not ensure the registration of non-Sunni religious communities, resulting in a total lack of records of their existence. Despite initial promises of respect for human rights and inclusiveness, the Taliban regime is taking away what little rights and prospects Afghans had.
This is compounded by intense terrorist activity. For the fourth consecutive year, the 2022 Global Terrorism Index ranked Afghanistan as the world's most terrorism-affected nation. This is certainly linked to the actions of the IS-KP, which, after an initial setback following the Taliban's seizure of Kabul, has regained momentum, also thanks to the release of many IS-KP fighters held in Afghan prisons, including the suicide bomber responsible for the Kabul airport attack of August 2021. At present, the IS-KP is increasingly active in different parts of the country, carrying out attacks against ethnic and religious minorities. Despite promises, the Taliban have failed to stop these attacks.
As for al-Qaeda, given this background, whether and how it will reposition itself remains to be seen after the death of its long-time leader Ayman al- Zawahiri, killed by US drones on 31st July 2022 in Kabul, where the mastermind of 11th September 2001 attacks had found refuge after the Taliban came back to power.
It is clear that in a context of systematic violation of human rights, the situation of minorities and religious freedom is much worse than before the Taliban took over. To cite Fereshta Abbasi, a Human Rights Watch researcher, “Religious freedom does not exist in Afghanistan”.
Afghanistan