Hamid Karzai’s recent acceptance of Islamic law as a basis for a future legal system in Afghanistan has created a stir among western leaders. German officials are concerned about the country’s democratic commitment.
Afghanistan's Chief Justice Fazel Hadi Shinwari says Sharia will still apply in Afghanistan
The question of Afghanistan’s future is anything but certain. Western observers listening to Hamid Karzai’s speech in front of the Loya Jirga in June were reminded of the country’s fragile position between Islamic fundamentalism and democratic values. The issue of Sharia, or Islamic law, is one of special concern.
"Afghanistan shall be ruled by an Islamic government," then interim-President Karzai told the 1,600 delegates from all across the country on June 17. "The new judicial system will be based on the principles of the Koran."
In his speech, Karzai avoided directly mentioning the term Sharia, and his wording corresponded to the principles laid down in last November’s Petersberg Agreement on Afghanistan’s future that was negotiated in Germany. But his remarks have raised eyebrows among Western politicians who fear a return to hardline political structures similar to those in place under the Taliban regime.
In Germany, Karzai is considered a moderate force, a ‘best choice’ in a country deeply divided along ethnic and religious lines. Yet his remark needs to be viewed against the backdrop of the Loya Jirga meeting, when radical Islamic circles called for the incorporation of the Sharia into Afghan law.
Another reason for concern in the West is the reappointment of Fazel Hadi Shinawari as Chief Justice in Afghanistan. Fazel Hadi Shinawari is a conservative who in the past has been a proponent of applying the Sharia in court decisions. Amidst the political turmoil of political reconstruction, however, the greatest worry for western observers is the uncertainty of where Afghanistan is heading.
Since the international donor’s conference for Afghanistan in Tokyo earlier this year, western governments have been hoping to encourage democratic development in the war-torn country through financial incentives. Germany alone has earmarked some €80 million ($79 million) each year for the reconstruction of Afghanistan -- that is a ‘democratic’ reconstruction of Afghanistan, as Germany’s Minister for Economic Cooperation and Development, Heidemarie Wieczorek-Zeul, were quick to point out shortly after Karzai’s speech to the Loya Jirga.
"If those who are in charge in Afghanistan today fall back on the Sharia with its draconian laws, they are drifting away from the commitment they made in the Petersberg Agreement, namely to pave the way for democracy and constitutionality," Wieczorek-Zeul said.
The Sharia is an all-encompassing code that covers all aspects of Muslim life. Although it’s most often associated with its radical judicial measures, the Sharia also includes a set of positive guidelines, for instance asking Muslims to grant hospitality to foreigners. In its most extreme form, however, the Sharia calls for rigorous punishment, such as the cutting off of hands for theft, or the stoning of those who commit adultery. There are equally harsh punishments for drifting away from the Islamic faith.
Since mid-June, the question of the Sharia in Afghanistan has reverberated throughout the German government. After last week’s G8-summit in Canada, German Chancellor Gerhard Schröder condemned it as a "medieval legal system." And during a human rights debate in the German Parliament last Friday, German Foreign Minister Joschka Fischer said, "a return to the Sharia is not acceptable to us because it’s not compatible with the human rights positions that have shaped our country."
While German government officials are quick to use the term ‘Sharia’ as a shorthand to refer to judicial extremism in Muslim countries, German scholars and human rights activists caution people to be patient and provide political assistance for Afghanistan.
German Islamic scholar Christine Nölle-Karimi recently returned from a visit to Afghanistan, where she was able to gain insight on the current situation. She warns that political threats won’t help but would instead isolate the country from the West. "There is no tradition of pluralism in the country. That has to evolve over time. The West should not overreact, but it should exercise some degree of political influence to guide the process," she told DW-WORLD.
Karola Schaaf, spokesperson of Amnesty International’s German Afghanistan Group, says in the current discussion it’s important to remember that the Sharia is not being re-introduced in Afghanistan but has been the country’s legal practice since 1992. How it is being applied, she says, is a question of the ruling government as in the case of other Muslim countries like Saudi Arabia.
"So far, under the interim government, and in the short time after establishing the new government, no cases of draconian punishments like the chopping off of hands has occurred. Karzai is a moderate figure, and the court cases have to be approved by him," Schaaf told DW-WORLD. In other words, the court cannot simply decide on its own to sentence individuals to capital punishment. Schaaf believes that over the course of the next one and a half years, the time required to draw up a new charter for Afghanistan, a constitutional structure might evolve that combines Islamic as well as democratic components.
Whatever the outcome of the constitutional process in Afghanistan, the result will most likely differ from what western leaders envision. And that’s probably hardest for the West to accept.