LEGAL FRAMEWORK

According to the Taliban, Hanafi jurisprudence is the basis for the country’s legal system. The Taliban largely imposes its policies on citizens through guidelines or recommendations issued by its so-called emir, Haibatullah Akhundzada, specifying acceptable behaviors the Taliban justifies under its interpretation of sharia and prevalent cultural norms it considers acceptable. While the Taliban has not explicitly purported to abrogate specific laws, it has continued to emphasize its view that it governs in accordance with sharia and rejects any law that contravenes it. Taliban members have stated they follow only the portions of the 2004 and 1964 constitutions that do not contradict sharia. Some observers also state neither of the two constitutions is fully in effect, so they have limited relevance to any legal framework in operation. According to these observers, any formal departure from the 2004 constitution would be significant, insofar as the constitution states that followers of religions other than Islam are “free to exercise their faith and perform their religious rites within the limits of the provisions of the law,” a provision the Taliban rejects.

Under sharia, seven offenses make up hudood crimes (crimes that carry specific penalties under Islamic law). Conversion from Islam to another religion is apostasy, according to the Hanafi school of jurisprudence. If the individual does not recant his or her conversion from Islam within three days, then he or she shall be subject to punishment for apostasy. According to Hanafi jurisprudence, beheading is appropriate for male apostates, while life imprisonment is appropriate for female apostates, unless the individual repents. A judge may also impose a lesser penalty, such as short-term imprisonment or lashes, if doubt exists as to the individual’s status as an apostate. Under Hanafi jurisprudence, the government may also confiscate the property of apostates or prevent apostates from inheriting property. This guidance applies to individuals who are of sound mind and have reached the age of maturity.

Civil law states that the age of maturity for citizens is 18, although it is 16 for women to marry. Islamic law defines age of maturity as the point at which one shows signs of puberty, and puberty is usually applied as the marriageable age, particularly for girls.

Proselytizing to try to convert individuals from Islam to another religion is also illegal according to the Hanafi school, which is applied in the courts. Those accused of proselytizing are subject to the same punishment as those who convert from Islam. According to Hanafi jurisprudence, some hadiths (sayings or traditions from the Prophet Muhammad that serve as a source of Islamic law or guidance) suggest discussion and negotiation with an apostate to encourage the apostate to recant.

Blasphemy, which may include anti-Islamic writings or speech, is a capital crime, according to the Hanafi school. Accused blasphemers have three days to recant or face death, although there is no clear process for recanting under sharia.

A 2007 ruling of the Supreme Court of Afghanistan states that the Baha’i Faith is distinct from Islam and is a form of blasphemy. Baha’is are labeled infidels, and all Muslims who convert to the Baha’i Faith are considered apostates.

Under sharia, a Muslim man may marry a non-Muslim woman, but the woman must first convert if she is not an adherent of a faith that follows either the Quran, the Torah, the Bible, or the Zabur (Book of David or Psalms). It is illegal for a Muslim woman to marry a non-Muslim man.

Ministry of Interior-issued national identity cards indicate an individual’s religion as well as nationality, tribe, and ethnicity. Individuals are not required to declare belief in Islam to receive citizenship.

The Ministry of Hajj and Religious Affairs (MOHRA) is responsible for managing Hajj and Umrah pilgrimages, revenue collection for religious activities, acquisition of property for religious purposes, issuance of fatwas, educational testing of imams, sermon preparation and distribution for government-supported mosques, and raising public awareness of religious issues.

The country is a party to the International Covenant on Civil and Political Rights.

PRACTICES OF THE TALIBAN “CARETAKER GOVERNMENT”

During the year, Taliban leaders continued to state they administered the country in accordance with sharia, an assertion some Islamic scholars in the country and abroad challenged.

The Taliban did not announce a clear and cohesive legal framework or judicial system. In some provinces and districts, courts were in session, but it was unclear what system of law, procedures, and sentencing guidelines they used. Taliban leaders again issued decrees specifying acceptable behaviors under their interpretation of sharia and describing them as “guidelines” or “recommendations.” These decrees were often unevenly enforced.

According to the International Development Law Organization, the Taliban had initiated a process to assess criminal and civil laws to filter out those contradicting the Taliban’s interpretation of sharia. Observers said this departure from the 2004 constitution was significant because the constitution stated that followers of religions other than Islam are “free to exercise their faith and perform their religious rites within the limits of the provisions of the law,” which was no longer the case under the “caretaker government” announced by the Taliban in August 2021. According to some sources, the Taliban’s supreme leader verbally ordered the cancellation of all the laws of the republic and the application of those laws in Taliban courts. Punishment is reportedly no longer based on penal laws, but rather, on sharia interpretation of punishment, which states punishment should not be defined and it is the judge’s prerogative to determine what type of punishment should be imposed.

The Taliban continued to state they intended to draft a new constitution but had not publicly announced one by year’s end. According to Washington Post reporting, Taliban judges said they either burned the books containing laws from before August 2021 when they moved into abandoned courthouses after the 2021 takeover or left the legal volumes untouched on the shelves.

Abuses Involving Violence, Detention, or Mass Resettlement

Because religious and ethnic identities are often closely linked, it was difficult to categorize many incidents as being solely based on religious identity.

According to the annual report of the UN High Commissioner for Human Rights, released in February, “Despite some progress over the last two decades, minorities in Afghanistan have never enjoyed full protection of their human rights, and this is the case with religious minorities in particular. Discriminatory provisions in the legal framework and inadequate recognition of group rights have led to the further marginalization of religious minorities, particularly impacting their right to participate in public and political affairs.”

On January 22, unidentified gunmen shot and killed Salafi cleric Mawlawi Laeeq in Kapisa Province. According to media and local sources, this killing was one of dozens in which Salafi practitioners were killed throughout the country since the Taliban takeover in August 2021, all of which Salafi followers directly blamed on the Taliban. Thousands of Salafi followers and practitioners fled the country to Turkey and Pakistan after the Taliban takeover.

In late September, members of the Hazara community accused the Taliban of “persecuting” them, citing, for example, that on or about September 20, the Taliban detained a Hazara man and his son on the road to Uruzgan and later beheaded them. According to sources in the Hazara community, the Taliban’s “killing, torture, and forced displacement” of ethnic Hazaras and seizure of their lands and houses continued in Bamiyan, Daikundi, Maidan Wardak, Baghlan, Balkh, Kunduz, Badakhshan, Herat, Ghazni, Kandahar, Uruzgan, Takhar, Samangan, and Sar-e Pul Provinces.

On September 25, media outlets reported that the leadership of the Islamic Unity Party of Afghanistan had criticized the Taliban for “not taking action to prosecute the perpetrators [of a recent killing in Uruzgan] and ensure the safety of the people of Uruzgan,” saying the “genocide of the Hazara that began decades ago continues under the Taliban.”

Religious minorities continued to be particularly at risk and faced numerous violent attacks and broader societal discrimination, and the Taliban did not protect spiritual and religious temples of non-Muslims in the country. An ever-dwindling number of Sikh and Hindu citizens expressed concerns regarding their security and safety under the “caretaker government” announced by the Taliban, saying they risked being tried by strict Taliban-appointed judges if they took their grievances to court. On January 18, representatives of the Sikh and Hindu communities told local media in Kabul that after the Taliban takeover, more than 900 Sikh and Hindu citizens had left the country and only a small number of them remained. Man Mohdsang Khurana, in charge of Sikh and Hindu temples in Kabul, said, “More than 1,000 Sikh and Hindu citizens were present in Afghanistan when the Taliban took over and the “Islamic Emirate” promised them security. But after the attack [on their temple] in [the] Karte Parwan [neighborhood of] Kabul at the end of 2022, most Sikhs and Hindus left the country.” During the year, Sikh community members reportedly attempted to gain Taliban’s permission to transport their holy book outside the country. Although the Taliban denied the request, stating the book was an historical asset, Sikh community members transported the holy book to India in February.

On August 14, the UN Office of the High Commissioner for Human Rights issued a report stating, “Two years ago, the Taliban seized power in Afghanistan. Since then, the policies they have imposed on the Afghan population have resulted in a continuous, systematic, and shocking rescinding of a multitude of human rights, including the rights to education, work, and freedoms of expression, assembly, and association. Consistent credible reports of summary executions and acts tantamount to enforced disappearances, widespread arbitrary detention, torture, and ill treatment, as well as arbitrary displacement, have caused increased concern. The hardest hit are women and girls, ethnic, religious, and other minorities, people with disabilities, displaced persons, LGBTQ+ persons, human rights defenders and other civil society actors, journalists, artists, educators, and former government and security officials.” The authors of the report called on the Taliban to “enforce strict measures to prevent discrimination against ethnic and religious minorities, and to guarantee their representation and meaningful participation in decision-making processes.”

Media outlets reported the Taliban detained and publicly punished individuals for “moral crimes” under its interpretation of sharia, which includes adultery and drug use. Following the Taliban takeover and the so-called Taliban emir’s November 2022 guidance to fully enforce sharia punishments for hudood offenses, the Taliban publicly flogged hundreds of men and women for alleged adultery, drug crimes, theft, and other offenses. During the first half of 2023, the Taliban publicly flogged 274 men, 58 women, and two boys, according to the UN Assistance Mission in Afghanistan (UNAMA). The Washington Post further reported that prisons in the country were overcrowded with prisoners detained for such “moral crimes,” with detainees often waiting months before being formally accused.

Former social workers, lawyers, and women who had lived at shelters for abused women, which the Taliban closed, confirmed that detentions of women trying to escape domestic abuse had risen.

Abuses Limiting Religious Belief and Expression

According to numerous NGO leaders and members of minority religious groups, including Sikhs, Hindus, Christians, and Ahmadi Muslims, members of these communities continued to seek resettlement outside the country, fearing the enforcement of the Taliban’s interpretation of sharia would lead to further persecution and harm.

In an April 22 an article by London-based Afghanistan International, Mahdi Rasikh, a former member of parliament, reported that the Taliban forced Hazara residents of Daikundi Province to break their Ramadan fast a day early, on the Sunni timetable for breaking the fast, rather than the Shia one; he added that those who disobeyed the Taliban were beaten and imprisoned. Taliban in Balkh Province reportedly ordered Shia community members to observe Eid al-Fitr according to the ruling of Taliban leaders, who say they follow Sunni jurisprudence. Reportedly on July 9, the Taliban also prevented Shia followers from conducting the Shia festival Eid al-Ghadir in Kabul, Balkh, Herat, and Daikundi Provinces.

On July 13, ICC, an NGO dedicated to assisting persecuted Christians worldwide, reported, “The state of religious freedom and Christian tolerance in Afghanistan has not improved since ICC reported Afghanistan as one of the worst places in the world to be a Christian in the 2022 Persecutor of the Year report. The Taliban are working to completely erase Christianity or any religious minority from the country, even stating that there are no Christians in Afghanistan, an obviously false claim. Many Christians have gone underground to avoid being kidnapped by the Taliban ‘courts.’”

Abuses Involving the Ability of Individuals to Engage in Religious Activities Alone or In Community with Others

According to MOHRA officials, during the year, 7,000 mosques were officially registered with the Taliban in addition to the tens of thousands of unregistered mosques operating in the county. According to one official, even unregistered mosques received government support and benefits. Multiple sources throughout the country reported that the Taliban had replaced hundreds of imams with Taliban-approved imams. On August 15, the Taliban`s so-called Minister of Education, Mawlawi Habibullah Agha, said there were 15,000 madrassahs, including “jihadi” madrassahs, operating across the country. During a visit to Nuristan Province on June 29, the so-called Minister of Education said Haibatullah Akhundzada, the Taliban’s so-called emir, had approved a proposal to create 100,000 new positions in public madrassahs across the country.

In advance of the holy month of Muharram (the first and one of the most sacred months of the Islamic calendar) in July, the Taliban reportedly established a special Muharram Committee to reduce, from five to three, the number of mosques that Shia congregants could visit during Ashura mourning ceremonies on the 10th day of Muharram. According to local sources, the Shia Ulema Council (a group of Muslim religious scholars and chief religious authorities) and Shia religious figures did not voluntarily come to an agreement with the Taliban on how to celebrate Muharram, but rather, the Taliban said the Shia community had no alternative but to accept the Taliban’s proposed restrictions, which reportedly came from the Taliban’s so-called emir. On the seventh day of Muharram (July 25), the Taliban violently dispersed a gathering of Shia mourners in a predominantly Shia neighborhood in Kabul’s; on the 10th day of Muharram (July 28), the Taliban reportedly severed all telephone networks, deployed armed security forces to Shia residential areas, and prevented Shia worshippers from marching in religious processions.

On October 31, media outlets reported the Taliban had opened “jihadi” religious madrassahs in 10 provinces, each capable of hosting 1,000 students. According to reports, the Taliban intended to establish 10 “jihadi” madrassahs in each district of the country, a total of approximately 4,000 “Jihadi” madrassahs, which the Taliban said they would administer separately from the other madrassahs. Multiple sources reported that, in addition to religious topics, the Taliban had developed a violent extremist curriculum for these madrassahs that included military training in support of its purported aim to maintain control of the country through violent means if necessary.

On September 6, the Organization of Islamic Cooperation issued a statement at the conclusion of a four-day trip to the country, stating it had “stressed the need to exert all effort to enable boys and girls to enroll in all levels of education and all specializations needed by the Afghan people at this critical stage in their history” during its meetings with Afghan so-called ministers. The statement added, “During the meetings, both sides stressed that education is an Islamic obligation for both men and women, with the consensus of the Ummah (Muslim community) scholars.” Observers noted, however, that the Taliban definition of “education” for girls consisted of only religious education, not traditional academic subjects.

The Taliban continued to restrict educational access for girls. Although Taliban representatives stated in 2021 that all girls would be allowed to attend school starting in March 2022, when most schools in the country would reopen after winter recess, the Taliban subsequently announced girls would not be allowed to attend secondary school. According to UNICEF, more than one million girls were affected by the ban on girls’ access to secondary education. In December 2022, the Taliban extended this restriction to universities. Girls, however, were allowed to attend madrassah programs. According to media reports in March, female students at madrassahs in Parwan Province had increased by at least 10 percent since 2022. Sources from Badakhshan, Herat, Kabul, and other provinces also reported significant increases in the enrollment of boys and girls at madrassahs compared with prior years. Some sources reported the Taliban continued to maintain that rules of school attendance must accord with the Taliban’s interpretation of sharia, including requiring gender segregation, appropriate transportation, and dress and behavior codes. At year’s end, girls and women had not been permitted to return to secondary school or university.

Reportedly, no special schools for Sikh and Hindu children remained open and there were no Sikh or Hindu children in the country.

After the August 2021 takeover, Taliban representatives said they would retain the existing school curriculum for nonreligious subjects but would change any part of it that contradicted their understanding of Islam and sharia. The Taliban announced on multiple occasions its intention to review and revise the curriculum in view of “Afghan culture.” As of year’s end, no changes to the curriculum had been announced.

On September 10, the Taliban banned the teaching of Shia jurisprudence in all schools, including private schools, throughout the country.

On September 26, Taliban spokesman Zabihullah Mujahid announced the so-called Taliban emir had completed the formation of new Ulema Councils, to replace Ulema Councils existing before the 2021 Taliban takeover, for all provinces. Mujahid stated the new councils were established to “increase coordination between citizens and the interim government,” adding that the councils were composed of religious clerics and tribal elders. The so-called emir reportedly did not include Shia clerics in any of these councils, even in the nine provinces (Herat, Balkh, Samangan, Sar-e Pol, Ghor, Daikundi, Maidan Wardak, Bamiyan, and Ghazni) with sizable Shia populations.

Women of all faiths, including Sunni and Shia Islam, reported that the Taliban continued to impose a slate of restrictions upon their dress and movement in society based upon the Taliban’s strict interpretation of sharia. On August 25, Mohammad Khalid Hanafi, the Taliban’s so-called Minister for the Propagation of Virtue and the Prevention of Vice (MPVPV), announced that women would no longer be able to visit the popular Band-e-Amir National Park in Bamiyan Province, stating that women visiting the park did not adhere to the “proper” way of wearing the hijab and that “going for sightseeing is not obligatory” for Muslims. A November 2021 Taliban decree from the Taliban’s so-called MPVPV mandated eight rules for media outlets, including bans on dramas and television shows featuring female actors. A December 2021 decree by the same so-called ministry stated that women travelling more than 78 kilometers (47 miles) from their residence should not be offered a ride if not accompanied by a close male family member. Observers said, however, that enforcement of these restrictions was inconsistent during the year.

Abuses Involving Discrimination or Unequal Treatment

According to Hazara representatives, while the Taliban had not formally published discriminatory policies toward ethnic and religious minorities, it in effect had marginalized Hazaras, including by severely limiting their presence in the Taliban’s “caretaker government.”

Members of minority religious groups said fear of persecution by the Taliban and societal discrimination continued to cause members of religious minorities to refrain from publicly expressing their faith. According to media reports, Christians, Ahmadi Muslims, Baha’is, Hindus, and Sikhs had even further withdrawn from participation in public activities, with most in hiding or opting to leave the country.

Minority religious groups continued to report worsening discriminatory treatment by the Taliban, and they feared they risked being tried according to the Taliban’s strict interpretation of Hanafi jurisprudence if they took their grievances to court. Hazaras said they faced such discrimination at university admissions, admission to mosques for prayers, and within the civil service.

During the year, multiple sources, including UN Special Rapporteur on the Human Rights Situation in Afghanistan Bennett, accused the Taliban of “systematic” attacks against and marginalization of the minority Shia Muslim population in an effort to force them to leave country. A Hazara source said he knew of cases in which Taliban leadership expressly prohibited the participation of Shia Muslims in high levels of their “caretaker government.” This source said a high-ranking member of the Taliban referenced a verse of the Quran that says, “Muslims should not make the infidels brave over the Muslims,” inferring that the Taliban considered Shia Muslims to be infidels. Because religious and ethnic identities are closely linked, it was difficult to categorize many instances of discrimination or unequal treatment as solely based on religious identity.

On November 3, Narendar Singh Khalsa, former member of parliament and representative of the Sikh and Hindu communities in the lower house, said Sikh and Hindus in the country had lost hope for a future in the country after two years of empty Taliban promises to take substantial action to address longstanding security concerns, grievances, and requests of the Sikh and Hindu communities. He said that faced with this grim reality, “Sikhs and Hindus have abandoned their properties, homes, and shops, and, feeling unsafe in Afghanistan, made the decision to leave everything behind and depart the country in a state of profound despair.”

Deputy Taliban spokesman Qari Muhammad Yousef Ahmadi told the Washington Post in February that “the rulers are compelled to make efforts to create an Islamic sharia system and bring reforms to [Afghan] society.” He said imposing the Taliban’s interpretation of Islamic law “is a blessing for the government, the people, and it pleases God.”

In the same article, Mawlewi Ahmad Shah Fedayee, a prominent imam with close ties to the Taliban, said Taliban rule had improved the lives of all Afghans, including women, and given the everyone greater freedom of speech. “Before, women were forced to work, to labor, but now they are kept at home and treated like a queen.”

Other Developments Affecting Religious Freedom

In July, the so-called spokesperson for the MOHRA reported a notable increase in the number of Afghan pilgrims participating in the 2023 Hajj, with the ministry’s count reaching 30,000. This marked a substantial rise from the estimated 13,000 Afghan pilgrims who undertook the journey in 2022. The so-called spokesperson further explained that this expansion of the quota for Afghan pilgrims to 30,000 was made possible through diplomatic discussions with the Saudi government. Among the year’s Afghan pilgrims, 8,000 were women.