STRENGTHENING DISPLACED WOMEN’S HOUSING, LAND AND PROPERTY RIGHTS

IN AFGHANISTAN

Jelena Madzarevic

NRC Afghanistan

25 March 2014

Land and Poverty Conference

Wold Bank, Washington, D.C.

Norwegian Refugee Council Founded in 1946; active in Afghanistan since 2003; aid

for the displaced and displacement-affected persons Information, Counselling and Legal Assistance

(ICLA): housing, land and property (HLP) and legal identity (3,320,000 Afghan beneficiaries)

Both statutory and customary dispute resolution (civil law)

Legal capacity building in inheritance, family, property law, int’l human rights law (19,500 Afghan beneficiaries)

Gender focus

Introduction Women’s security of tenure achieved mostly through their

relationships with men – inheritance and mahr/dower as the main tools of land acquisition for (displaced) women

Research purpose: identifying challenges in women’s access to HLP rights, recommending interventions (gov’t, donors, partners), facilitating critical thinking

Research questions: what are the challenges in women’s access to HLP; scope of legal protection; international community’s involvement; possible solutions

Research sources: database (1,650 inheritance and mahr cases up to 2013) and selected caseload, key-informant interviews and desk research

Context Displacement: 76% of Afghans; 5.7

million refugee-returnees, 620,000 IDPs and increasing

Specific vulnerabilities (earning 23-47 times less than males, high % of widows, high GBV incidence)

HLP circumstances (land grabbing, lack of physical access, lack of documentation, traditional protection vs economic stability / independence)

Dispute Resolution Mechanisms

Competing justice sectors Statutory justice: weak geo

presence, no qualified staff, gender imbalance, procedural burdens, corruption, implementation etc.

Traditional justice (jirgas, shuras, mediation): no qualifications, obsolete norms, no women, inconsistent decisions, corruption etc.)

Retributive vs restorative

Legal Frameworks International human rights law – rights to property,

privacy/home, adequate standard of living, non-discrimination (UDHR, ICESCR, ICCPR, CEDAW, Islamic...)

National law: Shari’ah (Hanafi) and Shari’ah-based statutory law (Constitution: int’l law v Shari’ah, IDP Policy, Civil Law, Family Law, EVAW), customary

Relatively good legal framework for protection of women’s HLP rights

However, 2:1 discriminatory ratio in inheritance (”compensation argument”) and Shari’ah limitations to mahr in women-initiated separation (khul)

Ground Realities Economic aspects: lack of money (26% destitute widows),

submission to interests of others (family interventions NOT to claim inheritance, husband as a proxy), unbearable costs (transport, mahram, witnesses, administrative fees, bribes)

Socio-cultural aspects: social disruption stigma, family protection v inheritance, mahr manipulations (e.g. custody), lack of rights awareness (rural), restricted movement, detrimental customary practices (mixing mahr with other, family payments, shame/begging), bias in justice sectors

Institutional aspects: lack of documentation (so 50%+19% inheritance cases before jirga and mediation, 22% court, rest admin.; 39%+28% mahr cases mediation and jirga, 33% court), lack of legal aid, no decision implementation (no gov’t presence, corruption), tolerance of coercion and violence

Stakeholder Interventions Focus imbalance: generic (HLP, women’s empowerment,

justice) vs target areas (HLP legal aid for women, HLP and displaced women)

Programming gaps and challenges: lack of functional (legal aid) coverage (NRC, LAOA; independent; referrals critical), geographical coverage, emphasis on (psycho-physical) violence against women, M&E (quantitative vs qualitative, no reliable/consolidated database and unified data collection tools), coordination (different/hum. vs develop. mandates, macro vs micro issues, HLP TF, WLR TF, GBV sub-cluster)

Way forward: environment and on-the-ground capacity building, sustainability, access, local focused advocacy

Recomendations...

Main/summary points to be acknowledged: Women’s access to HLP rights should be considered a

priority, being a source of women’s economic empowerment and overall social development

Violation of HLP rights is economic violence and should be treated equally to other forms of violence

Compliance of both laws and practice with international standards is crucial

Prompt implementation of IDP Policy is needed

(continued...)

Addressing practical and institutional obstacles to justice for women: recognizing official and hidden costs, strenghtening legal aid (hosting legal aid centres, raise awareness on the existing), decreasing logistical obstacles (allow geographical jurisdiction transfer), improve, mobilize local women support groups, promote compulsory marriage and land registration (incentives), expand statutory justice coverage (mobile courts/admin units) etc.

Strengthening stakeholder interventions and coordination: improving implementation of existing legal framework (EVAW), participatory approach in legislative processes, temporarily de-link economic and other forms of VAW, improve qualitative data management, coordination (liaise with existing gender networks), prioritize programmatic approach (vs project), sub-national capacity

Building awareness and advocacy: tailored training/ToT sessions (women’s shuras, local mullahs, children and youth, men), legitimate and mobile trainers (Shari’ah professors, female teachers/nurses), simple Shari’ah-based messages, media and technology etc.

Thank you!