Committee on Economic, Social
and Cultural Rights
14 May 2010
The Committee on Economic, Social and Cultural Rights has considered the combined second to fourth periodic report of Afghanistan (E./C.12/AFG/2-4) on that country's implementation of the provisions of the International Covenant on Economic, Social and Cultural Rights.
Introducing the report, Mohammed Qasim Hashimzai, Deputy Minister of Justice for Afghanistan, said major gains had been made in adopting laws to strengthen the framework and mechanisms for human rights in Afghanistan. The Independent Afghan Human Rights Commission had been established in 2001 and laid the initial foundation to address human rights issues in Afghanistan. The country had also adopted the Law on the Elimination of Violence Against Women, which made violence against women a crime whether committed at home or elsewhere and prescribed sentences for perpetrators. In addition, the Ministry of Women Affairs had been established, a draft law on family planning was under review, and the Shiaa Personal Status Law had been reviewed and adjusted to harmonize it with the Afghan Constitution and international human rights treaties. Other steps that had been taken to strengthen the human rights protection mechanisms were a new Media Law, which guaranteed freedom of speech and publication, and provided a better environment for journalists by protecting them for undue intimidation, violence, and censorship.
Mr. Hashimzai went on to say that despite all the efforts and commitments on the part of the Government in fulfilling its obligations on human rights, including economic, social and cultural rights, Afghanistan still faced a number of challenges that had slowed its progress and created obstacles to their efforts to fully realize their goals in the area of human rights. Insecurity in some parts of the country had impeded economic and social development. The scarcity of resources to finance nationwide welfare programmes, in particular for the most vulnerable people including the disabled, children, and women, was another challenge which required due attention. Afghanistan also needed to take steps to review and revise 700 laws currently in force to bring them into compliance with the new Constitution and international treaty laws
Among the questions and issues raised by Committee Experts were serious concerns about the status of women in the country and their rights before the courts, in the home, in the workplace, and in education. The Committee was particularly concerned about the role of Shiaa personal law in Afghanistan and how it was harmonized with domestic and international treaty law and enforced by courts. The Committee also raised questions regarding the treatment and protection of children, including orphans, street children and child workers. Numerous Committee Experts raised concerns about corruption in the country as well as human trafficking and the treatment of the thousands of Afghan migrants working abroad. The delegation was also asked about the impact of the war on the cultural heritage of Afghanistan, what was being done to recover artefacts that had been looted from the country and what steps were being taken to safeguard important monuments and archaeological sites as well as local cultures.
In concluding remarks, Mr. Hashimzai said that the delegation came from a country devastated by 30 years of war. This however had not stopped Afghanistan from embarking on development projects and working to strengthen economic, social and cultural rights in the country.
The delegation of Afghanistan was composed of representatives from various Government agencies including the Ministries of Justice, Labour, Public Health, Education and the Permanent Mission of Afghanistan to the United Nations Office at Geneva.
The next public meeting of the Committee will be at 3 p.m. on Friday, 21 May, when it will look at substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights and adopt its concluding observations and recommendations on country reports which it has considered before officially closing its forty-fourth session.
Report of Afghanistan
The combined second to fourth periodic report of Afghanistan (E./C.12/AFG/2-4) notes that the submission of the second periodic report was delayed until now due to the long turmoil, political struggles, and security instability suffered by Afghanistan. Due to the situation in the country, data, statistics, and numbers presented in this report are sometimes not accurate. For example, a census was not conducted for more than three decades in Afghanistan. Certain statistical information indicated in the present report is the best estimate by the Government. According to the Afghan Health Survey in 2006, based on the Brass method, the mortality rate for infants is 129 per thousand live births, and for children under-five mortality rate are 191 per thousand live births. Thus, the mortality rate for infants decreased from 165 to 129 between 2000 and 2006, as well as for children under five from 257 in 2000 to 191 in 2006. Afghanistan's life expectancy is unique in the world in the sense that the life expectancy of women is less than that of men. Due to social and economic challenges in addition to energy deficiencies and low access to maternal health services, and the higher prevalence of violence against women, women have a lower life expectancy than men in Afghanistan. Life expectancy disaggregated in rural or urban areas as well as socio-economic group is not available.
The Government of Afghanistan is making efforts to eliminate gender disparities in all levels of education no later than 2020. However, the Government faces tremendous difficulties to achieve these goals in reality. During the war, a large number of school buildings have been demolished and reconstruction and/or rehabilitation are urgently needed in Afghanistan. The total number of school buildings were 9,476 schools in 2007. Although over 2,000 school buildings have been constructed or rehabilitated since 2002, there is a need for more school buildings especially for primary education. In many primary schools, classes are offered in more than two shifts. In addition, primary education in some areas of the country is offered at secondary school facilities due to a lack of enough schools or classrooms for primary education. Furthermore, recruitment of more qualified school teachers is urgently needed in Afghanistan.
Presentation of Report
MOHAMMED QASIM HASHIMZAI, Deputy Minister of Justice of Afghanistan, introducing the report, said that since 2001 human rights had enjoyed a special place in both the political process as well as the development agenda of Afghanistan. As a post-conflict country which had gone through decades of war with devastating impact on every single aspect of development, and as a least developed country with the worst human development indicators, Afghanistan had recognized the people-centred development model as the appropriate and ideal framework for the development vision of the country.
Mr. Hashimzai wanted to explain how the country's National Development Strategy as well as the national legal and institutional frameworks had contributed to the implementation of the International Covenant on Economic, Social and Cultural Rights in the country. Economic and social development constituted the main pillar of the National Development Strategy, giving the priority to reducing poverty, ensuring sustainable development through the private sector-led market economy, improving human development indicators, and making significant progress towards the Millennium Development Goals. Within this pillar, there were six sectors relevant to the Covenant: infrastructure and natural resources; education; health; agriculture and rural development; social protection; economic governance and private sector development. Human rights was a sector in the second pillar of the strategy and gender was considered a cross cutting issue. Sectors relevant to the Covenant received a large portion of the core development budget.
Mr. Hashimzai said that the country had made a number of work-related achievements, including the consideration or passage of laws to strengthen workers' rights.
The Government of Afghanistan considered health as a fundamental human right and this was enshrined in the Constitution. The health situation was worse in early 2002 when there were only 496 functioning primary healthcare facilities across the country serving a population of 25 million people. A survey conducted in 2002 indicated that a woman died of pregnancy-related causes every 27 minutes, which meant that each week about 370 families became motherless. This was essentially a death sentence for young children in this society.
In 2002, the Afghanistan Ministry of Public Health decided to improve public health in an equitable and sustainable manner through quality healthcare service and a basic package of health services and an essential package of hospital services. Mr. Hashimzai said that to date these changes had made a demonstrable difference in the infant and child mortality rate, which had substantially decreased in recent years.
Mr. Hashimzai said that all school age children had access without discrimination to quality education. The Constitution also guaranteed that all ethnic groups and minorities in the country were recognized equally and the Ministry of Education had prepared textbooks for primary school children in local languages such as Uzbek, Turkmen, Pashai, Balochi, and Noristani. There were 7 million students in the country, 37 per cent of which were female, 160,128 teachers, and 12,763 schools.
Afghanistan had undertaken policies to assist in agriculture and rural development, including promoting sustainable natural resources development and management, promoting inclusive and equitable growth, and fostering market-led economic growth. In addition, Mr. Hashimzai said that Afghanistan had also implemented policies to develop human capital in the country as well as the economic sector and infrastructure.
Major gains had been made in adopting laws to strengthen the framework and mechanisms for human rights. The Independent Afghan Human Rights Commission had been established in 2001 and laid the initial foundation to address human rights issues in Afghanistan. The country had also adopted the Law on the Elimination of Violence Against Women, which made violence against women a crime whether committed at home or elsewhere and prescribed sentences for perpetrators. In addition, the Ministry of Women Affairs had been established, a draft law on family planning was under review, and the Shiaa Personal Status Law had been reviewed and adjusted to harmonize it with the Afghan Constitution and international human rights treaties.
Other steps that had been taken to strengthen the human rights protecting mechanisms were a new Media Law which guaranteed freedom of speech and publication. It provided a better environment for journalists and protected them from undue intimidation, violence, and censorship.
Despite all the efforts and commitments on the part of the Government in fulfilling its obligations on human rights, including economic, social and cultural rights, Afghanistan still faced a number of challenges that had slowed its progress and created obstacles to their efforts to fully realize their goals in the area of human rights. Insecurity in some parts of the country had impeded economic and social development. The scarcity of resources to finance nationwide welfare programmes, in particular for the most vulnerable people, including the disabled, children, and women, was another challenge which required due attention. Afghanistan also needed to take steps to review and revise 700 laws currently in force to bring them into compliance with the new Constitution and international treaty laws.
Mr. Hashimzai reiterated that the implementation of programmes and reforms for the promotion of human rights in Afghanistan required cooperation and participation of all concerned governmental bodies, the civil society institutions and also direct cooperation of the international community, particularly international organizations active in the area of human rights. With their help, Afghanistan would gradually witness the improvement in the conditions of human rights. The delegation's presence before the Committee was evidence of Afghanistan's commitment to the further implementation, promotion, and protection of human rights in the country.
Questions by Experts
The first issue the Committee raised was whether the International Covenant on Economic, Social and Cultural Rights had been invoked in Afghan courts and if so could examples be provided? The Committee pointed out that according to an independent human rights commission, there was no effective remedy to protect human rights in Afghanistan and people did not have faith in the judicial system. The delegation was asked what the country was willing to do to address this issue.
The Committee asked what was being done to address the security threat which constantly undermined society.
The delegation was asked if it could give any examples of how non-state dispute resolution mechanisms dealt with economic, social and cultural rights and ensured the realization of the equal standard of human rights.
The Committee said that it felt a bit awkward holding Afghanistan accountable under the articles of the Covenant because it was ravaged by decades of war and the Government did not even have control over all of the country, so how could they manage to meet their obligations under the Covenant?
A Committee Expert questioned the policy of pursuing a market economy as a way to meet the obligations under the Covenant in a country ravaged by war. Also, to what extent did the country offer human rights education?
A Committee Expert asked how the Government dealt with interpretations of Islam that would deny equal rights to women and girls.
A number of Committee members raised the issue of corruption as well as the drug problem facing the country.
How did the Government of Afghanistan envisage ways to deal with the atrocious challenges affecting women's human rights, including underage marriages, forced marriages, marital rape, and trading women as chattel to settle debts? What were the obstacles faced in the implementation of the laws and standards governing the rights of women? Was it an economic issue, a policy issue, or a cultural issue? How did courts manage different legal frameworks and contradictions between the international treaty law and the Shiaa law?
Could the delegation explain why the Taliban drew support from people, an Expert asked?
An Expert pointed out that the delegation said their economic development model was people centred, but their examples of advances in this area only cited the reports they had submitted to international bodies and that was not a good measure of human rights achievements. Were there other examples the delegation could provide to illustrate their commitment to people centred economic development? Also, there were many expatriates living in Afghanistan to help rebuild the economy, what was the makeup of the civil service ranks in term of Afghan nationals?
A Committee Expert wanted to know which Millennium Development Goals were at risk of not being achieved.
What happened to cases filed with the Afghanistan Independent Human Rights Commission? What happened once they came up with their findings and was it true that the funding came largely from international groups and not from the Government?
Could the delegation provide information on the social services budget and how these funds were spent and how much came from international funds?
Regarding people with disabilities, an Expert said information had come before the Committee that the periodic report of Afghanistan did not accurately reflect the status of this community because the State characterized disabled people as those needing charity and medical services alone, rather than people entitled to the opportunity to lead full lives, integrated into mainstream society.
Were economic, social and cultural rights given the same status as civil and political rights? The State seemed to lack a comprehensive anti-discrimination law. Would the State party consider adopting one?
On the issue of domestic violence, the delegation was asked if there had been any cases of domestic violence that had been prosecuted and resulted in convictions. What was the status of the 21 cases that had been filed under the domestic violence law?
A Committee member asked about the formal and informal justice systems in Afghanistan. Could the formal and traditional systems be complimentary and did the traditional system take into account economic, social and cultural rights? Did the State or other stake holders undertake to make traditional justice practitioners aware of human rights and economic, social and cultural rights?
This report was prepared without input from any groups outside the Government, an Expert said. Would this change in the future and would the State include input from other stakeholders in future reports?
How did the Government assess the impact of economic, social and cultural rights on the policies of local authorities which were more intimately involved in the daily lives of the population?
What policies were in place to change cultural paradigms, regarding women for example, to help better implement economic, social and cultural rights in the country?
What mechanisms were in place to make sure that national laws were in accordance with international treaty obligations and did international laws take primacy over national legislation?
When was the last census taken and what statistical data did the State have to plan activities in the political sphere?
The Committee noted that non-governmental organizations seemed to function quite successfully inside and outside the country, so it asked the delegation what was being done by the Government to establish a constructive dialogue with all these non-governmental organizations to better serve the Afghan population.
In terms of people living in areas controlled by opposition forces or military forces, what was the applicability of the Covenant to these people?
The delegation was asked to clarify why the report described Afghanistan as a post-conflict country. Did they not consider themselves as still in conflict?
The country's report made the point that most child labour and child trafficking was the result of extreme poverty and parents who felt that they had no choice but to have their children work. Would the State commit to providing a minimum standard of living so parents would not feel the need to do this?
Response by Delegation
In responding to the questions on the implementation of the International Covenant on Economic, Social and Cultural Rights in courts, judiciary independence and corruption posed by the Committee, the delegation said that as soon as an international treaty was joined, its provisions were incorporated into domestic laws. The Government was taking steps to combat impunity via the courts, but there were also a number of claims and counter claims regarding violations of human rights and these had to be sorted out; Afghanistan was trying to do its best. Ten years ago the court situation was very bad, but there was a strategy laid out to strengthen the courts and the whole justice sector. Resources were devoted to this roadmap and lots of improvements had been made in this regard.
In terms of whether Afghanistan was a post-conflict society, the delegation said that after 2001 they were a post-conflict country, but then the conflict intensified so now they were in fact in the middle of a war.
Looking at violence against women, the delegation said Afghanistan was a State party to the Convention on the Elimination of Discrimination Against Women and violence against women was illegal and prosecuted under the law.
On the issue of drug trafficking, the courts imposed severe punishment for these crimes and there was a separate prison built for people convicted of drug offenses in the centre of Afghanistan.
The delegation would not deny that there was a system of informal justice in the 50,000 villages throughout the country. In all the villages there was someone well known and respected who people would go to in order to solve land disputes, debt recovery, family issues and the like. There were restrictions on these traditional systems, for example the decisions had to be consistent with the laws of the country, although if parties agreed to the terms that was the end of the issue. They also could not consider criminal cases, only civil cases. People liked the traditional justice system because it was cheap, quick, and they trusted the elders. The delegation conceded that this raised some difficulties, for example when the decision went against the law and the welfare of the family and women, but there were remedies for this. The case could be taken to the regular court system and the court could render a decision to preserve their rights and apply human rights standards. The delegation did want to point out that the formal justice system was gaining popularity as courts were established in rural areas and people were taking more cases to them.
The Committee had asked how the free market economy would work if the Government did not control the country. In response, the delegation said that most of the provincial capitals and district capitals were under the control and authority of the central Government, courts were operating and the rule of law was implemented. Opposition forces operated mainly in the countryside, but the Government exerted its control over most parts of the country.
On the issue of discrimination against and inequality of women, the delegation said that women's rights were a priority for the Government and equal rights were enshrined in the Constitution. The Ministry of Women's Affairs had been established and there was endorsement of relevant laws such as the law criminalizing violence against women. All relevant agencies were allocated a budget based on their treatment of women's issues, and increasing awareness of women about their rights was very important as well. To this end, the Government conducted campaigns in all provinces to increase the awareness of women regarding their rights. The delegation agreed that there were many challenges facing women in Afghanistan, including a low literacy rate of 12 per cent, low levels of security, a high poverty rate, and social and economic challenges. Low access to maternal health services and the high prevalence of violence against women had put Afghanistan in the unenviable position of having a lower life expectancy for women than for men.
Regarding Shiaa law, the delegation explained that there was a provision in the Constitution that said that minority groups could have their own family law, but after the international community raised its voice against the provisions in the Shiaa law, the law was amended to harmonize it with women's and human rights requirements.
The delegation said that as soon as the country was doing better, it would fully finance and support the Afghanistan Independent Human Rights Commission, but currently it was paid for by the United Nations Development Programme. This body was empowered to register complaints and follow them up and the delegation saw the body becoming a very important force in Afghan society in the future.
Regarding humans rights education, the delegation said the curriculum for primary and secondary education had been revised and the topics of instruction included human rights, women's rights, parents' rights, elder rights, student rights, and animal rights, among other things. The right to free education until undergraduate study was enshrined in the Constitution.
The issue of corruption was raised by a number of members of the Committee, and the delegation said it had adopted and partly implemented the United Nations Convention Against Corruption. An oversight committee had been formed and two strategies had been introduced including an anti-corruption law. The State took a two-pronged approach to dealing with corruption which consisted of prevention and then punishment once it was found. They had also raised the salaries of civil servants and government appointments were now done on the basis of qualifications and competencies instead of people being appointed to positions based on cronyism or kickbacks. Public officials had to register their assets as well. There were also offices and courts set up to deal exclusively with corruption so measures had been taken to combat this problem. The delegation said that in some areas they were successful and in other areas they needed more work, but in their next periodic report they hoped to provide numbers showing a reduction in corruption.
The delegation said it was difficult to have a comprehensive anti-discrimination law in the country and perhaps one day they might be able to do so, but currently they had laws protecting women, children and minority groups.
On the topic of prosecuting domestic violence cases, the delegation assured the Committee that although they only saw reference to 20 such cases, there were many more in the pipeline to be heard by the courts. In the future they would publish law reports of cases so that people could see that these cases were being dealt with and it would also help to cut down on corruption if judges knew that their court decisions would be made public and be open to public scrutiny.
The delegation clarified for the Committee that the State had consulted civil society groups in drafting their periodic report.
The delegation went on to address the issue of how they monitored the implementation of the Covenant in the provinces. Each government agency, such as the Ministry of Health or Labour, was responsible for its regional offices making sure that the provisions of the Covenant were being implemented.
On the 700 laws that were under review, the delegation said that some of them were written before Afghanistan became party to the Convention and some were written afterward so they were going through them all to make sure they were compatible with international treaties.
Questions by Experts
In follow-up questions, Experts asked how economic, social and cultural rights figured in the national development strategy.
The Committee had a number of questions regarding employment in the country. The delegation was asked whether they had data on employment in the formal and informal sectors, what was the unemployment rate and was there a difference in the rate between men and women and for young people, and what concrete measures had been made to combat unemployment. The Committee also asked if Afghanistan had International Labour Organization assistance or had requested such assistance. In 2008 an International Labour Organization report stated that penal provisions should be reviewed because they could give rise to forced or obligatory labour. Had this review, and possible revision, of the penal code been undertaken?
Along the same lines, the Committee asked what was being done to combat child labour. Was there a standard minimum wage for the entire country or did it vary throughout the territory? Did the minimum wage provide a decent standard of living? Was there a gender disparity in terms of earnings of men and women and what was being done to address the imbalance? The delegation was also asked if there was equal opportunity of access to employment for both men and women. Was there a law prohibiting sexual harassment in the workplace? It was noted that daily wage workers made up a huge proportion of people in the working population, and the Committee asked what was being done to guarantee their safety and rights and to protect them from being exploited.
There was a 2007 labour law on the books, but it did not seem to deal with the right to strike or collective bargaining. Was there a right to strike and how was it regulated? How did collective bargaining occur and how were disagreements resolved? If there were labour courts and tribunals, how were they made up and what were their powers? In terms of workplace safety, what was being done to ensure occupational health and safety?
The Committee commented that there did not seem to be a national plan for social security. Would it be possible to use some of the international aid the country received to begin to implement a national social security system?
In terms of the fight against corruption, there were reports that people were selected for civil service positions based on their political affiliations and not skills and competencies. What was the Government doing to combat these widespread practices that undermined people's trust and fostered corru