Professor L. Ali Khan of Washburn University School of Law in Topeka, Kansas, argues that the Organization of Islamic Cooperation has an obligation to engage Afghanistan's Taliban government and press upon them that women’s education is mandatory under the normative principles of Islam...
Since gaining power in August 2021, the Afghan Taliban, following a unique normative mixture of Pashtun culture and Islamic law, have closed universities, colleges, and secondary and primary schools to deny education to women and girls. In banning women from higher education, the Taliban education minister argued that female college students do not adhere to Islamic dress rules and travel without a male guardian (the mahram rule discussed below). The United Nations High Commissioner for Human Rights reports that more than a million Afghan girls will not be allowed to attend Grades 6 to 12 in the new school year.
Like the women in neighboring Iran and Pakistan, no less conservative Muslim nations, Afghan women wish to seek education and become physicians, scientists, engineers, legislators, government officials, and wives and mothers without abandoning their culture and faith. Even the Taliban are not united in banning women from education. Some of the Taliban see the value of educating women much more than others.
This commentary argues that the Organization of Islamic Cooperation (OIC), an intergovernmental organization of 57 Muslim states, including Afghanistan, representing the world’s more than a billion Muslims, must engage the Taliban government. One objective of the OIC Charter is to “promote and preserve the Islamic teachings and values based on moderation and tolerance.” The OIC can provide advice, funding, technical expertise, and cultural support to enable Afghan girls to attend school and Afghan women to pursue higher education, including in science and technology fields. The OIC speaks the normative language the Taliban understand and respect.
Persuasion is a normative discourse. A normative language is much more complicated than a spoken language. How can you persuade anyone to do something if you speak a normative language they don’t understand? The United States, European Union, United Nations, Human Rights Commission, and the Western media voice a normative language of civil liberties, personal freedoms, equal rights, gender discrimination, patriarchy, misogyny, male oppression, and economic sanctions. Deploying this language, the advocates of women’s rights wish to pressure the Taliban that they let Afghan women acquire education on par with Afghan men. But the Taliban speak a different normative language.
The Taliban voice a normative language derived from the values of haya, hijab, mahram, Shariah, and ahkam listed in the Basic Code (Qur’an and Sunnah). Almost all Muslim communities understand the normative language the Taliban speak even when they disapprove of what the Taliban do. Normative discourse breaks down when the parties resort to war, economic sanctions, or mutual contempt.
It is vital that the Muslim nations engage the Taliban in the normative language they speak, trust, and will hopefully act upon. The OIC and Muslim countries understand the language of haya, hijab, and mahram that other international organizations do not.
The haya-hijab-mahram (hhm) behavioral code is a complicated Islamic normativity derived from the Basic Code. All Muslim communities worldwide, including the ones in the U.S. and Europe, expect Muslim women to follow the hhm code, though its application varies from country to country. Afghanistan, Saudi Arabia, and Iran enforce a stricter interpretation of the hhm code, while Turkey, Jordan, and Pakistan observe milder applications of the hhm code. No practicing Muslim community completely rejects the hhm code.
The concept of haya, applicable to Muslim men and women, requires practicing modesty in body language, posture, verbal expressions, and social behavior. The Basic Code instructs believing men and believing women to lower their gaze and guard their chastity. Showing off body parts, for example, will violate haya. Building on haya, the Basic Code prescribes the notion of hijab for women. Accordingly, women must refrain from displaying their physical bodies and adornments to strangers and in public. Hijab, now a familiar concept globally, varies in Muslim communities, from wearing a burqa or niqab to wearing headcovers, such as a chador, dupatta, or shawl.
The mahram rule objectifies the hmm code by requiring a male guardian who protects women from male pestering and supports women in complying with haya and hijab. A mahram is a male who is either married to a woman or can never lawfully marry a woman, such as a father, brother, or son. The prophet Muhammad said that a non-mahram man should not be alone with a woman, and no woman should travel without a mahram. Sahih Bukhari and Sahih Muslim. It is a tremendous jurisprudential leap to assert that the mahram rule excludes education for women.
The Taliban do not prohibit primary education since the mahram rule does not apply to girls below the procreative age. However, the mahram law affects secondary education where girls experience bolugh (puberty) even though they are minors under the universally accepted 18-year standard of adulthood.
The mahram rule purportedly protects women from male harassment and assures their safety in the public domain. Several Muslim states enforce the mahram rule without restricting women from higher education. Jurisprudentially, the mahram rule has been stricter regarding young and unmarried women than older married women or widows. However, the mahram law, much more than haya and hijab, severely restricts women’s freedom of movement for numerous lawful purposes, such as working or receiving education in the company of non-mahram men.
The notion of haya is non-negotiable under Islamic jurisprudence. The conceptions of hijab vary from time to time, place to place, and activity to activity. However, blanket enforcement of the mahram rule regarding female activity is no longer necessary or practical. Some Muslim states have narrowed the scope of the mahram rule to select situations, allowing women to conduct most of their personal affairs without a guardian. Some conservative Muslim states, such as Saudi Arabia, are poised to scrap the mahram rule concerning women studying abroad. In 2018, Saudi Arabia allowed women to drive without a mahram. In education, most Muslim states enforce the mahram rule by offering all-female high schools and colleges, a practice permitted under the Convention on the Elimination of All Forms of Discrimination against Women.
Convention on the Elimination of All Forms of Discrimination Against Women
Like other Muslim countries except for Iran, Afghanistan signed the Convention on the Elimination of All Forms of Discrimination Against Women in 1980, later ratified in 2003. (Ironically, the U.S. has signed but not ratified this Convention). Many Muslim nations, including Saudi Arabia, Libya, and Egypt, made a standard reservation that the provisions of the Convention are subject to Islamic Shariah. However, Afghanistan made no Shariah reservations to the Convention because the occupying U.S. and NATO forces pressured the Afghan government not to do so. Whether a treaty signed under occupation is binding on the occupied state remains questionable. The Taliban appear to have no intention or incentive to enforce the Convention, even if it were legally binding.
Article 10 of the Convention obligates states parties to eliminate discrimination against women in education, modify cultural stereotypes about women, and ensure quality general, technical, and professional education to women in rural and urban areas. Although no Muslim state has made a specific reservation to Article 10, they can invoke the Shariah reservation to subject Article 10’s right to education to the hmm code. According to Islamic jurists of all schools of fiqh, Shariah obligates rulers to provide education to women. If Afghanistan follows the example of other Muslim countries, women’s right to education will be its primary undertaking.
What Should be Done?
The OIC, in general, and Saudi Arabia, Iran, and Pakistan (SIP) are in the most influential position to persuade the Taliban to allow Afghan women to receive education at all levels. The OIC and SIP speak the normative language the Taliban understand and respect. Like Afghanistan, Saudi Arabia and Iran are conservative Muslim states committed to enforcing Shariah, including the hmm code. Pakistan is a neighboring country that shares the Pashtun culture. The Pashtun population in Pakistan far exceeds that of Afghanistan. If Pashtun girls in Pakistan are free to go to schools and colleges, the Afghan girls will demand no less.
Logically, women’s right to education is far superior to any right to coeducation. Denying the right to coeducation cannot take away the right to education. There are more than 600 girls-only schools just in Lahore, Pakistan. Hundreds of all-girls secondary schools function effortlessly in various cities in Saudi Arabia. In 1906, an Iranian woman opened the first high school for girls in Tehran, despite fierce clerical opposition. Now, Iran has girls-only schools in every city and town, including in municipalities bordering Afghanistan. The University of Peshawar, located at the heart of the Pashtun province, educates more than 30,000 male and female students in various disciplines.
The Taliban must find a solution. Afghanistan must furnish quality and comprehensive secondary education to girls and professional education to women. The Taliban cannot hide behind the hhm code to preclude women from medicine, law, accounting, computer science, and other disciplines. The hhm code is conveniently enforceable in gender-based institutions. The OIC can encourage and finance the establishment of all-girls high schools and all-women colleges, just like such schools and colleges function in other Muslim countries. Even in the U.S. and Canada, there are scores of all-girls schools.
Other than delivering moral lectures, the U.S., too, must play a more substantial role in advancing women’s education in Afghanistan. After devasting Afghanistan for over twenty years, the U.S. still acts as a moral godfather that Muslim countries react with scorn. A few months ago, the Biden Administration moved a part of the Afghanistan 7 billion dollars it had unlawfully frozen to a Swiss account for selective disbursement. Using some of this frozen money to establish all-girls schools in Afghanistan will be most beneficial. It would be even better if the U.S. allocates some of its foreign assistance funds to build Afghan all-girls schools out of decency, if not as war reparations. “Putting your money where your mouth is” is an idiom U.S. senators frequently invoke to promote economic justice.
The OIC has a Charter obligation to engage the Taliban government and press upon them that women’s education is mandatory under the normative principles of Islam. The Taliban must know that under Islamic law, no government has any lawful right to govern a Muslim nation by proactively keeping Muslim women illiterate. The Taliban must also know that no Muslim country, no matter how culturally unique, can provide an adequate standard of living for its people without educating women. The mahram or hijab rule is an excuse but not a reasonable basis for denying all Afghan girls and women secondary and higher education.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at firstname.lastname@example.org
Suggested citation: L. Ali Khan, Persuading the Taliban to Guarantee Education for Afghan Girls and Women, JURIST – Academic Commentary, March 30, 2023, https://www.jurist.org/commentary/2023/03/taliban-education-women-girls.
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