Although it includes limited protections for religious practice, the constitution and other laws and policies expressly restrict religious freedom.
Full and effective enforcement of the constitution is a continuing challenge due to its potentially contradictory commitments and the lack of a tradition of judicial review. Article 2 of the constitution explicitly 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.” Article 7 specifically obligates the state to abide by the Universal Declaration of Human Rights, which includes commitments to religious freedom and the right to change one’s religion. Article 3, however, also declares that Islam is the official “religion of the state,” that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam,” and that “the provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.”
The constitution expressly protects free exercise of faith for non-Muslims within the limits of the law. In situations where the constitution and penal code are silent, the constitution instructs courts to rely on constitutional limits and the Hanafi School of Sunni Islamic jurisprudence in a way that best serves justice. The Office of Fatwa and Accounts within the Supreme Court interprets Hanafi jurisprudence when a judge needs assistance in understanding its application. Courts continue to rely on Hanafi interpretations of Islamic law, even in cases that conflict with the country’s international commitments to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The constitution also grants that Shia law may be applied in cases dealing with personal matters where all parties are Shia. The law provides that in family legal matters involving the Shia minority, courts should rely on Jafari Shia jurisprudence. There is no separate law applying to non-Muslims.
The constitution requires that the president and vice president be Muslim and does not distinguish in this respect between Shia and Sunni. This requirement is not explicitly applied to government ministers or members of parliament, but each of their oaths includes swearing allegiance and obedience to the principles of Islam.
One seat in parliament’s lower house was reserved for a Sikh or a Hindu according to a draft version of the 2013 Election Law. The final 2013 Election Law removed this provision in July, but it was restored by President Karzai through a legislative decree in September.
Neither the constitution nor the criminal code makes specific references to religious conversion. Under some interpretations of Islamic law, converting from Islam to another religion is deemed apostasy and considered an egregious crime. Male citizens over 18 years of age or female citizens over 16 and of sound mind who convert from Islam have three days to recant their conversions or possibly face death by stoning, deprivation of all property and possessions, and/or the invalidation of their marriage.
The constitution protects freedom of expression and the press and the criminal code makes no specific references to spoken or written utterance of insults or profanity against deities, religions, sacred symbols, or religious books. Courts, however, rely on Islamic law to address this issue. Blasphemy – which can include anti-Islamic writings or speech – is a capital crime under the courts’ interpretations of Islamic law. An Islamic judge may impose a death sentence for blasphemy. Similar to apostates, those accused of blasphemy are given three days to recant or face death.
The media law includes articles detrimental to freedom of religion and expression. Among other prohibited categories, Article 45 prohibits production, reproduction, printing, and publishing of works and materials contrary to the principles of Islam, works and materials offensive to other religions and denominations, publicizing and dissemination (promotion) of religions other than Islam, and articles and topics that harm the physical, spiritual, and moral well-being of persons, especially children and adolescents. Many authorities and most of society view proselytizing by adherents of other faiths as contrary to the beliefs of Islam.
The ambiguity surrounding what constitutes offensive and un-Islamic material offers the potential for restrictions on press freedom and intimidation of journalists. These rules also apply to non-Muslims and foreign-owned media outlets. An amendment to the media law instructs National Radio and Television Afghanistan (RTA), the state-run media outlet, to provide balanced broadcasting that reflects the culture, language, and religious beliefs of all ethnic groups in the country. The law, however, also obligates RTA to adjust its programs in light of Islamic principles and national and spiritual values.
The General Directorate of Fatwas and Accounts under the Supreme Court ruled in May 2007 that the Bahai Faith was distinct from Islam and a form of blasphemy. The ruling held that all Muslims who converted to the Bahai Faith were apostates and all Bahais were infidels. The ruling creates uncertainties for the country’s small Bahai population, particularly on the question of marriages between Bahai women and Muslim men. Citizens who convert from Islam to the Bahai Faith risk persecution, similar to Christian converts, in theory up to and including the death penalty.
The government does not designate religion on national identity cards and does not require individuals to declare belief in Islam to receive citizenship; however, the state, including the courts, traditionally considers all citizens to be Muslim. As a result, some basic citizenship rights of non-Muslims are not explicitly codified, and non-Muslims can be tried under Hanafi jurisprudence. In practice courts do not always accord Muslims and non-Muslims the same rights. Non-Muslims can be married to each other as long as they do not publicly acknowledge their non-Muslim beliefs. A Muslim man may marry a non-Muslim woman, but the woman must first convert if she is not an adherent of one of the other two Abrahamic faiths (Christianity or Judaism). Moreover, a Muslim woman is not allowed to marry a non-Muslim man.
The penal code addresses “Crimes against Religions” and states that a person who attacks a follower of any religion shall receive a short-term prison sentence of not less than three months and a fine of between 3,000 and 12,000 afghanis ($54 to $214), although it does not specifically address blasphemous remarks. The penal code also states persons who forcibly stop the conduct of rituals of any religion, and those who destroy or damage permitted places of worship where religious rituals are conducted, or who destroy or damage any sign or symbol of any religion, shall be subject to a medium-term prison sentence. This is defined in the criminal code as confinement in a jail for not less than one nor more than five years and/or a fine of between 12,000 and 60,000 afghanis ($214 to $1,071).
The Ulema Council is a group of influential Sunni and Shia scholars, imams, and Muslim jurists from across the country. Its senior members meet regularly with the president and advise him on Islamic moral, ethical, and legal problems. The council is nominally independent of the government, but its members receive financial support from the state. Through contacts with the presidential administration, the parliament, and ministries, the council or its members advise on the formulation of new legislation or the implementation of existing law. Although it is well represented in provincial capitals, the council has much less reach in villages and rural areas, where decisions are made based on tradition and local interpretations of Islamic law. The council has urged individuals to avoid conduct that could be perceived as insulting local traditions and religious values on the grounds that “safeguarding our national honor and Islamic values is the obligation of every citizen.”
The Ministry of Hajj and Religious Affairs (MOHRA) is the primary ministry handling religious affairs. MOHRA’s responsibilities include sending citizens on the Hajj and Umrah pilgrimages, collecting revenues for funding religious activities, identifying and acquiring property for religious purposes, providing religious teaching to children, issuing fatwas, testing imams, and raising public awareness of religious problems. Both Sunnis and Shia are permitted to go on pilgrimages, and the government imposes no quota for either group.
Licensing and registration of religious groups are not required, although the government has registered some mullahs (religious leaders). Mullahs working for MOHRA are generally proposed for registration by local residents and approved by the ministry; there are no explicit educational requirements for mullahs to register. The number of mullahs working in the country is unknown, but government estimates range up to 120,000. The MOHRA has registered approximately 3,500 imams, who receive a government monthly salary of 3,500-4,000 afghanis ($63-71). In some registered provincial mosques, local residents pay the salaries of mullahs. Many other mullahs are not registered due to lack of capacity and funding to support more mullahs at mosques, as well as security problems in the provinces. New mosques are opened or built based either on the government’s development plans or on proposals by local residents, which MOHRA must subsequently approve. The number of mosques in the country is estimated to be over 160,000, and 6,000 mosques are registered with MOHRA.
There are no explicit restrictions on religious minority groups to establish places of worship or to train clergy; however, very few public places of worship exist for minorities. Due to their small size and lack of financial resources, the Sikh and Hindu communities have a limited number of places of worship. Public places of worship do not exist for converted Afghan Bahais and Christians since practicing their faith openly would mean risking apostasy charges, which carry the death penalty, and possible targeted violence. Those born into the Bahai Faith could be also charged with blasphemy, according to a 2007 ruling by the General Directorate of Fatwas and Accounts under the Supreme Court.
The Ministry of Education (MOE) Directorate of Curriculum Development has responsibility for creating curriculum guidelines for public schools. A number of government-affiliated madrassahs in the capital and in provinces where there is sufficient security offer Islamic and secular education in accordance with MOE curricula that include 60 percent religious education and 40 percent general education. There are 902 MOE-sponsored madrassahs throughout the country serving about 250,000 students, including several in Kabul, Balkh, Nangarhar, and Herat provinces. MOHRA also operates 1,300 primary-level madrassahs with about 300,000 students. Graduates from government madrassahs are eligible to attend state universities. The country has 60 higher-level madrassahs that bestow a degree equivalent to an associate’s degree, including four higher-level madrassahs for female students.
The MOE requires that independent madrassahs be accredited and disclose their funding sources. The Department of Islamic Education within the MOE provides a standardized curriculum to registered madrassahs. Madrassahs must route funding from private or international donations through the MOE or risk being banned. This system allows the government to monitor assistance to institutes of learning funded by known entities. The government solicits donations for the support of madrassahs from Muslim countries and private individuals.
The educational curriculum places considerable emphasis on religion. According to the constitution, the “state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam, national culture, and in accordance with academic principles, and develop the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.” The public school curriculum includes Islamic content, but no content from other religious groups. The national curricula, which include materials designed separately for Sunni-majority schools and Shia-majority schools, as well as textbooks emphasize nonviolent Islamic terms and principles. There is no restriction on parental religious teaching, and non-Muslims are not required to study Islam in public schools.
There are government-sponsored schools for Sikh children in Kabul and Nangarhar. There are no Sikh schools in Jalalabad, despite estimates that nearly one-quarter of the Sikh population lives there. The government provides limited funding for Sikh schools, including for teachers for the basic curriculum. A few Sikh children attend private international schools. There are no Christian schools. Hindus do not have separate schools but sometimes send their children to Sikh schools.
The constitution allows for political parties provided that “the program and charter of the party are not contrary to the principles of the sacred religion of Islam.” The government bans the pan-Islamic movement Hizb ut-Tahrir – which calls for the overthrow of existing governments to create a unified Muslim state – as an “extremist organization.”