Afghanistan

Legal Code Summary

Penal Code from 2017, Book No. 4: Crimes Aainst Chastity and Public Morals

Legal Code Text

Chapter 2, Section 645 - “A person who commits ‘Mosahege’ with another person, each of the former shall be sentenced to small imprisonment, not exceeding one year.”

Chapter 3, Section 646 - “A person who commits sodomy with another female or male, shall be punished in accordance with the provisions of this chapter. For the purpose of this section, sodomy happens by the penetration of a male sexual organ into a female or a male anus, not considering the depth of the penetration.”

Chapter 3, Section 647 - “Those who commit sodomy, shall be sentenced to medium imprisonment not exceeding two years.”

Chapter 3, Section 648 - “In one of the following cases commitment of the acts, specified above, is considered to be aggravating conditions and shall be sentenced to medium imprisonment, exceeding two years. In the case where the person against whom the crime has been committed is one of the temporary or permanent ‘Maharem’ (with whom marriage is prohibited according to rules of Islam) of the offender. In the case where the offender is a tutor, teacher, or servant of the person against whom the crime has been committed or the latter has, one way or another, has authority or influence over the former. In the case where the person against whom the crime has been committed is affected by the genital disease because of the offenders disclaim of having sexually transmitted diseases.”

Chapter 3, Section 649 - “When the male offender commits ‘Tafkhiz’ with another man, the former shall be sentenced to small imprisonment (three months to a year).”

Chapter 4, Section 650 - “’Ghavadi’ is to incite two or more people to commit adultery or ‘sodomy’ by introducing them to each other or finding them a place to do so. In recognition of the crime ‘Ghavadi,’ repetition is not important. Those who are convicted of ‘Ghavadi’ shall be punished in accordance with the provisions of this chapter.”

ILGA Analysis & Notes

Although the Afghan Penal Code does not contain any explicit provisions on the criminality of consensual same-sex sexual acts. Article 130 of the Constitution does allow recourse to be made to Sharia law, which prohibits same-sex sexual activity in general, and indeed any sexual contact outside marriage. Afghanistan’s Sharia law criminalises same-sex sexual acts with a maximum of the death penalty. A BBC article of late-2016 confirms that LGBT people live in constant fear of this or other severe persecutory penalties and they are forced to hide their identities. A high-profile scholar is quoted “there was broad consensus amongst scholars that execution was the appropriate punishment if homosexual acts could be proven”, and this is consistent with a history of such repression in Afghanistan. In Afghan legal terminology “pederasty” appears to refer to intercourse between males regardless of age. The fact that paedophilia - or sexual relations with persons under the age of consent - falls under subsection 2(a) of article 427 indicates that this is the case. Terming sexual acts between adult men “pederasty” has previously not been uncommon; this occurred for example in the translations of the Criminal Codes of Albania (1977) and Latvia (1933), and in the old Russian legal tradition a “pederast” usually referred to a male who had anal intercourse with another male, regardless of age. Further, the traditional practice of keeping Bacha Bazi (teenage boys typically aged 14-18) for sexual use and as symbols of status amongst older men is reported to be currently widespread. In its 2nd cycle UPR in January 2014, the only recommendation regarding SOGI that Afghanistan received was not accepted (‘noted’), Norway called for the “repeal the provisions of the penal code that criminalise sexual relations between consenting adults of the same sex”. No mention was made of the death penalty in relation to same-sex behaviour directly, although ten recommendations calling for the abolition of the death penalty in line with civil and political rights were made: under international human rights law these necessarily include SOGI in their scope. A Joint Submission (SRI, IFPP, and AFGA) made a reference to men who have sex with men (MSM), and this appears to be the only mention of SOGI-related material through Afghanistan’s entire 2nd cycle UPR process. Its next review is October 2018. Although a senior member of Afghanistan Independent Human Rights Commission attended the Workshop on the Role of NHRIs in Promoting and Protecting the Rights and Health of LGBTI in Asia and the Pacific, February 2015, but to date there has been no mention of sexual orientation or SOGI in the work of that Commission.

2023-2024 Legal Developments

Since the 2021 Taliban takeover, the formal applicability of Islamic Republic-era law is unclear; Taliban authorities are enforcing severe extrajudicial and religious-based penalties. Documented 2023 cases include public floggings (35-39 lashes) in Kandahar and reports of death sentences by stoning and by 'toppling of a wall.'