Taliban's New Penal Code: Institutionalising Gender Apartheid in Afghanistan

Source: The Times of India 

Introduction 

Recently, the Taliban's Supreme Leader Hibatullah Akhundzada quietly signed into effect the De Mahakumu Jazaai Osulnama — the Criminal Procedural Regulations for Courts — a sweeping 119-article, 90-page penal code that took immediate effect without public announcement, debate, or consultation. The regulation came to international attention only after Afghan human rights organisation Rawadari published its Pashto text.  

• Human rights experts have described the code as a "blueprint for governance through fear" that formally transforms repression into state policy, with Afghan women and girls bearing its most devastating consequences. United Nations experts have called the framework "terrifying" and urged its immediate repeal. 

What is the Taliban's New Penal Code? 

Overview and Origins: 

• Titled De Mahakumu Jazaai Osulnama (Principles of Criminal Procedures), the document spans 58 pages, 10 chapters, and 119 articles.  
• It was enacted unilaterally by the Taliban's Supreme Leader and sent directly to courts nationwide for implementation.  
• The code draws primarily from the Taliban's own interpretation of Sharia law and is designed to enforce absolute obedience to the supreme leader's authority. 
• It replaces the 2009 Elimination of Violence Against Women (EVAW) law — a landmark piece of legislation under former President Hamid Karzai — which had criminalised forced marriage, sexual assault, and domestic violence even in the absence of visible physical injury.  
• The new code effectively dismantles a decade of legal protection built under the previous administration. 

The Four-Tier Caste System: 

• One of the most alarming features of the code is Article 9, which formally divides Afghan society into a four-tier hierarchy: religious scholars (ulama) at the apex, followed by elites such as tribal leaders and merchants (ashraf), then the middle class, and finally the lower class.  
• Punishment is determined not by the severity of the offence but by the social rank of the accused. Religious scholars receive only a warning; elites receive a court summons; the middle class faces imprisonment; and the lower class is subjected to both imprisonment and corporal punishment, including public flogging.  
• This structure effectively grants near-total impunity to the privileged while concentrating the harshest penalties on the most marginalised.  
• Women, systematically excluded from religious and political authority, fall overwhelmingly into the lowest tier. 

Legalising Domestic Violence: 

• The code explicitly permits husbands and fathers to physically punish their wives and children, provided the assault does not result in broken bones or open wounds. Under Article 32, even in cases of "obscene force" — where the violence results in fractures or visible bruising — the maximum penalty for a husband is merely 15 days of imprisonment.  
• Critics have pointedly noted that the code's penalties for cruelty to animals are more severe than those for violence against women, a disparity that Georgetown's Institute for Women, Peace and Security describes as "standing in clear contradiction to the Cairo Declaration's affirmation of inherent human dignity."  
• Serious crimes are now adjudicated by Islamic clerics rather than professional judicial or correctional institutions, further concentrating punitive power in partisan hands. 

Revival of Slavery: 

• The code repeatedly deploys the specific designation of Ghulam (slave), distinguishing between the rights of "free" individuals and those categorised as enslaved. Article 4(5) further grants "masters" the authority to impose discretionary punishments on those under their control, effectively legitimising slavery and the exploitation of human beings as a feature of the national legal system.  
• Human rights organisations including Rawadari have identified this as the formal revival of a concept long prohibited under international law. 

Suppression of Dissent: 

• The code criminalises criticism of Taliban officials, failure to report perceived opposition activity, and even silence in the face of dissent.  
• Insulting Taliban leaders is punishable by 20 lashes and six months' imprisonment. Article 16 grants the Taliban's supreme leader personal authority to approve executions across at least 11 broad and deliberately vague categories, including "opposing the Taliban," "promoting beliefs deemed un-Islamic," and undefined "moral offenses."  

What are the Consequences for Afghan Women? 

Legal Erasure: 

• The code strips women of core legal protections, including the right to legal representation, the right to remain silent, and safeguards against forced confession.  
• Women seeking legal redress for abuse must appear in court fully covered and accompanied by a male guardian — even when that guardian is the alleged abuser himself.  
• Rights groups warn this requirement makes prosecution virtually impossible. Under Article 58, women accused of apostasy — leaving Islam — face life imprisonment and ten lashes every three days until they return to the faith, while the code sets no explicit penalties for male apostates. 

Cascading Humanitarian Impact: 

• The new code deepens a crisis already years in the making. Since the Taliban's return to power in August 2021, girls have been barred from secondary and higher education; women have been removed from most government positions and banned from working with NGOs and UN agencies.  
• The mahram rule, enforced with increasing rigidity, requires women to travel with a male guardian even to access hospitals, government offices, or public transport.  
• In some provinces, women are forbidden from receiving medical treatment from male doctors, while also being barred from becoming doctors themselves — leaving them entirely without healthcare access.  
• UN Women has warned that in 2026, maternal deaths will rise by 50 percent and child marriage by 25 percent as a direct consequence.  
• Nearly 80 percent of Afghan women are currently outside education or employment, effectively removing half of the country's potential workforce from economic life. 

International Response: 

• Despite the severity of the provisions, the international response has been largely muted.  
• The UN Special Rapporteur on Afghanistan, Richard Bennett, has condemned the code, and international rights groups including the Feminist Majority Foundation and Georgetown's GIWPS have called for its immediate repeal. However, no coordinated multilateral action has followed.  
• The Taliban have dismissed critics as "infidels" and framed opposition to their law as itself a criminal act.  
• Rights organisations argue the cumulative weight of the new code and prior decrees meets the legal threshold for crimes against humanity and constitute a formal system of gender apartheid. 

About the Taliban: Background and Rise to Power 

The Taliban — meaning "students" in Pashto — emerged in the early 1990s in northern Pakistan following the withdrawal of Soviet troops from Afghanistan. It is an Islamic fundamentalist political and military organisation that has shaped Afghan polity for decades and features regularly in international affairs. 

Historical Background: 

• The Taliban's first period of governance in Afghanistan lasted from 1996 to 2001, marked by severe restrictions on women, public executions, and the destruction of cultural heritage.  
• Their removal from power came in the aftermath of the September 11, 2001 terrorist attacks in the United States, in which nearly 3,000 people were killed. 
• Within a month, the US launched Operation Enduring Freedom against Afghanistan. NATO coalition troops declared war, dislodged the Taliban regime, and established a transitional government in Kabul. 

Peace Talks and US Exit: 

• After approximately two decades of war, the US concluded that a military solution was unachievable. In 2015, the first-ever dialogue between the Taliban and the Afghan government was hosted by Pakistan in Murree.  
• More decisive were the Doha Talks of 2020, where the Taliban maintained they would engage only with the United States directly — refusing to recognise the Kabul government.  
• Under the resulting Doha Agreement, the US committed to withdrawing all troops by May 1, 2021, a deadline later extended to September 11, 2021. 

Return to Power: 

• By July 2021, the US had withdrawn approximately 90 percent of its forces. The Taliban, meanwhile, rapidly consolidated territorial control.  
• In August 2021, Taliban fighters entered Kabul without significant resistance, taking control for the first time since their ouster 20 years earlier.  
• The takeover triggered an immediate humanitarian and economic crisis and prompted mass displacement — particularly among women professionals, activists, journalists, and students — who feared a return to the repression that had defined Taliban governance in the 1990s.  
• Those fears have since been borne out in full, and then exceeded. Since regaining power, the Taliban has governed the Islamic Emirate of Afghanistan through a cascade of edicts and decrees — of which the new penal code is the latest and most formally codified expression. 

Conclusion 

The Taliban's new penal code represents far more than a legal reform — it is the institutionalisation of an ideological system in which violence, surveillance, and discrimination are embedded in law. By formalising gender-based punishment, reviving concepts of slavery, and erasing due process, the Taliban have converted repression into a state duty. For Afghan women and girls, who have already been progressively erased from public, professional, educational, and social life since 2021, the new code confirms what daily existence has long signalled: that under Taliban rule, violence against women is lawful, obedience is compulsory, and survival itself can be criminalised. The international community's muted response raises urgent questions about accountability, the limits of diplomatic engagement with the Taliban, and the future of human rights mechanisms in the face of systematic gender apartheid.