February 12, 2011
The trial of an Afghan man, Said Musa, who may face execution for converting to Christianity, violates the 2004 Constitution of Afghanistan – and must be stopped.
Forty-five year-old Musa was arrested after a television station in the capital city of Kabul broadcast images that allegedly showed Western Christians baptizing Afghans. Since the May 2010 telecast, Musa has remained in the infamous Kabul Detention Center, where he has suffered sexual assault and torture, and has apparently had no access to a lawyer.
“The WEA deplores the inhumane treatment meted out to Musa in the prison – and the fact of his arrest and the subsequent demands for death for apostasy violate at least three provisions of the Constitution of Afghanistan,” said WEA-RLC Executive Director Godfrey Yogarajah.
Article 130 of the Constitution states that courts can rely on the Sharia law as per the Hanafi jurisprudence only within the limits of the Constitution and only if a ‘pending’ case does not relate to any provisions in the Constitution or any other law, Yogarajah said.
A case can be pending only is it is first registered under law, but apostasy is not a crime recognized in the Constitution or any other statutory law, Yogarajah pointed out. “Article 27 of the Constitution says that no person shall be pursued, arrested or detained for an act that is not considered a crime. So under what statutory law was Musa arrested?” he asked.
“Furthermore, Article 7 of the Constitution clearly refers to Afghanistan’s obligation to the international covenants to which the country is signatory.” One of those conventions (signed without any reservation in Afghanistan in 1983) is the International Covenant on Civil and Political Rights (ICCPR).
Three clauses of Article 18 of the ICCPR state: (1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. (2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. (3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
WEA-RLC is aware that Article 3 of the Constitution of Afghanistan says that no law can be contrary to “the beliefs and provisions of the sacred religion of Islam,” Yogarajah added. “Though this contradicts earlier constitutions. But after the inclusion of Article 7 (with a pledge to abide by international conventions), in the 2004 Constitution, the interpretation of Article 3 needs to be reformulated in light of this glaring contradiction.”
The addition of the provision of Article 7 in the 2004 Constitution was surely not without a purpose, nor was it an oversight. It was indisputably added to increase the nation’s commitment and compliance to international standards of civil rights.
“The calls by extremist elements for the death of an alleged apostate are understandable - but when the administration seeks the death penalty for a convert by the misuse of vague laws, it raises serious concerns,” said Yogarajah.
It is shocking that even nine years after the fall of the Taliban, little change is visible in the crucial areas of rule of law and civil liberties.
The trial of Said Musa, whose wife and six children had to flee to Pakistan after his arrest, is the first for apostasy that has reached near execution since the Taliban’s fall. But the WEA hopes and prays that the administration of Afghanistan will ensure that nothing is done that will fail either the new regime, or the international community.
“Repression can never lead to peace in the long-run. The government must not avoid reforms for fear of a backlash by extremists,” said Yogarajah.
The Religious Liberty Commission is monitoring the religious liberty situation in more than 100 nations, defending persecuted Christians, informing the global church, challenging the Church to pray (www.idop.org) and giving all possible assistance to those who are suffering. The Commission also makes fact finding trips and meets with governments and ambassadors speaking up for the suffering brothers and sisters. At the United Nations the Commission reports about the situation and arranges special hearings with Christians from countries under pressure.