Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Afghanistan (Ratification: 1969)

The Committee notes with deep concern that the Government’s report, due since 2019, has not been received. In light of its urgent appeal launched to the Government in 2021, the Committee proceeds with the examination of the application of the Convention on the basis of the information at its disposal.

Articles 1(1)(a), 2 and 3 of the Convention. Discrimination based on sex. Restrictions on women’s access to education, vocational training and employment. The Committee notes that since August 2021, high-level United Nations (UN) bodies have expressed deepest concern regarding the increasing deterioration of human rights and fundamental freedoms of women and girls in the country (UN Special Rapporteur on the situation of human rights in Afghanistan, Statement, Urgent Debate on the situation of women and girls in Afghanistan, 1 July 2022; UN Security Council, Statement on the situation in Afghanistan, 24 May 2022; and High Commissioner for Human Rights, A/HRC/49/24, 4 March 2022). According to these bodies, as a result of the policies and practices adopted, severe restrictions have been imposed on women’s and girls’ freedom of movement, access to education, vocational training and employment. The Committee notes, more particularly, that: (1) since August 2021, women have been excluded from the workforce. They are also absent from the public administration, where all members are men; (2) since September 2021, women and girls have been denied access to secondary and higher education. Even where girls have been allowed to attend schools, instruction has been restricted due to the absence of women teachers; (3) the Ministry of Women’s Affairs and the Afghanistan Independent Human Rights Commission have been disbanded; and (4) specialized courts addressing the elimination of violence against women and prosecution offices have also been closed, thus leaving women without access to justice. The Committee notes that, in its resolution 50/14 on the situation of human rights of women and girls in Afghanistan, adopted on 8 July 2022, the Human Rights Council specifically: (1) condemned in the strongest possible terms all human rights violations and abuses committed against all individuals, including women and girls, in Afghanistan, including all forms of discrimination and violence, including sexual and gender-based violence; (2) called upon the Taliban in particular to reverse the policies and practices that currently restrict the human rights and fundamental freedoms of Afghan women and girls, to ensure that women and girls have opportunities and access to inclusive and quality education at all levels, equal to those afforded to men and boys, and to immediately open schools for girls of all ages; and (3) called for measures to ensure that victims of sexual and gender-based violence have access to justice and to effective remedies and reparations (Human Rights Council resolution 50/14, A/HRC/RES/50/14, 14 July 2022). Furthermore, the Committee notes from the recent report of the Special Rapporteur on the situation of human rights in Afghanistan that: (1) “the restrictions on Afghan women are disproportionately affecting their ability to sustain themselves, thereby further diminishing their enjoyment of other basic rights”; (2) “in early 2021, about 17,369 women-owned businesses were creating over 129,000 jobs, over three-quarters held by women, and many more unregistered women-owned businesses operated in the informal economy [and] by March 2022, 61 per cent of women had lost their job or income generating activities ...”; (3) “in the informal sector, women can no longer take products to market due to movement restrictions and the closure of many women’s markets”; (4) “women who continue to work often face harassment and abuse”; (5) “women have been excluded from the de facto justice system”; and (6) “female civil servants, except those doing jobs in health, security and education which cannot be carried out by men, were directed to stay home until conditions enable them to return to work in accordance with Sharia, although their male counterparts were called back” (A/HRC/51/6, 9 September 2022, paragraphs 38 and 39). The Committee strongly deplores the discriminatory prohibitions, bans and restrictions based on sex imposed on girls and women, in particular regarding their access to, and remaining in, education, vocational training and employment, both in the public and private sectors, and on their enjoyment of other human rights and fundamental freedoms, as well as their exposure to sexual and gender-based violence. The Committee therefore strongly urges that all steps be taken to: (i) remove without delay all bans, discriminatory practices and unequal treatment based on sex imposed on girls and women to prohibit, limit or impede their access to secondary and higher education, vocational training, employment and all types of occupations in all sectors; and (ii) prevent and address violence and harassment against girls and women.

The Committee asks for information on the measures taken to that end and the results achieved on the equal participation of women in employment and occupation, including by providing statistical information, disaggregated by sex and occupation, on the participation of girls and women in education, vocational training and employment in both the public and private sectors.

Articles 1, 2 and 3. Protection against discrimination. Legislation. The Committee notes that, in its 2020 report to the UN Committee on the Elimination of Racial Discrimination (CERD), the Government indicated that a draft Anti-Discrimination Law had been developed, which defines direct and indirect discrimination and prohibits discrimination in employment and occupation (CERD/C/AFG/2-16, 27 July 2020, paragraphs 28 and 47). Recalling that the prohibition of discrimination in section 9 of the Labour Law is formulated in very broad terms, the Committee asks that all necessary measures be taken to explicitly define and prohibit in law direct and indirect discrimination based on at least all of the grounds listed in Article 1(1)(a) of the Convention (namely, race, colour, sex, religion, political opinion, national extraction and social origin), as well as any other grounds determined in consultation with employers’ and workers’ organizations, in accordance with Article 1(1)(b), covering all aspects of employment and occupation, both in the private and public sectors. The Committee asks for information on any progress made in that regard.

Article 1(1)(b). Discrimination against persons with disabilities, in particular women and girls. The Committee recalls that, while section 15 of the Law of Rights and Benefits of Persons with Disabilities provides for equal rights for persons with disabilities in terms of social, economic and educational participation, in practice, persons with disabilities had very low education and employment levels. The Committee notes that, in its resolution 50/14 on the situation of human rights of women in Afghanistan, the Human Rights Council expressed deep concern at the situation currently faced by girls and women with disabilities who are often subject to multiple, aggravated or intersecting forms of discrimination and disadvantages (A/HRC/RES/50/14, 14 July 2022). The Committee calls once again for specific actions to be taken in order to facilitate access to education and vocational training and promote employment opportunities of persons with disabilities, in particular girls and women, both in the private and public sectors.

Monitoring and enforcement. The Committee notes that, in her March 2022 report on the situation of human rights in Afghanistan, the UN High Commissioner for Human Rights expressed specific concerns about the fact that, “since August 2021, the previously operating legal and justice systems became dysfunctional, with little clarity as to applicable laws and the side-lining of justice sector personnel. Since then, the de facto authorities have gradually sought to resume the functioning of a country-wide justice system and courts under Islamic law with numerous appointments at the de facto ministry of justice” and de facto courts and initiated “an ongoing review of formal law’s asserted compliance with both Islamic Law and with the objectives and policies of the new de facto administration. In the meantime, de facto authorities continued administering justice in lieu of the former judiciary in a decentralized manner in consultation with religious scholars, elders, and local communities” (A/HRC/49/24, 4 March 2022, paragraph 60). The Committee wishes to recall that Afghanistan has a binding legal obligation to uphold the fundamental human rights and freedoms guaranteed in customary international law and human rights treaties that the country is signatory to, including the Convention which it has ratified. The Committee therefore urges that all steps be taken to ensure access to non-discriminatory formal justice mechanisms and effective remedies and to organize activities to raise public awareness of the principles of non-discrimination and equality.

In light of the situation described above, the Committee notes with deep concern the repeated failure of the Government to respond to the Committee’s comments since 2019. The Committee also must express its deep concern at the significant deterioration of the situation of women and girls, including the situation of vulnerable groups of women, since 2021. In this context, it deplores the numerous acts of discrimination based on sex against women and girls thereby impairing the enjoyment of their human rights and their access to, and retention in, education at all levels, vocational training and employment in all the sectors of the economy and increasing their exposure to sexual and gender-based violence. The Committee also deplores the lack of legal framework explicitly defining and prohibiting direct and indirect discrimination based on at least all the grounds set out in the Convention, in all aspects of employment and occupation, as well as the lack of access to non-discriminatory formal justice mechanisms and effective remedies. The Committee considers that this case meets the criteria set out in paragraph 114 of its General Report to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 111th Session and to reply in full to the present comments in 2023.]