Afghanistan’s Taliban Penal Code: Hudud, Tazir, and the Expansion of Judicial Powers

In Geneva, the agenda of the 61st annual session of the United Nations Human Rights Council, which began today (Thursday, February 27), included the Taliban government’s penal code. The Council’s Commissioner, Volker Türk, referred to the Taliban’s criminal code and the punishments it contains.

In the fourth year of its second term in power, the Taliban government issued a “criminal code” that many people inside and outside the country have described as vague and, in some parts, shocking.

Taliban officials say the code is fully based on Hanafi jurisprudence, developed in consultation with legal and religious scholars, and that parts and concepts of the law have been reviewed.

This criminal code, which consists of an introduction, three chapters, ten sections, and 113 articles, was signed by the head of the Taliban government, Hibatullah Akhundzada, on 15 Jaddi 1404 (Hijri calendar).

Taliban government spokesperson Zabihullah Mujahid said these criminal laws had been applied in Taliban-controlled areas during the 20-year war against the United States and its allies, and that their “new and updated” version is now being implemented based on the same principles.

According to Mujahid, the new law prescribes punishments for crimes that fall outside the framework of “Hudud Allah” (fixed divine punishments). The code grants broad powers to judges.

Human rights organizations have widely criticized the content of this code.

The Difference Between Hudud and Ta’zir

A former judge in Kabul explained that in Islamic jurisprudence, “Hudud” or “Hudud Allah” are fixed and predetermined legal punishments that cannot be altered. Examples include the prescribed punishments for murder, adultery, drinking alcohol, highway robbery, and theft. These punishments are called “Hudud” because their type and amount are defined by Sharia.

Mujahid says their courts will treat all people equally in cases involving “Hudud Allah” and “Haq al-Abd” (private rights between individuals). However, all other punishments are considered discretionary (ta’zir), meaning the type and amount of punishment vary according to the ruler’s or judge’s opinion and may take into account the defendant’s social character.

Punishment Based on Character and Social Status

Article 4 of the code states that in the implementation of hudud, qisas (retaliation), and diyah (blood money), only the crime is considered, not the personality of the offender. However, in ta’zir punishments, the “personality of the offender” is taken into account.

Article 9 states that punishment is “classified” based on the individual circumstances of the offender:

Punishment for scholars and high-ranking officials: a warning from the judge, such as, “I have been informed that you are doing such-and-such.”

Punishment for nobles, such as tribal leaders and merchants: being summoned to court and formally notified.

Punishment for the middle class: being summoned to court and imprisoned.

Punishment for the lower class: threats, beating, and harsher physical punishment.

Before the fall of the last republic, Afghanistan’s final Attorney General, Mohammad Farid Hamidi, said that over the past hundred years, modern Afghan laws had considered all citizens equal before the law. He stated that the entire content of this code is open to criticism and fundamentally different from Afghanistan’s prior legislative tradition.

He added that such division before the law has no place in Afghanistan’s contemporary legal history and is not consistent with the values of Islam.

According to Hamidi, during the time of the Prophet Muhammad and the first caliph, justice was applied equally regardless of status, lineage, social position, or wealth.

He said the code appears to be “copied” from well-known jurisprudential books but contradicts the spirit of independent reasoning (ijtihad) in Islamic jurisprudence.

The Afghan Penal Code Is More Severe

A former Afghan Hanafi jurist and scholar said the code is based on Hanafi jurisprudence and is stricter than the penal code of the former republic.

He explained that in Hanafi jurisprudence, ta’zir is left to independent reasoning, public interest, and the ruler’s or judge’s opinion. Differences among individuals are recognized, and judges may determine the type and amount of discretionary punishment based on the defendant’s condition and the public good.

According to him, in Hanafi jurisprudence, sometimes advice is more effective for a noble person than lashes, while in other cases lashes may be the only deterrent.

Influence of Deobandi Thought

Zabihullah Mujahid said that high-ranking individuals in society are not limited to Taliban officials; others also hold social status. If such individuals commit a crime, merely informing them of it may suffice because their social position would prevent them from repeating it.

The footnote to Article 9 cites “Fatawa al-Hindiyya,” also known as “Fatawa Alamgiri,” as a source.

Afghan researcher Rostam Ali Sirat said this indicates that Taliban scholars are influenced by the Deobandi school of jurisprudence in the Indian subcontinent and that “Fatawa Alamgiri,” written in India in 1667 at the order of Emperor Aurangzeb, had a significant impact on the drafting of the code.

Sirat noted that in the Indian subcontinent, converts from lower castes were sometimes referred to as “other Muslims,” while there were also Muslim elites, landlords, and scholars. He added that these issues were deeply influenced by Hindu culture and bore striking similarities to the caste system of that time.

Another source cited in Article 9’s footnote is the sixth volume of “Radd al-Muhtar ‘ala al-Durr al-Mukhtar” by Ibn Abidin, a 19th-century Hanafi jurist from Syria. This book is a commentary on “al-Durr al-Mukhtar” by Ala al-Din al-Haskafi and is considered one of the most authoritative sources in Hanafi jurisprudence.

“Public Interest” and the Death Penalty

Article 14 states that if the death of offenders protects the “public interest,” a judge may issue the death penalty. Examples include persistent corruption, promoting corruption, defending and promoting anti-Islamic beliefs, and practicing sorcery.

The second paragraph of Article 14 prescribes the death penalty for homosexuality and repeated theft.

Hamidi said that under Afghanistan’s 2017 penal code, death penalty cases were very limited and subject to strict conditions.

He argued that under this new code, the authority is granted to judges without specific conditions, disregarding accepted criminal and Islamic jurisprudential principles, and giving them broad discretion to impose the death penalty.

Article 4, clause 6, grants authority to individuals—apparently including Taliban Ministry of Public Order officials and ordinary Taliban members—to administer punishment.

It states that any Muslim who sees a sinner committing a sin has the authority to discipline them, as part of enjoining good and forbidding evil.

Leaving Home, Looking at a Neighbor’s Wife, and Imprisoning Dancers

Article 34 prescribes discretionary punishment for a woman who goes to her father’s or other relatives’ home without her husband’s permission.

If a woman repeatedly goes to her father’s or relatives’ house without a legitimate reason and stays there, and does not return despite her husband’s request and a judge’s order, both the woman and the person sheltering her are considered offenders and each may be sentenced to three months in prison.

Another article states that if a person engages in improper contact with a non-mahram woman (kissing, touching, or embracing), the judge shall sentence them to one year in prison.

It also states that looking at a neighbor’s wife, gesturing at her, describing her body parts, or inquiring about her condition is a crime punishable by one month in prison.

Article 59 prescribes prison sentences for dancing. Boys and girls who dance, and those who dance with them or watch them, are all considered offenders, and the judge shall sentence each to two months in prison.

Mujahid said that a man who fails to provide his wife with her rights—such as housing, food, and clothing—is also punishable.

He emphasized that the international community should respect Afghanistan’s laws and not question them, adding that their courts are 100 percent based on Sharia law and cannot incorporate foreign civil laws.

He said that those who object to Islamic beliefs and laws have no right to object.

Mujahid: “Innovator” Does Not Mean Shi’a

In another article defining terms, an “innovator” is defined as anyone who opposes the beliefs of Ahl al-Sunnah wal-Jama’ah.

However, Mujahid said that their Shi’a “brothers” are not included in this definition and that Shi’a communities, as recognized, have full freedom in their beliefs and religious practices and are not covered by this provision.

A former judge also stated that introducing this term does not mean excluding followers of other sects, including Shi’as.

He said that differences in jurisprudential rulings do not justify declaring someone outside Islam, noting that even among the four Sunni schools—Hanafi, Shafi’i, Hanbali, and Maliki—there are many differences.

In his view, the term “innovator” refers to any person or group—whether Hanafi, Sunni, Ja’fari, or Salafi—who engages in innovation in fundamental matters of creed.

The Use of the Word “Slavery” in the Code

Several articles use terminology associated with the era of slavery, which some have interpreted as formalizing slavery.

Article 15 states that discretionary punishments apply to “free or slave, male or female, Muslim or non-Muslim, adult or discerning minor,” though a discerning minor receives disciplinary punishment for disobedience.

Although slavery has been abolished internationally, terms such as “slave” and “bondage” still appear in Sunni and Shi’a jurisprudential texts.

Article 4 distinguishes between hudud and ta’zir by stating that hudud are fixed, while ta’zir is left to the decision of the ruler. Hudud are waived in cases of doubt, whereas ta’zir may be confirmed even in the presence of doubt.

Mujahid emphasized that there are three levels of courts in the judicial system, defendants have the right to defense, oversight mechanisms exist, and a special agency monitors the implementation of laws and rulings.