a letter to president

My name is Sanjar Qiam, 26 years old Afghan citizen; I intended to marry Sofya Panova, 24 years old, Russian Federation citizen in Afghanistan. Afghanistan laws or at least officials and religion don’t allow our marriage. “Among all religions only a Jewish or Christian girl can marry a Muslim man, only if she converts to Islam” said a judge of sixth district court. “The first step to your marriage is Sofya conversion into Islam by chief justice and then processing your marriage documents” said secretariat of Supreme Court. This is unfair and against Universal declaration of human rights, article 16th of the declaration states: ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family’
Sofya converted to Islam and we got married. Now, we are trying to get our marriage documents authenticated, making it a valid document internationally, so Sofya’s visa problem would be resolved in Afghanistan, similarly for me in Russia. Sofya has a three month visa and she has spent almost 85 days in Afghanistan. Our marriage certificate is issued in the office of Ayatollah Moahqqiq Kabuli. The Russian embassy in Kabul asked us to get our document authenticated by ministry of foreign affairs.

Marriage Certificate Authentication:

The purpose of the authentication process is to establish a chain of authentication with respect to the signatures and stamp on the document. The stamps and signatures on our marriage certificate are not recognizable for Russian Embassy. In the normal course of affairs, only signatures known to the Russian embassy will be accepted. Generally speaking, the signatures are those of competent officials of Afghan Ministry of Foreign Affairs. Authentication is a formality by which Afghanistan consular agent certify the authenticity of the signature on our marriage certificate. by authenticating the marriage certificate, Afghan Authorities verifies that the signature which appears on the document is the true signature of who it purports to be. Authentication doesn’t mean that Afghan ministry of foreign affairs approve the content of marriage certificate.
'The Hague Convention (Apostilleverdrag, August - 1962) abolished the Requirements of Legalisation for Foreign Public Documents, in this case being marriage certificate. The simple formality which has replaced legalisation is the addition of a certificate, or 'apostille. This means that an Apostille is needed from ministry of foreign affairs to accompany our marriage certificate.

Since neither Russia nor Afghanistan is signatory to all legalization conventions, it is necessary for our marriage certificate to be legalised by a number of bodies, resulting in a long series of signatures, so that the embassy in Kabul can legalise a signature he is familiar with. The same process has to be conversely followed in Russia in order to use it for visa or any other purpose.

Afghan ministry of foreign affairs refused to authenticate or Apostille our marriage certificate. “Ministry of foreign affair only approves (Taheed) document with legal grounding. We can’t just approve anyone” said Mohammad Dawod Panjshiri head of consular department at ministry of foreign affairs.

To summarize I think there is a great gap what the law and requirements of the law, and the knowledge, attitude and behavior of those who implement it.
Farida (whose last name I didn’t get), head of legal affairs department at the ministry of women affairs said “I understand you have a marriage document and it should only be authenticated. It could only be authenticated if you follow the procedure, you can’t change the system ... what is your point?” When I was telling Dawod Panjshiri at the ministry of foreign affairs, what I thought authentication should be, he said “you are a grown up, you are a journalist, please try to understand”

Marriage is a law; an ambiguous law

while I was trying to figure out the account of authentication/ Apostille, in the offices of ministry of foreign affairs and other ministries I realized there wasn’t a good understanding of it, the word legalization, authentication, notarization, certification, validation were used interchangeably. This is where my curiosity aroused, why not to have a clear legal terminology. But I found the answer for it on Monday. Jabar Sabit, Afghanistan’s chief prosecutor was summoned by the national assembly for questioning over the fate of 4000 prisoners who whose fate is undetermined or has passed their sentence, Jabar said “we don’t have a good legal structure. We can’t process a suspect in less than nine months” when the MPs brought up the issue of torture and abuse in Poli-Charkhi jail, Sabit joked “shall I have the head of poli-charkhi arrested?”
Following the chain of signatures and in pursuit of assistance, our documents have been at least to three ministries and Supreme Court, and it’s been touched by at least 50 hands (50 pair of hands). But it’s not yet legalized.

Our marriage certificate is issued by Mohaqiq Kabuli office “Shias are still discriminate. I am going to write an article outlining all the cases of discrimination against shias, including this one. the only reason the ministry of foreign affairs is giving you trouble is because your document is Shia” said Kamran Mirhazar editor of internet based Kabul Press. “I have the same marriage certificate and my wife is Iranian, I had no trouble getting her a one year Afghan residency” he added. Dual behavior of state institution is a clear sign of discrimination and is enforcing Kamran’s point. I contacted Mr. Allemi, the Mullah at Mohaqiq Kabuli office and he was shocked when he heard the government refuses to certify our marriage registration “the marriage certificate we have issued for couples have been used in Afghan city and abroad” he said. Afghan constitution is ensuring religious freedoms for Shias and Shia courts and judicial “the marriage certificate you have is not official, it’s the judiciary which issues the official ones. In Takia Khana chindawal, we are issuing marriage certificate to and it was used abroad, in china and Europe, but not anymore” said Mohammad Baqir Sahibzada, mullah of chindawal taakiakhana and an MP.
First district, a shia part of Kabul, was the most helpful. Although, I am not living in the first district, they offered to put a lot of stamps on the marriage certificate. They supposed if the certificate is approved by first district, the ministry of foreign affairs might authenticate it.

The man in smart suit with a flag of Afghanistan on his chest, at the consulate department of ministry of foreign affairs told us to go to Supreme Court and they will instruct us how to get a legal marriage certificate. “the supreme court is not where the process starts, if you start at your district court, the procedures will bring you to the supreme court” said the marriage certificate section of supreme court. Abdul Matin Hamdam, director of investigation in Afghanistan’s prosecutor office explained the process as following “you go to district court on their office hours, he will send you to office of residence registration who will give you a form, you fill out the form and go to the court with the witnesses. After your registration at the district court they will send you to the provincial court where you’ll be referred to residence registration again. Then you’ll go to your local Mullah where you’ll get married again and the witnesses will sign again, you should preferably have the witnesses of first marriage. Then you bring the form back to provincial court where it will be stamped. Then you take the form to a ‘Darul Wakalla’ where it will be officially translated, from there it goes to ministry of justice who will approve the Darul Wakala, afterward you take the document to supreme court where the stamp approval of your marriage certificate and it’s translation. Then it goes to ministry of foreign affairs for legalization” I was quite confused I wrote this all down and called Faiz M. Nayab, editor in chief of Radio Salam Watandar, I asked Mr. Nayab to explain the process again, he said “Sofya has to convert to Islam again and this time most likely to Sunni Islam” what is Sofya’s muslim name? he asked “Fatima binta Evgeniy” I said. “She will probably get another name too” Nayab added. “What if Sofya doesn’t want to convert to Islam?” I asked Dawod Panjshiri, head of consulate department of ministry of foreign affairs “I don’t think you can get married. But just convert” he shrugged his shoulder and narrowed his eyes as a sign of ‘what is the big deal’! after few days I found my district court and told Mr. Abdul Haiy at six district court that we want to get married “does Sofya’s parents know about it?” he asked. i asked “why does that matter?” he give me a suspicious look and said “it doesn’t matter for the court. We have to send you to ‘Wakil Guzar’ head of the neighborhood and he might want to know” I was curious about the head of the neighborhood, I soon found out he is not part of the court system and he is a guy who acts on behalf of the neighborhood, although the system is called official but it’s a combination of official and unofficial system. The official system relies for information on unofficial system because there is no recording system at the official system. The unofficial system is based on favors and bribery if I pay Wakil Guzar he approves if not he send me to neighbor whom I absolutely don’t know. I came back to Mr. Nayab and told him my findings, he thought for awhile as he was rubbing his hand on his shaved chin and said “all this could be done without a headache if you bribe some judges”

I have been to several district courts in search to find one with the easiest process. The process could be made very easy with a little cash motivation but I am not going down that path. A friend of mine in district 3rd made it possible to go to the 3rd court, the judge said “this is weird, we haven’t had anyone yet marrying a non-Muslim, I will talk with the boss and come back in the afternoon” in the afternoon three of them were sitting in the office with very serious faces, the boss started “we need to have some formal request for arranging your marriage, we need a letter from Russian embassy in Kabul to say you guys are getting married” it was a waste of time I went to district court 6th and the judge said “you are going on the wrong path. i.e. bottom to up. It’s an up to down approach, you should go to supreme court office and file two separate requests, one for marriage and one for Sofya conversion” quite confused by courts I contacted a journalist friend, Asar Hakimi “marriage is a civil issue while we are not civilized people, 99% of our marriages are social” he said.

“marriage is my tradition; whoever turns away from my tradition is not among my followers” these are the words of Mohammad, prophet of Islam, I was listening to this on the radio, as the music was fading in a radio spot started, a judge was persuading a villager to register his marriage “registered marriages help with social benefits and the protection of husband and wife rights” this message was part of a multi-million dollar project by an NGO and ministry of women affairs. 99% of Afghan marriages are unregistered and there is a growing concern about the well being of women with multi-wives husband.

I decided to go to ministry of women affairs to seek their support in legalization of our marriage certificate. “why do you need to legalize this document? If Sofya is staying in Kabul, you should ask the president to give her Afghan citizenship” said Malia Sahak, deputy minister of women affairs. i told her the version of legalization I knew from the website of UK foreign office “Legalisation is the official confirmation that a signature, seal or stamp appearing on a document is genuine. Having a document legalised does not mean that the content of a document is accurate or that the Foreign office approves of it”
She asked Sofya why she is marrying me “because I love him” said Sofya in broken Farsi, she broke into laughter and started fumbling through papers she looked at me and said my husband has studied in Moscow “he must have enjoyed sweeties like her” I took that with a smile and translated a nicer version of it, to help Sofya join the laughter.

deputy minister of women affairs was making a phone call to help, when she found out that I am Sanjar Qiam, a journalist who did a piece on Massooda Jalal, former minister of women affairs who was beaten up by her husband so badly during her final months of pregnancy which resulted in miscourage; she put the phone down and said she couldn’t help us. Frankly, I was not particularly impressed by them either. I am wondering how a ministry could stand for women’s rights whose deputy believes ‘women are sweetie for men to enjoy’.

Why shouldn’t marriage be part of Judicial?

Judiciary is the most corrupted column of Afghanistan. Judiciary is not generally trusted by public, a recent study shows:
One-third had faith in local elders for resolving any problem …
Another 16% said they would approach government courts.
Marriage shouldn’t be a complicated judicial case. This will encourage marriage registration, marriages which are recognized by the civil authorities will protect women rights, children and their lives, it will eventually prevent men who engage in polygamy that is condoned under certain situation.

In many countries civil marriages are merely a registration. Civil marriage law made the declaration of the marriage before an official clerk of the civil administration (both spouses affirming their will to marry) the procedure to make a marriage legally valid and effective, and reduced the clerical marriage to an optional private ceremony.

A marriage is an interpersonal relationship with governmental, social, or religious recognition, and created as a contract. The marriage certificate we are currently holding is issued by a religious authority, but its not recognized by the government “this is a commercial document and has no basis for us” said the official in ‘Zatia’ (marriage document section of supreme court) department. This is while the government is recognized by religion and constitutionally nothing could be contrary to religion.

The most likely civil marriage process:

Civil marriage is not clear “the document you from Moaqiq office is Harfi (costumary), it’s not official, sharaie marriage document is only issued by the court” said the judge of first district. The term civil is referred to as Sharaie, perhaps based on the assumption that all afghan laws are based on sharia. The process is not clear at all, it’s random and at the mercy of the corrupt judge. What comes in civil marriage media spot is no where near reality. while I was attempting to try every single district court, to find the easiest. I went on the internet to find contacts for district court but there was nothing. Then I went to Kabul court, family court, penal court, Supreme Court in search of the number. “you know how dangerous its for judges in Afghanistan because of the serious security concerns, we can’t give you any number” said the head of Kabul court.

To marry a foreign citizen an Afghan citizen should follow the following steps, The process could take several months. This is only when it’s a Male Afghan citizen, the process is different when a female Afghan citizen is marrying a foreigner “when a foreign woman is marrying an Afghan, we find out through her embassy that she is not already married or criminally convicted” said at the fifth district court. I think this is bias and unfair.

A Letter of Non-Impediment to Marriage ("marriage letter") should be prepared in the home country of the foreign partner. This form (partner’s language) contains basic information, marital statue, criminal record (and any other information which the judge wishes to have which I don’t know at this point). The letter comes to the respected embassy and from there it’s official translated in a ‘Darul Waqala’ the letter then goes to ministry of justice for endorsement of Darul Waqala. Then the letter comes to ministry of foreign affairs. the ministry of foreign affair give a copy to the relevant court. This is against the 1961 Hague Convention abolishing Requirement of Legalization for Foreign Public Documents. ideal, an international document destined for use in Afghanistan should be certified by one of the officials in the jurisdiction in which the document has been executed.

A letter of Non-impediment to marriage should be prepared by Afghan partner. After bringing a letter of criminal clearance from police, the neighborhood representative confirms of applicants good character. The neighborhood representative also confirms applicant’s martial statue.

take all the documents, including original passport (with a translation), the authenticated original death or divorce decree (if any) (with translation), and the authenticated Letter of Non-Impediment to Marriage, with translation to supreme court.

A petition should be formed form Supreme court, with the approval of supreme court documents should be delivered to Kabul court. After the approval of Kabul court, I am referred to penal court. (court structure is confusing, I am trying to get an organogram, I have been to at least half a dozen).

Kabul court sent me to district court, I was sent to 5th district court, where my parents live because Kabul court considered it as my permanent court. Then I was to. The fifth district court referred me to sixth district court and that is where Sofya and I live. The sixth district court referred me to seventh district court, where the Russian embassy is. According to the head of sixth district court the marriage takes place in the area where the embassy of the wife is located.

The court gave me an application, application goes to municipality, the municipality asks the representative of the neighborhood to fill it out the representative of the neighborhood asks the neighbor to supply the information. Once I have the information I have to get approval of neighborhood representative and municipality and then bring it to district court.

The district court marries the couple again and sends the certificate to Kabul court, with the approval of Kabul court it goes to Supreme Court for final validation.
The marriage certificate should be translated by an official translator and then brought to ministry of justice.
The translated version is authenticated by ministry of foreign affairs.

Let’s do it, please:

Nothing could be passed in any court without bribery “if things go with you smoothly, give me a telephone top up card” mobile card has replaced tea, it’s the new bribe phrase for court cleaners. Once passed him, the judges, administrators and chiefs have a pact, in two district courts I have paid 6000 Afghanis “this money is not going to me, I feed the big fish and colleagues” told me the administrator in one of the courts. 6000 has only got part of my work done. Small bribes only move the process from one court to another. It’s cheaper to pay one lump sum amount of bribe for getting everything done. Its going to cost US$2000 in bribe, for me to get a marriage document “the court (first district) had similar cases where US$3000 or 4000 was paid, this is a reasonable amount to show a good gesture, it’s a matter of virtue, and make a good impression to your wife who has converted to Islam” was told in the first district court “god bless corrupt officials” said an old man waiting in a line in seventh district our “we would never get anything done in Afghanistan if they didn’t exist” I don’t believe in that, corrupt officials make the process complicated to get what they want, in a broader scenario they are harming the society, they are the public face of the government and they introduce government as a monster which can’t be changed and reformed and the public has no say in it’s affairs and how it conduct business. The injustice will continue as long as people pay, civil servants already think it’s their right to thief people. Sonia was very frustrated in seventh district court.
7th district staff started pouring into the yard, as our debate on corruption was warming up “this is not corruption, its assisting a Muslim who is paid 3500 AFs in a month, which is in not enough at all” said a Kabul municipality employee “I don’t think your government compelled them to take the job, they made a conscious choice” said Sonya, it’s unlikely that civil servants and especially the judges are told that they are paid 3500Afs plus they could rape off the public. “It’s your fault that you translated everything for Sofya, the Sharia commands to consensus and your action is unislamic” said another court staff when talking to me.

In the office of 7th district where Sofya and I were getting married the chief judge said “what is with your hair?” I pretended, I didn’t hear him, there was a look of suspicion and distrust in the eyes of judges “your hair style is girly and I don’t like it” the chief justice continued. it heathenly saddens me to hear anything like it, disregarding who it’s addressed to and especially when it comes from the head of a court, it reminds me Taliban, it reminds me that Taliban are at our door steps and waiting, we continue our mistakes so they could come back. It’s a human right and an Islamic notion that one shouldn’t be subjected to arbitrary interference with his privacy, nor to be attacked upon his honour and reputation.
We can bring justice to judiciary. As an Afghan citizen I am fully prepared to go to many courts and fake a judicial case .i.e. my marriage, and gather evidence against corrupt officials. Through media we can launch a public campaign encourage the public to gather evidence against corrupt officials.

However this is not going to solve the problem, corruption starts from the top and the lower level staff is often a medium. Tackling top level corruption requires policy decision and that is not in the hands of citizen, eradicating top level as well as bottom level corruption also require reforming judicial system and the way government is run in Afghanistan.



Best,


Sanjar
April 23, 2007