(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Article 7 of Afghanistan’s Constitution provides that the state is bound by the UN charter, international treaties and international conventions that Afghanistan has signed, as well as the Universal Declaration of Human Rights. Moreover, Article 6 obliges the state
‘to create a prosperous and progressive society based on social justice, protection of human dignity, protection of human rights, realization of democracy, and to ensure national unity and equality among all ethnic groups and tribes and to provide for balanced development in all areas of the country’.
However, Afghanistan does not appear to observe these aspects of the treaties. Article 427 of the Penal Code of Afghanistan (1976) criminalises ‘pederasty’ acts with the punishment of ‘long imprisonment’. Though pederasty commonly refers to sexual relations between a man and an underage boy, this act has been interpreted to include relations between men of any age, with harsher penalties imposed in cases involving minors. This article has remained law since the fall of the Taliban, though unlike during Taliban rule, the death penalty has not been officially enforced.
AJ (Risk to Homosexuals) Afghanistan v. Secretary of State for the Home Department, CG  UKAIT 00001, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 5 January 2009, available at: http://www.unhcr.org/refworld/docid/4964c06b2.html [accessed 19 April 2012]
Asylum granted, but under the special circumstances of this case alone. Pre-HT &HJ discretion test is applied, but this particular applicant was already known to the community and the Court did not consider internal relocation a viable option.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
As reported on Globalgayz.com, in the The Guardian and in the San Francisco Chronicle the Pashtun practise of men having bacha bazi is increasingly widespread and accepted since the fall of the Taliban. This practise involves older men taking boys between the ages of nine and fifteen as sexual partners, though it is not locally considered to be ‘homosexuality’ and goes unpunished under the Penal Code. The US State Department went as far as to call the practise a ‘widespread, culturally sanctioned form of male rape.’
In AJ Afghanistan v Secretary of State for the Home Department the UK Asylum and Immigration Tribunal found that though homosexuality remains illegal in Afghanistan, the lack of convictions demonstrates a lack of ambition on the part of the State to prosecute. As has been held in other LGBTI asylum cases, a certain level of discretion on the part of a homosexual couple is to be expected when living in a community, even one that criminalises homosexuality.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We are not currently aware of any organisations working with LGBTI persons in Afghanistan, but welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently have any specialists on LGBTI issues in Afghanistan, but welcome suggestions.
Researched by: Edward Mundy