By Daisy Ni (PO ’21)
The past week proved to be a tense time for the Afghan population, who faced a major change in facets of everyday communication. On November 2, the Afghan government released an order to ban Facebook-owned WhatsApp and Telegram. The deputy director of the telecoms regulatory authority justified the decision on the grounds of national security, stating that the two apps are often used by the Taliban and other militant groups to evade government surveillance. The widespread backlash from civil rights groups to this decision led to the ban being completely overturned on November 6. This turn of events invites closer examination of rights and freedoms of expression in Afghanistan.
In referencing national security as a rationale in its initial order, the Afghan government is most likely referring to the threat of the encryption and anonymity services that the apps offer users. These features have been targeted by other countries as well in counterterrorism initiatives, most notably by the Chinese and Brazilian governments (in Brazil, the ban has been initiated and overturned three times). While encrypted messages between terrorists are a clear threat, protected speech is also an important component of a healthy civil society. Encryption and anonymity, according to the United Nations Human Rights Council, create a zone of privacy; this privacy in turn acts as a gateway to protecting the freedom of expression and opinion. Thus, the attempted ban on WhatsApp and Telegram opens the way for the possibility of infringement of a multitude of rights, particularly those related to media. The Afghan government, however, has denied that the ban affected free expression, stating that “WhatsApp and Telegram are just applications for contact and the sending of audio messages.”
One of the primary concerns about the ban was that it would inhibit journalists’ ability to communicate in a private and secure way. Specifically, encryption and anonymity guarantee security that journalists and media rely upon in interviews and in expressing their messages. This security is already especially at risk in Afghanistan— at least 13 journalists were killed just in 2016. Currently, journalists face threats from multiple fronts: the Taliban and other insurgent groups use threats and violence to compel reporting they consider favorable; weak legal protections allow even government officials to intimidate and censor journalists which run contrary to their interests, and enable assaults and threats go uninvestigated and unprosecuted. The Mass Media Law of 2009, which serves to “promote and guarantee the right to freedom of thought and speech,” offers no explicit physical protection for journalists. Instead, it established a Media Violations Investigation Commission that focuses on complaints by officials against journalists.
The Afghan Constitution declares freedom of expression and freedom of press as “inviolable.” However, additional clauses in the constitution qualify that right. Article 24, for example, states that though “liberty is the natural right of human beings,” it may be regulated when it affects other’s freedoms or jeopardizes the public interest. This sentiment has been incorporated within a variety of legislation— the Access to Information Law of 2014 (ATI), for example, mandates the sharing of information with the public except in the interest of national security. However, the lack of clear definitions for “national security” and “public interest” in legislation creates ambiguity and opportunities for abuse. In August 2015, for example, a satirical Facebook page called “Kabul Taxi” was temporarily shut down after the National Directorate of Security investigated the page for criticism of senior security officials. Additionally, many government policies, though progressive in name, fall short of complete commitment to their purpose. Even with ATI, for example, the Oversight Commission on Access to Information reported that the government was still failing to share information with journalists. There are no penalties or consequences for violating the mandatory disclosure of information— thus, the government could continue to get away without satisfying media demand. The inclusion of on-duty government officials in the commission, furthermore, inherently undermines the independence of the commission.
Additionally, the recognition of Islam as the national religion, as well as further legislation to protect Islam’s traditions and sanctity, further complicates the interpretation and application of laws. The Mass Media Law of 2009, for example, places legal restrictions on content that is “contrary to the principles of Islam and offensive to other religions and sects.” These rules also apply to non-Muslim and foreign-owned media outlets. However, it is often hard to categorize non-offensive Islamic material as opposed to offensive non-Islamic material, offering government broad discretion which they can use to discriminate. Even among journalists themselves, this ambiguity causes fear of accusations of apostasy, or rejection of Islam, which is crime punishable by death, and thus leads to much self-censorship. This inherently restricts the topics that media is permitted to cover—subjects of violence against women, for example, remain controversial and socially taboo. In fact, Parvez Kambakhsh was sentenced to 20 years of prison in 2007 for distributing material from the Internet questioning the condition of women in Islam. Though he was pardoned in 2009, his case stands only as one example of those who have been persecuted under assumption of blasphemy.
Though Afghani personal freedoms have expanded significantly since the end of Taliban rule, there still exist multiple barriers to complete freedom of expression. President Ghani has reaffirmed the government’s commitment to freedom of expression and media multiple times, but political initiatives lack true will and power to seriously complement his statement. The overturn of the ban of WhatsApp and Telegram is rightfully celebrated as a victory for personal and journalistic freedom, but signifies the instability of human rights in the country and the fact that the government is still battling to define freedoms. This incident was an important development in the long path to full freedom of expression in Afghanistan, but the fight is far from over.