Women's Rights and Family Law

The question of women’s rights was a second inescapable human rights issue for the new king. During the early 1990s, in the same political moment that gave rise to the liberalizing reforms we have outlined above, women’s rights was placed on the national agenda—due not in small part to the women’s rights advocacy groups that were finding new footing in Morocco. Delegates who were preparing for the UN’s Beijing Conference on the Status of Women nurtured hopes that Morocco’s family law statutes could be addressed along with other constitutional reforms. In 1990 Morocco’s family law, also known as the Personal Status Code or Mudawwana, remained as it had been written in 1957. In an age where women—many of them from prominent urban families—held prestigious jobs as doctors, lawyers, accountants, poets, pilots, educators,

researchers, government officials, and journalists, the numerous restric-

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tions imposed by the Mudawwana were seen and experienced as both anachronistic and infantilizing.

Despite constitutional promises of gender equality, Morocco’s Personal Status Code severely limited the familial, social, economic, and political rights of women and created conditions that contributed to abuse. To begin with, the 1957 family law conferred a lifetime status of legal minor on all women. A male guardian—if necessary, a younger brother—was required to sign all legal documents for a woman, including her marriage contract. Though other provisions of law required a woman’s consent for marriage, the fact that a woman’s presence was not required at her legal marriage ceremony allowed for considerable abuse. This provision opened the door to forced marriage of young girls, as well as early pregnancies and attendant risks of maternal mortality. It also made it possible to force marriage upon a woman who questioned social norms, if a local court found such questioning to constitute bad conduct.30

Once married, a woman was placed under the direction of her husband and had a marital duty to obey him in all matters. The 1957 code also permitted polygamy and gave men an absolute right to divorce through unilateral repudiation. Women were provided the right to divorce, but only under extenuating circumstances. In the case where divorce was sought by a woman due to domestic violence, considerable medical proof was required. Critics of the Mudawwana charged that it implicitly condoned domestic violence in the guise of a husband’s duty to discipline, and they held it responsible for the failure to address an epidemic of domestic abuse.31 Finally, inheritance and filiation laws also discriminated against women. As elsewhere in the Muslim world, inheritance laws embedded in the family law code awarded male heirs twice the inheritance received by their female counterparts, which in many cases contributed to female poverty. And because filiation provisions in the Mudawwana attached children to the agnatic lineage of their father, a Muslim child whose only Moroccan parent was a woman could be denied citizenship, education, or social services.32

The 1957 Mudawwana was a product of Moroccan politics in the immediate postcolonial period, and Mounira Charrad has argued that its particular form was designed to strengthen the monarchy in that period by favoring rural kin-based tribal groups over urban interests. During the mid-century struggle for independence, the urban-based nationalist Istiqlal Party had advocated both democratic rule (in the form of a constitutionally limited monarchy) and gender equality in the political, legal, and economic realms as well as the family. That vision was quashed in 1957. By interpreting Islamic law in an ultraconservative

manner and enhancing local jurisdiction, the Mudawwana gave kinship

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groups full ability to control women’s choice in marriage and thereby reinforced tribe-based patriarchal authority.33

The social contract reflected in the Mudawwana held for several decades. Over the period 1957-1980 a few women’s organizations formed, usually as an extension of a political party or trade union, but there was little contestation of the personal status laws. Most opposition parties operated under a cloud of repression during this period, and no national organizations were willing to take up the cause of women’s rights—particularly as such a program seemed sure to provoke the ire of conservative religious leaders. Those who sought to improve women’s status and condition came increasingly to believe that change could only be achieved through a complete overhaul of the Mudawwana and intervention of the monarch. Given high levels of government repression and opposition among both religious elites and more populist Islamist groups, campaigning for such reform seemed unthinkable.34

In 1992, the political context and the dynamics changed. Among the new women’s groups born out of the UN Women’s Decade was the Union of Feminine Action (UAF). In the late 1980s the UAF had organized a drive for constitutional reform, without much noticeable effect. They attracted both national and international attention, however, with a massive petition drive launched on the eve of International Women’s Day in 1992. Their campaign to reform the Mudawwana extended through 1993, a time when all of Morocco was gripped by the horrifying accounts of crimes against some 1,500 women committed and videotaped by Casablanca police chief Mohamed Mustafa Tabet. Fueled by public outrage at the sensational evidence that emerged in Tabet’s trial (which resulted in conviction and execution), UAF campaigners succeeded in collecting more than a million signatures backing reform. Their effort tangibly demonstrated support for revising the Mudawwana and it catalyzed the formation of a coordinating council of twenty-three like-minded organizations.35

The campaign also provoked the anticipated resistance from conservatives and, more surprisingly, from opposition parties that might have been expected to lend support. Islamists reacted virulently to what they saw as an effort by women (mostly leftists, in their view) to interfere with religion. They claimed that criticism of the Mudawwana was an incitement against Islamic society tantamount to apostasy. Opposition parties, for their part, resisted the women’s initiative because they saw it as potentially destabilizing and counterproductive to their larger goals of political reform and class struggle. Out of strategic concerns, some of them not only refused to support the campaign but actively opposed it.36

Under the circumstances, reigning King Hassan had few incentives to

initiate reform. To placate advocates of change (many of them from

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Morocco’s ruling classes), he created a reform commission and invited it to propose modifications to the existing code. Though women were invited to participate in consultations, and though the charge de mission from the royal cabinet was a woman, the actual commission was composed of twenty men and included several religious scholars.37 Not surprisingly, the reforms proposed by this commission were not far- reaching, and they were enacted in 1993 without much fanfare or celebration. The fundamental gender inequities remained, and critics claimed that they would have little practical effect.38

For advocates of women’s rights, the 1993 modifications were to some extent a political setback. The fundamental questions (and inequities) were not resolved, but political actors could claim they had addressed the issue, which accordingly lost urgency on the political agenda. Through the 1990s, UAF and its partners focused on educational activities, organizing seminars and workshops on a wide range of issues related to domestic violence, the abuse of child maids, and female poverty. Leading human rights groups issued communiques on International Women’s Day, and with assistance from the European Union, the AMDH hosted a summer university program on women’s rights in 1998.

With the appointment of an opposition prime minister in 1998, hopes were raised among feminists that a USFP parliamentary plurality could initiate significant reform. By this time opposition parties had warmed to the idea of promoting women’s rights, and in early 1999 it appeared that proponents of reform would not be disappointed. In March Prime Minister Youssoufi announced a plan consisting of five development objectives related to the rights of women and female children. The plan targeted access to education, reproductive health, political representation, economic opportunities, and reform of the Mudawwana.39 It drew fiery rhetoric from Islamists and the ulama (religious authorities), who charged it would drive young people away from marriage and destroy values of honor and valor.40

At the time of Hassan II’s death in July 1999, the issue of Mudawwana reform was simmering on a back burner. Mohammed VI’s accession to the throne rekindled hopes among human rights and women’s rights advocates. In his first public speeches, the new king gave prominent place to improvement of women’s rights and status, as well as democratic reform and human rights. Women’s groups began to plan a large demonstration on International Women’s Day in favor of the proposed reforms. Some 40,000 people participated in their March 2000 rally in Rabat, a grand success by most measures. To their chagrin, however— and to the chagrin of the monarch as well—an estimated several hundred thousand people heeded a last-minute call from Islamist leaders

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and took to the streets of Casablanca to reject the reforms outright. Mohammed VI revoked Prime Minister Youssoufi’s plan.

Despite the setback, the OMDH and AMDH joined women’s groups in a sustained effort to exact reform. In 2001 and 2002 the OMDH issued communiques that presented detailed proposals for change not only to the Mudawwana but also to the Moroccan constitution and to reservations Morocco had attached to its ratification of certain international treaties. In March 2001, the monarch responded in classic fashion: he created a royal commission and charged it to offer advice on reforming the Mudawwana. This royal commission was composed of Muslim theologians (ulama), magistrates, and representatives of civil society, mostly from the field of jurisprudence. Among them were three women.41 Adopting the strategy Tunisian president Habib Bourguiba had used to develop the most liberal personal code in the Arab-Muslim world some forty-five years earlier, the Moroccan monarch instructed the commission to respect Islamic law and ‘‘be fair to women, as prescribed in Islam.’’ The commission worked steadily for more than two years but eventually became mired in a stalemate. By 2003, many despaired of any significant change.

Sometimes openings appear unexpectedly, in unlikely circumstances, and so it was in 2003. In May that year, terrorist attacks rocked Casablanca, implicating homegrown Islamic extremists. Although the attacks appeared to have been launched by radical groups previously unknown in Morocco, the well-known populist Islamist groups (including the legalized Justice and Development Party as well as Sheikh Yassine’s unauthorized association, Justice and Charity) braced for a backlash. Municipal elections scheduled for June were immediately postponed to September. The Islamist Justice and Development Party had won the third highest number of seats in Morocco’s 2002 parliamentary elections, and they were widely expected to do well in the municipal contests. In the aftermath of the Casablanca attacks, however, they beat a strategic retreat, generally withdrawing from public debate and fielding candidates only in 18 percent of the municipalities.42

Mohammed VI took advantage of the Islamist retreat, and at the opening of the fall parliamentary session he stunned the nation with a surprise announcement that he was forwarding legislators a proposal to reform the Mudawwana. In contrast to the outcry at previous junctures, this time there was almost no public opposition. Members of the Justice and Development Party did debate the measure ardently, offering numerous amendments, but in the end the revised code was approved by Parliament in January 2004.43 The new Personal Status Code abolished the principle of male dominance in the family, giving wives joint

responsibility in the family and rescinding the stipulation that wives

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must obey husbands.44 Among other changes, the minimum age of marriage for women was raised from fifteen to eighteen (bringing it to parity with that for men), which meant that young women were no longer required by law to accept a marriage arranged by their father. The institution of the guardian—the male family member previously endowed with power of attorney—was abolished. Further restrictions were placed on the practice of polygamy, and divorce by repudiation was replaced by judicial procedure.45

It would be misleading to suggest that the 2004 family law reforms eliminated all elements of adverse discrimination against women. In some areas—notably provisions regarding polygamy and inheritance laws—the royal commission considered itself bound by Islamic principles and recommended only modest revisions. In a world in which continuity usually trumps change, however, the developments of 2003/2004 that gave Morocco one of the most progressive family laws in the Arab world were remarkable. The principal credit for this achievement lies with Morocco’s young king. Women’s groups galvanized support for the initiative more than a decade ago—but their opponents rallied even greater numbers. It seems unlikely that reform efforts would have come to fruition without royal patronage. Women’s rights groups, backed by the main human rights organizations, clearly played a role in bringing the issue to the level of national debate, but it was Mohammed VI’s decision to take control of the politically sensitive and potentially destabilizing issue that ultimately made the difference. The monarch’s choice to bring the issue forward at a moment when Islamist groups were on the defensive was an important strategic move, but it also demonstrated the monarch’s personal commitment to advancing this item on the human rights agenda.

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