Morocco’s Family Code – stage two already underwayThe Family Code + 10: Experiences and Ways Forward conference has created a new dialogue between the administrative and legal system and the harshest critics. Ten years after its introduction, these opposing proponents have carried out a joint evaluation of Morocco’s Family Code, with respect to both the legislation itself and how it is implemented in practice. In addition, the conference has shown that Moroccan women’s organisations are gearing up to face a new round in the ongoing fight for equality.
Ten years after the reform of the Moroccan Family Code, colloquially known as the 2004 Moudawana, an iron fist has slipped into the velvet glove of the law. The reform has been called “a velvet revolution” that has provided Moroccan women with one of the most progressive family charters in the Arab world, without unleashing opposition from the country’s conservative and Islamic quarters. However, these conservative groups are now increasingly putting pressure on Moroccan civil society in a discrete attempt to reverse the gains won by Moroccan women.
“We’re at a critical juncture right now. We have experienced significant progress, both with the Moudawana and afterwards with our own ‘Arab Spring’ and new constitution – which, among other things, calls for ‘full equality’ between men and women. But there’s also strong resistance to real equality in both the legal system and at a political level. The fight that we know is brewing right now is really going to come to a head in the coming months,” tells Latifa Bouchoua from La ligue démocratique pour les droits de la femme (LDFF) –The Democratic League for Women’s Rights – based in the Moroccan capital Rabat.
She was one of the many participants at the Family Code + 10: Experiences and Ways Forward conference organised by KVINFO in Rabat on 21 and 22 November 2013.
KVINFO has strongly supported the efforts of the Moroccan civil society and women’s organisation to ensure that the Family Code is also implemented in practice. Accordingly, the conference in Rabat is an attempt to take stock after ten years of the Family Code – a law which has done away with the requirement for a wife to obey her husband, has afforded women access to divorce on equal terms to men, has raised the minimum age of marriage for women to 18, and has regulated (if not abolished) polygamy.
Patriarchical imbalance in the interpretation of the law
However, one thing is the word of law; something completely different is how a law is implemented in practice. And the consensus at the conference was that here reality is often far removed from the promises set out in the Family Code. A report compiled for the conference by Moroccan Leila Hanafi (international lawyer for the Washington-based legal think-tank ARPA) highlights the first reason for this as being the fact that isolated rural communities in particular are unaware of the new provisions of the Family Code.
The Moroccan women’s organisations have worked extremely hard to inform and spread knowledge of the Family Code. Nevertheless, several panellists at the conference highlighted the need to intensify this work in rural districts; here, women are often illiterate or only speak the Berber language Amazigh and therefore often do not understand Arabic-language information campaigns.
Worse is the fact that those working in the legal system have been poorly informed about the consequences of the new Family Code – and in some instances, work against the spirit, if not the word, of the law.
“There’s a lack of publically financed education about the new rules aimed at judges and legal personnel,” states Leila Hanafi, observing that “there is documentation of a patriarchical imbalance in relation to certain parts of the Moudawana, not least when it comes to marriage laws for minors.”
The Family Code sets the minimum legal age for marriage for women at 18, but it allows judges the right to make exceptions so that girls can marry at a younger age. For many women’s organisations this is a deliberate circumvention of the spirit of the law. And it is a tendency that is on the rise.
Legal practice shows a conservative bias
“Between 2010 and 2011 we’ve observed a growth in the number of underage marriages. To make matters worse, the Minister for Justice has now suddenly refused to publish the figures for these marriages, so it’s harder for us to document the development. The same is true for polygamy, which also seems to be on the rise; there’s much evidence to suggest that judges are refraining from registering polygamous marriages,” explains Fouzia Assouli, national chairwoman for The Democratic League for Women’s Rights .
In general, the legal practice of the courts is beginning to form a pattern that suggests a particularly restrictive and conservative interpretation of the Family Code. Leila Hanafi points to the fact that in divorce cases the judges have a tendency only to grant divorces to women who are able to document the fact that their husband is not living up to his duties as breadwinner or provider – a duty that is rooted in Islamic law and sharia, which remains the basis for the Family Code. Other reasons, including alcohol abuse or violence, carry less weight with the judges, she points out.
But the clearest example that the Family Code is becoming more conservatively biased can bee seen in the high court ruling from 2011 that stated that a part of the alimony payments must be dropped if it is the woman herself who has filed for divorced.
“The high court’s reasoning behind this is that a woman who has filed for divorce cannot claim to be the victim of marital breakdown; consequently, in their view, she should not be entitled to the part of alimony payment that is termed Mutaa. In effect, this means that a woman is punished for filing for divorce, despite the fact that the law stipulates that women may seek divorce on an equal footing to men,” explains Saaida Wadah from Morocco’s National Human Rights Council, Conseil consultatif des droits de l’Homme.
KVINFO educating family judges in mediation
With the reform of the Moudawana, family legislation was wrenched out of the control of the religious leaders and is now instead formulated by a commission that includes three women members. Nevertheless, the Family Code – as the only legislation in Morocco – remains rooted in Islamic sharia law. Several of the judges who participated at KVINFO’s conference highlighted the fact that the Family Code in the spirit of sharia must be used as a tool to ensure family stability as the foundation of society. This is a point of view that at its most extreme can lead to reluctance among judges to take women’s rights into account in divorce cases.
Precisely because of this, a recently launched project examined how judges handle cases and how they deal with both involved parties. This project, which supports the implementation of the Family Code, was initiated by KVINFO as a Danish-Moroccan collaboration within the framework of The Danish- Arab Partnership Program (DAPP).
In total, 280 family judges have participated in a project aimed at developing tools for mediation among the parties involved in divorce cases. The result of the initiative is a handbook compiled collaboratively between the Danish State Administration and Morocco’s Institut Supérieur de la Magistrature, which is responsible for educating the judges. The Family Code requires that judges endeavour to mediate between the parties; however, as came out in the conference workshops, there appears to be a tendency – in rural areas in particular – that women are basically being told to go back home and resign themselves to their destiny.
“In contrast, the mediation methods that we have contributed with emphasise the fact that the solution in any mediation should not be predetermined in advance. The parties must themselves work out whether or not they want to stay together, and if they get divorced then they can try to agree on the best arrangement for parental custody, economic compensation and so on,” tells Elisabeth Møller Jensen, director of KVINFO.
“We’re ultimately hoping that these tools and the desire to listen to both parties will also influence the judges’ general attitudes towards women’s rights. A sign that this is having an effect can be seen by the fact that judges and women’s organisations are today sitting in the same room at our conference and talking with each other. This would have been unthinkable at the beginning of the project, and this dialogue is equally as vital for the changes that need to break through in the country,” explains Elisabeth Møller Jensen.
Demand for reform of the Family Code
However, as Leila Hanafi also highlights in her report, these conservative interpretations of the Moudawana are also made possible by the vague formulation of the Family Code.
“This leaves the judges with an unacceptable margin for interpretation,” states Leila Hanafi.
For precisely this reason, there are several calls for “a reform of the reform” throughout the course of the conference.
“It’s time that there was a reform of the Moudawana; for example, polygamy ought to be outlawed completely, instead of merely being regulated as it is today,” says Fouzia Assouli.
“There are still rules that discriminate against women,” adds Fatima Zarah Boukaissi, lawyer and Family-Code specialist in Rabat.
“For example, if women remarry they can lose custody of their children if they are over twelve years old – a rule that doesn’t apply to men. It should be the well being of the child, not the child’s age, that determines who gets custody,” asserts Fatima Zarah Boukaissi, who also points out that the Family Code only applies to married women. Unmarried women – and single mothers in particular – are still subject to traditional common practice that denies them any right to self-determination.
Inheritance rules are another hurdle for equality as these, in accordance with sharia law, only give the women half-inheritance rights. Lastly, the women’s organisations point out that the Family Code does not stipulate a minimum age for marriage that can prevent authorisation of marriage for girls under the age of 15. Several organisations want to abolish completely the provision that allows judicial dispensation to allow marriages of those under 18.
The Islamic government party, PJD, has conversely put forward a proposal to lower the marriage age for girls to 15, with the officially proclaimed purpose of stamping out marriage of even younger girls. But for the women’s associations, this is an aggressive attack against the Family Code.
“We must remain resolute that the place for 15-year-old girls is in school – not in a marriage,” tells Fouzia Assouli.
New leverage, but also greater power to the Islamists
Ten years after its introduction, a reform of the Family Code risks becoming the subject of a new political battle. A first attempt at a reform of the original Family Code in the year 2000 ended up splitting Moroccan society. When the reform was eventually successfully carried out in 2004, the political context was favourable to the women’s organisations, which drew support from King Mohammed VI’s desire to modernise Morocco – not least by improving the status of women within society. Furthermore, the March 2003 Al-Qaeda attack in Casablanca that cost the lives of 41 also forced the opposition into maintaining a low profile.
Ten years on, the Islamic PJD party (which organised mass demonstrations against a reform of the Family Code back in 2000) is sitting in government together with two other parties.
Despite this, Morocco has over the past few years also witnessed a number of initiatives that have served to increase the status of women in society. One such initiative has been the new 2011 constitution, article 19 of which stipulates “full equality for men and women”. This point is, however, followed by wording that states that equality “must occur within the bounds of the unalterable principles of the country” – a get-out clause that in effect can be invoked to limit any developments in the area of equality.
“We’re concerned about this particular article of the constitution, but we also believe that we have some leverage in the form of the international conventions that Morocco has signed up to, including CEDAW, the UN convention on eliminating discrimination against women. Here, Morocco has thrown out its former provisos, and the government’s message to the UN is that Morocco will fully abide by all of its obligations. It’s here that we need to hold the government to their word,” explains Latifa Bouchoua from The Democratic League for Women’s Rights in Rabat.
But the fight will not be an easy one, fears Fatima Daaif, Moroccan MP and member of the Select Committee for Women’s Rights.
“The new constitution provides us with completely new opportunities. But the Islamic parties in the government are clearly trying to reverse the Family Code, initially with their proposal to lower the marriage age – a proposal that we continue to block in the lower house. The Islamists don’t have a majority, and civil society is supported by the progressive parties in the parliament. There are several symptoms that suggest we’re heading towards a violent confrontation such as the one we saw in 2000 where supporters and opponents of women’s rights were pitted against each other. But we can hope that this time it will again end in compromise, just as was the case with the first Family Code reform in 2004,” tells Fatima Daaif.
KVINFO’s ongoing support of Moroccan civil society
As things currently stand, the fight is first and foremost taking place out in Moroccan society. Here, the main issue is to spread information about the Family Code and to change attitudes – and this is something that KVINFO will continue to support.
Danish-Arab Partnership Programme
KVINFO's programme in the Middle East and North Africa is financed by:
“The objective of the conference was precisely to see how far we’ve come so far, to discuss the problems that remain unsolved, and to incorporate these findings in the drafting of a new programme to replace the one that ends at the end of the year. It is obvious that we need to work further with our experiences in the field of conflict mediation. Another focus area is that of women’s rights out in the small rural villages,” tells Katarina Blomqvist, head of KVINFO’s Middle-East department.
Each year, KVINFO’s MENA programme dedicates a total of DKK 4.5 million (approx. € 600,000) to Morocco, the next largest recipient country after Egypt. The programme also supports projects in Jordan, Lebanon and Yemen, as well as supporting smaller regional initiatives.