Morocco’s Imperfect Remedy for Gender Inequality

Camilo Gomez-Rivas

Camilo Gomez-Rivas teaches at Willamette University in Oregon.

"And now no one wants to get married,” says Muhammad, describing the reaction among men at his mosque to Morocco’s 2004 reform of personal status law. “Everyone is afraid to.”

Muhammad’s village of Taghouzight is remote. In the upper reaches of the Zat Valley in the High Atlas Mountains, it can be reached only on foot or by mule. Electricity arrived in 2006. But Muhammad’s skepticism about the new personal status code—which covers such family matters as divorce, child support and inheritance—echoes feelings prevalent across the country, both in rural areas where 40 percent of the labor force is employed in agriculture and in cities where rural migrants make up much of the population. It used to be, Muhammad continues, that family disputes were settled a few villages down the river, by the local ‘adil, a kind of notary public who, while not an Islamic legal scholar, bases his rulings in the Maliki school of Sunni Muslim jurisprudence. Now, he complains, disputes must go before a judge in one of the newly created family courts in Marrakesh, several hours of travel and a world apart from this mountain recess where he can shoot pheasants in flagrant, but nonchalant violation of hunting laws. The inconvenience is not the half of it: Many in places like Taghouzight feel that the reforms embody “foreign” values detrimental to the wellbeing of Muslim families.

The 2004 personal status code (in Arabic, mudawwanat al-usra, which translates literally as “family code”) is a centerpiece of Morocco’s self-proclaimed program of liberalization and reform, aiming, as it does, to address women’s inequality before the law. But there are serious flaws in the text of the new code, as well as major shortcomings in its implementation, not the least of which is inadequate state funding. These difficulties are compounded by public distrust of the process that is supposed to effect further reforms. The distrust, rooted in perceptions of outside involvement, as well as the deep conservatism of the country’s political and social institutions, bodes ill for the mudawwana’s ultimate success in its stated objectives. As Washington holds up Morocco as a model of the moderate Muslim state, and Rabat seeks to consolidate its closer relationship with the United States , the government has yet to convince Moroccan citizens that its reforms are in fact in the public interest.

Loopholes

In principle, the 2004 mudawwana remedied the most glaring deficiencies in the previously existing body of personal status law. It gave women the right to seek divorce, the right to demand half of her spouse’s wealth upon divorcing (if stipulated in a separate contract upon contracting marriage), the right to child support if paternity is established, the right to be informed of a husband’s wish to contract a second marriage and veto it, and, for women over 18, the right to marry without the presence of a legal guardian. The new code also placed further restrictions on polygamy (requiring proof of financial means), raised the legal age of marriage from 15 to 18, and mandated that the state respond to a woman’s demand for protection or basic support in the event that her husband throws her out of her house.

Yet the progressive intent of the code is undermined, say legal experts, by loopholes in the text, some of which are there by design and others of which are omissions. The mudawwana does not explicitly abrogate pre-existing legal practices and, indeed, gives judges the option to consult the large and amorphous body of Maliki jurisprudence. This substantial judicial discretion allows judges to simply carry on with old practices, as they most often do. And there are exceptions to the rules laid out in the mudawwana. For example, the option for couples to register their marriages after the fact means that men are still marrying underage girls and contracting second marriages without the first wife’s acquiescence.

Stephanie Willman Bordat, director of the Rabat office of the Washington-based NGO Global Rights, says that judges are caught between three imperatives: the policy statements of the Ministry of Justice, the text of the new personal status code and the precedents of Maliki law. “They’ve trained the judges on the policy of the law, not the text,” she notes. “Repudiation”—arbitrary, unilateral divorce by the husband—“is eliminated in the reforms. But when you look at the text itself, repudiation still exists.”[1] While divorce for cause is now possible to obtain, in practice it takes too long to obtain, Bordat explains further. “So cases that could and should be decided on grounds of domestic violence end up being resolved on grounds of irreconcilable differences, which is financially less advantageous to the woman.”

The state’s lack of financial commitment to the reforms is apparent in the clauses requiring paternity tests for women seeking child support and protection for women who have been driven out of their homes. “The paternity test turns out to be expensive, costing no less than 5,000 dirhams (over $600),” says Mohamed Benchikh, head of the Khemisset Young Lawyers’ Association, “and in the entire country there is only one center that performs the test: the laboratories of the Royal Police in Rabat.” Likewise, says Saida Kouzzi, legal expert at Global Rights, petitions for basic support by women in need, which according to the law are supposed to be answered within a month, are often ignored because there are not enough judges to issue the injunctions. [2]

No More Honeymoon

The codification of personal status law was a long-standing goal of La Ligue Democratique pour les Droits des Femmes and other Moroccan women’s rights associations. But it was only in 1999, when King Mohammed VI succeeded his deceased father, Hassan II, that a window of opportunity opened. The new king ascended the throne amidst promises of far-reaching reform on a number of fronts, but it took him four years to form the royal commission that drafted the mudawwana, partly due to intense and entrenched opposition that has not gone away now that the law has passed.

In 2002, activists presented a petition for reforming the existing personal status law to the king, accompanied by a demonstration in Rabat. At the same time, the various Islamist and conservative parties convened in Casablanca for a counter-demonstration that, by all accounts, was larger. Then, in May 2003, bombings in Casablanca killed 31 people and injured more than 100, shocking the country. Within nine months, the royal commission formed, Parliament passed the law and the king issued a decree putting it into effect. “The reforms’ smooth passage was mainly a product of the changed political environment following the May 2003 terrorist attacks in Casablanca, in which Islamic extremists were implicated,” according to an article by Bordat and Kouzzi. “In the aftermath of the attacks some Islamist groups were repressed and others were put on the defensive, which had the effect of muting religious opposition to the revision.”[3]

 Mohammed VI intended the royal commission to reconcile opposing views about the proposed reforms and empaneled representatives of competing sides of the debate. Of necessity, the draft law that emerged was a compromise document—and likely an overly cautious one. “The code that appeared then,” explains Kouzzi, “was the result of a process which attempted to appease all sides. It tried to appease the women’s movement without disrupting or violating the essence of what conservatives were trying to protect.”

Immediately following promulgation, the new code enjoyed a kind of honeymoon of national pride, as one observer put it. It was impossible to reject the reforms without being labeled an obscurantist and an Islamist. Four years on, however, the flaws of the document resulting from the compromises in its drafting are apparent even to its most wholehearted supporters. Public discussion, as described by Kouzzi, has turned from an initial questioning of whether such reforms should be instituted—are they anti-Islamic? Anti-family?—to whether they can or will be. “To a large extent,” Kouzzi says, “in the general opinion, there is the impression that nothing has changed, because women find that they encounter great obstacles when they try to avail themselves of their new rights.”

Meanwhile, conservative resistance to the code’s intent has hardly disappeared. In Taroudant, the largest city in the Souss Valley stretching below the southern slopes of the High Atlas Mountains, voices of discontent are easy to come by. The ‘adil of Taroudant’s fortified old city declines to give his name as he airs his resentful resignation to the change introduced by the new code. His job, after all, was the one most affected, after that of the judges themselves, a whole group of whom are now dedicated solely to the new family courts. For generations, the ‘adil has represented Islamic legal authority at the local level, but now his traditional responsibilities in officiating marriages and divorces have been transferred to judges, in an attempt to introduce stricter judicial supervision.

At first, the ‘adil in Taroudant adopts a neutral attitude, stating that the new law was introduced because “certain currents” wanted to modernize and open up the country. Without much further prompting, however, he expresses his deeper frustrations. “What these currents want is to get rid of the shari‘a as a whole. And this is because of the pressure applied by foreign parties.” Asked to identify these foreign parties, the ‘adil says without hesitation: “It is America , who controls everything.” He ends by praising Venezuela’s Hugo Chavez for showing how to stand up to outside meddling.

Public Education Gap

Brahim, a committed socialist and schoolteacher from Izoukak, another valley town in the High Atlas Mountains, is at the other end of the political spectrum from the ‘adil. In Brahim’s opinion, Morocco’s massive educational shortcomings pose the greatest obstacle to women’s rights. Overall adult literacy is just 52 percent, according to the UN, and much lower among women. “Perhaps the law has been passed,” he says, “but 70 percent of the women around here don’t know about it, because they are illiterate. Only those who are aware that the law exists can benefit.” (A related problem is that the mudawwana is not available in Tamazight, which is largely an oral language in any case. A significant portion of the country’s population, especially rural women, communicates in this Berber language.)

According to Brahim, who has worked most of his life in this lush valley north of the Tizi n’Test pass, most women in the area simply do not know there is such a thing as a new code of laws governing marriage, divorce, inheritance, child custody and guardianship. Many of those who do know about the existence of the new mudawwana oppose it on the grounds that they believe it to be “against religion.” And are people in fact, as some have reported, marrying less? Brahim brushes the idea aside. “If people don’t want to marry, it’s only because they don’t have enough money to do so. That problem was there before.”

Before the passage of the mudawwana, Brahim reports, a local qadi (Islamic court judge) came to Izoukak once a week to oversee the contracting of marriages and the settling of cases of divorce and inheritance (in decisions then notarized by the ‘adil). In accordance with Maliki jurisprudence, an 18-year old girl could be married off by her family, regardless of her opinion. Here, Brahim says, is an example of positive change brought about by the new code. “Now she only needs permission from the judge to get married.” But most people around Izoukak, Brahim laments, ignore the reforms. “The men don’t accept it and the women don’t understand.”

Much of the Moroccan press agrees that the most important challenge the mudawwana faces is broad ignorance of its existence—compounded by the misleading rumors that have bedeviled the effort since before its inception and the insufficient resources devoted to implementation. The conservative press, for its part, tends to highlight the negative effects of government incompetence on the family (though rarely criticizing government, especially royal, policies forthrightly).

In the spring of 2007, the state’s High Planning Commission released a study estimating that just 65 percent of families knew of the existence of the mudawwana three years after its passage. The press took note. The newspaper of Morocco’s main Islamist party, the Party of Justice and Development (PJD), al-Tajdid, cited the study in an article reporting that while a plurality of women supported the new code, many were against specific provisions.[4] As many as 71 percent said they opposed dispensing with women’s previous obligation to marry in the presence of a legal guardian.

The popular conservative political weekly al-Muwatin al-Siyasi cited the same study in calling the entire experiment of the reformed mudawwana “a failure in its current condition.”[5] The editors took the Ministry of Justice to task for deliberately under-reporting the number of divorces in the country since the new code was passed. According to al-Muwatin al-Siyasi, divorces have increased, contrary to the ministry’s initial claim, although how dramatically is uncertain. The editors wrote: “The mudawwana was preceded by numerous false claims, upon which, consequently, people formed their understanding. For example: A husband divorced his wife a few days following their marriage immediately after hearing the false claim that the [new] personal status code introduced an article that gives the wife the power to divvy up her husband’s property. This erroneous interpretation of the text led to many men either avoiding marriage or divorcing their wives before the new code was promulgated.”

Al-Muwatin al-Siyasi concluded by making a series of recommendations that have gained currency in the national press: The law must be explained to people in whichever colloquial dialect they speak, whether Arabic or Berber; more judges must be assigned to the family courts; and a national educational effort must be launched to counteract the propaganda that preceded the promulgation of the new code.

The Big Picture

Most reform-minded observers would agree that while much has been gained with the new code, the legal system in Morocco is a long way from redressing gender inequality. Many stress that deeper reform—related to the country’s system of government as a whole—is indispensable to the success of legislation like the mudawwana, not only because there is widespread disdain for the role of Parliament, but also because there is too little accountability from other branches of government.

In the case of the mudawwana, lawyers and activists advocating gender equality feel that the judiciary lacks the independence to rule more vigorously in favor of the code’s more progressive provisions. “In Morocco ,” Benchikh says, “justices are subordinate to the minister of justice.” Another lawyer from Khemisset, Mourad Elkalkha, concurs. “A courageous judge could rule independently regarding the mudawwana, and through the appeal system it could go up to higher courts where it could create an important precedent. But these courageous judges are truly exceptional.” He adds that Morocco’s high court hands down contradictory rulings, meaning that its decisions are honored in the breach.

Elkalkha ties this lack of judicial credibility to a general mistrust of legislators and the political system. “ Morocco needs more real and effective democracy,” he says. “We Moroccans are sure that the September 2007 elections will be rigged, which will give us a rigged parliament, which will give us a rigged government. Who gains from this? What are they going to give the people or how are they going to defend their interests? The constitution should be realistic and fully democratic. This is the essential thing to reform.” His words echo opinions widely held among the reform-minded: As long as the constitution arrogates no real power to Parliament, or real representation to citizens, most reforms will remain superficial and unsuccessful.[6]

In the event, the September elections gave a surprise win to the conservative Istiqlal Party, which now has 52 of the 325 seats in Parliament, amidst accusations of vote buying from the PJD, which rose nevertheless to second place in the number of seats. Voter turnout fell to 37 percent from 51.6 percent in the 2002 elections. The significant drop in turnout underlines that many Moroccans share Elkalkha’s blanket distrust of the political process. Certainly, clarification and more systematic implementation of the mudawwana is possible before full constitutional reform, but it does seem to mean that a threshold of participation and representation remains to be crossed before the skeptical men of Taghouzight can be convinced that the new family code should be respected.

Endnotes

[1] An English translation of the 2004 mudawwana appears at http://www.globalrights.org/morocco.

[2] The most extensive study of the mudawwana’s implementation is Malika Benradi et al, La code de la famille: perceptions et pratique judiciaire ( Fez: Friedrich Ebert Stiftung, 2007).

[3] Stephanie Willman Bordat and Saida Kouzzi, “The Challenge of Implementing Morocco’s New Personal Status Law,” Arab Reform Bulletin (September 2004).

[4] Al-Tajdid, May 1, 2007.

[5] Al-Muwatin al-Siyasi, May 2, 2007.

[6] For more on this point, see Marina Ottaway and Meredith Riley, Morocco : From Top-Down Reform to Democratic Transition? ( Washington, DC: Carnegie Endowment for International Peace, 2006).