Making Over the Moudawana: Legal Reform and Women’s Rights in Morocco
Author: Alonna Despain, November 2020.
Image by Pixabay.
All too often, Islam is cited by an uninformed populace as the reason behind lack of freedom, backwardness, and repression, and it is women who are frequently at the center of this claim. The reformation of the Family Code in Morocco, however, challenges those ignorant approaches and understandings of Islam because it stresses that it is not the religion itself which is to blame. Rather, it is the early social norms Islam adopted from other cultures and religions, and some extreme interpretations of religious doctrine by Islamic religious scholars, which consider women second class citizens. Looking at Morocco as a case study helps illuminate a clear example of Islam as a progressive and adaptive line of thought, which is more than capable of egalitarian interpretations. Furthermore, this case has the possibility of being a model for other countries and situations moving forward on making more inclusive reforms and progression towards gender equality. Though there is certainly still progress to be made, through substantive reforms in marriage, polygamy, divorce, child custody, and inheritance laws, Morocco serves as an effective model of progressing women rights by means of Islam and confirms that egalitarian reforms are possible within its bounds.
(A Brief) History of Women’s Legal Rights in Islam
Edward Said’s Orientalism captures many ways in which the perceptions of the west have tried to claim superiority (culturally or otherwise) to they consider to be the savage east, and one of the key examples put forth to back this claim are women. By definition, orientalism depends on implementing a strategy of “flexible positional superiority, which puts the Westerner in a whole series of possible relationships with the Orient without ever losing him the relative upper hand” (Said 15). Orientalist interpretations of gender in the Arab and larger Islamic world “situate the oppression of Arab women in misogynist beliefs that are thought to be fundamental to Islam and Arab societies. Such culturalist analyses ignore how patriarchy, as practiced in the Arab world today, has grown out of colonial and neocolonial encounters with the West and the particular forms of modernity that have resulted from these encounters” (Yaqub and Quawas 13). The key takeaway from the following paragraphs is that many of the views and practices that are traditionally associated with subordination of women in Islam are not rooted in the religion, and there has often been a difference between religious ideals and how they are actually practiced. Additionally, in early Islamic practice women had vastly more substantial roles and rights than they do in present day and were even looked to as people to emulate; this changed over the centuries as more conservative and rigid orthodox interpretations of Islam emerged.
The subservience of women in the Arab region first became institutionalized with the rise of urban centers in Mesopotamia around 3500 BC. Due to the increased need for military competitiveness, patriarchal families became much more normative (Ahmed 12). Additionally, sexuality as property–in the form of prostitution–became more common, and because of this so did veiling; women veiled themselves to signify their status and to distinguish themselves from prostitutes (Ahmed 14-15). During this period, Zoroastrianism was the dominant religion, and it advocated for the patriarchal family and women’s complete obedience. In other words, women were somewhere in between a human being and an object. The 5th and 6th centuries brought the rise of Christianity and the Byzantine empire, which originally challenged the Zoroastrian view of women and saw the two sexes to be equal in spiritual worth (Ahmed 30). However, the early church fathers, Augustine and Tertullian, did not have this spiritual equality carried out in practice. They branded women as a gateway for the devil and as a cause of spiritual corruption. Women became cloistered in the home, they were supposed to be veiled, and the practice of female infanticide became more prevalent. New customs and notions about women were acquired from the lands that these Islamic groups conquered, and the people within them principally followed either Zoroastrianism or Christianity. Though women originally enjoyed more rights and freedoms during the time of the prophet, as a result of acquiring these new ideas their rights became much more restricted in three main areas: warfare (women were no longer allowed on the battlefield), religion (women were no longer allowed to be shapers of religion, nor were they looked at to be emulated), and marriage (they lost much of their autonomy).
One of the key areas which illuminates the evolution of women’s rights in Islam from where they originated to its more restrictive nature is through the reinterpretation of Islamic law. The Shari’ah is the all-encompassing divine law of Islam, and its mutability has been a large point of contention across the Muslim world for centuries (Arshad 131). This tension has led to a sizeable amount of variability in terms of how Shari’ah is applied, and it becomes especially apparent in the realm of women’s rights. The two primary textual sources of the Shari’ah are the Qur’an and the Sunnah, but in instances where neither of these works offered specific guidance or resolve a particular legal issue, Islamic scholars and jurists have engaged in Ijtihad-reinterpretation of Islamic law (Arshad 132). By the medieval period Islamic Law had undergone several changes that began when it incorporated aspects of Jewish and Roman rule, reflecting much more restrictive perspectives of women. They were treated, for the most part, as minors who required male approval to do almost everything (Ahmed 104). At the turn of the 10th century, Islamic Sunni legal scholars concluded that the elaboration of Islamic law was complete, and the door of ijtihad (reasoning) was closed. In essence, this meant that laws stopped being reinterpreted and were much more rigid, although there have been a few legal reinterpretations since then. However, the rights of women were protected in some key areas, which included property rights and inheritance, divorce, and extreme abuse (Ahmed 104, 110). As a final note on ijtihad, western imperialism served as a catalyst to resurface the discourse on reforms across the Arab world. When the French colonized Morocco debates ensued between reformists and traditionalists; the former advocated that ijtihad was necessary in order to “counter western pressures and allow Islam to continue to evolve” and that a binding consensus on the cessation of ijtihad never existed, while the latter claimed an agreement on cessation did exist, and they “sought the preservation of the Shari’ah in its original state to ensure the survival of the Islamic heritage” (Arshad 135).
While this has been an extremely brief history on some of the roots of women’s legal status in early Islamic Law and how certain practices came to be, the next section transitions into discussion on the history of the Moudawana in Morocco as it is the main focus of this paper. Before analyzing its changes in 2004, the following section will give an overview of the pre-reform Moudawana that existed in Morocco. The Moudawana is “a legal document that governs the rights and duties pertaining to marriage, divorce, the custody of children, alimony, and inheritance” and it was modeled after the family code in place in Tunisia (Hanafi 517). However, the Moudawana in Morocco was much more conservative than its Tunisian counterpart. Since its original authorship with Morocco’s independence from France in 1956, there have been various calls to improve the rights of women in the family code, and it underwent two reforms before 2004 in 1957 and 1993 (Zoglin 965). In 1957, the first personal status code was adopted, but it was not particularly egalitarian. Virtually all of Moroccan law is based on a “civil code tradition”, but the Personal Status Code is the only legal system based in Islamic traditions and Shari’ah (divine law) in an otherwise secular legal field (Sadiqi and Ennaji 86, 100). One example of this is that women had no autonomy in marriage and could not even agree to get married without the permission of a wali, a “tutor”, who acted as their legal guardian (Zoglin 965). With the rise of political Islam in the 1980s and 1990s, more Islamic Women’s organizations began calling attention to the lack of legal protections for women, as well as everyday difficulties women faced, and demanded reforms. These groups sought to distinguish Islamic traditions from any adopted social norms and called for broader and more egalitarian interpretations of the Qur’an (Sadiqi and Ennaji surpa note 5, 102). Several NGOs also developed a petition to change the code, which garnered over a million signatures (Zoglin 966). In response to this, King Hassan II established a commission of religious leaders and judges, made up entirely of men, to re-examine the code, which resulted in a few modest changes to the Personal Status Code. Key amendments included some limits placed on walis, and a provision that husbands would be required to notify their first wife before they could marry a second one (Zoglin 966). However, husbands retained the unilateral right of divorcing their wives, yet if a divorced woman were to get remarried, her former husband could gain total custody of their children (Zoglin 966).
Reforming the Moudawana
In 2001, King Mohammed VI announced that he intended to reform the Personal Status Code, but in light of public controversy regarding this decision he established another Royal Commission to revise the Code. Three women were appointed to it, a notable improvement from the 1993 commission which was composed entirely of men (Zoglin 969). The eventual 2004 reforms to the Moudawana significantly expanded the legal rights of Moroccan women. The following sections will detail the five most major categories of reform: marriage, polygamy, divorce, child custody, and inheritance.
The reformed Mudawana redefines marriage as “a legal contract by which a man and a woman consent to unite in order to have a common and lasting marital life”, as well as stating its goal as creating “the foundations of a stable family” (Wright, supra note 40, at 362-363). Additionally, the cited need of procreation was taken out of the document. The age of marital consent for both men and women was raised to 18 (previously the age for women was 15), and guardianship requirements were removed, both of which increased the level of autonomy for women. Lastly, the section of the code which “allowed the husband alone to direct the marriage and required the wife’s ‘obedience’” was absent from the reformed version (Hursh 262)
The issue of polygamy was of more significant difficulty, due to the fact that there is direct Quranic support for its practice, albeit under extremely specific circumstances. Previously, there were next to no safeguards for women with regards to polygamy. The outcome in the Moudawana was that polygamy now required judicial approval rather than just the husbands judgement, and the husband would now be required to “demonstrate the ‘necessity’ of the second marriage” (Hursh 263). Additionally, the section cites the Qur’an, saying “if you fear being unfair, marry only one woman”, which essentially made the solution here setting the standard of polygamy so high that “it has become a practical impossibility (Weingartner, supra note 9, at 700).
The 2004 Moudawana provided women with greater legal protections in this area by greatly inhibiting the husbands ability to divorce. Now, any kind of attempted “at will” divorce by the husband requires a judge’s review and then granting of permission (Hursh 263). The document also reinforced the right for women to ask for a divorce as a result of any sort of abuse she may be facing. Finally, the government emphasized its “commitment to combating spousal abuse” (Hursh 263).
- Child Custody
As stated previously, in traditional Islamic law, women who remarried lost custody of her children and they were given to her former husband. Though the results of these changes have been dubbed as not yet satisfactory, there have been some changes in this area. First, there was a loophole added to this section which stated that a woman will not lose custody of her children upon remarrying as long as “the child suffers no harm” (Hursh 265). Second, it states that a woman will not lose custody upon remarrying as long as one of the following situation applies: “1) the child is seven years old or younger…; 2) the child has an illness or condition that makes caring for the child by anyone other than the mother impossible; 3) the spouse is the legal guardian of the child; 4) the mother is the legal guardian of the child” (Hursh 265). Though these are improvements from the original, the language is still rather vague in this section which could continue to cause potential problems.
A rather significant reform here is an added provision which allows “grandchildren from either a deceased son or a deceased daughter of a grandparent to receive an obligatory amount of the grandparent’s estate” while previously only the grandchildren from a deceased son were eligible (Hursh 266). Additionally, children born out of wedlock would now receive legal recognition and the courts will use scientific testing to resolve disputes over paternity (Hursh 266). This is a change from the previous system which required twelve witnesses to testify and offer evidence on the paternity of a child born out of wedlock.
Real Change or Remaining Challenges?
While the changes to the Moudawana were a significant victory for women’s rights, there are several obstacles that have yet to come to light in the implementation of the reforms. The first is high illiteracy rates, the numbers of which are particularly sizable among the Amazigh speaking people. Studies have demonstrated a lack of knowledge about the Moudawana: over 90 percent of illiterate women lack information on the law itself, let alone the reforms (Bordat, Davis, and Kouzzi 95). However, it is not just rural women who struggle with access to information. This remains one of the largest pending issues, with women across Morocco remaining “[un]aware of their rights under the new code” (Hursh 267). Reports have also come forth that show judges themselves are an obstacle for the implementation. Several family court judges still decide cases “based on conservative religious interpretations rather than on the declared egalitarian intention behind the reforms”, especially when it comes to granting women a divorce on the basis of domestic violence (Bordat, Davis, and Kouzzi 95). These vast discrepancies among court rulings have led to women having unequal access to justice, and much of the time patterns can be found along differentiations in socio-economic status and geographic location in these disparities (Bordat, Davis, and Kouzzi 96). Furthermore, articles which perpetuate patriarchal society remain in the code, e.g. Article 194 which “obliges the husband to provide financially for his wife and children” (Elliott 4). Though some have interpreted this as a benefit to women, it has posed problems for women in the work force. Men being legally obligated to provide for their families has resulted in cases of discrimination against female candidates in the labor market since they are not under the legal obligation to support their family. Another example is Article 236, which “designates the father as the primary legal representative of his children regardless of whether or not he has custody over them”, which clearly remains discriminatory (Elliott 4).
While the 2004 Moudawana is not perfect, it certainly did have a positive effect on women’s rights and status in Morocco. The movement that pushed for the Personal Status Code to be reformed–as well as the modifications themselves–sparked discussion and debate over religious issues in the country that still prevail. It also helped to increase female leadership in politics, as well as in both public and private sectors (Guessous 530). Additionally, the reformed Moudawana has also led to beneficial changes in other laws. Examples of this include the labor code, which was changed to pay greater attention to sexual harassment in the workplace, as well as the citizenship code, which was amended in 2007 to allow Moroccan women to pass on their citizenship to their children even if they are unmarried (Guessous 530). Perhaps the most significant outcome of these reforms is that they demonstrate a legitimate legal use of ijtihad, or re-interpretation of Islamic law, towards a more egalitarian interpretation of Islam itself. This is further reinforced by the fact that Islamic legal scholars have found the changes to be “consistent both with the spirit of Islam and the notion of equal rights for men and women” (Booley 18). Just the action of the reforms taking place is a substantial step in the debate between orthodox and egalitarian Muslims and it creates more space for women’s legal rights to be advanced in the future.
There are two key ways in which the 2004 reformations have had, or will have, an ongoing effect: First, they have continued to encourage the mobilization of organizations run by women and for women, which foster change at the grassroots level. The second, as stated above, is the reformations through use of ijtihad can be used to acknowledge women’s rights, and Morocco may be able to position itself as a good example towards achieving gender equality.
One of the most significant elements to emerge thanks to the Moroccan women’s movement was a direct result of the difficulty that rural populations faced in gaining knowledge of their legal rights and how they had changed. Today, several Amazigh NGO’s, hitherto sidelined by more mainstream Moroccan feminist movements, were founded with the aim to address issues of “language, identity, and ‘ruralness’” (Sadiqi and Ouguir 272). Furthermore, several NGOs have begun human and legal rights education programs, which are designed to “encourage women to expand their knowledge of their human and legal rights, develop their individual capacities to critically analyze their lives from a human rights perspective, claim and defend their legal rights, and increase their control over their lives…” (Bordat, Davis, and Kouzzi 100). It is hoped that these programs will be socially transformative for both rural and urban women across the country. This push for human and legal rights education has also been implemented by local development and micro-credit associations, government-run literacy programs, vocational training institutes, and high school/university clubs (Bordat, Davis, and Kouzzi 102).
When it comes to advancing women’s rights across the Islamic world, one of the most promising strategies seems to be working to reform certain aspects of existing Islamic law, for it offers a greater possibility of long-term change as those reforms would have “a legitimate legal basis and appeal to common social and cultural values” (Hursh 305). In addition, both Islamic society as a whole as well as Islamic judiciary will be more likely to see these legal changes as legitimate (which will also aid enforcement by the judiciary) if they are based in Islamic law. However, the case of Morocco has also demonstrated that these sorts of changes will be gradual rather than revolutionary; the Moudawana reforms took almost 50 years to come about and will take many more to fully materialize in the lives of Moroccan women (Arshad, 155). Laws represent the norms and attitudes in place in a society and changing them must be the result of a natural shift in those attitudes. Yet, this example in Morocco serves as a definitive push towards more rights for women and demonstrates the capability of Shari’ah working hand in hand with women’s rights, and human rights as a whole.
Women’s activism in Morocco has had a significant impact on social change in the past several decades, and some of the fruits of those labors can be seen in the 2004 reformation of the Personal Status Code. While there is still room for improvement, it is impossible to deny the significance of these reforms and the positive impact they have had on women’s lives. Most importantly, the Moudawana will be able to serve as a strategic model for future transformation of social, political, and legal realities for women across the Islamic world.
Endnotes For Reference:
1) It should be noted that the practice of female infanticide pre-dates Christianity. Female infanticide goes back to Greco-Roman times. Ancient Greek Philosophers such as Aristotle thought women’s only role should be to provide heirs, and that women were both biologically and mentally inferior to men.
2) The Sunnah is the body of literature outlining traditional social and legal custom and practice of the Islamic community. It is considered to be divine revelation delivered through the Prophet Muhammad.
3) Ijtihad is a practice of interpretation and reasoning based on the Islamic sacred texts. This process was developed by Muslim scholars “in order to understand and apply the message of the Qur’an to varying societal needs and conditions” (USIP). In other words, Ijtihad represents a search for ongoing truth, and allows for flexibility and adaptation.
4) Men were able to divorce women at will within three months. Her presence and consent did not matter- “if a wife is summoned to court and does not attend and her husband insist on the repudiation, her presence is immaterial” (Hanafi 517). Women, in contrast, had extremely limited ability to initiate a divorce, and could only do so on very specific grounds. These conditions included: “her husband’s lack of financial support, his unjustifiable prolonged absence, his suffering from an incurable disease, his abstinence from sexual relations for more than for months, or his doing her harm” (Hanafi, 518).
5) Amazigh refers to the indigenous peoples of North Africa who live in communities across Morocco, Tunisia, Algeria, Libya, Egypt, Niger, Mauritania, and Mali. While traditionally they have been referred to as Berber, this term is inherently discriminatory; it was coined by European colonizers and Arab conquerors and means ‘barbaric’, as well as ‘gibberish’. This indigenous community has combatted the inherent discrimination by referring to themselves with the terms Amazigh (singular), Imazighen (plural), and Tamazight (feminine)- the term means ‘free people’ in the Amazigh language.
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