Equality between men and women is back on the table in the North African country. Women’s associations call for an end to discrimination in inheritance and children’s legal guardianship. The king seems willing to accommodate these demands, but Islamists oppose them
Last update: 2024-08-21 09:47:11
In Morocco in recent months there has been renewed discussion of reforming the Moudawana, the code governing family law. Established by King Mohammad V in 1958, the Moudawana has been revised twice over the decades, in 1993 and then in 2004. The 2004 reform had introduced major changes, such as limiting polygamy, sparking intense debate in the country. It had left some rules unchanged, however, which Moroccan feminist associations and women’s rights advocates more generally are now calling to be altered. The king (who spearheaded the previous reform) gave voice to these appeals and last September instructed the prime minister, Aziz Akhannouch, to kickstart the overhaul of the Code in a process involving a series of preliminary consultations with Moroccan civil society organizations, some NGOs, law scholars and experts, and political parties.
The goal of the new reform is to bring the Code into line with the evolution of Moroccan society and to ensure consistency between the Moudawana, the Moroccan constitution, and international conventions signed by the kingdom over the years (e.g., the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, known by its acronym CEDAW). Indeed, several provisions in the Code are based on the principles of the Maliki school of Islamic law, Morocco’s official legal doctrine, and go against the principle of equality between men and women set out in the Moroccan constitution and in the international conventions signed by the Kingdom. The difficulty, therefore, will lie in finding a compromise between Islamic values and positive law. On this matter, the monarchy had already expressed his view. In his speech delivered on 30 July 2022, on the 23rd anniversary of his accession to the throne, Mohammad VI had called for a reform of the Family Code, straight away setting out the guidelines to steer its course: “We want the revision to take place within the framework of the purposes of the shariah as well as the peculiarities of Moroccan society, to be based on the virtues of moderation, open-minded interpretation, consultation and dialogue, and to involve all institutions.” Mohammad VI had also insisted on the need to preserve the rules laid down in the Qur’an, whose observance he is called upon to oversee in his capacity as Commander of the Faithful (Amīr al-mu’minīn)—a title employed by Muslims to designate Muhammad’s early successors and historically held by the king of Morocco: “I shall not make lawful that which the Almighty has forbidden, nor shall I forbid that which He has authorized, particularly when it comes to matters governed by unequivocal Qur’anic prescriptions,” the king declared in his speech, evidently referring to some issues on which the Holy Texts are binding.
What Reforms?
One of the main issues under examination by the reform committee is inheritance law. The Qur’an explicitly establishes inheritance shares, giving women half of the amount to which men are entitled (Qur’an 4:11–12). The current Moroccan Family Code applies this rule, resulting in unequal treatment between the two sexes. Being based on Qur’anic evidence, inheritance law is very difficult to reform; indeed, it is one of the main issues that Moroccan feminists have been fighting for years. Similarly, the Moudawana prohibits non-Muslims from inheriting from Muslims (and vice versa), even if they are their own descendants or spouses.
The issue of inheritance for women concerns most Muslim states. A debate similar to the one currently underway in Morocco took place in Tunisia, another country where feminist associations are traditionally very active. In Tunisia, too, the Code of Personal Status, issued by Habib Bourguiba in 1956, had introduced significant changes to family law, but had not altered the inheritance norms derived from the Qur’an. In 2017, then president Beji Caid Essebsi raised the issue of the contradiction between these regulations, the 2014 Constitution, and the international conventions signed by the country, putting forward a bill that aimed to guarantee equal rights for both sexes. The proposal, however, stalled in parliament, and the debate on inheritance reform was halted by the new president, Kais Saied, who opposed the project precisely on the basis of the Qur’anic text.
In Morocco, another thorny issue on which the committee is called upon to give its view is child marriages, still widely practised despite being prohibited by the 2004 code. Article 19 of the text sets the age of marriage for both sexes at 18, but at the same time, Article 20 allows judges to make exception to this rule, but without stipulating the exact circumstances permitting the dispensation and thus leaving them ample discretion. This legislative vacuum is compounded by the possibility, granted to judges by Article 16, to equate customary marriages, sealed by simply reading a Qur’anic surah, with marriages celebrated according to the forms set down by the Moudawana. This has resulted in a proliferation of child marriages—in 2018 there were more than 40,000—and polygamy, which is widely practised in rural areas despite the 2004 Code’s attempts to curb it.
The 2004 text also recognized women’s right to request divorce and freely choose their husbands without depending on a guardian’s authorization; abolished the duty of obedience to the husband; placed the family under the joint responsibility of both spouses; and provided for the establishment of secular courts tasked with settling family matters, previously taken care of by adoul, the public notary officials in charge of drafting legal acts within the framework of religious law.
Despite these changes, some aspects of the current code still pose problems for gender equality. Article 39, for example, prohibits Muslim women from marrying non-Muslim men, while Article 65 stipulates that a Muslim woman who wants to marry a convert to Islam nevertheless has to seek permission from the Court of Appeal.
Moreover, spouses’ co-responsibility in the management of the family has never been translated into enforceable norms, nor has joint legal guardianship of children, which has remained the exclusive prerogative of the father. Today, in the event of divorce, custody of the child is awarded to the mother, while legal guardianship is automatically awarded to the father (Article 163), with all the problems this creates both for children and mothers, who have to obtain their ex-husbands’ permission to enrol their children in school and get them hospital treatment or passports. Moreover, in the case of second marriages, currently the mother loses the right to custody of the child as soon as he or she reaches the age of seven (Article 175). However, this rule conflicts with Article 19 of the Moroccan constitution, which states that “man and woman shall enjoy the same civil, political, economic, social, cultural and environmental rights and freedoms.” The provisions on parental authority and children’s rights also conflict with the United Nations Convention on the Rights of the Child, signed by Morocco in 1993. Moreover, the secular courts established to settle family conflicts following the 2004 reform continue to apply old-school systems, too often granting exceptions to the Code, in addition to the unfettered discretion exercised by the judges who adjudicate disputes. This discretion is grounded in Article 400 of the Moudawana, which refers “to the prescriptions of the Maliki school of law and/or the conclusions reached by independent reasoning (ijtihād) for anything not expressly stated in the Code.”
On paper, the 2004 reform made several improvements to the status of women in Moroccan society, but in practice, it has failed to fully ensure gender equality, despite it being one of the new Code’s proclaimed goals. The stumbling block is not just social or legal. The continuing “unequal view of equality,” to use the words of Moroccan feminist Nouzha Guessous, is indeed grounded in the qiwāma, the superiority of men over women drawn from a verse in the Qur’an—“Men are the managers of women, because of the advantage God has granted some of them over others, and by virtue of their spending out of their wealth” (4:34). Traditionally, this Qur’anic passage has been interpreted as an affirmation of male primacy and guardianship (wilāya) within the family, but today this interpretation is contested by Moroccan Muslim feminists, the best known of whom internationally is probably Asma Lamrabet. Claiming that the problem is not the Qur’an itself but its interpretation, they propose new readings of the verse in question. They argue that qiwāma and wilāya are not Qur’anic concepts (partly because the term qiwāma, as such, does not appear in the Qur’an), but legal constructs that have become founding elements of the Islamic legal tradition. These constructs have stood the test of time because they were instrumental in sustaining a patriarchal view of society.
On top of the limitations set out in the Qur’an, there is also the difficulty of enforcing the Moudawana, often owing to communication failures, particularly in the countryside and remote parts of the country. Indeed, since inhabitants of these areas rarely know the rights guaranteed to them by the law, they do not request their enforcement.
Islamists Rise Up
In the twenty years since the last reform, the Code has shown all its limitations, ambiguities and contradictions. The announcement of the new reform last September, however, did not meet with universal agreement, sparking much debate between conservatives and reformists. The former believe that Islam already offers sufficient safeguards for women and accept the principle of a reform only if it is drawn up by the ulama, the only ones authorized to perform ijtihād, the interpretation of the Sacred Texts, under the guidance of the Commander of the Faithful. Progressives, on the other hand, hold out for an overhaul of the text that would allow Moroccan society to keep pace with the times, appealing to the spirit of openness and moderation that characterizes the Maliki tradition. Moreover, for the progressive forces, although being inspired by the shariah, the Moudawana is a human product, and therefore can undergo revision.
It is Islamists in particular who oppose the revision of the Code, believing family law to be the last bastion of Islamic tradition and values. In February 2023, a few months after the Throne Day speech and before the official announcement of the reform, Morocco’s Islamist Justice and Development Party (PJD) released a statement signed by secretary-general Abdelilah Benkirane condemning calls for male-female equality in inheritance as contrary to the Qur’an, and reminding that Islam does not allow interpretations that are contrary to what is explicitly stated in the Holy Text. The statement also defined calls for reform as “alien to the real beliefs and expectations of Moroccan Muslim society,” seeing it as “a dangerous step that jeopardizes the Moroccan family system and national stability.” Point three of the statement linked the reform debate “to the implementation of a foreign agenda,” violating national sovereignty. The undeclared goal of these debates, it continued in point four, was “to violate the sanctity of the Qur’anic text and destroy the primacy of the shariah.” The text ended with an appeal to national institutions engaged in the debate to bring about a reform consistent with national Islamic identity and values.
In the rounds of consultations held last autumn in preparation for the reform, the PJD was indeed the party that took the most conservative line. It called for keeping the rules governing inheritance, custody and legal guardianship of children, the ban on marriage between a Muslim and a non-Muslim, and Article 400 unchanged, while proposing setting the minimum age for child marriage at 15 and facilitating the practice of polygamy. Other parties, especially those on the left, such as the Party of Progress and Socialism (PPS), the Socialist Union of Popular Forces (USFP) and the Alliance of the Left Federation (FGD), on the other hand, put forward much bolder proposals, breaking away from the 2004 Moudawana. For example, they asked for child custody to be granted to the mother even in the case of second marriages; the joint legal guardianship of children during marriage and also in the case of divorce; the prohibition of child marriages and polygamy; the elimination of Article 400; the possibility of DNA testing to prove paternity for children born outside marriage; and the possibility of people of different faiths entering into marriage. On the issue of inheritance, despite some minor differences among these parties’ positions, the general line is to enable everyone to inherit through wills.
Today, feminist associations and institutions engaged in defending women’s rights agree that another step forward needs to be taken, past the 2004 Moudawana, to achieve effective gender equality. A leading role along this way is being played by the National Human Rights Council (CNDH), chaired by Amina Bouayach. In 2004, on the other hand, the reform had been entrusted to a committee consisting of a chairman and fifteen members (of whom only three were women), who were mainly judges and ulama. The different composition of the bodies involved in the two reform processes points to the greater weight that secular institutions have assumed in the country over the past twenty years, in turn explaining the lesser involvement of the ulama.
The current demands are the sign of a civil society that is in great ferment. The coming months will tell us how much the monarchy is willing to concede and demonstrate the current balance of power between conservative and reformist forces, as well as the monarchy’s ability to mediate between the parties.