“The amendment to the Moudawana can be considered as the most thorough reform of Moroccan society since independence. It’s had political, economic, social and cultural consequences, and it’s contributed to transforming the fundamental relationship between men and women,” explains Moroccan feminist and lawyer Zhour Al Horr. The family law – a law which changed Moroccan society – will celebrate its 10-year anniversary on 14 January 2014. WoMenDialogue spoke with Zhour Al Horr, who over a decade ago helped to formulate the law and who has since been administering it in practice as both a judge and a lawyer.
Family Code + 10: Experiences and Ways Forward is the title of KVINFO’s conference to be held 21 and 22 November in Rabat. This conference will focus on the family law ten years on from its last major reform. View the programme here
Zhour Al Horr was born in 1947 in the Casablanca neighbourhood of Derb Sultane. Breaking with family tradition, she insisted on going to school when she was a young girl. After graduating with her law degree, she spent 10 years teaching Arabic before eventually becoming a lawyer. In 1979 she became the first woman appointed as a court judge in El Jadida, 100 km south of Casablanca. Since then, she has worked as representative at the social and labour court at Casa-Anfa in Casablanca. Zhour Al Horr became well known for her social involvement and her battle for women’s rights in Morocco. In 2003 she became one of three female members of The Royal Consultative Commission for the Reform of the Moudawana. Once the newly reformed law was passed, she became chief justice at the new family court at Al Fida Derb in Casablanca. In December 2011, was awarded the Ibn Zohr award for her activities in the Moroccan courts by the national division of Amnesty International.
The most important points of the 2004 reform of the family law:
Women do not need to be represented by a male ‘marital tutor’ to enter into marriage
Both men and women may legally file for divorce with a court. The traditional right of being able to repudiate a wife without trial was abolished.
The minimum age of marriage was increased from 15 to 17.
Polygamy is only allowed with the approval of a court and is subject to strict terms and conditions.
Three years’ public debate, and the special Commission for the reform of the family law in particular, almost magically transformed conflict into consensus. After 100 proposed amendments were dealt with – none of which had much effect on the new rights of women – the reform of the law was eventually passed by a unanimous parliament on 14 January 2004.
In the revised family law from 2004 the man is no longer the only head of the family but instead shares parental responsibility with the woman. The woman was for the first time afforded legal rights and was also now able to marry on her own without permission from a so-called marital tutor or male guardian. Divorce, which up until this point was exclusively governed by Islamic scriptures and traditions and was a matter to be decided within a family, now became a legal matter determined by the courts. The reform also gave the right to petition for divorce to both men and women – though not on completely equal terms. Polygamy now required legal dispensation from court, and although not abolished completely, it was made virtually impossible. The law also raised to 18 the legal age that girls can be married.
“The amendment to the Moudawana can be considered as the most thorough reform of Moroccan society since independence. It’s had political, economic, social and cultural consequences, and it’s contributed to transforming the fundamental relationship between men and women,” explains Moroccan feminist and lawyer Zhour Al Horr.
Action Plan based on the 1995 UN platform
Zhour Al Horr is a former judge and chief justice at the family court in Casablanca, from where she has administered the newly reformed family law. And as a lawyer, she continues today to advise and defend Moroccan woman, particularly in divorce cases, which are the cases relating to family law which most often end up in court. Zhour Al Horr was also one of the three women appointed to the commission which carried out the preliminary work for the new civil-rights law over a decade ago.
The Royal Consultative Commission for the revision of the Moudawana was set up on the remnants of the Action Plan for the economic integration of Moroccan women, which in March 2000 had split Moroccan society. On the one side were up to 1 million Islamists, who demonstrated against the action plan in Casablanca; on the other side were the women and modernists, who defended the Action Plan in Rabat. The Action Plan had been drawn up on the basis of the platform for equality that was formulated at the UN Women’s Conference in Beijing in 1995. Parts of the plan dealt with the civil status of women, and it was in particular these changes that were met with fierce opposition from the country’s Islamic and conservative quarters, including from the Islamic PJD (Party for Justice and Development) and Al Wadi al-Lhisane, a political-spiritual movement led by sheik Yassine.
Both these conservative parties claimed that the reform of the Moudawana was against both Islam and Moroccan tradition and identity. Particularly by the PJD, the action plan was described as pandering to Western cultural imperialism and a conspiracy against Islam – a line of argument that has been widespread among Islamist organisations across the Arab world.
Religious arguments for equality
The demonstrations of 12 March 2000 put an end to both the Action Plan and attempts to reform the Moudawana – at least in terms of this approach with a debate organised by the women’s organisations on the one side and Islamic forces on the other. Instead, the young King Mohammed VI took control of the project. For him, an improvement to the status of women was a precondition for a modernisation of the country; to this end, he established a Consultative Commission aimed at revising the Moudawana. To lead this commission he appointed Mohamed Bucetta, former leader of Morocco’s oldest political party, Istiqlal (The Independence Party). A total of 20 members were appointed to the committee, three of whom were women, and 16 of whom could be classed as conservative.
Members of the commission included Islamic legal scholars as well as representatives from the academic world and civil society. It was the first time that the Moudawana was left in the hands of a council that was not exclusively comprised of religious individuals.
“The setting up of the commission came in response to demands made by the civil society and the women’s organisations. It was the first time a commission was set up including both male and female members from different walks of life. The members represented all levels of Moroccan society, and even though we were only three women, and the modernists were in general in the minority, we succeeded in gaining the decisive influence regarding the final proposal,” tells Zhour Al Horr.
“To begin with, the atmosphere between the modernists and the traditionalists was tense because of the polarisation that the issue had brought about. The modernists were in the minority, and at first we mainly allowed the traditionalists to put forward their arguments, which were all based on antiquated religious interpretations. Our strategy was to answer back with arguments that were also based on the religious texts – but from a more modern interpretation that was adapted to today’s modern society.”
Bones of contention: marriage age, polygamy and lack of legal capacity
This strategy, which focused on attacking the Islamists on their own playing field, had already been set in motion by the Moroccan women’s organisations in the wake of the March demonstrations. Non-religious women’s organisations as well as religious feminists saw this approach as a more effective strategy than merely referring to the more secular arguments for equality because such arguments could be dismissed by the traditionalists as Western values that were alien to Moroccan culture and identity. And it remains this ‘Muslim feminism’ approach that the Moroccan women’s movement has since continued to use as a hammer to break down the walls of conservatism within Moroccan society.
“We were able to lean on academic and theological work that aims to develop a modern reading of the Quran and the religious texts. Through the debate in the Commission, we managed to work towards a consensus,” tells Zhour Al Horr.
“The biggest battles were fought around the issue that had been the stumbling block of the Action Plan – namely the issue of women’s lack of legal rights and the right to marry without the approval of a male ‘marital tutor’. Legal divorce for both men and women (instead of the common-law practice of repudiation) and polygamy were other bones of contention that took time to solve within the Commission. But the media and the public debate also helped promote our points of view. And it was also key that there was a clear political will to modernise the family law,” explains Zhour Al Horr.
The King’s position in particular played a pivotal role. The head of the Moroccan state has the status of Commander of the Faithful in Morocco. He is the country’s religious leader, and his support for a reform of the Moudawana played a crucial role in it becoming accepted. The Commission merely had an advisory status. In September 2003, after two years’ work, they delivered their report; from this point it was up to the King to table the final amendment – which in essence, accommodated the women’s demands.
From conflict to consensus
“There was a flourishing and fairly tense public debate going on while the legislation was being prepared. But once the bill was presented in parliament in October 2003, the reform was passed with very few alterations. There was a broad consensus surrounding the New Moudawana,” emphasises Zhour Al Horr.
The new bill was passed into law with very little resistance from the same Islamic parties that three years earlier had fought against a practically identical bill. Miraculously, the conflict turned into consensus. As the King said when he presented the bill on 10 October 2003: “these reforms must not be seen as one camp’s victory over the other, but instead must be seen as progress that is to the benefit of all Moroccans.” “The new Moudawana”, continued the King, “is modern family legislation in complete accordance with the spirit of our tolerant religion.”
Furthermore, the law was passed at a time of heightened political sensitivity. On 16 March 2003 Al Qaeda had targeted Morocco through a series of suicide attacks in Casablanca, costing the lives of 33 Moroccan citizens. In the wake of these attacks, the Islamic parties – including the PJD – were forced to tone down their hard-line rhetoric.
However, some observers have pointed out that the Islamic parties actually made significant gains from the Commission’s work. The religious argumentation within the Committee emphasises the fact that civil status, equality and family in Morocco are subject to religious interpretation. The women’s movement succeeded in securing their legislative clauses; the Islamists succeeded in securing confirmation of the superior standing of religion.
A change in the relation between men and women
“Yes, but which religion?” asks Zhour Al Horr.
“A religion that’s interpreted on the basis of modern principles. Yes, the Moudawana rests on the Sharia because we cannot go against the religious texts. But what we can do is read them in relation to the needs of our modern society. But it’s not just because the Islamic patties believed that they had won the battle that they accepted the reforms – they’ve realised that it’s not possible to rule a society based on the past. This doesn’t work any longer,” explains Zhour Al Horr.
Ten years on, the consequences of the reformed family law can, according to the lawyer, be seen in the significant changes in the relationship between men and women.
“In terms of the law, women are no longer subservient to their husbands. In the past, women weren’t even able to enter into a marriage by themselves. The new rights recognise women as fully fledged citizens, and this has created greater general respect for women. Women now have the word of law to back up the fact that they’re equal partners when it comes to deciding family matters, whereas before the law allowed the men to decide by themselves. And this new status is supported by the right to divorce. Equality in the laws surrounding divorce cases empowers women’s rights. This provides leverage to equality within the family.”
“The downside is the fact that many disagreements now end up in court. Divorce is being used to resolve family conflicts because there isn’t any tradition for mediation and there’s a lack of counselling available,” points out Zhour Al Horr, who herself set up the Moroccan Association for Family Counselling – Association Marocaine de Soutien à la Famille.
Judges administer the law in different ways
But one thing is the word of law – another is the way this law is administered by the judges. And here, Morocco still has a long way to go, stresses the former judge, who still closely follows the how law is practiced in her capacity as a lawyer.
“The law was not accompanied by an information campaign. This – in combination with a very low level of education in many layers of society – means that there can be discrepancies between the word of law and the way that some judges administer the law. One example is the minimum age for marriage – this is set at 18 by the law, but includes the possibility of dispensation from a court. Here, some judges are all too willing to accept marriages of girls as young as 14 and 15,” she explains with regret.
A bill put forward by the PJC, who now hold the dominant position within the governing coalition, proposes lowering the marriage age to 16, without the need for any dispensation. This proposal is seen by many Moroccan feminists as a step backwards. However, Zhour Al Horr does not agree with them.
“As I judge, I myself have faced girls as young as 17 or 18 who were pregnant and who sought dispensation to marry the father of their child, with whom they genuinely want to live. What do you do in a situation like that? In Europe, girls as young as 17 can have a sex life without being married. This is simply impossible in Morocco. Without dispensation to marry, these young girls will be ostracised by society and their families. So one solution could be to lower the age for marriage to 16,” believes Zhour Al Horr.
Consensus and contradiction
The minimum age of marriage (which is clearly stipulated by law, but permits dispensation) is just one example of the unique Moroccan strategy that creates consensus by appeasing both the modernists and the traditionalists. But there is a risk of inner contradictions, where everybody interprets the law according to his or her own ideological principles.
Another such example is the issue of polygamy – this is not prohibited but it does require authorisation from a judge. In Morocco, the number of permits being issued for a man to marry wife number two has been constantly decreasing since 2004, and in 2010 only 0.27% of marriages taking place were polygamous, representing a total of around 1,000 per year.
“Polygamy is a marginal phenomenon in Morocco. Society has changed too much for it to be practiced on a large scale. Yet there remain points where the law does not function optimally because of interpretations that go against the spirit of the law. And there are areas that we didn’t completely finalise in 2003. After 10 years with the new Moudawana, the time has come to work on a new revision of the law. This is for example the case for the issue of parental custody of children born outside of marriage, including in rape cases. Today, such children are seen as being fatherless – a pariah status in Morocco. Another issue is the 2003 reform’s establishment of one set of divorce proceedings for men and another for women – it should be the same for all genders. And also the issue of divorced women’s right to remarry without losing custody of their children who are over the age of seven should be looked at again,” believes Zhour Al Horr.
A new revision of the family law
She is not afraid that a new revision of the Moudawana will lead to a new standoff between feminists and traditionalists – not even despite the fact that the PJD, who were the conservative spearhead in 2000, today are sitting in government.
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“On the contrary, the Moudawana has been a lever for equality within Moroccan society, including outside the family where women increasingly have access to the labour market and to financial independence. Also, women are participating more and more in politics, not least thanks to the quota introduced in 2008 where 12% of candidates at local elections must be women. Still, this doesn’t mean that we can give up fighting for our rights. But the position we stand in is a much better one today than it was in 2000,” concludes Zhour Al Horr.