ARTICLES

 

The Rights and Freedoms of Moroccan Women: Has the 2004 reforms benefited Moroccan Women?

 

 

Ashraf Booley^*

University of the Western Cape, South Africa. abooley@uwc.ac.za

 

 

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ABSTRACT

Morocco has maintained its identity and adherence to the Islamic faith since before colonialism and after. As a result of such identity the Moroccan monarchy over the years developed the Code of Personal Status (referred to as the mudawana) which affected only the Muslim population. This type of family law was drawn mostly from Islamic doctrines with little or no participation of women. The mudawana has been criticised by many as being one-side and feminist groups have made numerous calls for a reformed mudawana that addressed the plight of women and to improve their status within the wider community. In 2004, the monarchy decided to reform the mudawana as a result of women's groups pressuring the monarchy to do so. The 2004 reforms has the possibility of enhancing the rights of Moroccan women, for example, a wife is no longer legally obliged to obey her husband, contrary to a widely-held custom which regards obedience as an absolute duty of a Muslim wife, the minimum age for marriage for both parties eighteen years of age, including free and full consent. Polygyny has also been addressed. Although the 2004 version kept the concept of polygyny, there are severe restrictions to curtail this practice, for example, judicial authorisation is required as well as informing the current wife of the prospect. There are certain obstacles that seem to be hampering the full implementation of 2004 reforms which are discussed in this contribution.

Keywords: Women's rights; Islam; marriage; reform; mudawana.

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1 Introduction

One of the subtle, but most pervasive, areas of discrimination against Muslim women is the inequity and injustices that occur within the context of the family unit.¹ Despite foreign influences which date back to the French protectorate dominating Morocco, religion has always taken centre stage in Morocco's political and social life. Islam has been and continues to be a consolidating element of Moroccan society. It has occupied an important position in the spiritual lives of many Moroccans, and arguably represents a crucial part of Morocco's identity.²

In 2004, the Moroccan monarchy revised Morocco's mudawana dealing with issues relating to the family. Its provisions taken to a large extent from Islamic sources, it confers upon women unprecedented rights and freedoms.³ The reforms expand women's rights to be protected from practices such as child marriages, and to be on an equal footing with men in marriage, amongst other rights.⁴ However, several years after the passage of the 2004 version, varied sources indicate that the implementation has been less effective than its proponents had envisaged. For example, NGOs and observers have reported judicial opposition to the law, as well as corruption, both of which phenomena have resulted in the under-implementation.⁵

As the subject is of great complexity, analysis is restricted to some highly contentious issues found in Islam, such as marriage and polygyny. The article will be divided into the following sections. Section one will provide a brief overview of the tenets of Islam. Section two will trace the path of the mudawana. Section three will address the reform in marriage and polygyny, and section four will investigate the barriers to the implementation of the 2004 reforms. A brief overview of the basic tenets of Islam will be discussed next.

 

2 Overview of Islam

In order for one to understand the reforms that took place in Morocco, it is important to grasp the fundamental tenets of Islam. The preamble of the Moroccan constitution describes the kingdom as a sovereign Muslim state⁶and highlights the importance attached to the Muslim faith in the multicultural temperament of the nation.⁷

The word Islam means "submission to the will of God".⁸ Islamic family laws epitomize primarily those spheres of Sharia that deal with marriage, divorce, maintenance, the custody of children and succession.⁹ In this article reference will be made to sharia instead of Islamic Law, as these terms are interchangeable. Sharia is an Arabic word that means the "path to be followed", and refers to a number of legal injunctions.¹⁰Sharia and fiqh are important components of Islam. Sharia is closely associated with divinity, whereas fiqh is mainly a product of human reasoning.¹¹Fiqh involves rational endeavour, largely the product of human reasoning, and commands a lower degree of authority than sharia.¹² The ambit of sharia encompasses not only fiqh but also moral and theological teachings.¹³

The Quran (read or recited) is deemed the primary source of sharia, which is the literal word of God (Allah).¹⁴ According to Mashhour, a legal scholar, although the Quran contains legal prescriptions, it is mainly concerned with general ethical principles and guidelines rather than strict instructions.¹⁵However, there are strict instructions such as the prohibition of drinking and the acceptance of usury, which Muslims must obey. Although the Quran is not considered exclusively a law book or code, it is meant to be treated as a broad guide for humanity. The second primary source is the sunnah, which means "traditions", referring to the oral teachings or practical traditions and model behaviour of Prophet Mohammed.¹⁶ In terms of a hierarchy of sources, the sunnah is the next highest source next to the Quran.¹⁷ To Muslims and practitioners, the sunnah is all that was narrated, practised and approved by Mohammed.¹⁸ The contents of the sunnah are compiled in a series of hadiths or reports.¹⁹

Rehman, a legal scholar, correctly states that the Quran was recorded in a relatively short period of time, whereas the sunnah on the other hand took a considerable time to be recorded.²⁰ Commenting on the passage of time, Rehman says that several elements of the sunnah were either derived from sources that were not reliable or readily identifiable.²¹ During the previous centuries a significant amount of debate has has taken place regarding the authenticity and accuracy of some of the sunnah, legal scholars arguing the possibility of considerable fabrication in its recording.²² Attempting to establish solid legal principles from the sources, the early jurists expressed disagreement over the validity or the authenticity of a few of the ostensible sunnah of Mohammed. In addition, Islamic schools of thought differed in their estimation of the gravity to be afforded to particular traditions.²³ Together, the Quran and sunnah represent the fundamental sources of authority to be found in Islam.²⁴

In addition, to the primary sources, other supplementary sources exist such as qiyas, ijma and ijtihad, among others.

Qiyas, or analogical thinking, literally means measuring or ascertaining length. However, in a juristic context qiyas refers to analogising or extending a sharia value or idea to a new situation.²⁵ An appeal to analogy is warranted only when the solution to a new problem cannot be ascertained in the Quran, sunnah or ijma.²⁶As qiyas involves the extension of existing principles to a new situation, it is not considered an innovation and is therefore not viewed negatively by some Muslim scholars.²⁷ However, texts in which new situations are analogized must always have recourse to the primary sources.

Ijma is defined as the consensus of the companions of Mohammad and the agreement reached on decisions taken by learned scholars/jurists on various issues in relation to matters that appeared before them.²⁸ By interpretation it excludes the opinion or consensus of laymen. Christie, a legal scholar, argues that the various schools of thought employ different interpretations and juristic techniques. Ijma has conventionally been difficult to achieve.²⁹

Ijtihad or personal reasoning is a subject of controversy within Islamic jurisprudence.³⁰ The controversy relates to "closing the gates of ijtihad". By the tenth century A.D., most of the notable principles relating to sharia had been decided by general consensus.³¹ According to Jordan, a legal scholar, the "gates of ijtihad" were closed.³² Thereafter a period of imitation followed, when the techniques of the preceding Imams were interpreted and applied by subsequent jurist and scholars.³³ Sadly, no further attempt was made to delve into the fundamental principles of Islam.³⁴

The term ijtihad in Arabic literally means strenuousness and from a technical perspective means an effort or exercise to arrive at one's own judgement.³⁵

The effort of ijtihad involves analysing the original textual sources for the solution to a new problem and, if they do not provide an answer, applying ijtihad to extend the principles contained in those sources to the new situation.³⁶ Jordan, a legal scholar, postulates that nothing in the Quran or sunna calls for the era of interpretation to end.³⁷ It has been argued that ijtihad was ended by scholarly fiat, as it was assessed that all possible situations had been resolved permanently.³⁸

Of the sources that have been mentioned above, the Quran and sunnah are considered as divine, whereas the other three, namely, qiyas, ijma and ijtihad, are human creations and based on independent human juristic reasoning.³⁹ Mashhour, a legal scholar, argues that this proves that the sharia is not meant to be static, but evolving, and that the role of ijtihad, shepherded by principles of justice, equity and public welfare, is essential in responding to the changing socio-economic needs of people. There is a call that the technique of ijtihad should be returned to as new situations have developed which could not have been contemplated over one thousand years ago.

The intricacies of the ethical, moral and religious raw materials derived from the primary sources of Islam were given shape and direction by Islamic jurists during the second and third centuries of the Islamic calendar. The Sunni Muslims trace their jurisprudential descent through the first four Umayyad caliphs. Their jurisprudence was principally the work of four jurists; Abu Hanifa, Malik ibn Anas, Muhammad ibn Idris al-Shafi and Ahmad Hanbal.⁴⁰ The Imams, or founders, developed separate schools during the great period of theological interpretation that occurred after the demise of Mohammed.⁴¹ The various schools have been named after their founders, namely, Hanafi, Maliki, Shafi and Hanbali. No one school of thought enjoys universal dominance, however, and in Morocco and Tunisia, for example, the Maliki school is the most influential, whereas in Egypt the Hanafi school appears to be the most popular.⁴² Other less dominant schools may also be found in Sunni Islam.

Although unparalleled in their sincerity for advancing the values of Islam, the founders of the dominant Sunni schools in reality established legal principles in accordance with their own subjective understanding of Islam.⁴³Rehman is of the opinion that in a broader and a more pragmatic framework the articulation of the dominant Sunni schools is no more than an expression by those schools of current thought during the second and third century of the Muslim calendar.⁴⁴ Sadly, the barrier faced by many Islamic societies is that reviewing the established norms has the potential of being seen as reacting against the tenets of Islam. The historical progress of the mudawana will be discussed next.

 

3 Historical progress of the (code of personal status) mudawana

The year 1956 is important for Moroccans as that is the year in which the country achieved independence from French colonial rule and became a sovereign country.⁴⁵ As soon as independence had been achieved, Morocco set out to preserve its own identity and a return to Islamic traditions was set in motion. One way of achieving this goal was the codification of state family law. Alal al Fassi, an important figure in the independence movement, argued for a general Islamic framework in Morocco.⁴⁶

A year later Morocco's family law was codified and the mudawana was established. The text was acclaimed for its faithfulness to the Maliki school.⁴⁷ A commission was established by the monarchy and mandated to draft the new mudawana. It consisted of ten male religious scholars from the Maliki school of thought, together with the Ministry of Justice.⁴⁸

Surprisingly, no women served on the Commission. The formulation of the mudawana could well be seen as ecclesiastical and as perhaps the most important initiative by the Moroccan monarchy since gaining independence. By integrating under one set of family laws the many ethnic and tribal groups in Morocco, the mudawana has become a symbol of both national unity and Islamic identity, entrenching the significance of the monarchy and the Maliki school.⁴⁹

The mudawana relates to the family unit, and as such regulates marriage, polygyny, divorce, inheritance, maintenance, and child custody.⁵⁰ It could thus be argued that the mudawana determines the status of a Moroccan woman throughout her entire life, commencing at birth and including her capacity to own, inherit, and manage property, her freedom to work, marry, divorce and remarry, as well as her relationship with her children.⁵¹According to an earlier version a woman was considered to be a minor under the guardianship of her father and thereafter her husband or another male guardian within the family.⁵² In addition, it codified the right to compel a daughter to marry, the minimum age for marriage (then fifteen years for girls and eighteen years for boys), a wife's obedience to her husband in exchange for financial maintenance, the husband's right to divorce by unilateral repudiation (including the practice of polygyny) and judicial divorce at the wife's request for specific reasons as determined by the Maliki school (for example the lack of maintenance and/or harm).⁵³

Attempts at reform followed in 1961, 1962 and 1965 with the establishment of an official commission to examine any shortcomings in the mudawana, and similar attempts were made throughout the 1970s.⁵⁴ However, it was only in the 1980s that issues emerged concerning the rights and freedoms of women. Issues surrounding the rights of women became a subject of public debate linked to a struggle for the protection and promotion of women's rights. As a result a petition campaign was established consisting of a coalition of women's groups. While some of these women's groups aligned themselves with left-wing political parties, others adopted an independent stance.⁵⁵ The particular demands articulated by the women's groups included a call for equality and complementarity between husband and wife relating to the family unit. The demands sought to afford women the right to marry without a guardian (wali), to increase the minimum age of marriage for girls from fifteen to eighteen years, to make divorce an equitable process, and to place the divorce process in the hands of a judge. The prohibition of polygyny, the extension of equal rights of guardianship over children, as well as the recognition of the right to work and the right to an education, which the husband could not dispute, also garnered considerable attention.⁵⁶

In 1993 the mudawana thus underwent reforms by royal decree again, as had been the case with the previous reforms, instead of reform through parliamentary processes.⁵⁷ The majority of the population, however, considered the 1993 reforms to be inadequate and to fall short of their expectations of true reform.⁵⁸ Sidiqi, an Islamic and legal scholar, rightly points out that the disappointment largely stemmed from the fact that the mudawana was still based on religious thought.⁵⁹ Disappointment with the reforms stemmed especially from within the sphere of liberal feminism since at the time other legal codes were based on civil law, including the Penal Code and the Constitution of Morocco.⁶⁰ The recent reforms in marriage will be discussed next.

 

4 Pre-reform mudawana

There is general agreement that Muslim women in North Africa and the Middle East enjoy greater fundamental rights, perhaps second only to those living in Tunisia.⁶¹ In the case of Morocco, Hursh, a legal scholar, attributes this phenomenon to its history as a cultural crossroads between Europe and Africa, Christianity and Islam, and Arab and Berber, allowing for more tolerance and a greater sensitivity to women's rights and freedoms.⁶² Yet, despite this cultural diversity Morocco remains convincingly Islamic, and the Constitution of Morocco of 2011 entrenches the notion of the family as being "founded on the legal bonds of marriage as the basic unit (cellule) of society".⁶³ Article 3 states that Islam is the religion of the State, but guarantees to all the free exercise of their beliefs.⁶⁴ The inference may be drawn from Article 3 that Morocco remains convincingly Islamic. The state is obliged "to guarantee by the law the protection of the family under the juridical, social and economic plans, in a manner to guarantee its unity, its stability and its preservation".⁶⁵

The clear purpose of marriage according to previous drafts was procreation. It may be argued that the mudawana which subscribed to the Maliki school cast marriage as a contract of legitimate sexual gratification.⁶⁶ Cabré, a legal and Islamic scholar, correctly argues that this concept of marriage implies a prior judgment that all women are compelled to marry and that theoretically they accept their primary roles of wife and mother.⁶⁷ In addition, any form of extra-domestic activity could be viewed as a distraction from the woman's primary role which has been forced upon her, namely that of wife and mother.⁶⁸

The issue of guardianship has raised serious questions, not only in Morocco but throughout the world. Arguments have been made that the issue of guardianship strips women of their autonomy. We notice in other faiths, that the father of the bride walks besides his daughter at her wedding, for example, and if the father is deceased then it would fall to the brother or uncle. Another example of such guardianships would be when a priest who is about to marry the bride inquires asks "Who giveth this woman to be married to this man?" The respondent would have to be be the father, the uncle or the brother, not necessarily in that order. However the issue of guardianship should pertain to advice only, and must not be an overriding factor in the conclusion of a marriage.

The situation in Islam is a follows. There is consensus amongst the dominant schools that a woman who has already experienced married life and has subsequently been divorced or widowed is entitled to contract her own marriage without the aid of a guardian.⁶⁹ However, a woman who possesses legal capacity and who is a virgin appears not to be in a similar position. The Maliki school holds the view that such a woman cannot contract her own marriage without the intervention of a guardian who, under normal circumstances, would be her father.⁷⁰ However, if the father is unavailable, the guardianship may be passed on to one of the other agnatic consanguineous relatives.⁷¹ Although the guardian could not force a woman into marriage without her consent, the woman could not contract her own marriage without the assistance of a guardian.⁷² Ur-Rahman, a legal scholar, explains that although the Maliki school considers the permission of a guardian necessary for the completion of a marriage contract, the validity of the contract is not affected.⁷³ In accordance with the Maliki school of thought, a woman can never, however, act as a guardian. The situation in Morocco is that the need to have a guardian applies to women and not to men.

4.1 The 2004 reforms

Under the 2004 version a wife is no longer legally obliged to obey her husband, contrary to widely-held custom which regards obedience as an absolute duty of a Muslim woman. The 2004 version in fact corresponds to the core sources of Islamic law, which call on couples to engage in consultation, dialogue and understanding in the fulfillment of their mutual obligations. This is underscored, in particular, by the Qur'anic injunctions of fair treatment, consultation and dialogue,⁷⁴ and the instruction calling on all Muslims to disobey illegal commands, including those issued by parents and husbands.⁷⁵

In keeping with the desire for equality between men and women, the minimum age for marriage in the 2004 version has been set at eighteen years of age for both men and women. Previously, girls were legally permitted to marry at the age of fifteen⁷⁶ and it still remains permissible for a girl between the ages of fifteen and eighteen to enter into marriage. In such instances, the permission of the Family Affairs Judge is required and a medical certificate is required.⁷⁷ This represents a significant reform of the traditional position in Islam. Although no suitable age for marriage was stipulated, it was assumed that boys and girls attained puberty at the ages of twelve and nine respectively.⁷⁸ The mudawana of 2004 now declares the marriage of a minor to be contingent on the consent of his or her legal tutor. In the event that the minor's legal tutor withholds consent, the Family Affairs Judge must rule on the matter.⁷⁹ The fact that a minimum age is set for marriage is to be welcomed, as this renders it unnecessary to deal with the question of puberty. In addition, the requirement of a medical certificate is to be welcomed, as this requirement will ensure that the physical well-being of a young girl is given due consideration.

Article 4 of the 2004 version defines marriage as a legal contract so as to distinguish between marriage and other contracts, such as those envisaged in the Code of Obligations.⁸⁰ Marriage is therefore based on consent and is defined as a long-lasting union between a man and a woman, whose mutual obligations are purity, chastity and the establishment of a stable family, to be attained through mutual care following the provisions laid out in the mudawana.⁸¹Articles 10 and 12, for example, stipulate that consent must be provided, which must be consistent with the intention of both parties.⁸²In addition, Article 13 stipulates that both parties should have the necessary legal capacity and there should be no intention or agreement to cancel the dowry.⁸³ The dowry is an essential feature of marriage and has been prominent in all versions of the mudawana.⁸⁴Cabré, a legal scholar, argues that in some instances the dowry constitutes the women's wealth, which she has recourse to in a case of economic difficulty or divorce.⁸⁵ Article 13(2) states that there must be no intention or agreement to cancel the dowry.

Article 13(3) also prescribes the presence of a marital tutor, where necessary, and two public notaries (adouls) at the moment when the offer and acceptance are pronounced by the couple.⁸⁶

The 2004 version requires the presence of two public notaries (adouls) at the moment when the offer and acceptance are uttered by the couple.⁸⁷ This means that the provision of consent must be executed in the presence of the public notaries. However, it must be emphasized that the presence of the public notaries is not a requirement for the validity of the marriage, but merely serves as proof of the solemnization of the marriage.⁸⁸ The presence of the public notaries is thus seen as a formality in the concluding of the marriage contract. The marriage contract serves as a document of proof that the marriage has been concluded between the parties, again in line with the Maliki school.

The Maliki school holds the view that the presence of witnesses in order to conclude a marriage is not necessary.⁸⁹ However, what seems to be important is that the marriage is to be made public.⁹⁰ The Maliki school asserts that it is the publicity which is a conditio sine qua non for the validity of the marriage.⁹¹ It could therefore be argued that the presence of the public notaries is to give effect to the provision of the Maliki school which calls for the marriage to be made public.⁹²

This provision is based on two narrations of Mohammed, cited by Ur Rehman, a legal scholar. The first is that marriage must not be in secret and the second is that it is necessary to "announce the marriage, no matter if it is by means of a tambourine".⁹³ The Maliki school construes the first of these as meaning that by prohibiting the contracting of the marriage in secret Mohammed has commanded its publicity.⁹⁴ The second part considers the publicity to be an essential condition relating to the validity of the marriage, and the beating of a drum or drums is a means to announce the marriage or to attain publicity.⁹⁵ It may be argued that the Maliki school seeks to distinguish marriage from adultery, as adultery is generally speaking almost always takes place in secret.

The previous versions stipulated that a girl may enter into marriage at the age of fifteen, while the required age for boys was eighteen.⁹⁶ According to Cabré, this arrangement was of significant importance for it established a system for early marriage.⁹⁷ In contrast, the 2004 version now stipulates that people gain legal capacity to contract marriage when they have reached the age of eighteen. The current reform provides for equity in terms of the ages at which men and women may get married.⁹⁸ However, Articles 19 and 20 state that a judge has the power to permit marriages in the case of minors.⁹⁹Although it is understood that there is no prescribed minimum age to impede the authorisation of a marriage, it is accepted that even though the couple may be young, they must be post-pubescent.¹⁰⁰

Guardianship unquestioningly denies a woman her independence and autonomy, while the same does not apply to men.¹⁰¹ The 2004 version is thus to be welcomed as it recognises a woman's agency and independence to exercise the freedom to enter into marriage. It is still, however, possible for a woman who so wishes to delegate tutelage to her father or to a male relative.¹⁰²

Men and women are now declared "equal before the law" in recognition of the dignity of women as human beings.¹⁰³ Whereas previously the family was the sole responsibility of the husband, the 2004 version of the mudawana makes the husband and the wife jointly responsible for the family.¹⁰⁴ This amendment echoes the words of Muhammad, who, upon delivering his farewell sermon near Mount Arafat, instructed:"[t]reat your women well and be kind to them for they are your partners and committed helpers".¹⁰⁵

4.2 Polygyny and the 2004 reforms

Polygyny has generated much debate. Under the previous versions of the mudawana a husband did not need judicial authorisation if he sought to enter into a second marriage. The husband was not required to notify his first wife of his intention.¹⁰⁶ Polygyny is now subject to stringent legal conditions. Although the Moroccan parliament decided to retain the husband's prerogative to enter into a second marriage, certain conditions had to be satisfied before a court in order for the second marriage to be authorised.¹⁰⁷ The wife could make it a pre-condition of marriage that her husband may not enter into a second marriage. If the husband proceeded to do so, the wife would be entitled to a divorce.¹⁰⁸ In addition, the husband must notify the current wife that he would like to take another wife and must furthermore advise the proposed new wife that he is already married.¹⁰⁹ If the first wife objects to the husband's taking another wife the court must find exceptional and objective circumstances that justify the taking of a second wife. There must be sufficient resources to provide for both families so as to treat both families equally.¹¹⁰

Previously the mudawana stipulated that if any injustice between co-wives is feared, polygyny is not permitted.¹¹¹ Abdullah correctly argues that this stipulation appears to be identical to what is stated in the Qur'an.¹¹² Previous drafts of the mudawana did not require an inquiry by any authority into the husband's capacity to do justice between co-wives. A court may therefore grant a judicial divorce to a wife who complains of injury as a direct result of the husband's contracting a further marriage.¹¹³ The mudawana thus confirms the Quranic text that if a husband is unable to treat the co-wives equitably, then such a husband must, as a rule, confine himself to one wife.¹¹⁴ Surprisingly, polygyny is mentioned in the Quran in only one verse:

And if ye fear that ye shall not be able to deal justly with orphans, marry women of your choice, two, three, or four, But if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hand possesses.

That will be more suitable, to prevent you from doing injustice.¹¹⁵

The practice of polygyny was not amended and thus the position remains as found in the Qur'an.¹¹⁶

 

5 Barriers to the implementation of the mudawana

Despite the gains the mudawana brought to the realization of women's rights, it remains obstructed be several obstacles. The following obstacles will be discussed, namely, deficiencies in the wording of the mudawana, the government's allocation of resources, and the decisions of the judiciary.

5.1 Deficiencies in the wording of the mudawana

Revisions to the mudawana and the introduction of the 2004 version into legislation should be seen as stepping stones to the realization of women's access to justice. There are areas in which the text fails to realize women's rights to equality. For example the mudawana does not establish a threshold age below which special permission to contract a marriage before the lawful age of 18 years may be granted.¹¹⁷ In addition, the mudawana's provisions on the joint administration of property acquired during the subsistence of the marriage do not include standards for evaluating the wife's contribution in the form of domestic duties, where there is no contract between the parties in dealing with domestic duties.¹¹⁸ Furthermore, the mudawana does not completely eradicate polygyny, the unilateral repudiation of the wife by the husband, separation by compensation (referred to as khula), or inheritance rules, according to Sidiqi, a legal scholar.¹¹⁹ Although strides have been made towards the realization of women's rights in some areas of criminal and civil law, family law has been lagging behind. For example, women possess equal testimony rights in most if not all areas in civil and criminal law cases, but the court allocates only half the weight to their testimony that it does to the testimony of men in family issues.¹²⁰ Finally, married women receive the most protection in terms of the mudawana, but it neglects the rights of those women who are single, foreign women who are married to Moroccan men, and Moroccan women married to foreign men.¹²¹ According to Hanafi, a legal scholar, the latter point, particularly, is of great importance as the number of multicultural marriages is on the increase.¹²²

5.2 Government's allocation of resources

Civic organisations believe that there are certain areas in terms of how family law is written into legislation and how family law is applied at grassroots level, in-particular women's access to justice, that need revision.¹²³ As outlined by the mudawana, there is no differentiation of access to justice among women, but in practice women situated in rural areas have less access to justice than those situated in urban areas. A 2003 report to the CEDAW committee highlighted that despite the progress of the mudawana

...a number of constraints and difficulties have emerged, including in particular difficulties attributable to inadequate infrastructure and logistic resources, a lack awareness and training among officials responsible for enforcing the Code, and persons in charge of publicizing it and propagating an understanding of it throughout Morocco's social fabric.¹²⁴

A number of civic organisations exist in the major cities but not in the rural parts of Morocco. According to Hanafi, a legal scholar, too many rural areas lack crucial physical infrastructure such as roads, which lack hampers the formation of rural civic organisations, which are mainly concentrated in major urban centers such as Rabat and Casablanca.¹²⁵ In addition, if there were physical infrastructure such as roads, this would assist the villagers to gain access to justice as their villages would be physically accessible to organisations such as legal aid and other non-profit organisations.¹²⁶

5.3 The judicial system

Morocco has a dual legal system consisting of secular courts founded on the French legal tradition and courts based on Islamic and Jewish traditions.¹²⁷ The secular structure includes communal and district courts, courts of first instance, appellate courts, and a Supreme Court.¹²⁸ There are 27 Sadad courts, which act as courts of first instance for Muslim and Jewish personal laws. The Sadad courts are divided into Sharia, Rabbinical, Civil, Commercial and Administrative and Criminal sections.¹²⁹

A weakness relating to the lack of implementation is the delays in courts. The performance of an effective and efficient judiciary is of paramount importance to the administration of justice. There are numerous causes of delay, such as heavy caseloads, lengthy hearings, insufficient court resources, both financial and personal, and inefficient legal procedures and court processes.¹³⁰ The success of the mudawana depends explicitly on the legitimacy of the judiciary. Several issues of the reform fall to the discretion of the judiciary, such as the approval of polygynous marriages, the granting of waivers for child marriages, and the oversight of all divorce proceedings.¹³¹ Although the judiciary has made strides towards adhering to the provisions of the mudawana, there seems to evidence of a patriarchal leaning towards child marriages.¹³²

As a result of the abovementioned hurdles, which seem to be prevalent amongst the members of the judiciary, many women fear failure or harbour serious misgivings that prevent them from seeking judicial intervention.

 

6 Conclusion

Women's activism has had a significant impact on the reform of family law in Morocco, and this led, in no small part, to the adoption of an entirely new mudawana in 2004. Moghadam and Fahimi, legal scholars, argue that the new mudawana is consistent both with the spirit of Islam and the notion of equal rights for men and women.¹³³ The fact that the feminist campaign succeeded in altering the mudawana in a country where the law is based on Islamic principles shows how effective women's activism can be when linking social and economic development to the notion of women's rights.

The enactment of the 2004 version of the muduwana is a step forward in the realisation of the fundamental rights and freedoms of Moroccan women, but sadly the application of the revision has not taken full effect. The judiciary has to play a more profound role in its enforcement, as it has the power to make legal reform a reality or alternatively to hamper reform. In addition, efforts must be made at grassroots level to educate women, especially those situated in the rural areas, about their rights as set out in the mudawana. The way to achieve the full implementation of the mudawana is for all the role-players, such as government, civil society groups, media and educational institutions, to make a collaborative effort. And yet Article 400 clearly stipulates that issues that are not foreseen by the 2004 version of the mudawana will be determined in accordance with the principles of the Maliki school,¹³⁴ thereby, re-asserting the provisions of the Maliki school.

 

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Garcia JS "Issues of Family in Spanish-Moroccan Relationships" 2012 July IJBSS 44-50        [ Links ]

Htun M and Weldon S "State Power, Religion, And Women's Rights: A Comparative Analysis of Family Law" 2011 Ind J Global Legal Studies 145165        [ Links ]

Hursh J "Advancing Women's Rights through Islamic Law: The Example of Morocco" 2012 Berkeley J Gender L & Just 252-306        [ Links ]

Jansen Y "Muslim Brides and the Ghost of the Shari'a: Have the Recent Law Reforms in Egypt, Tunisia and Morocco Improved Women's Position in Marriage and Divorce, and Can Religious Moderates Bring Reform and Make It Stick?" 2007 Nw U J Int'l Hum Rts 181-212        [ Links ]

Jordan D "The Dark Ages of Islam: Ijithad, Apostacy, and Human Rights in Contemporary Islamic Jurisprudence" 2003 Wash & Lee J CR & Soc Just 55-71        [ Links ]

Maddy-Weitzman B "Women, Islam, and the Moroccan State: The Struggle over the Personal Status Law" 2005 Middle East J 393-410        [ Links ]

Mashour A "Islamic Law and Gender Equality: Could There Be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt" 2005 Hum Rts Q 562-596        [ Links ]

Sadiqi F "The Central Role of the Family Law in the Moroccan Feminist Movement" 2008 BJMES 325-337        [ Links ]

Sadiqi F Five Years After the New Moroccan Family Law (University of Fez Fez 2010)        [ Links ]

Rehman J "The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq" 2007 IJLPF 108-127        [ Links ]

Ur-Rahman T A Code of Muslim Personal Law (Hamdard Karachi 1978)        [ Links ]

Warren CS "Lifting The Veil: Women and Islamic Law" 2008 Cardozo J L & Gender 33-65        [ Links ]

Zoglin K "Morocco' s Family Code: Equality for Women" 2009 Hum Rts Q 964-984        [ Links ]

Legislation

Code of Personal Status, 1958 Code of Personal Status, 2004

Constitution of Morocco, 1996 Constitution of Morocco, 2011

Internet sources

Al-Sarami M 2007 Recent Reforms in Personal Status Laws and Women's Empowerment: Family Courts in Egypt http://bit.ly/1SFcn2C accessed 10 April 2015        [ Links ]

Charrad MM 2012 Family Law Reforms in the Arab World: Tunisia and Morocco http://bit.ly/1SXEW5e accessed 20 October 2013        [ Links ]

Encyclopedia of the Nations 2015 Morocco - Judicial System http://bit.ly/1QvDci2 accessed 5 June 2015        [ Links ]

Hanafi L 2013 The Implementation of Morocco's 2004 Family Code Moudawana: Stock-Taking and Recommendations http://bit.ly/1VM04lU accessed 6 February 2014        [ Links ]

Madani M, Maghraoui D and Zerhouni S 2012 The 2011 Moroccan Constitution: A Critical Analysis http://bit.ly/1MQCXn8 accessed 10 June 2015        [ Links ]

UN Women 2008 CEDAW Country Reports, Periodic Report of States Parties - Morocco http://bit.ly/1Wk7OtQ accessed 20 January 2015        [ Links ]

List of Abbreviations

Berkeley J Gender L & Berkeley Journal of Gender, Law and Justice Just

BJMES British Journal of Middle Eastern Studies

Cardozo J L & Gender Cardozo Journal of Law and Gender

Cornell Int'l L J Cornell International Law Journal

Hum Rts Q Human Rights Quarterly

IJBSS International Journal of Business and Social Science

IJLPF International Journal of Law, Policy and the Family

Ind J Global Legal Studies Indiana Journal of Global Legal Studies

JNAS Journal of North African Studies

Lang Intercult Comm Language and Intercultural Communication

Middle East J Middle East Journal

Nw U J Int'l Hum Rts Northwestern University Journal of International Human Rights

UCLA J Islamic & Near E L UCLA Journal of Islamic and Near Eastern Law

Wash & Lee L Rev Washington and Lee Law Review

Wash & Lee Race & Ethnic Anc L J Washington and Lee Journal of Civil Rights and Social Justice

 

 

Date published 5 July 2016

 

 

Editor Prof W Erlank
* Ashraf Booley. LLB LLM LLD (University of the Western Cape). Lecturer in the Department of Public Law and Jurisprudence, University of the Western Cape. Email: abooley@uwc.ac.za.
1 Anwar and Rumminger 2007 Wash & Lee L Rev 1529.
2 El Katiri 2013 JNAS 53-59. A recent empirical study by several Moroccan academics concluded that the religiosity of Moroccan society, particularly the youth, is expanding greatly with access to education, urbanisation, and the availability of information via satellite and internet services.
3 Eisenberg 2011 Cornell Int'l L J 695. In this article the Code of Personal Status will be referred to as the "mudawana", instead of the "moudawana" as is the practice of other authors.
4 Eisenberg 2011 Cornell Int'l L J 695.
5 Eisenberg 2011 Cornell Int'l L J 695-696.
6 Madani, Maghraoui and Zerhouni 2012 http://bit.ly/1MQCXn8.
7 Madani, Maghraoui and Zerhouni 2012 http://bit.ly/1MQCXn8.
8 Jordan 2003 Wash & Lee J CR & Soc Just 57.
9 Rehman 2007 IJLPF 108-109.
10 Mashour 2005 Hum Rts Q 565.
11 Warren 2008 Cardozo J L & Gender 34-35.
12 Warren 2008 Cardozo J L & Gender 34-35.
13 Fiqh is more akin to positive law, and is concerned with the practical legal rules relating to the conduct of individuals. Furthermore, the conceptual distinction between sharia and fiqh is the product of a recognition of the inevitable failures of human efforts at understanding the purpose and intentions of Allah. There are jurists that state that human beings do not possess the ability to understand and implement Allah's great wisdom, and that fiqh is therefore justified as a rational technique bringing humans closer to understanding the will of Allah. In this way, Islamic law is often viewed as having a dual nature, both divine and human.
14 The Quran is the most authoritative guide for Muslims. The Quran, which consists of the verbatim words of Allah (God), was revealed to Prophet Mohammed [PBUH] over a period of twenty-three years and contains 114 suras or chapters and 6235 ayat or verses of unequal length. Out of the total number of verses in the Quran, approximately 600, or fewer than one tenth, provide legal rules or address legal issues.
15 Mashour 2005 Hum Rts Q 565.
16 Warren 2008 Cardozo J L & Gender 34-35.
17 In pre-Islamic Arabia, for example, Arabs used the word sunnah in reference to ancient and continuous communal practices inherited from their forefathers.
18 Mashour 2005 Hum Rts Q 566.
19 Examples of the most authoritative bodies of hadiths were those compiled by Islamic jurists such as Muhammad ibn al-Ishmail al-Bukhari, who lived between 810 and 870, and Abdu'l Hussain bin al-Hajjaj al-Nisapuri, who lived between 817 and 875. The most respected collection of legal hadith, totalling 4800 altogether, was compiled by Ash'ath al-Sijistani, who is also known as Abu Dawood.
20 Rehman 2007 IJLPF 111.
21 Rehman 2007 IJLPF 111.
22 Rehman 2007 IJLPF 111. Commenting on this issue, Coulsen makes the point that "the extent of (Mohammed's) extra Quranic law-making is the subject of the greatest single controversy in early Islamic history".
23 Rehman 2007 IJLPF 111-112.
24 Jordan 2003 Wash & Lee J CR & Soc Just 58.
25 Warren 2008 Cardozo J L & Gender 37-38.
26 Warren 2008 Cardozo J L & Gender 37-38.
27 Warren 2008 Cardozo J L & Gender 37-38.
28 Mashour 2005 Hum Rts Q 566.
29 Warren 2008 Cardozo J L & Gender 37-38. According to Christie, ijma as a source of law differs from the Quran and sunnah in that it is not itself revealed but instead is a product of rational proof and reason rooted in divinity. .
30 Mashour 2005 Hum Rts Q 566.
31 Jordan 2003 Wash & Lee J CR & Soc Just 59.
32 Jordan 2003 Wash & Lee J CR & Soc Just 59.
33 Jordan 2003 Wash & Lee J CR & Soc Just 59.
34 A comprehensive discussion relating to ijtihad falls beyond the scope of this article.
35 Warren 2008 Cardozo J L & Gender 37-38.
36 Warren 2008 Cardozo J L & Gender 37-38. Only qualified mujtahids, Islamic legal scholars, have been authorised to practise ijtihad. Requirements to attain the status of a mujtiahid comprise being a Muslim, having a sound mind and intellectual competence, the possession of sufficient Arabic to read the original texts in that language, and having sufficient familiarity with the Quran and sunnah to able to understand and interpret both their language and purpose, as well as to separate weak from strong hadith. There are other sources such as custom (urf) and taqlid which are also found within Islam.
37 Jordan 2003 Wash & Lee J CR & Soc Just 59.
38 Jordan 2003 Wash & Lee J CR & Soc Just 59.
39 Mashour 2005 Hum Rts Q 566.
40 An Arabic term for faction or party is shi'ah, and the party or shi'ah of Ali emerged during the first civil war. Ali's leadership was first challenged by a group including Aisha [PBUH] the Prophet's most prominent wife and the daughter of the first Caliph, Abu Bakr. Although Ali defeated this group militarily, it represented the tradition that became part of the mainstream majority, or Sunni, tradition in Islam. Shi'ah Islam has its beginnings in the Party of Ali.
41 Jordan 2003 Wash & Lee J CR & Soc Just 59.
42 Al-Sarami 2007 http://bit.ly/1SFcn2C.
43 Rehman 2007 IJLPF 111-112.
44 Rehman 2007 IJLPF 111-112.
45 Eisenberg 2011 Cornell Int'l L J 693-703.
46 Buskens 2003 Islamic Law and Society 70.
47 Charrad 2012 http://bit.ly/1SXEW5e. The mudawana was first developed as a set of royal decrees (referred to as zahir) released by the monarchy, without parliamentary debate, between 1957 and 1958. The mudawana became a symbol of Moroccan and Islamic unity and identity, as well as of the Maliki school and the Monarchy.
48 Cabré 2007 Lang Intercult Comm 133-135.
49 Charrad 2012 http://bit.ly/1SXEW5e.
50 Zoglin 2009 Hum Rts Q 964.
51 Htun and Weldon 2011 Ind J Global Legal Studies 145.
52 Charrad 2012 http://bit.ly/1SXEW5e.
53 Charrad 2012 http://bit.ly/1 SXEW5e.
54 Alidadi 2005-2006 UCLA J Islamic & Near E L 3-26.
55 Maddy-Weitzman 2005 Middle East J 393-400.
4 Pre-reform mudawana
56 Maddy-Weitzman 2005 Middle East J 393-400.
57 Hursh 2012 Berkeley J Gender L & Just 252-259.
58 Alidadi 2005-2006 UCLA J Islamic & Near E L 26-27.
59 Sadiqi 2008 BJMES 325.
60 Jansen 2007 Nw U J Int'l Hum Rts 1-1.
61 Hursh 2012 Berkeley J Gender L & Just 252-259.
62 Hursh 2012 Berkeley J Gender L & Just 252-259.
63 Article 32 of the Constitution of Morocco, 2011.
64 Article 4 of the Constitution of Morocco, 2011. Article 1 states: "The nation relies for its collective life on the federative constants, on the occurrence of moderate Muslim religion, the national unity of its multiple components, the constitutional monarchy and democratic choice".
65 Hursh 2012 Berkeley J Gender L & Just 252-259.
66 El Alami Marriage Contract in Islamic Law 10.
67 Cabré 2007 Lang Intercult Comm 133-136.
68 Cabré 2007 Lang Intercult Comm 133-136.
69 Ur-Rahman Code of Muslim Personal Law 38.
70 Cabré 2007 Lang Intercult Comm 133-136.
71 Ur-Rahman Code of Muslim Personal Law 38-42.
72 Ur-Rahman Code of Muslim Personal Law 38-42.
73 Ur-Rahman Code of Muslim Personal Law 38-42.
74 Ali Holy Qur'an 17-93.
75 Ali Holy Qur'an 17-93.
76 Article 19 of the Code of Personal Status, 2004, which states: "[m]en and women acquire the capacity to marry when they are of sound mind and have completed eighteen full Gregorian years of age".
77 Article 20 of the Code of Personal Status, 2004. The Family Affairs Judge in charge of marriage may authorise the marriage of a girl or a boy below the legal age of marriage, as stipulated in Article 19, "in a well-substantiated decision explaining the interest and reasons justifying the marriage, after having heard the parents of the minor who has not yet reached the age of capacity or his/her legal tutor, with the assistance of medical expertise or after having conducted a social enquiry".
78 Jansen 2007 Nw U J Int'l Hum Rts 181-184.
79 Article 21 of the Code of Personal Status, 2004.
80 Garcia 2012 IJBSS 44-45.
81 Article 4 of the Code of Personal Status, 2004.
82 Article 10 of the 2004 version of the mudawana states: "Marriage is legally concluded by an offer expressed by one of the parties and acceptance by the other, in any accepted expression from which the meaning of marriage is inferred verbally or conventionally". Article 12 states: "Any marriage contract concluded under duress or by fraud is subject to the provisions of Articles 63 and 66".
83 Article 13 states: "The conditions required to contract marriage are: 1- The legal capacity of both spouses; 2 - No intention or agreement to cancel the dowry; 3 - A marital tutor, if required; The hearing and notarized statement by two adouls (public notaries) of offer and acceptance pronounced by the two witnesses; 5 - The absence of any legal impediments".
84 See the 2004 Mudawana, Chapter II: Of the Dowry, aa 26, 27, 28, 29, 30, 31, 32, 33 and 34.
85 Cabré 2007 Lang Intercult Comm 133-137.
86 Garcia 2012 IJBSS 44-45. See a 13(3) of the 2004 Mudawana which states: "A marital tutor, if required".
87 Article 16 of the Code of Personal Status, 2004.
88 Garcia 2012 IJBSS 44-45.
89 Ur-Rahman Code of Muslim Personal Law 38-76.
90 Ur-Rahman Code of Muslim Personal Law 38-77.
91 Ur-Rahman Code of Muslim Personal Law 38-77
92 Ur-Rahman Code of Muslim Personal Law 38-77.
93 Ur-Rahman Code of Muslim Personal Law 38-78.
94 Ur-Rahman Code of Muslim Personal Law 38-78.
95 Ur-Rahman Code of Muslim Personal Law 38-78.
96 Cabré 2007 Lang Intercult Comm 133-136.
97 Cabré 2007 Lang Intercult Comm 133-136.
98 Zoglin 2009 Hum Rts Q 964-971.
99 Articles 19 and 20 of Code of Personal Status, 2004.
100 Garcia 2012 IJBSS 44-45.
101 Jansen 2007 Nw U J Int'l Hum Rts 181-184.
102 Foblets 2007 Wash & Lee L Rev 1385-1390.
103 Chapter 1 Article 4 of the Constitution of Morocco, 1996 adopted 13 September 1996.
104 Jansen 2007 Nw U J Int'l Hum Rts 181-203.
105 Warren 2008 Cardozo J L & Gender 33.
106 Zoglin 2009 Hum Rts Q 964-972.
107 Zoglin 2009 Hum Rts Q 964972.
108 Articles 40, 42 and 45 of the Code of Personal Status, 2004.
109 Articles 43 and 46 of the Code of Personal Status, 2004.
110 Article 41 of the Code of Personal Status, 2004.
111 Article 30 of the Code of Personal Status, 1958.
112 Abdullah 2008 Al-JSmi'ah 154-163.
113 Abdullah 2008 Al-JSmi'ah 154-163.
114 Ur-Rahman Code of Muslim Personal Law 38-97.
115 This verse does not enjoin polygyny or deem it an absolute right of man, but rather it permits polygyny in specific circumstances. In addition, polygyny is conditional on whether the husband can be just to his wives or not. If he cannot be fair to his wives and treat them equally, then he may have only one. Therefore, polygyny appears to be the exception in marriage, while monogamy is the rule. It may be argued that the practice of polygyny is misused by men and is not perceived as conditional and exceptional but rather as an absolute right and privilege.
116 Abdullah 2008 Al-JSmi'ah 154-163.
117 Hanafi 2013 http://bit.ly/1VM04lU 9.
118 Hanafi 2013 http://bit.ly/1VM04lU 9.
119 Sadiqi Five Years After the New Moroccan Family Law 2.
120 Sadiqi Five Years After the New Moroccan Family Law 3.
121 Sadiqi Five Years After the New Moroccan Family Law 6.
122 Hanafi 2013 http://bit.ly/1VM04lU 10.
123 Hanafi 2013 http://bit.ly/1VM04lU 10.
124 UN Women 2008 http://bit.ly/1Wk7OtQ.
125 Hanafi 2013 http://bit.ly/1VM04lU 11.
126 Hanafi 2013 http://bit.ly/1VM04lU 11.
127 Encyclopedia of the Nations 2015 http://bit.ly/1QvDci2.
128 Encyclopedia of the Nations 2015 http://bit.ly/1QvDci2.
129 Encyclopedia of the Nations 2015 http://bit.ly/1QvDci2.
130 Hanafi 2013 http://bit.ly/1VM04lU 12.
131 Hanafi 2013 http://bit.ly/1VM04lU 12.
132 Hanafi 2013 http://bit.ly/1VM04lU 13.
133 Abdullah 2008 Al-JSmi'ah 154-163.
134 Article 400 of the Code of Personal Status, 2004. Article 400 states: "[f]or all issues not addressed by a text in the present code, reference may be made to the Malikite School of Jurisprudence and to ijtihad (independent reasoning to arrive at a legal principle), which strive to fulfil and enhance Islamic values, notable justice, equality, and amicable social relations".