“We needed a code that guaranteed women’s rights and at the same time the right to be in peace with Islam. And it worked out. We used arguments that made sense from within the religious tradition; otherwise this change would not have been possible. The major part of divorce cases are now dealt with under the new law. Women today are less and less asking for the traditional procedure, where divorce meant paying themselves out of marriage with huge amounts of money and/or having to leave their kids behind”.
This distinction between Islamic feminism and Muslim feminism makes me curious, could you explain this better?
Being a Muslim feminist is very different question then being an Islamic feminist. I don’t particularly like this terminology at all, but it is necessary to understand. The so called “Islamic feminists” never accepted the new code when it was in the process of elaboration. They refuse any compromise with anything that might resemble being Western, but at the same time they want to be understood as feminists. In any case it has a very different meaning of what I would pragmatically call “Muslim feminism”, which, as feminism was defined from its beginning moves within the tradition of human and universal rights but respects the Islamic tradition as far as it is not contrary to the universal human rights principles. In Morocco Fatima Mernissi was one the first women analyzing the Koran from a women’s point of view, which ended with a Fatwa against her. My conclusion, my way to see the way to push forward women rights was to start from the Islamic principles and deal with theological issues. Feminism needs to be pragmatic, and I was not acting or promoting a theory of “Islamic feminism”. Through this legal experience I rediscovered my culture, myself, my tradition. I am a pragmatic thinking and a scientist, educated in France and suddenly found myself reading the sacred texts as well as a lot of Fiqh i.e. traditional Islamic Jurisdiction texts, learning and understanding and adapting this experience with myself as a human rights activist. It was very hard but I felt much richer after this. In the holy texts you can find whatever you look for.
In every Arab and Muslim country there are women fighting for their rights without too much success. How come you managed?
Our success was determined by the fact that we created a family code that respects and combines human rights, women’s rights, Islam and religious traditions. We followed an intense process where we listened to numerous Moroccan women NGO’s, ministerial and professional bodies and political parties. We dealt with the past, with Islam as well as the different needs of as many as 80 organizations. This collection of opinions and needs from every part of Morocco gave us a real picture of what is going on in the society. We then discussed article by article: marriage, childcare and all these key questions of the family life. It was a long and tiring process of continuous changes and compromises. It took us 30 month. Today our code is widely accepted because of the inclusive effort. The population and particularly the women here are now taking advantage of the right to have rights. But change needed to evolve from inside the religion. Islam can be understood in different ways and historical examples helped transmit information and a more modern understanding of the reality and helped the people adapt.
So if I understand right you imbedded this family law in your reality and did not impose a purely secular family law as for instance Tunisia did and which never was accepted?
Yes, and I don’t want to say that our code is perfect, some aspects in Tunisia are still better, and it is true that they used mainly a secular approach. The new laws we proposed weren’t new inventions but were built on the old traditional procedures. Their radical cancellation would have been understood as a frontal attack of all these rules developed over time, some were even believed to have existed since the first centuries of Islam. Of course we added new options to the traditional habits and adapted them.
Is divorce accepted for example and in which terms?
The new family law provisions have been applied in about 70% of the divorce cases. If two spouses ask for divorce in a consensual agreement it is now given easily. Women as well as men have the right to ask for divorce today without having to declare reasons or face embarrassing interrogations. And they are asking for it in many. Unfortunately at least a third of the population still knows very few about the family code, particularly in remote areas. The information campaign was not efficient enough although Ngo’s promoted it but with very few resources. National TV and Radio stations did not promote it sufficiently. So we cannot measure the impact jet. The Ministry of Justice yearly publishes the statistics: initially the number of marriages decreased and divorces increased but are now reaching normal rates marriages and divorces increased strongly and are now levelling out.
Who were the people in this Commission in charge of revising the old Moudawana? Did they all come from secular women’s – and human rights organizations?
No not at all. Me and two other women were the only – let’s say – modernists. 13 members came from a conservative tradition, meaning from theological school and then there was one more man that came from a mixed background. At the same time we had a strong opposition by fundamentalist movements, which completely refused our approach.
Which were the most controversial issues?
Male parental authorization of marriage. Originally every woman, at any age, had to have the official authorization of a male relative to get married. By law, women could be forced by their family and could not marry themselves unless they agree to go before a court against their father or brother, while “empowered” women (urban educated, economically independent) could chose and even impose the man they want to marry. But to make this relatively widely practiced habit become law, a right for women to choose, triggered an endless controversy. This year’s issue is heritage. Our family law is still in evolution and we are still working on it a lot. The many TV debates triggered a public discussion.
Doesn’t the Koran already speak of the right of female inheritance? Why is it difficult then? Or are the writings suddenly of minor importance once economic interests are touched? Hadn’t the Koran been somehow innovative for its time allowing women heritage at least half of what the men would inherit? In many Western countries only during the 20th century women archived the right to inherit.
The Koran’s first phrase in heritage matters says that men as well as women have the right to heritage without specifying anything. That is the principal of equality. The second says that women can get half part of the men and the next Sure gives the example where the women can get the double part of the man. So within the Koran you can find different answers to different situations and cases. This shows that the rule of half part for women is not gender based but based on the status and on economic responsibilities of women in the 7th century. Men traditionally decided on these questions, which is probably one reason why it excludes any progress or even a rethinking of this rule. Now things have been moving and since the general principle of equality has been proclaimed one can revive this situation. It is a question of political courage.
So other Muslim countries might adapt the Moroccan Moudawana?
It has become the base on which discussion and innovation attempts are being built. There are of course big differences in the traditions of every single Arab country. I start all my conferences saying that I don’t speak about Islam but about Islam in Morocco. Algeria had strong women movements and important female politicians, still Algerian women could not cancel the duty of obedience, The right to vote and to be elected is still not recognized for women in some Muslim countries in the Middle East The situation of women in Pakistan, Afghanistan and Sudan again are very different, just look at the terrible punishments and the stonings, that does and has not existed in Morocco. But I hope that our experience, with the Tunisian one can be of help for women in all Muslim countries. I strongly believe that there is no intrinsic opposition between the founding principles of Islam and the principles of human dignity, human rights, equality and fundamental freedom.
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[1] The old one was also called Moudawana of personal status while the new one is called Moudawana of Family, usually translated as Family Code.
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Nouzha Guessous Idrissi
Born in Morocco and educated in Morocco and France, Nouzha Guessous is a Medical Biologist and Honorary Professor at Hassan II University of Casablanca (Morocco) as well as a researcher and consultant in Human Rights and Bioethics. Founding Member of the Moroccan Organization of Human Rights (1988), consultant for Women Rights NGO’s, and member of the Royal Advisory Commission for the revision of the Moroccan Family Code (2002-2004).In Morocco she is a member of the Ethics Committee for Biomedical Research and of the Moroccan Association for Bioethics. Internationally, she has been member of the International Bioethics Committee of UNESCO since 2000.Finally, she has been awarded by His Majesty King Mohamed the VIth with a “Wissam du Mérite National du grade de Commandant” (October 10, 2003); and very recently, by His Excellency the French President Sarkozy as a “Chevalier de la Légion d’Honneur” (November 2008).