The old Moudawana, which dated from 1958, conveyed a reactionary conception of Islam and emphasized the hegemony and superiority of men at all levels. However, the new Moudawana introduced the concept of equality and revolutionized retrograde legislation that was no longer in phase with the country’s overall evolution after the enthronement of King Mohammed VI.
Morocco’s 2004 Moudawana was assuredly a progressive legislative text for women in Morocco. The introduction of the principles of equality and co-responsibility in marriage and the redefinition of the concept of authority in the Islamic framework constitutes a substantial step toward an egalitarian society. This reform of the Moudawana represented the culmination of years of struggle for equality. It was considered a decisive and historic reform.
The current text was recognized as a notable advance in the history of Morocco. A family based on the co-responsibility of the two spouses, the woman does no longer need a tutor to marry, the legal age of marriage become 18 instead of 15, the notion of “the wife’s obedience vis-à-vis her husband” is abandoned, authorization to marry another wife became difficult to obtain, repudiation is subject to the judge’s authorization, and the wife has the right to ask for a divorce… All these provisions were applauded. Sixteen years later, Moroccan society has experienced substantial changes and transformations. Nevertheless, the Family Code has remained unchanged and untouched. In this regard, the Moudawana is even in contradiction with the 2011 Constitution, which establishes perfect equality between women and men; therefore, some discriminations are noticeable and flagrant.
Several articles in the Moroccan Family law are considered today discriminatory such as the father’s guardianship with regard to his children. Article 236 of the code stipulates: The father is by right the legal guardian of his children, as long as he has not been deprived of this guardianship by a judgment. If the father is unable to act, it is the mother’s responsibility to look after her children’s urgent interests. For any administrative formality, identity card, passport, trip abroad, school registration, the father is the guardian. Feminists and women’s rights activists fiercely denounce this inequality regarding the child’s guardianship, and they recognize this law as discriminatory and unconstitutional.
The principle of equality was vigorously reinforced by the Constitution of 1 July 2011, which states that Morocco is committed to human rights as universally recognized, and, in particular, Article 19, which stipulates that “The man and the woman enjoy, in equality, the rights and freedoms of civil, political, economic, social, cultural and environmental character, ennounced in this Title and the other provisions of the Constitution, as well as in the international conventions and pacts duly ratified by Morocco and this, with respect for the provisions of the Constitution, of the constants of the Kingdom and its laws. The State works for the realization of parity between men and women. An Authority for parity and the struggle against all forms of discrimination is created to this effect.”
It is undeniable that the current text was a significant step forward. However, the 2011 Constitution is ahead of the Moudawana, and the latter needs to be upgraded. This significant inadequacy and contradiction between the new Constitution and the Moudawana put us in a paradoxical situation. As the National Human Rights Commission stated in its report: “Today, we are in a paradoxical situation. It is as if the new Constitution had never been adopted. The drafting of this new Constitution should not be seen as an objective in itself but rather as a means to get things moving.” Since the promulgation of the Moudawana in 2004, it seems that all political actors have given up, and almost no efforts were done to make gender equality a reality.
Latifa Jbabdi, a member of the Union of Women’s Action, firmly believes that the Moudawana must be harmonized with the Constitution on the one hand and Morocco’s international commitments on the other. She is referring essentially to the principles of equality and non-discrimination, which occupy a central place in the fundamental text. Therefore, she perceives the Moudawana as a discriminatory legislative text. She also criticizes the JDP (the Islamist party in power), who considers women inferior to men and wants to maintain two possibilities: marrying minors and being polygamous.
Moreover, the former minister of social development, family, and solidarity, Nouzha Skelli, stated that: “The Moudawana was adopted in 2004 and certainly put an end to the zero years of women’s rights, but since then, no evaluation has been made. And when you don’t move forward, you move backward… “
After the Islamist party came to power, the feminist cause was sidelined and even experienced a societal regression and a demobilization of the government. Since 2004, there has been a significant regression in women’s rights and a growing loss of momentum in the feminist movement. The regression has become more and more visible with the appearance and increasing trivialization of misogynistic and sexist acts even in the parliament.
Despite the members of the Islamist party who deny any attempt to Islamize or ideologize society, the trend has significantly increased since the JDP took over the government. The ideological framework of this party prevents its members from acknowledging all the changes that society has known. Society is constantly changing, moving forward, and progressing, and it is not reasonable or even rational to see it as static and stagnant.
Furthermore, it is crucial to emphasize that the question of gender equality, women’s rights, and individual freedoms should not be part of an ideological debate between conservatives and modernists. Instead, they should be part of a societal and civic debate. Discussing these questions must go beyond the ideological differences of some and others, and, above all, it should not be done according to some political ends in order to have laws that, on the one hand, respect and enshrines the principle of equality between men and women, and, on the other hand, improves the relationship between the two, because the social cohesion and stability depend on it.
Since 2011, Moroccans were waiting for the implementation of a law that effectively punishes the perpetrators of violence against women and the abrogation of sexist discriminatory laws. Unfortunately, this hope became only fragments of a distant memory that faded with the backward ideology that prevails in the government, indirectly encouraging various forms of discrimination and violence developing in Morocco.
In conclusion, the Moroccan Family Law reflects a willingness to balance and reconcile the ideals of tradition, Islam, national and international law to make society more egalitarian and just for women. However, the Moudawana is getting wrinkles and becoming obsolete. Thus, it does not go hand in hand with society’s progress and the equality foundations of the Constitution. Therefore, the Family code’s adjustment and harmonization to the principle of equality reinforced by the 2011 Constitution are necessary to live in an egalitarian, fair, and coherent society.
Zoglin, K. (2009). Morocco’s Family Code: Improving Equality for Women. Human Rights Quarterly, 31(4), 964-984. Retrieved March 29, 2021, from http://www.jstor.org/stable/40389983
About the Author:
Rim Affathe is a 20 years old student. She was born and raised in Morocco, and she is currently living in Italy. She is a third-year political science student at Mohamed VI Polytechnic University, and she is spending her exchange year at LUISS university in Rome. Rim Affathe has a vested interest in gender studies, postcolonial feminism, security studies and diplomacy. She aspires to be a Moroccan diplomat and a women’s rights advocate. She is also a member of the feminist and youth-led initiative Politics4Her.