The Moudawana reform project, the family code in Morocco, has entered its final phase. After six months of hearings, the commission responsible for its revision sent, on March 30, a first version of the text to the head of government, Aziz Akhannouch, who handed it over to King Mohammed VI.
It is now up to the sovereign, who is also the Commander of the Faithful, to arbitrate this proposal, ensuring a balance “between the desire for modernity and religious constraints,” warns a member of the majority. The bill will then be put to a vote in Parliament, “before the end of the spring session” in July, says the leader of an opposition party.
Whatever the content of the reform, its ratification is beyond doubt: the previous overhaul of the family code, in 2004, was adopted unanimously by both chambers, marking the beginning of an improvement in rights Moroccan women.
But twenty years later, “it is clear that its provisions are obsolete,” assure Nouzha Chekrouni and Abdessalam Saad Jaldi, of the Moroccan think tank Policy Center for the New South. The researchers point to a legal corpus under “the influence of patriarchal subjectivities”, the profound transformations of Moroccan society further magnifying the “insufficiency” of the text.
Underage marriage is debated
While waiting for the bill to be presented, speculation is rife about the changes that could be made to the current code. “Nothing filters through the choices that were made by the commission,” responds an opposition parliamentarian, who nevertheless believes that the composition of the said committee suggests a revision whose scope will be “essentially technical.”
If it brought together fifteen personalities in 2004, almost half of whom came from the Ministry of Islamic Affairs, this time the body only includes six members, including a single religious leader, two women and a trio of jurists responsible for piloting the reform: the Minister of Justice, the President of the Superior Council of the Judiciary and that of the Public Prosecutor's Office.
“There will be no major general principles, as was the case in 2004, but more clarity in a text which lacks precision and which sometimes even turns out to be contradictory,” specifies a lawyer. Extensively cited, the case of marriage of minors is debated. Although it has set the minimum legal age at 18, the family code authorizes the judge to validate the union of a person before they come of age. “A breach which gave rise to legal abuses”, affirm Nouzha Chekrouni and Abdessalam Saad Jaldi.
What should have been exceptional has thus become the rule: according to the Ministry of Justice, nearly 320,000 marriage requests from minors, mainly young girls, were validated by Moroccan courts between 2009 and 2018. The number of these authorizations has since decreased – some 13,000 in 2020 – “but it does not include undeclared customary marriages”, sealed by the simple reading of a Koranic surah, notes the National Observatory of Human Development (ONDH).
Broadening the scope of the will
Long demanded by associations and several political parties, will the ban on these marriages be adopted? Two members of the commission could have argued in this direction: the Minister of Justice, Abdellatif Ouahbi, and the president of the National Human Rights Council (CNDH), Amina Bouayach, who have said, in the past, that they are in favor to their abolition. Another ban, that of polygamy, for which 20,000 requests for authorization were recorded between 2017 and 2021, also has consensus among those in favor of “further” reform.
The text that was given to the king was not made public, so everything is just conjecture. But, according to several sources interviewed who indicate having had access to the work of the commission, the most probable modifications will relate to the elimination of certain types of divorce, to adjustments concerning the inheritance of young girls – when they are the only heirs – and on the broadening of the scope of the will.
Equality in matters of parental guardianship will also probably be ratified, since it systematically goes to the father after a divorce. For children from extramarital relationships, sometimes abandoned, the situation is more problematic, because the family code establishes that they can claim neither a filiation nor the right to inheritance.
Reconciling the future Moudawana and the penal code
Among older activists, like Hafida El Baz, 62, of the Moroccan Association of Orphans, optimism is required, despite “the lucidity of the experience”. “There has been progress, it’s true, but we could move much faster to protect the thousands of children who are affected. We have been talking about systematizing DNA tests for presumed fathers since 2004,” she regrets. In a judgment rendered in 2008, the Court of Cassation firmly ruled out this possibility, emphasizing that “it is not possible to impose filiation outside of marriage on the father.”
The most important obstacle to overcome is still to reconcile the future Moudawana, as well as the penal code which prohibits sexual relations outside marriage, and the international conventions to which Morocco has subscribed. In its memorandum published on March 26, the Moroccan Association for Human Rights (AMDH) protested against the “duality” of the state’s discourse.
“At the national level, he declares his unconditional adherence to the religious framework and, before the international community, we note that he has ratified the nine conventions which constitute the basis of human rights. This leads to judicial insecurity which manifests itself in the issuance of contradictory judgments, some of which are based on religious references and others on universal references,” the organization raised.
The international convention on the rights of the child, in particular, although ratified by Morocco in 1993, remains partly unapplied. Just like the 2011 Constitution, the project of which was approved by referendum by an overwhelming majority. Its provisions, which advocate equality between men and women, like that of children, whatever their family situation, are still a dead letter.
