King Mohammed VI’s call, in his speech on the occasion of the 23rd anniversary of the Throne Day, for the reform of the Family Code (Moudawana), acted as a breath booster for women and human rights activists. women. The Sovereign thinks of them, and even affirmed that the application on the ground lifted the veil on certain limits of this Code, which hindered its optimal implementation.
Since then, the debate has been launched. And the living forces of the country are working on the reform of this obsolete Moudawana, in particular to facilitate the work of the government, in the face of criticism from the Islamists who see it as an initiative to change society and “ westernize it“, as they say, instead of seeing in it the supreme interest of their daughters and granddaughters who may be exposed to several situations where the laws in force do not really do them justice.
In this sense, a working group was created in the spring of 2022, to deal with fundamental freedoms in Morocco, with a view to expanding and consolidating them. Among this working group are Asma Lamrabet, Driss Benhima, Yasmina Baddou, Jalil Benabbes Taarji, Khadija El Amrani, Chafik Chraibi, Monique Elgrichi, and Mohamed Gaizi.
Thus, this working group shared a document entitled “ Fundamental liberties “which deals with several aspects, in particular the Constitution, the Moudawana (inheritance, will, marriage of minors, legal guardianship, filiation, etc.), the Penal Code (offences relating to the exercise of worship, sexual relations outside marriage and recognition of paternity, abortion, freedom of expression, the death penalty, penalties for irresponsible parents, etc.), the Code of Criminal Procedure (harassment of women and domestic violence), Code of Nationality (attribution of Moroccan nationality), as well as a section on a special law (work of women in alcoholic establishments).
In this article, we return to certain points of this document which shows serious work on the part of the collective and an important commitment.
Moudawana
In this section, the working group examines the inheritance of women. He argues that nowadays, Moroccan women are active and the majority of them work outside the home sometimes assuming responsibilities in the highest spheres of society, thus calling for a reform of current laws for a fair male inheritance. -female.
“The laws in force often refer to Koranic texts. However, the reading of these same sacred texts by exegetes and Ulemas goes towards the direction of full equity in the inheritance between men and women. Going towards total equality is thus defended by certain august Ulemas, but it seems for the moment that this goal requires a great debate and above all requires a long time to reach a global consensus.explains the collective in its document.
In this respect, the group stresses that it has adopted a cautious approach by limiting itself to dealing with carefully chosen points which, once adopted, will mark an indisputable step towards greater equity in inheritance. Among his subjects are the will, Taâsib or inheritance by agnate, Ked or Si’yaa, and the inheritance of foreign women.
Concerning the inheritance by Taâsib, the collective returns to a very common situation in Morocco and which poses a huge problem for families who do not have a male, and who find themselves confronted with distant uncles and cousins that they do not have probably never met in their life, but who inherits most of the inheritance “ thus leaving the mother and her daughters in a precarious situation », points out the same source.
This problem is inherent in the application of the legal concept of Muslim law says Taâsib, continues the collective, noting that this inheritance was justified by the material and societal responsibility of the man on the woman (quiwamah).
Except that this practice of Taâsib, continues the Collective, has no Koranic foundations and found its legitimacy in a patriarchal society where only men had to take the reigns in
as heads and spokespersons of the family.
“ These men were thus to be subsequently responsible and to protect the said family and not only to strip it of the legacy of the deceased which in general is the fruit of the work, sacrifices and labors of all a family life, raises the collective who believes that settling this point would avoid a demographic problem related to the search for homes for a male child.
Marriage of minors
In this section, the working group returned to the current issues and practices relating to the marriage of minors, thus recalling that it has been theoretically prohibited since 2004. But the law provides for exemptions, which means that thousands of girls are thus married before the age of 18.
” The Family Code provides for “derogations” in exceptional cases. The family judge can thus authorize the marriage of a boy or a girl under the age of 18 if the parents or the legal representative of the child so request. When the judge gives his consent, his decision is irrevocable and the minor wife has no right to any recourse. The legal exemptions granted are very numerous and concern young girls at 100% », advances the working group which underlines the provisions of article 20 and 21 of the current Moroccan law, thus proposing to put in place new laws or amendments.
Sexual relations outside marriage and recognition of paternity
In this section, the collective returns to a reality. Intimate sexual relations between consenting adults take place in our society and without prejudice to anyone and often end in marriages, whereas the law considers any sexual relation legitimate if the persons concerned have a marriage certificate recognized by the authorities beforehand. Moroccan, and which refers to the Islamic tradition. .
Thus, the collective believes that relations cannot be prohibited according to the principles of universal individual freedoms which give the right to every citizen to freely dispose of their own
body, whereas in Morocco, these relationships can lead the people involved to prison in accordance with current law (article 490-491 – Penal Code 1962).
Thus, the working group considers that there are contradictions that dot the articles of the Moroccan penal code as to their conformity with the spirit and aims of Muslim ethics as well
Koranic than that of Fiqh.
However, this working group wonders how to resolve the tension that exists between the moral prohibition of sexual relations outside marriage, the socio-cultural order strongly impregnated by
religious norms and today’s reality?
“ To propose an overhaul of the penal code today is not to encourage – as some suppose – a totally perverted sexual liberation, without limits and without respect for the values of dignity, decency and mutual respect. It is rather to refuse this hypocrisy and inquisitive double morality which arrogates to itself the legal right to condemn the intimacy and individual freedom of people when even religious morality as obviously forbids it “, advances the collective which consulted the opinion of Oulémas on this subject, in particular on the biological paternity of the father in the event of pregnancy. The Ulemas consulted thus considered that these are themes open to discussion and debate and therefore did not close the doors.
This is why the collective has called for these relationships between consenting adults to be framed by referring to innovative interpretations of the principles of the Islamic tradition, in particular by prohibiting the services of state authorities from any intervention concerning sexual relations taking place in the private space of citizens.
In this case, any sexual relationship without a prior act in public would be reprehensible with evidence such as four witnesses as prescribed in the Koran and required by the four Sunni legal schools, the group recommends.
Concerning filiation, the working group recommends that any act between consenting adults imposes on the man as biological father, the recognition of his offspring resulting from any sexual act regardless of his status.
Here is the entire bold paper from the Task Force on Fundamental liberties.