Moudawana Reform in Morocco: The Long Feminist Struggle

Written by: Mihiri Wijetunge

Translated by: Célia Roche

09/11/2023

Almost twenty years after the revision of the Moudawana initiated by King Mohamed VI, he and the government are preparing a new reform of the Family Code^[1]Collas, A. (2023, 23 octobre). Au Maroc, la réforme annoncée du Code de la famille suscite l’espoir des défenseurs des droits des femmes. Le Monde.fr. … Continue reading. The Moudawana, named after the Moroccan Family Code, is a legal corpus that establishes the normative foundations governing family dynamics, matrimonial unions, marital dissolutions, guardianship, adoption and other aspects of the family sphere in the Kingdom of Morocco. It was inspired by the Tunisian Family Code. Nevertheless, it was far more conservative than the Tunisian Family Code, and largely respected the principles of traditional Malikite jurisprudence, that is, a system of Islamic jurisprudence based on the teachings of Imam Malik ibn Anas^[2]Hanafi, L. (2012) “Moudawan And Women’s Rights In Morocco: Balancing National And International Law,” ILSA Journal of International & Comparative Law: Vol. 18: Iss. 2, Article … Continue reading.

In 2004, this Moudawana underwent a major reform, introducing substantial modifications to the precepts of Moroccan family law, with a particular emphasis on equal rights for women, but these changes turned out to be insufficient. In July 2022, on the occasion of the Feast of the Throne, the Sovereign announced his intention to reform the Moudawana. In his speech to the Nation on the 23rd anniversary of his enthronement, he stated: “We insist once again on the need for Moroccan women to make their full contribution in all areas. Indeed, since Our Accession to the Throne, We have worked to promote the status of women, offering them every opportunity for fulfillment and granting them their rightful place”^[3]Matin, L. (2022, 30 juillet). Fête du trône : voici le discours intégral de S.M. le roi Mohammed VI. Le … Continue reading. In this way, he has made equal rights for women and men an essential component of the country’s modernization and development.

It is also an unavoidable step in the face of demands and pressure from civil society, but legal progress is slow in relation to the population’s aspirations. Reform of the Family Code represents a challenge that goes beyond the issue of women’s rights itself, as the difficulty of implementing an in-depth reform constitutes a societal issue that clashes with traditional values and the established order. Thus, how do the obstacles to implementing Moudawana reform reflect the need for a “revolution” in social norms and values in Morocco?

The Unanimous Place of Islam in Morocco: Complex Reformist Debates

Reforming the Moudawana is a thorny issue, because behind this aversion to reform lies a fear of Muslim dissolution. In the Moroccan context, the reform of Moudawana has proved to be a complex challenge, largely motivated by the fear of the erosion of Islamic values and norms that deeply permeate society. This concern is rooted in the legacy of colonial rule, where colonial authorities exploited the issue of women’s rights to promote a Westernized vision of mores and lifestyles^[4]Ouali, N. (2008). Les réformes au Maroc : enjeux et stratégies du mouvement des femmes. Nouvelles Questions Féministes, 27(3), 28–41. http://www.jstor.org/stable/40620458. Colonial occupation, particularly in the 1880s, had a negative impact on Moroccan progressive movements, hindering the progress and aspirations of Moroccans, limiting their freedom, degrading their culture, creating divisions, and limiting their sovereignty. This was the case, for instance, with the Nahda movement, which advocated political democratization, scientific and technical progress, and the improvement of women’s status within a modern society. The colonizers used the condition of Muslim women as a pretext to denigrate Muslim culture in the name of modernity. But this “modernization” did not serve to emancipate women; it was a means of undermining the Muslim normative system without challenging the male prerogative over women. 

Despite the loss of social, economic, and political autonomy due to colonization, Moroccans maintained male control, both customary and religious, over matters relating to women, such as marriage, divorce, inheritance, child custody and parental authority. Any attempt to modify the code of personal status was perceived as a move towards Westernization, arousing deep reluctance in a Muslim society preoccupied with preserving its own identity and traditions^[5]Ouali, N. (2008). Les réformes au Maroc : enjeux et stratégies du mouvement des femmes. Nouvelles Questions Féministes, 27(3), 28–41. http://www.jstor.org/stable/40620458. In fact, these Berber laws, often conveyed verbally, were based on the customs and traditions of the various Berber tribes, and governed various aspects of life, including marriage, inheritance, intertribal conflicts and other legal issues.

Therefore, in order to lay the foundations for women’s emancipation, it is necessary to maintain a reference to an interpretation of religious texts. Indeed, the initial failure of the 1999 Action Plan stemmed from the absence of religious references, associating this reform with a form of Westernization. The failure of this Plan is mainly due to its explicit references to international conventions, namely “bringing Morocco into line with the laws and international treaties it has ratified”^[6]Professeure Fatima Sadiqi citée par Ouali, N. (2008). Les réformes au Maroc : enjeux et stratégies du mouvement des femmes. Nouvelles Questions Féministes, 27(3), … Continue reading, although the importance of the political context should not be excluded. The period from the late 1990s to the early 2000s has turned out to be a relatively inopportune time to undertake bold reforms, as it corresponds to a phase of political transition marked by the death of sovereign Hassan II and the accession to the throne of Mohammed VI. This political phase therefore requires the consolidation of existing institutions in order to guarantee stability.

However, the success of the 2004 reform of the Code is linked to its strict reference to religion. There is no denying King Mohammed VI’s demonstrated commitment to real equality between men and women. But this innovative approach does not contradict his deep attachment to the values of Islamic tradition and culture^[7] Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015.

In the Maghreb, there are in fact two models for the modern conception of a confessional state. Hassan II’s Morocco opted for the establishment of an unchanging norm, supported by the ulama or theologians of Islam in the name of the sunna (tradition), using the taqlid (imitation) method, which excludes all forms of interpretation of Islam and, consequently, all forms of innovation. Tunisia, under the leadership of Bourguiba, opted for an antithetical approach, deliberately modifying the precepts of the Sharia, the foundation of Islam, by means of “ijtihad”, a concept that underpins an enterprise of personal interpretation of religious texts. Nevertheless, the King now in power, Mohamed VI, breaks with his father’s statist conception by adopting an Islamic legal approach, i.e. ijtihad, hence the reform of the Code in 2004. It is the sovereign who holds the exclusive prerogative to change the Moudawana as the leader of believers, so any hope of reforms in favor of women rests on his will^[8]Ouali, N. (2008). Les réformes au Maroc : enjeux et stratégies du mouvement des femmes. Nouvelles Questions Féministes, 27(3), 28–41. http://www.jstor.org/stable/40620458. 

The Unalterable Moudawana: A Historic Reform

This reform is singular in the context of contemporary Morocco. It is precisely this exceptionality that is generating politico-religious tensions between conservative and reformist currents. On October 10, 2004, King Mohammed VI presented the new Family Code, marking a major historical turning point. The revisions made by this new code were significant: “the minimum legal age of marriage for girls was raised from 15 to 18, the family was henceforth placed under the responsibility of both spouses, polygamy became virtually impossible to practice, and repudiation now required judicial review and no longer depended solely on the adouls (religious judges). This break consecrates the Moroccan woman as an individual in her own right”^[9]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015 .

However, this reform required some six years of ideological debate between traditionalists and reformers. As early as 1999, Abdel-Rahman Youssoufi’s socialist government committed itself to improving the status of women in Morocco by drawing up a National Action Plan for the Integration of Women in Development. This plan, far removed from Malékite traditions, advocated a profound reform of the Moudawana. Supporters of this reform, mainly from two socialist parties, the Socialist Union of Popular Forces (USFP) and the Party of Progress and Socialism (PPS), as well as the Istiqlal Party, rallied to the cause. Feminist organizations and human rights activists also lent their support, citing international conventions to which Morocco had acceded, notably the Convention on the Elimination of All Forms of Discrimination against Women (1979) and the International Convention on the Rights of Children (1989).

In response, traditionalists, including ulemas and Islamist groups such as Abdessalam Yassine’s Al Adl Wal Ihsane movement, launched a revolt in the early 2000s, denouncing the Action Plan as immoral and in opposition to Islamic tradition. This debate between traditionalists and reformers highlighted the deep divisions within the Moroccan political scene, particularly on issues of family law. The traditionalists advocated a return to pure Islam and the precepts of Sharia law, while the reformers supported the evolution of social norms, the emancipation of women and a response to the country’s new economic needs, notably the growing demand for workers. This conflict came to a head in March 2000 with the organization of two marches, one in Casablanca by the traditionalists, the other in Rabat by the reformers. The debate thus became politicized in the 2000s, involving the government, religious leaders and the Moroccan population at large^[10]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015.

The immutability and conflictual nature of the Moudawana reform are the result of a complex revision process, due to the presence of two distinct religious authorities. In fact, there is a dual power in Morocco, embodied by the King. The King embodies the symbolic figure of the Muslim tradition, bearing the title of Amîr al Mu’minîn, or leader of the believers, and holds both political and religious power. This duality creates a challenge when it comes to reforming personal status laws in Morocco, as they are subject to the authority of religious dignitaries and monarchical power. Any attempt at reform is thus faced with the risk of failure in the absence of the endorsement of both bodies. This reform has made the Moudawana a legal code like any other, open to public debate and discussion^[11]Tobich, F. (2016). Chapitre I. La moudawana marocaine. Dans Presses universitaires d’Aix-Marseille eBooks (p.55‑88). https://doi.org/10.4000/books.puam.1011 .

But reforming the Moudawana also means touching on order, traditions and, consequently, traditional power structures that are sources of tension. With the advent of the new Family Code in 2004, adouls, or religious notaries, saw their pre-eminent role as guardians of customs and Sharia principles in matters of family life, such as marriage, divorce and pensions, take a back seat. Their authority has been progressively eclipsed by the emergence of a new player: the family judge, who holds real power while maintaining symbolic power. Faced with these changes, the adouls voiced their discontent. For instance, a few months before the reform came into force, they expressed their disapproval by writing a statement of protest which they sent directly to the Ministry of Justice. On April 5, 2004, they even organized a sit-in in front of the Ministry of Justice as part of a media strategy aimed at rallying the population to their cause, but this initiative did not attract mass public support^[12]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015. 

Reforming the Moudawana: A Necessary Socio-Political Transformation in Morocco

This is why a reform of the Moudawana implies a profound socio-political transformation in Morocco. The transformation of the Code in favor of women also brings about a global transformation of Moroccan society, by addressing relationships within the family and between individuals. It calls into question traditional hierarchical relationships and bonds of solidarity, leading to greater individualism and less family and community control. Youth is showing a growing desire for individualism, expressed in the wish for intimacy within the couple, outside the context of the extended family. Thus, behind the reforms lies a broader issue, namely not only the emancipation of women from male domination, but also, more generally, the emancipation of individuals from an oppressive family and social order. Some members of civil society have recognized that the granting of individual rights to women should accelerate a global process of individualization that was already underway and much desired^[13]Ouali, N. (2008). Les réformes au Maroc : enjeux et stratégies du mouvement des femmes. Nouvelles Questions Féministes, 27(3), 28–41. http://www.jstor.org/stable/40620458.

On the other hand, this desire to change the Moudawana testifies to a growing desire for democratization in Moroccan society. And at the same time, the struggle to modernize the Moudawana has produced democracy and enabled the emergence of democratic and feminist practices, thanks to their unashamedly feminist fight and their involvement in reform projects. Indeed, civil society has played a major role in advancing demands for women’s rights, enabling the inclusion of women in the political sphere as well as the renewal of feminist strategies for the advancement of rights. At the end of the 1980s, women’s associations such as the Democratic Association of Moroccan Women (ADFM), the Union of Women’s Action (UAF) and the Women of the Istiqlal Party launched a vast action movement which had as its central point the reform of the Moudawana. Disagreements arose within the feminist movements, notably on issues such as polygamy, repudiation, and inheritance, during frequent meetings between different women’s associations and political organizations. But this was nonetheless beneficial, as it produced democracy by promoting debate on women’s rights by women themselves.

Feminist activists chose to conduct their movement in harmony with Moroccan religious tradition. Their main objective was the amendment of the Moudawana, which kept women in a subordinate position and conferred on them the status of minors within the family sphere, in contradiction with the Constitution and public law, which guarantee equal rights for men and women. UAF activists based their action on the Constitution, which defends gender equality before the law, democratic values, international conventions on women’s rights (partially ratified), and the principles of Islam. To promote their cause, they undertook a bold initiative by gathering a million signatures in favor of revising the Moudawana in April 1992. This campaign was conducted through public debates that brought together individuals from all walks of life, of all ages and backgrounds, calling for a significant revision of the Moudawana^[14]Tobich, F. (2016). Chapitre I. La moudawana marocaine. Dans Presses universitaires d’Aix-Marseille eBooks (p.55‑88). https://doi.org/10.4000/books.puam.1011 .

Despite the frustrations caused by the ulama’s resistance, which led to the King’s appropriation of the subject in order to depoliticize it and appease conflicts, the feminist movement demonstrated its capacity for contestation and active participation in the country’s political life. Moroccan women’s associations have thus succeeded in making themselves known and their voices heard on the political scene, overcoming their differences to show that their movement can be a mobilizing force. These women’s associations emerged as influential lobbying groups in Parliament, communicated directly with the government and the King, challenged the entire state apparatus, and formulated their demands as autonomous actors^[15]Tobich, F. (2016). Chapitre I. La moudawana marocaine. Dans Presses universitaires d’Aix-Marseille eBooks (p.55‑88). https://doi.org/10.4000/books.puam.1011 .

Moreover, the Moudawana is no longer a taboo subject. Latifa Jbabdi, President of the UAF, noted that “in the beginning, Moudawana was a taboo subject that we had great difficulty in breaking. There was a time when the Moudawana was considered sacred. This unfounded sacredness, an object of implicit social consensus, was in fact a form of shield, an ultimate resistance legitimized by a divinity to guard against any change that might challenge the patriarchal order”. Today, for example, various feminist associations are addressing the state directly, outside their partisan structures, using demand booklets and memorandums, demonstrating that they have not been excluded from political participation^[16]Tobich, F. (2016). Chapitre I. La moudawana marocaine. Dans Presses universitaires d’Aix-Marseille eBooks (p.55‑88). https://doi.org/10.4000/books.puam.1011 .

The Crucial Stake of the Applicability of the Moudawana Reforms

Before thinking about new reforms, it is necessary to address the challenges of implementing existing reforms, which are not evident in most of Morocco outside the major urban centers. In fact, there is a challenge in disseminating and informing the population outside the “Rabat-Tanger axis”. In 2010, 60% of women and 47% of men expressed satisfaction with the results achieved by the new Moudawana text^[17]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015. However, encouraging data were gathered from Moroccans from higher socio-professional categories, living in the “Rabat-Tangier axis”. It is therefore legitimate to ask what the perception of the rest of the Moroccan population is. When the reform came into force in 2004, it was expected that civil society would assume a crucial didactic role, particularly in the less favored and modest areas of the country, to explain the significance of the new code to women in rural areas, who are frequently illiterate and influenced by traditional patriarchal norms. However, thorough implementation of the Moudawana required widespread dissemination and media coverage, which was lacking. Moroccan women’s awareness of their new rights has been extremely limited.

The main obstacle to this dissemination was the fact that most televised debates, both before and after the enactment of the reform, were conducted in classical Arabic. Although this language is official in the country, it is not understood by more than half the Moroccan population. Commitments to raise awareness have therefore not been honored. However, TV channels were supposed to broadcast explanatory programs in dialectal Arabic and the three Berber dialects, with the aim of reaching a wider audience. In addition, awareness-raising campaigns in schools and universities to inform girls and women of their rights and responsibilities have not been effectively carried out. It is therefore impossible for these women to defend their rights when they are unaware of them. Furthermore, for most of them, the term “Moudawana” remains foreign/unfamiliar. Feminist associations have taken steps to disseminate articles of the Moudawana in their literacy courses, thereby offering hope^[18]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015.

Meanwhile, practices from the old Code persist despite the reform, due to the strength of the patriarchal system. The text established that the legal age of marriage for girls was 18. However, in 2007, family judges approved over 85% of applications for early marriage [21]. At the time of its adoption, the Moudawana had a dissuasive effect due to the ease of obtaining derogations, cultural resistance, and the lack of strict enforcement of its reforms. Between 2006 and 2007, the Women’s Rights League in Morocco observed a 50% increase in such marriages in rural areas^[19]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015.

The applicability of the reforms to the Family Code also depends on putting in place the infrastructure and resources needed to apply the judicial reforms. This means building the legal apparatus to accommodate and apply the Moudawana reforms. The challenge is to build courts and train judges to deal with issues relating to reformed family law. There have already been initiatives in this direction since 2003, when a careful selection of family judges was carried out under the supervision of the Minister of Justice himself. These judges were trained in the philosophy of the new family law, with an emphasis on such criteria as gender equality and open-mindedness^[20]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015.

However, plans to reform the judicial system to effectively implement the Moudawana have encountered numerous obstacles. The reunification of family courts into a single court in Casablanca, for example, seemed to cause more confusion and disorganization than anything else. This court is overwhelmed by the growing number of cases brought before it. Under these conditions, intervention by the Ministry of Justice and an administrative reorganization have become imperative to cope with the overload of cases.

Furthermore, it has appeared difficult to change the mentality of family judges, most of whom are conservative. For example, they continue to use the term “nikah” to designate marriage, even though the act is officially called “marriage”. Being trained according to old norms, these traditional judicial personnel, including adouls, perpetuates old value systems^[21]Murgue, B. (2011). La Moudawana : les dessous d’une réforme sans précédent. Les Cahiers de l’Orient, 102, 15-29. https://doi.org/10.3917/lcdlo.102.0015.

Today, it is becoming increasingly clear that reform is imperative, as the Moudawana continues to lag the aspirations of Moroccan women. While the 2011 Constitution enshrines gender equality, family law is still governed by the Family Code, the Moudawana, whose 2004 reform, granting women the right to file for divorce, was heralded as an unprecedented social advance. But today, women activists feel disillusioned^[22]Aublanc, A. (2023, 21 juillet). Au Maroc, le calvaire des mères divorcées. Le Monde.fr. https://www.lemonde.fr/afrique/article/2023/07/21/au-maroc-le-calvaire-des-meres-divorcees_6182945_3212.html.

There is still a great deal of work to be done, especially with regards to the situation of divorced women. They are still under the guardianship of their ex-husbands, forcing them to seek his authorization for day-to-day decisions, such as opening a bank account for their daughter or traveling abroad with their children. At the same time, the question of child custody remains thorny, as article 175 deprives the mother of this responsibility in the event of remarriage of a child over the age of 7, while the alimony they receive is largely insufficient to meet their children’s needs^[23]Aublanc, A. (2023, 21 juillet). Au Maroc, le calvaire des mères divorcées. Le Monde.fr. https://www.lemonde.fr/afrique/article/2023/07/21/au-maroc-le-calvaire-des-meres-divorcees_6182945_3212.html. 

Towards a New Step?

The reforms to the Moudawana are taking place against a backdrop of social, political, economic, and cultural change, which is inevitably pushing women’s rights forward in line with the country’s social demands and economic needs. However, the challenge for the Moroccan authorities is to strike a balance between Islamic values and precepts, and Moroccan women’s demands for equality and freedom. The sovereign will have to show great creativity and courage to draw up legislation that reconciles respect for Muslim identity, avoiding Westernization, while considering the demands of Moroccan public opinion.

The contents of this article are the exclusive responsibility of the author. 

To cite this article: Mihiri Wijetunge. (2023). Moudawana Reform in Morocco: The Long Feminist Struggle. Gender in Geopolitics Institute. https://igg-geo.org/?p=18280&lang=en