Combating Violence against Women Draft Law, a Constitutional Test in Morocco

Washington D.C. – After more than three decades of advocacy, the women’s movement in Morocco, supported by a large segment of civil society, has had high expectations that the long awaited Combating Violence against Women bill will finally provide a comprehensive legal and institutional framework that would protect women’s rights.

These expectations are in the context of the 2011 Constitution, which women and civil society activists have praised for including articles guaranteeing gender equality, equity, and protection of women’s rights in general (Articles 19 and 164) and calling on the government to issue legislation and adopt public policies to effectively implement these rights (Articles 22 and 171). High expectations emanate also from the fact that a bill of this kind is long overdue. Gender based violence is a phenomenon that threatens the social fabric of Moroccan society, with alarming numbers indicating that more than 60% of women are subject to violence, according to a 2009 Survey conducted by the High Directorate of Planning in Morocco.

However, women’s rights groups and activists are raising concerns about the government’s proposed draft law’s (known as draft Law 103-13) as it has many shortcomings. A number of women’s rights activists and NGOs have described this draft as unconstitutional as it does not translate the essence of the articles in the Constitution calling for gender equality and equity and is not in conformity with the international conventions of which Morocco is a signatory, in terms of women’s rights and protection against violence and discrimination. This while the Constitution clearly affirms Morocco’s adherence to these conventions.

These concerns are growing even more serious as the Parliament’s Legislation and Justice Committee, dominated by the ruling government coalition, has just adopted another draft organic law for the establishment of the Commission for Equity and Combating all Forms of Discrimination despite the boycott—as an act of protest—of opposition members of the last review session in early May. The reason for the boycott was the refusal of Bassima Hakkaoui, Minister of Solidarity, Women, Family, and Social Development and the entity in charge of drafting this law, to take into consideration any of the opposition’s proposed amendments, which would have addressed civil society concerns regarding this law.

Concerns over this draft law are not new. This is the second time that the government is sending it to the legislative branch, the first being in 2013. This first draft of the law that the government presented to Parliament received vocal criticism and generated much controversy, especially among women’s rights groups and civil society activists. At the time, the Head of the Government, Abdelilah Benkirane, decided to withdraw it and formed a special commission to prepare an improved version of the law that would take into consideration the concerns raised by civil society. Contrary to expectations, this revised draft law continues to be controversial as a number of leading women activists and female MPs in Morocco have spoken out against it. In addition, women’s rights groups and other segments of civil society have mobilized to conduct advocacy both at the grassroots level as well as at the level of policy makers as they consider the new draft law to be worse than the first one for a number of reasons.

First, the proposed draft is thought to circumvent the law in general because it neither respects Morocco’s Constitution nor the international human rights treaties to which Morocco is a signatory. Women’s rights activists also argue that this draft law purposefully shies away from adopting a gender based approach and consequently fails to offer an effective tool for protecting women victims of violence. They also consider prefacing the draft law by an Introductory Memorandum instead of a Preamble, which is legally binding, as a clear indication of this circumvention.

Second, while women activists have welcomed some of the limited gains in the draft that among other things include penalties for preventing the victims returning home, forced marriage, corporal violence, forced return of victims to their home, waste of marital common property, and sexual harassment. However, they raise significant concerns, indicating that the proposed draft cannot be considered as comprehensive since the majority of its articles refer to the Penal Code, which is also on the Parliament’s agenda to be amended. It is another clear example of how this draft law is circumventing the law. To add to the lack of innovation, the few newly introduced articles are phrased in generic language.

Third, the draft law lacks comprehensive and proactive tools to address violence against women i.e. prevention, protection, and deterrence. It is short of preventive measures and weak on protection of the complainant. Article 1-480 in the draft law allows an alleged attacker to be set free if the victim decides to drop the case, without authorities taking any measures to verify the reasons behind dropping the case. In thousands of cases it has been demonstrated that women take such an action under pressure and force. Further, the draft law does not consider marital rape to be an act of violence. Women activists also note the bewildering mix of terms addressing women, spouses, and children in the draft of a law that is intended to address specifically violence against women. This mixture of terms is seen as further evidence that this draft is shying away from adopting a gender-based approach.

Fourth, the draft law lacks a precise definition of “violence against women.” While the law uses very ambiguous and generic language, international conventions and protocols, which Morocco has signed, offer a clear definition. Such ambiguity would leave women victims of violence at the mercy of the discretion and interpretation of their interlocutors at relevant authorities at whatever time they seek help. Consequently, many women victims will not receive necessary protection and intervention in a timely manner when they are subject to acts of violence. The use of such generic language defeats the purpose of devoting specific legislation to address violence against women, a phenomenon that, as mentioned above, threatens the social fabric of Moroccan society and hinders its political and economic development.

Fifth, just as problematic as the language of the draft is the process that created it, leading women’s rights NGOs and activists have consistently expressed complaints that Minister Hakkaoui did not consult with them as her Ministry was preparing the draft law. Instead, Mrs. Hakkaoui adopted a very selective consultation process, involving only like-minded NGOs with conservative stands on women’s rights. As evidence of this, women’s rights NGOs and activists point to the Introductory Memorandum of the draft law, which states that the draft is the outcome of a joint effort between the Ministry of Solidarity and Women and the Ministry of Justice. Furthermore, Mrs. Hakkaoui and her allies in the government ruling coalition have taken a firm stand to ignore all proposed amendments from civil society as well as from some other MPs, especially members of Parliament’s Justice and Legislation Committee.

Finally, Moroccan civil society and women’s rights group, in particular, have relentlessly led advocacy campaigns since the 1980’s to remove the taboo on raising the issue of violence against women and bring it to the forefront of public debate. They have also conducted an immense grassroots effort to document cases of violence and have offered psychological, legal, and social assistance in the absence of government services. Suffice it to mention that the first women’s shelter in Morocco was created by an NGO and has been for many years operated in secrecy because of the lack of a legal framework, and the Moroccan government’s resistance to acknowledging the issue of gender-based violence. Instead of taking advantage of this experience and capitalizing on it, relevant women’s rights NGOs are left no role to play in the national, regional, and local committees proposed in the draft law, which are to be created as immediate new bodies to oversee women’s protection from violence.

In her statement in the 2^nd Edition of her Ministry’s Women’s Distinction Award, Mrs. Hakkaoui said that she is confused because some people accuse her of being very liberal while others accuse her of being very conservative, referring to the controversy about the draft laws related to Combating Violence against Women and the Commission for Equity and Combating all Forms of Discrimination.

I will conclude by reminding Ms. Hakkaoui and her allies in the ruling coalition, who are trying to strike a political deal at the expense of essential women’s rights in the view of the upcoming parliamentary elections next October, as well as Members of Parliament who will be reviewing and voting on this draft law in the coming days, that there should be little confusion when one has a clear social contract and legal framework, i.e. the Constitution. Mrs. Hakkaoui’s own political party, Justice and Development, called on Moroccans to cast a “Yes” vote on this Constitution in 2011. This same Constitution contains articles 19, 164, 171, and 22 which all guarantee protection of women’s rights and call for laws and public policies that will institutionalize and consolidate this protection.

If passed as it stands, the current draft law will not only be a setback for Morocco’s stated commitment to advancing the status of women’s rights. It will also be a setback to the 2011 constitutional reform promises that the country made to itself , as a response to February 20^th Movement protests that took place in Morocco in parallel with the Arab Spring Uprisings, under the slogan of “Freedom, Dignity, and Social Justice.”

Hanane Zelouani Idrissi is a Moroccan American policy analyst. She works with the National Endowment for Democracy in Washington DC. The views and opinions expressed in this article are those of the author and do not represent any institution.

You can follow Hanane Zelouani Idrissi on Twitter @Lala_Fatna