«The Colonial “Emancipation” of Algerian Women: the Marriage Law of 1959 and the Failure of Legislation on Women’s Rights in the ...»
Stichproben. Wiener Zeitschrift für kritische Afrikastudien Nr. 12/2007, 7. Jg.
The Colonial “Emancipation” of Algerian
Women: the Marriage Law of 1959 and the
Failure of Legislation on Women’s Rights in the
The failure of the newly independent Algerian state, after a long war
of decolonization in which women played a major role, to introduce
progressive reform to women’s legal, and thus social, status is widely
recognized. The article explores a neglected aspect of this problematic by showing that binary perceptions of a radical colonial/post-colonial hiatus can be misleading. Through a focus on the reform of marriage and family law, it is shown that both colonial and post-Independence states proved weak and ineffective in the face of the entrenched power of patriarchal family structures and ideology.
Algerian post-independence nationalist and feminist discourse tended to be structured in relation to the manichaean opposition between the 130 year regime of colonial violence and repression and the post-colonial liberated order that, it was imagined, would sweep away all the structures of the ancien régime. This included the forms of domination that had affected women, from alienation of land rights and dislocation of family structures to endemic poverty and prostitution. However, French colonialism in its terminal phase was highly ambiguous and Janus-faced since it was simultaneously extremely violent and repressive towards Algerian women (destruction of villages, torture, rape…) and reformist, enunciating a significant body of liberal “emancipation” measures,1 particularly in regard “Emancipation,” which should be read throughout in “scare-quotes,” was the term utilized by the French government and military to refer to reforms that would ensure 92 Stichproben to the reform of the statut personnel, the laws on marriage and the family governing Muslims, in 1959.2 The purpose of this article is to “fracture the binarism” of the colonial/post-colonial categorisation by tracking the legal position of women through the crucial transition over the two decades spanning the period of French domination and the newly independent Algerian regime (c.1954-75). Far from being marked by a radical break in 1962, it is argued that there existed deep continuities between the colonial and post-colonial epochs in the social and ideological structures of Algerian patriarchy,3 and it was this atavism that explains the secretive marginalization by post-Independence governments of a liberal code of rights “inherited” from an alien, secular and western regime, and the simultaneous inability to introduce a new family code until the reactionary law of 1984.
As Algeria moved towards independence in 1962 many commentators on the international socialist left were optimistic that the new Republic would liberate Algerian women simultaneously from the fetters of colonialism and “feudal” patriarchy. Frantz Fanon, for example, in L’an V de la révolution algérienne, optimistically forecast the birth of a “new society” and a “radical mutation” in the role of women, gender relations, and traditional family structures (Fanon, 2001: 10, 14). Although constituting a tiny minority, the women fighters (moudjahidate) who transmitted weapons and bombs in the urban networks or served as nurses in the maquis, had received enormous attention in FLN (Front de Libération Nationale, National Liberation Front) propaganda and the global media as equality of rights between Algerian Muslim women and women in metropolitan France in relation to voting, education, professional training, employment opportunities, health care and welfare rights. Frequently implicit within this was an assimilationist agenda that sought to transform Algerian women into westernized beings that would share all the cultural features of bourgeois French women, in relation to everything from dress style to consumerism and an idealized model of the couple bound by mutual affection.
2 The legal reform of 1959 took place in two stages, first an Ordinance of 4 February provided a succinct summary of the legislation, followed by a decree of 17 September which elaborated how the ordinance was to be implemented. Since the legislation introduced a far-reaching and radical revision of existing law and a large degree of unification of differing customs and schools it approximated to a de facto new code.
3 The term patriarchy is used here to refer to a family structure, reinforced by classic Muslim and customary law, that prioritized male kin-based solidarities and power and subordinated women to agnates and the reproduction of the male descent group.
The colonial “emancipation” of Algerian women heroines of the Revolution who challenged stereotypes of Muslim women as passive creatures confined under the severe thumb of Islamic patriarchy (Amrane, 1991, 1994; Whitfield, 1996).4 Algerian women, it would seem, had through both their heroic sacrifice and the demonstration of an ability to act on a par with men, earned recognition of their moral right to full postindependence equality. However, this was not to be.
Much of the debate on the failure of the Algerian state in relation to women’s rights, although recognizing the need to examine a complex of factors, from economic change, urbanization and female employment, to access to education, housing, and health care, has centered on the various projects for a new code on marriage and the family (statut personnel). Some feminists have argued that to centre on legal reform and individual rights, is to impose a western model that may obscure, as “declension narratives” claim, the forms of traditional status and community-based power held by Algerian women (Bulbeck, 1998: 16; Lazreg, 1994). However, the modernization of family codes has been one of the key instruments by which independent Muslim nations, since Kemalist Turkey in the 1920s onwards, have through “top-down” intervention attempted to end the subjugation of women, and liberate the potential of half the population to play a full role in economic, social and political development (on the importance of codes of personal status see Anderson 1968, 1971; Moors, 1999). Algeria is no exception and reform of the family code has been the single most crucial issue around which both the Algerian women’s movement and international feminist organizations have, and continue, to campaign (Knauss, 1987; Lazreg, 1994; Bouatta, 1994; Cherifati-Merabtine, 1994; Gadant, 1995; on the international dimension see Shaheed, 1994 on Women Living Under Muslim Laws (WLUML)).
Mounira Charrad has, to date, provided the most cogent explanation for the post-independence failure of Algeria to elaborate a family code that would match the needs of a rapidly changing society and bring Muslim women fully into the cité. In a comparative study of state formation in the Most research on Algerian women during the war of independence has tended to centre on the role of the most prominent and educated moudjahidate, but in many ways this numerically small group was atypical of the great majority of women, most of whom were peasants and illiterate. Space does not allow a fuller treatment of the complex differentiations of class and status of Algerian women, but in general I am concerned here with the basic legal rights that applied to all women without distinction.
94 Stichproben three Maghrebi nations, she argues that the very different outcomes in family legislation between the progressive Tunisian code of 1956, the conservative Moroccan code of 1958, and the peculiar “stalled’ situation in Algeria that lasted until 1984, can be explained by the relative ability of central governments to exert political domination over traditional kin or clan-like bases of power that defended the most conservative readings of Maliki law.5 Charrad provides a useful macro-level hypothesis for an understanding of post-independence Algeria: the newly formed state showed deep contradictions in its drive to assert national integration over and against localized or regionalist interests, while simultaneously allowing space for kin or clan-based associations which paralyzed moves to legislate on family law and to assert control over the private domestic sphere (Charrad, 2001: 179-82; for similar analysis in relation to legal reform in Iraq and South Yemen see Hatem, 1999: 73-6). This article seeks to develop this model further, by looking first at how the French regime attempted to tackle the issue of a marriage law in 1959, but in a situation in which domination by a huge army of occupation might have enabled such an agenda to be forced through.
Between January 1957 and late 1959 the joint military-civilian regime in Algiers, as part of an “emancipation” strategy, instituted a range of initiatives that were intended to extend legal rights and to “liberate” Muslim women from ignorance and the crushing weight of patriarchal domination, measures that included unveiling campaigns, mobile female medical teams in the rural zones (EMSI), improved access to schooling, youth training, joint European-Muslim women’s circles, extension of the vote, and a new family law (Seferdjeli, 2004, 2005; Sambron, 2002, 2005;
MacMaster, forthcoming). The concern here is only with the latter, which was by far the single most important and contentious aspect of reform since it appeared to many Algerians to interfere with the sacred “reserve” area of religion.
The Governor General, Robert Lacoste, first ordered the establishment of a legal commission to draft a new family code in April 1957, but it was
Marriage and family law in Algeria was based on an enormous regional and even
individual variation from customary law among the Kabyle people, to the Ibadite code of the Mzab, and the minority Hanafi school of law, but the Maliki variant of Sunni law was predominant and it was this which was largely applied in the move to create a unified system of law.
The colonial “emancipation” of Algerian women only after extensive consultation between Paris and Algiers and several working parties and redrafting processes that a final, brief Ordinance of 4 February 1959 was published by the new Gaullist government (on the 1959 legislation see Roussier, 1960; Borrmans, 1977: 481-93; Pruvost, 2002).6 Space allows only a brief summary, but the crucial elements, which marked a
distinct break with the dominant Maliki tradition of law, were as follows:
• The practice of child marriage, by which many girls aged as young as 11 or 12 became pregnant, was banned by setting a minimum age for women of 15 years, and for men of 18 years.
• The power of parents or guardians to enforce marriage with a partner of their choosing (djebr), by which young women were tied to men that they did not know and who were often much older, was replaced by the free consent of both spouses.
• To prevent abuse by kin, the contracting spouses had to appear in person before a state official who would validate birth certificates and other forms of identification or of previous dissolved marriage, assure the freedom of consent, register the marriage and issue a livret de famille.
• Repudiation by a simple unilateral decision and verbal pronouncement of the husband, a major cause of family instability and the abandonment of wives and children, was replaced by judicial divorce. Only a judge could dissolve a marriage on the request of either the husband or the wife, and both had to be present in person to curb the standard practice of male kin representing the “interests” of women in court.
• The judge adjudicated, in the best interests of the children, who was to have care of them, and decided on the level of family support that should be provided for them and their mother.
The Ordinance, for all its brevity, offered a radical change in Muslim family law that was fully on a par with the Tunisian Code of 1956, on which it was closely modeled. The provisions of the Tunisian legislation, almost A first attempt at codification in June 1957 resulted in a complex draft of 143 pages. The Ordinance of 4 February, which was in part based on this, provided an extremely succinct statement of the new law. This brevity undoubtedly reflected the wish of the Gaullist government in Paris to force through a radical revision of the statut personnel as rapidly as possible, in order to impact on the volatile war scenario, and without becoming bogged down in the delay of detailed elaboration by legal experts, a process that took place in a parliamentary commission between February and the decree of 17 September.
96 Stichproben universally accepted today as one of the most progressive of Islamic codes, was almost identical, except for the failure to ban polygamy which the Algerian government viewed as an almost redundant practice, confined to an aged minority of males, that would eventually disappear of its own accord.