«The Colonial “Emancipation” of Algerian Women: the Marriage Law of 1959 and the Failure of Legislation on Women’s Rights in the ...»
The generals and administrators who jointly governed Algeria during this period (1957-9) decided to engage in an “emancipation” strategy for a number of, often contradictory, reasons. During 1956-7 the French army was surprised and alarmed by the evidence of the involvement of Algerian women moudjahidate in the nationalist struggle and, fearing that the FLN was about to accelerate this mobilization decided to offer a counter-strategy to win hearts and minds. Secondly, Tunisian President Bourguiba’s family code of 13 August 1956 was followed within days by the creation of a Moroccan legal commission on family law, and this immediately galvanized the French government to do likewise. France, whose position as a colonial power was under strong attack in the UN and before international opinion, could not be seen to be lagging behind its Muslim neighbors in the area of human rights. Moreover, since Muslim states had led the way in reform it was felt that France could now do likewise without being attacked by Algerian nationalists as imposing a western and secular model. Thirdly, the main French strategy for retaining Algérie française, symbolized by the huge economic investment of the 1958 Plan of Constantine, was intended to undercut the roots of rebellion through economic modernization and this developmental approach increasingly recognized the need to transform the position of women through education, political rights, and integration into the labor market.
The colonial “emancipation” of Algerian women in an uncomfortable dilemma: either it agreed with the advancement of women’s rights and so acknowledged the progressive role of its enemy, the colonial state, or it opposed reform and revealed reactionary colors.
However, despite such arguments, the drawn out discussions that took place within the colonial government over the preparation of the family law between early 1957 and late 1959 revealed major internal divisions inside the French government as well as strong opposition among conservative religious elites (imams, cadis, cheiks) who, as clients of the French, normally supported and benefited from colonial power. These tensions need to be placed within the context of a tacit political compromise that had existed for many decades between the European colonial and the pro-French Algerian elites. The statut personnel served as the key mechanism by which the French legitimated their continuing domination and denied Algerians, with a few exceptions, political rights as French citizens.
Muslims, it was claimed, with their attachment to “un-Western”, “barbarian” practices such as polygamy, arranged marriage and repudiation, could not be integrated into French society: but, as a quid-proquo colonial government promised to protect Islamic law in the crucial area of marriage and family legislation, a “reserved” area that would be guarded from the incursion of western values and secular French models of society.
The European acceptance of Muslim family law as a “no-go-zone” meant that religious leaders, including those in the influential Ulema movement, were given space since the 1930s to elaborate a profoundly conservative position on women’s rights (Merad, 1967; McDougall, 2006: 90During the 1950s a small minority of educated Algerian évoluées or feminists began to attack the alliance between colonial government and conservative Islamic notables as a “double imperialism,” or as Fadila
Ahmed claimed, “we, the women of Algeria, have two gaolers:
colonialism… and the apathetic creatures who cling on to customs and traditions inherited not from Islam but from their ignorant fathers. The second gaoler is worse than the first” (Al Manar, 24 July 1953, “Les deux geoliers de la femme”).8 Until 1957 the Algerian government, advised by its own administrators and experts in Islamic law and customs, had hesitated to interfere with the sensitive issue of marriage or family legislation, particularly as there continued to exist, since the great anti-French revolts of This, and subsequent quotations in French have been translated by the author.
98 Stichproben the nineteenth and early twentieth century, a fear of stirring up insurrection guided by “fanatical” jihadists, religious confraternities or pan-Arabic militants.
During the Algiers army coup of 13 May 1958 psychological warfare officers secretly orchestrated mass demonstrations during which columns of Algerian women marched into the central Algiers Forum and “spontaneously” unveiled and joined hands with ecstatic European crowds in acts of inter-racial “fraternization.” So successful were the propaganda impacts in the international media that the generals immediately decided to accelerate the emancipation agenda. But when General Salan instructed Villeneuve, Deputy director of political affairs, on 16 June 1958 to revive the first attempt at a family law drafted in 1957 the latter warned this was too “radical,” a tampering with the religious status quo, and a “powerful attack on the Muslim statut personnel.” He noted that earlier reforms, such as the Kabyle law of 1930, had made little impact on behavior because of the backwardness of women. If a new law was to have any influence it needed to be proceeded by “an exceptional campaign of female education” and a prior evolution of the family cell towards a modern conjugal unit.9 Villeneuve had raised a fundamental question that went to the heart of any “emancipation” strategy “from above”: could radical legislation that was in advance of society transform custom and practice, or might it be so far ahead as to generate major opposition and even open revolt? Villeneuve, by emphasizing long-term gradualism, was pronouncing a classic conservative opposition to reform, and at the same time pointing to the real difficulties faced in trying to transform the inertia of embedded patriarchal values and the family structures of Algerian society.
De Gaulle, made aware by his advisors of the importance of bringing Muslim opinion on-side, ordered Salan on 15 November 1959 to re-launch the plan for a new code by consulting a commission of European experts in Muslim law, as well as Algerian judges (cadis) and religious leaders.
However the commission rejected the government draft proposals in their entirety: in the words of one member, the Muslim dignitary Hamza Boubakeur, the project was based on the code of President Bourguiba, who he regarded as a secularizing despot, and “is absolutely revolutionary in relation to marriage, its consequences and inheritance… it entails a total Centre des archives d’outre-mer (hereafter CAOM) 12CAB207, Note from Villeneuve, sous-directeur des affaires politiques et générales to his directeur, 5 July 1957.
The colonial “emancipation” of Algerian women upheaval of Muslim law,” an opinion shared by European legal experts on the panel who were “rather astonished by the brutality with which one overturns such highly venerable institutions.”10 Boubakeur had penned an earlier violent, and misogynous diatribe against legal reform, noting the dangers of an “occidental contamination” of the Algerian family and by forms of secular liberalism that encouraged western women to lead a degenerate and hedonistic life-style, symbolized by the nudity of the beach and cinema screen.11 The resistance of the commission to significant reform was symptomatic of the long-term “pact” between conservative European administrators and Algerian clerics to maintain the status quo on women.
Somewhat more unexpected was the opposition to the draft law by the Delegate-General Paul Delouvrier who, although appointed by de Gaulle in December 1958 to replace Salan and reassert the control of civil government and Paris over the generals, seems to have rapidly absorbed the traditional remit of the Algiers administration not to tamper with the volatile issue of Islam. The Delegates’ main concern, as it had been for several prefects when consulted on the initial 1957 draft, was that the new law threatened to generate strong resistance among an intensely religious population that viewed existing family laws as sacred. Reform would then, he claimed in a letter to the Prime Minister, serve as the “hobby-horse of FLN propaganda...the accusation of ‘de-islamization’ “ will be brought against France engaged in a “new Crusade against the crescent.”12 The answer of the Gaullist government, bent on a rapid modernization of Algeria after the announcement of the Constantine Plan in October 1958, was simply to override the commission and to impose the Ordinance of 4 February 1959, drafted in Paris, on a rather angry Delouvrier.
The predictions of mass resistance proved to be well founded, but this did not take shape as a distinctive armed revolt, already a monopoly of the FLN, but a more silent passive resistance or refusal by Algerian society to abide by the new legislation. This is where it becomes important to move Minutes of the Commission d’Étude de la situation de la Femme Musulmane, 5 December 1958.
11 CAOM 14CAB233, Report of Professor Hamza Boubakeur, Projet de Réforme du Statut Personnel de la Femme Musulmane et de la Femme Kabyle en Algérie, 27.pp, nd.
12 CAOM 14CAB9* (under derogation), Delouvrier, Délégué Général, to Prime Minister, 18
beyond legislative texts, which some historians frequently and uncritically assume to achieve their objectives by the simple fact of promulgation, to assess the degree to which texts, mediated by policing agencies, courts and
social practices, translated into a host of variable outcomes (see Moors, 1999:
142-3). The rural interior (bled), in which most of the Algerian population was located, had for over a century been what the colonial government euphemistically called “under-administered,” largely abandoned and without roads, electricity, schools, investment and basic infrastructure.
Despite the attempts of the army to rectify this situation, local government during the war became even more tenuous as both European and Muslim municipal councilors fled FLN assassination. One sign that colonial Algeria constituted a “weak” or failing state in the bled was the failure since the law of 23 March 1882 to establish the état-civil, the allocation of an identifying patronymic to each individual, and a universal register of births, marriage, divorce and death. Populations in the mountain or desert areas had long avoided registration, viewed by them as a key bureaucratic mechanism by which the modern state imposed its authority, including taxation, conscription and other burdens. The chaos of the war, during which over two million peasants were uprooted while hundreds of thousands joined the FLN or engaged in labour migration to coastal cities and France, made administrative control even more difficult. The government estimated that the number of “lost” (omis), those who had never been registered and had no existence for the state, increased from 100,000 in 1913 to 230,000 in 1959.13 In late 1960 the Algiers government, investigating how the courts were implementing the new family legislation, was shocked to find the extent to which the population simply avoided the law, such as the requirement for young spouses to appear in person before an official to register marriage or for cases of repudiation to be referred to a court. But even when this was the case, the absence of an état-civil record often made it impossible to verify if couples were under-aged, or if a man was already
married. The Prefect of Oran summarized the situation in late 1961:
The reform of the status of women is less and less talked about since it has become normal to avoid it. The decree of 17 September 1959 [which implemented the Ordinance of 4 CAOM 81F1223, A. Jacomet, Sécrétaire Général du Gouvernement to Secrétariat Général pour les Affaires Algériennes, Paris, 11 April 1959.
The colonial “emancipation” of Algerian women February] is hardly applied in relation to agreement of the parties to marriage (the young girl in particular) nor in relation to divorce which is already being replaced by unilateral repudiation.14 Official statistics for marriage registration in the months immediately after the new law came into force (19 November 1959 to 1 March 1960) showed a tiny number and some large towns, including Bône, Constantine, Relizane and Guelma, recorded none at all (Fauque, 1961: 65). In classic Muslim law marriage constituted a purely private act and an estimated sixty percent of the population continued to practice the traditional fatiha marriage alone, a ceremony which involved simple recitation of the first sura of the Koran, without attending the officer of the état-civil to witness and register the act.
This mass avoidance of the new law enabled what were now strictly illegal practices, such as under-age or forced marriage, to proliferate (Borrmans, 1977: 495-6, 519).
The transition to the newly independent state.