«The Colonial “Emancipation” of Algerian Women: the Marriage Law of 1959 and the Failure of Legislation on Women’s Rights in the ...»
By independence in July 1962 the new Algerian state was confronted with a society in which a widespread culture of non-compliance with marriage legislation was deeply entrenched. Unlike Tunisia and Morocco, which seized the opportune moment of independence to introduce new family codes, Algeria simply passed an act (31 December 1962) to leave French legislation on the statute books and the colonial code of 1959 was to remain in force until the law of 5 July 1975. But it was to take yet another decade before the family code of 1984 came to fill the vacuum. Algerian governments were prepared to leave the 1959 law in place, although barely mentioned, precisely to the extent that it was widely ignored, both by society and by the courts, and so did not arouse troublesome political opposition from the conservative forces in society.
This is not to say that the newly independent state failed to make some key statements on women’s rights. A sequence of “foundation” declarations of the new state, such as the Tripoli Program of 1962, the Constitution of 28 August 1963, and the Algiers Charter of April 1964, as well as key speeches by Ben Bella and Boumediene, Algeria’s first two CAOM 81F1223. Extrait du rapport trimestriel du Prefet d’Oran, 3e trimester 1961.
102 Stichproben presidents, made bold statements on the full equality of women: article 12 of the 1963 constitution, for example, stated, “All citizens of both sexes share the same rights and duties” (Vandevelde, 1980: 25). However, as most commentators have noted, there existed a fatal and contradictory gap between statements of high principle and the failure of the FLN single party state to develop a coherent program of reform that would translate basic rights into reality (Lazreg, 1994: 142-50; Boudefa, 1988; Addi, 1999: 78).
The paralysis of government became particularly evident in the longdrawn out, twenty-two year failure to legislate a family code to meet the needs of a rapidly changing, post-colonial society. During this period (1962there were no less than five failed attempts, mainly by secretive committees on which there was no female representation, to draw up draft legislation (1963-4, 1966, 1972, 1979, 1981). Those drafts which were leaked to the press showed a general trend through time towards a radical erosion of the 1959 law and the assertion of the core values of traditional Maliki law.
The secrecy surrounding the various commissions was in itself an indication of the deep anxiety of the one-party state in relation to the potentially explosive and politically destabilizing nature of the issue. Space does not allow a close examination of the detail of the various drafts, but the overall direction of the conservative shift is indicated by the fact that the final 1984 law, in the words of Pruvost, codified “a family of a patriarchal type based on respect for agnatic solidarities and hierarchies under which women were treated as permanent minors” (Pruvost, 1999: 17). For example, the wife owed strict obedience to her husband as sovereign head of the family, as well as respect for his lineage (parents and kin); women no matter what their age could only marry through the authority of a male guardian (walî), which in the case of a widow might be her son; polygamy was retained, and repudiation was restored as a unilateral male prerogative (Pruvost, 1999:17and 2002: 265-98).
The twenty-two year long vacuum created by the state and the failure to provide a clear legislative lead on a family code, meant that judges and the court system which adjudicated on the reality of marriage, divorce and family life were left adrift to follow their own devices. From 1962 until the abrogation of the code in July 1975, many judges, following their personal religious or ideological bias, simply ignored the 1959 code which was technically still in force, and based judgements on classic Islamic law (Vandevelde, 1980: 387, 390; Lazreg, 1994: 150). The way the wind was The colonial “emancipation” of Algerian women blowing was clearly reflected during a 1968 conference of jurists on the instability of the Algerian family, during which Mohand Issad of the Algiers faculty of law noted that the supreme court had shown preference for the position that “the husband held sovereign power to repudiate his wife at will,” even if this was abusive, and Issad justified this on the casuistical grounds that the law of 31 December 1962 which retained French legislation, including that of 1959, as long as it was not “contrary to national
sovereignty” or “of colonial inspiration and discriminatory” (Issad, 1968:
The right of husbands to unilaterally end a marriage, even without cause, was thus argued to be in the national interest, and Issad swept aside a liberal law that served to give greater protection to women as both discriminatory and a colonial evil. But Issad was expressing his individual opinion rather than statute law, and the freedom of judges to follow their own agendas created a mass of confusion and contradictory practices in legal process. In many ways this juridical anarchy reflected and, at the same time legitimated, the deep conservative currents in Algerian society that had frustrated or ignored the 1959 law from its inception. In 1968 even the official FLN newspaper El Moudjahid was able to offer a fatwa that condoned a strictly illegal disregard for the law. In reply to a question posed by a women who had been married by a fatiha ceremony to a man who later turned out to be already married with two children, it suggested that she could contest this before a judge, but the fatiha marriage was “from the point of view of Muslim law pure,” and if she went to law, “if you are pious you will always have something on your conscience… also in Muslim law polygamy is licit” (Borrmans, 1977: 537). Lahouari Addi has gone so far as to suggest that Algeria in failing to establish a culture of individual rights was not a Rechtsstaat and was prepared to surrender the monopoly of justice in relation to domestic space and women to the religious-moral order of the community and the man in the street. For example, the authorities regarded it as quite legitimate for men to use violence towards women who they felt had, by appearing alone or “improperly” dressed in the street, impugned the moral order (Addi 1999: 161-2, 204-7).
It should be noted that the conservative turn in marriage and family law after 1962 did not mean that Algerian women were lacking in agency and that they were the passive objects of repressive male agendas. Just as civil society had been able to escape the implementation of the 1959 law, so 104 Stichproben that there was a large gap between the statute book and the social reality of marriage arrangements, so court documents of legal procedure also reveal the kinds of strategies that women deployed to defend their own interests in court. Although Jean-Paul Charnay (1965) has explored this issue for the colonial period, no such study has been carried out for the postIndependence era. Some of the court adjudications published in the Revue algérienne des sciences juridiques, économiques et politiques (Vol. 5, No. 4, December 1968, 1193-1244) provide a tantalizing glimpse of how women attempted to utilize the law and, rather significantly, did so by appealing to the French law of 1959. For example, Khedidja Ait Idir brought a court action against her husband Tahar Nabti in July 1965 because he had repudiated her, but acted illegally by failing to get the marriage registered by the état civil. However, the great majority of women were illiterate and too poor to be able to make use of legal process, and if they did so it was in most instances where, having returned to their parents home after repudiation, court action was brought by male relatives on their behalf. But ultimately, the overall direction which marriage law took after independence in 1962 severely narrowed the already restricted room for maneuver that women had to defend their interests before a judge.
Women’s organizations such as the official Union nationale des femmes algériennes (UNFA), as well as individual feminists such as Fadela M’Rabet, voiced with growing concern the failure of the courts to implement current laws inherited from the French. This became particularly clear in the two key areas of enforced marriage and unilateral repudiation. A growing number of religious leaders and cadis openly expressed the right of jebr by which a marriage partner was chosen by the father or male guardian (walî), since, it was argued, women lacked the experience, information or inherent intelligence of men to make such an important decision. The consent of the woman, who should be absent from the marriage ceremony, should always be given by the walî. It was precisely this system that the 1959 law had tried to end by insisting that women must be present at the ceremony before a state official who would verify her assent, as well as her legal age.
From 1962 onwards however, a mass of evidence points to forced marriage, often of under-age minors, in spite of the Khemisti law of 1963 which extended the age of marriage for girls from 15 to 16 years (Borrmans, 1977: 515-19). In the Constantinois region even the official census of 1966 recorded five per cent of all girls aged 12 to 15 years as married (2,774 The colonial “emancipation” of Algerian women individuals), undoubtedly the tip of the iceberg since most illegal marriages would have escaped the état civil altogether. Vandevelde’s extensive survey of 1968-72 found that 42 per cent of husbands were imposed on women in urban society, and 65 per cent in rural zones (Vandevelde, 1980: 68-9, 176).
M’rabet after publicizing evidence of widespread and increasing psychiatric problems, including 175 attempted suicides in Algiers in 1964, among young women forced into marriage, had her weekly radio programme for women closed down (M’rabet, 1967: 144-161). In addition there was a growing wave of repudiation or divorce in which women and children were abandoned, frequently without any form of support: in 1963 there was an estimated 10,000 repudiations and abandoned families in greater Algiers alone (Borrmans, 1977: 517; M’rabet, 1967: 185).
The failure to engage in reform.
Why did post-independence Algeria, riding on a wave of international acclaim as a revolutionary and socialist republic, shy away from grasping the nettle of reform and allow courts to drift into a fragmented and conservative procedure on marriage and family law? There is no simple answer to this complex issue, but the remaining part of this article centers in turn on three key elements, firstly the reactionary form of Algerian gendered nationalism, secondly the deep division between a minority political current dedicated to a secular and socialist model of society and its more powerful rival wedded to a religious Arabo-Islamic vision, and finally, and most crucial of all, the entrenched weight of extended family or kin groups that upheld the fundamental values or structures of agnatic affiliation and patriarchy.
From the 1930s onwards, emergent Algerian nationalist ideology, especially as formulated by the Ulema association of Ben Badis, made a strength of the “reserved” area of the statut personnel by formulating Algerian identity in terms of the one zone that colonialism had left intact, Islamic faith and culture. However, the defense of an Arabo-Islamic identity was in turn formulated most crucially in terms of women, as mothers and educators, and of the private sphere of the family viewed as a bastion in which core values were transmitted from one generation to the next. As Partha Chatterjee and others have shown, such an ideological framework, based on a dichotomy of the inner and outer, the home and the world, was 106 Stichproben shared by many nationalist movements for which “the crucial need was to protect, preserve and strengthen the inner core of the national culture, its spiritual essence” (Chatterjee, 1989: 624; Rai, 2002: 28-29; Bulbeck, 1998: 29French colonialism and Orientalism had for centuries deployed a discourse of “emancipation” that legitimated the mission civilisatrice through a catalogue of supposed barbarism, violence and oppression inflicted on Muslim women. In response to such an offensive, early Algerian nationalism created from at least the late 1920s the counter-myth of Muslim women as defenders of national identity, but this topos assumed a particular urgency for the FLN during the war since French psychological warfare officers, who shared this discourse, translated its implications from the level of mere literary text or theory, where for many decades it had tended to rest, into an aggressive “revolutionary” practice.
Internal FLN documents show that the nationalists were perfectly aware of the extent to which the package of emancipation measures, including the 1959 law, was driven by a counter-insurgency strategy to penetrate, gather intelligence and subvert the FLN base in domestic society (Harbi and Meynier, 2004: 609-12). However, in attacking the 1959 law the FLN fell back on, and reinforced, the conservative topos of the immutable family as a bastion of identity, a form of religious nationalism that bound women into the status quo. The official FLN newspaper El Moudjahid noted
of the 1959 law:
Thus the French, who moreover are Christians or of the Jewish confession, as is, it seems, Mr Michel Debré, have dared to deliberately violate the Koran, immutable in its essence, and to impose by the sword on Algerian Muslims the secular laws of France, and this, in the most sacred of things, notably the statut personnel… a domain that belongs exclusively to the community of believers (No. 45, 6 July 1959 quoted by Gadant, 1995: 85).