Inheritance Law Reform in Morocco: At the Intersection of Human Rights and Religious Identity

Last week, the president of Morocco’s National Human Rights Council (CNDH), Driss El Yazami, publicly released the Council’s most recent report on gender equality and parity in Morocco. The content and recommendations contained therein were broad, addressing a range of issues related to laws affecting women. However, one issue, in particular, received significant attention and has been the subject of heated debate here in the country: inheritance law.

The report comes four years after the adoption of a new, Arab Spring-inspired constitution and ten years after a controversial yet much celebrated reform of the Moroccan Family Code (al-mudawwana). While the CNDH has issued previous reports and memoranda on gender, the CNDH noted that the report was “the first of its kind” to review the efforts and achievements to promote and protect the rights of women in Morocco, but also to present the challenges, gaps, and obstacles that continue to prevent women from enjoying all of their human rights. The report is comprised of three chapters, addressing (1) gender equality and non-discrimination, (2) equality and parity in economic, social, and cultural rights, and (3) public policies and their impacts on women that are most vulnerable to human rights violations, and it offers 97 recommendations intended to ensure the full participation of women in society and their equal access to services and resources. From a human rights perspective, it is impressive.

In a press statement after the conference, El Yazami said, “There will be no democratic progress or fair and sustainable development in Morocco without the empowerment and full participation of women, who make up one-half of Moroccan society.”

The report provided many opportunities for controversy, but its recommendations relating to inheritance generated the most coverage in the Arabic- and French-language press. The report commented on current legislation around inheritance, which stipulates that male heirs receive double that of female heirs, among other such provisions. It then recommended an amendment to the Family Code giving women the same rights as men in the context of inheritance. In supporting its recommendation, the CNDH referred to both national and international law, citing Article 19 of the 2011 constitution and Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which Morocco is a party.

The most trenchant response has come from the Justice and Development Party (PJD), the ruling political party in Morocco since 2011. While they are often referred to as “Islamist,” the party describes itself as a political party with an Islamic frame of reference, an important distinction, I have learned, here in Morocco.

The party has referred to the report as an “unacceptable provocation,” criticizing its perceived overreach into the religious domain. Its principal objection has been that the recommendation to amend the inheritance laws contravenes explicit textual directives in the Qur’an, which the party says are not open to interpretation. Thus, they contend, the recommendation lacks legitimacy and legality in Morocco.

Interestingly, the PJD has also used the 2011 constitution to support its position, going so far as to say that the recommendation would be a violation of the constitution. To support this claim, the party points to the preamble, which states that Morocco is a Muslim State, as well as to the very same provision used in the CNDH report, Article 19, which states that gender must be strengthened but “with respect for the provisions of the Constitution, of the constants [constantes] and of the laws of the Kingdom.”

The PJD has also said that a debate around the inheritance law causes rifts in Moroccan society, suggesting that attention should be withdrawn from that issue and concentrated on other, more pressing matters. In contradiction to this attempt at deflection, the CNDH’s El Yazami has said that Moroccan society is ready for this debate, referencing controversial nation-wide discussions, including that of abortion, the death penalty, and homosexuality, among others, which have transpired in the past year.

In terms of jurisdiction, the PJD and others opposing the recommendation consider the Superior Council of the Ulemas [Conseil supérieur des Oulémas], which issues decisions on religious matters, as the appropriate authority to comment on this issue, and are eagerly awaiting its response. In this regard, El Yazami agrees with his detractors, remarking that the report’s recommendations are based in international human rights laws, and that it will be up to the Council to rule at the religious level. Neither group seems interested in attempting to reconcile the approaches they are advocating, namely, human rights and religion.

The issue has garnered widespread discussion outside of the political domain. My own conversations with Moroccan friends and colleagues have exhibited the divisive nature of this debate, which seems to follow in the path of the PJD and CNDH in pitting human rights against religion. In many of these conversations, the CNDH report is regarded as an affront to the Islamic character of the country. One colleague went so far as to tell me that Morocco would cease to be an Islamic country if it changed the inheritance laws. He argued that because the rules about inheritance are explicitly detailed in the Qur’an, they could not be changed. Further, he reasoned, women are not obliged to work if they don’t want to, whereas men are. Accordingly, the men need the inheritance to support the women. Both of us have backgrounds in human rights. Both of us have backgrounds in Islamic studies. Both of us, as legal practitioners, are zealously committed to justice. And, yet, we went back and forth, in friendly argument, neither of us modifying our respective positions.

I have been living in Morocco for just over a year. During that time, a large number of human rights issues have been discussed and debated, openly and fervently. Most of them are not new, and, consequently, have not been definitively resolved, but return to the forefront every time a report is released or a legal reform process begins. Each time these issues are revived, they incorporate new information and perspectives, modifying the discussion enough so that the arguments are not simple regurgitations of those previously delivered, but are, perhaps, more nuanced and, hopefully, more sophisticated.

The first reform of the Family Code, a decade ago, was a tumultuous experience with much of the disagreements taking place at the intersection of religion and gender equality. Ultimately, the process resulted in some of the most progressive changes to family laws in this region. With a return to the issue of inheritance, many of the same themes are present, but, now, there is a new constitution and a post-Arab Spring consciousness. I do not wish to overstate the influence of these changes, as I have encountered a very diverse Moroccan society, inclusive of a significant population adhering to a traditional orientation, and very resistant to liberal, human rights-based arguments. However, they are changes, nonetheless.

More often than not, the conversations that I am observing, and in which I often participate as a foreigner, bounce between religious and political claims, and I find myself experiencing the complicated practice of a society in which it is reconciling its competing identities, whether it intends to or not.

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