The matter of women's rights -- an issue that proved remarkably pivotal in last year's election debates -- has once again surged to the foreground of Tunisian politics. Earlier this week, an estimated 7,000 Tunisians flocked through a broad boulevard in downtown Tunis to protest Article 28 of the recently released draft constitution. Most of the protesters were upper class, unveiled women strongly opposed to the country's governing Islamist party, Ennahda. These critics accuse Ennahda of deliberately engineering Article 28 to erode Tunisian women's rights. Such interpretations, however, have been misconstrued.
Tunisia's main legislative body, the constituent assembly, has been preparing a draft of the new constitution since being elected last October. The full text of the draft was released on August 8, and a constitutional commission is scheduled to begin reviewing the proposed legislation in September. The draft includes the contentious Article 28, which some secularists believe explicitly refers to women as the "associates" and "complements" of men. A recent Reuters report quoted Article 28 as stipulating that women are "complementary to men."
These are subtle but serious mistranslations. The proposed article, directly translated from the Arabic, states in its entirety that:
"The
state guarantees the protection of women and supports their achievements,
considering them as men's true partners in building the nation, and their
[men's and women's] roles fulfill one another within the family. The state
guarantees equal opportunity between men and women in carrying out different
responsibilities. The state guarantees the elimination of all forms of violence
against women."
Nowhere does this article refer to women as "complementary" or "associates."
Farida Labidi, an Ennahda representative and chairperson of the rights and
liberties committee that drafted this article, has expressed her frustration
with secular opponents whom she believes are taking the law out of context and
intentionally ignoring Article 22 of the draft constitution, which states that
"citizens are equal in rights and duties before the law without discrimination
in absolutely any way."
Though many critics have paid insufficient attention to the exact text of the
article, there is no question that its language concerning gender equality
departs somewhat from the liberal, individualistic template of Western human
rights norms. Article 28 defines men and women in relational terms. The Arabic
word yetekaamul found in the middle of the text has often been
understood to mean "complement one another." Its deeper sense, however, is of
enriching or integrating two parts into a unified whole. I have translated it
above to mean "fulfill one another."
This relational terminology reflects Ennahda's bedrock philosophy concerning
community and human rights. Instead of viewing human rights in atomistic,
individualized terms, Ennahda -- like many Islamist movements, and traditional
Muslim societies in general -- prefers to see persons as interconnected within
an umma, or faithful community, comprised of different but equal
components. Male and female representatives of Ennahda generally believe that
while the two sexes were created equal under God, they nevertheless remain
distinctive in terms of their biological roles and familial obligations. These
views echo those of numerous Christian conservatives, many of whom agree that
while women can and often should work outside the home, they are naturally
oriented toward motherhood and more nurturing responsibilities within the
nuclear family unit.
Secularist women are correct in pointing out that a certain amount of tension
exists between Articles 22 and 28 of the draft constitution. Article 22
guarantees full equality, while Article 28 implies that women are men's
"partners" and thus exist differently in relation to men within the context of
the family. This ambiguity could make it more difficult for Tunisian feminists
to achieve certain much-coveted women's rights goals, such as the revision of
certain inheritance laws which still unequally favor men.
It is unlikely that Article 28 will pass muster with the revisionary committee
scheduled to edit and harmonize this draft constitution over the coming months.
Sihem Badi, Tunisia's Minister of Women and Families, has already spoken out
against the law, and a prominent female representative of Ennahda, Ms. Souad
Abderrahim, has also suggested it is in need of revision. Though Ennahda
controls a majority of seats on the rights and liberties committee, it will
have a difficult time obtaining the necessary 109 out of 217 total votes needed
within the constituent assembly to pass the article. Ennahda holds 41 percent
of seats in the current constituent assembly -- enough for a plurality, but not
enough to bulldoze an absolute majority of parliamentarians into voting for the
law.
Even if the article does pass as it is currently formulated, it is unlikely to
seriously undermine women's current legal standing in Tunisia. The law does not
contradict or negate Tunisia's Personal Status Code -- a landmark piece of
legislation enacted in 1956 that continues to set Tunisia apart as the most
progressive Arab country regarding women's rights. The Personal Status Code
prohibited polygamy and gave women the right to divorce.
The challenge of this article, though, lies in its ambiguity. It is important
that Tunisians devise a formulation of women's rights that is relevant and
acceptable to them. This does not necessarily need to echo Western women's rights
legislation word for word. It should not, however, make advancing equality more
difficult. The relational wording of Article 28 leaves wide scope for
interpretation on the part of future legislators and local judges. It is a
stickily phrased formulation that, while unlikely to roll back the clock on
existing women's rights, may make it more difficult for Tunisian women to
redress unequal inheritance laws and other pieces of discriminatory
legislation.
In reality, whether or not relational language is yanked from Article 28 of the
constitution, women are unlikely to see progress on Tunisia's inheritance codes
anytime soon. Political parties -- even those aligned with explicitly
secularist tendencies -- are loath to mention the issue. Existing sharia-based
inheritance laws are widely supported by a majority of Tunisians, and any
mention of altering the law -- or the Personal Status Code (PSC) in which it is
ironically enshrined -- would be a dangerous move for practically any
politician.
More importantly, replacing Tunisia's Quranically grounded inheritance law with
a more secular formulation might render the Personal Status Code less relevant
and less authoritative in the eyes of many Tunisians. Islamists and secularists
alike tend to revere the code because it contains something for everybody. At
once cleverly wrought and highly unwieldy, the code is a hybrid of French civil
law and moderate sharia-based jurisprudence. The inheritance law represents one
of the few, and by far the most important, remaining chunks of sharia-derived
legislation in the PSC. Excising this element from the code would make it far
more difficult for conservatively-minded Tunisians to justify it as
sharia-based. Defending the code -- something Ennahda members have done vocally
in recent years -- would become a far more difficult task.
Writing "total equality between men and women" into the new constitution would
likely catalyze long-awaited reforms of the existing inheritance code. While
feminists and some secularists are eager to see the inheritance law changed, Ennahda
members privately describe it is a non-negotiable lynchpin that stabilizes and
legitimizes Tunisia's PSC in the eyes of most Tunisians.
For now, sharp disagreements concerning the draft constitution remain unresolved.
As Amna Guellali, Human Rights Watch's senior researcher in Tunisia, has noted,
"both the secularist and Islamist poles have notched up some victories in the
draft constitution." The negotiation process has been one of give and take, and
the upcoming process of revision and harmonization will likely reflect similar
elements of back and forth bargaining. Although Ennahda controls a majority of seats inside the various
constitutional drafting committees, it will be unable to push the entire draft into
law without winning the support of currently skeptical parliamentarians over
the coming months.
Tunisian women continue to face a host of cultural, economic, and legal obstacles that stand in the way of total gender equality. While Article 28 in its current form does little to aid their situation, it is also not the Iranian-style blight on women's freedoms that many Tunisian feminists claim.
Monica Marks is a Rhodes Scholar and doctoral candidate in Middle Eastern Studies at St Antony's College in Oxford.
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