Tunisia: Women’s rights and the new constitution

Women in Tunisian are concerned that the new Constitution may slow down their progress towards gender equality.

Tunisian women shout slogans and hold po
August 13 marks a special day in the history of women's rights in Tunisia [AFP]

There are concerns amongst vociferous civil society activists about the status of women in the country’s new constitution, the drafting of which may require longer time than initially anticipated. Whereas these voices are legitimate and should provide the questioning and citizenry input demanded by genuine democratic transition, there is a degree of misrepresentation, by some forces and discourses of the issues involved.

This question is one of many that have over the last a few months added to political dynamism by a polity and society learning to find voice and found presence, but inevitably also produced polarisation, which excludes no single political party or group of actors.

There are a few issues that are at the core of rising polarisation within Tunisia’s polity. This article looks at the rights of women within the process of constitution-framing.

Women: Place and Space

August was hot in more than a way in Tunisia. August 13 stood out. It was a day of protest, and to that end women mobilised and organised nationally to remind the law-makers in the Constituent Assembly, tasked with constitution-framing, that their rights are not negotiable. As it were, the country’s women, justifiably, want equal share of the public space, refusing to be relegated secondary status – a place as it were – in men’s imagining of community for new Tunisia.

August 13 is for most Tunisian women a special day. Back in 1956, on that day the single most important piece of legislation enshrining women’s right to equality was passed under the tutelage of the late Habib Bourguiba, the country’s first president.

Fifty six years later, and 18 months after the January 14 Revolution, women mobilised to contest the article on gender “complementarity” in the country’s draft constitution.

Till now, as the constitution is far from final stage of drafting, they beg to differ, and in this vein they are standing up for the right to equality.

This is not a stand for the sake of difference as much as it is for the greater sake of clarity about equality in all aspects related to being, thinking and acting as full citizens in a transitional stage during which “words” in the articles of the new constitution has implications for creating “worlds” in the reconstitution of identity and subjectivity.

From this angle, what Tunisia’s women, who hail from the Trade Union Movement, civic bodies, les femmes democrats, and organisations of all political colours, are seeking to communicate to the interim law – makers is a democratic right. Without it, nascent democratic society and polity risks backsliding into univocal decision – making. 

The Contest and its Contexts

This particular contest, amongst others taking place at an exciting moment in the country’s democratic transition, re-opens debates from the times of Bourguiba regarding questions of identity, specificity and the brand of modernity suited to Tunisia.

That is the title of the famous treatise written by Tahar Haddad in the 1920s. He was more or less following in the steps of Egypt’s first male feminist, Qasim Amin, author of seminal works on the woman question.

” The reference to ‘complementarity’ instead of ‘equality’, has reopened the debate in Tunisia. ” 

– Tahar Haddad

In the Tunisian context, the early feminism was part of the second wave of socio-political renaissance or nahdah, which broadened the scope of the reformist trajectory subsumed under a political agenda shaped at the time of French colonialism.

Freedom, initially Western-inspired from the time of the reformist statesman Khayr Al-Din Pasha, was broadened to look at non-political impediments to nation-building and full citizenship. Gender equality was found to be lacking. 

Haddad’s treatise at once confirms the sanctity of Islamic law and Quranic scripture, arguing women’s rights are God-given. Yet at the same time he favoured what he considered to be legitimate innovation, calling for new marriage and inheritance laws to supersede clear Quranic injunctions on these sensitive matters of law in Islam.

Haddad, the “feminist” reformer of the early twentieth-century Tunisia, was clear about this agenda despite initial controversy over his ideas and resistance from the upholders of tradition. This resistance has not ceased and the current draft constitution, including the reference to “complementarity” instead of “equality”, has reopened the debate in Tunisia.

Despite controversy and opposition to them, Haddad’s ideas eventually held sway within the political leadership of the nationalist movement and the reform-minded elite of the time.  In particular, Bourguiba was attentive to this message, something he passionately embraced and vigorously embodied in the constitutional apparatus of Tunisia’s first republic over which he was the chief executive for thirty years.

The end result was Bourguiba’s 1956 Personal Status Code which enshrined the principle of gender equality, which banned polygamy, amongst other laws.

The personal status code: the alternative view

From the outset the voices and forces of Islam and Muslim identity had an issue with the Personal Status Code. What Bourguiba viewed as a piece of law encapsulating rethought and enlightened Islam, many learned scholars from the Mosque-University of Zeitouna, the equivalent of Al-Azhar in Egypt, regarded as an affront to religious sensibility, norms and teachings.

The late Shaykh Mohamed Salih Al-Nayfar, one of the leading Zeitouna scholars declared his opposition to the Personal Status Code from the time of its drafting and inception. More or less, he saw it as a piece of legislation, perhaps not even the brain-child of Bourguiba’s own thinking, reflecting excessive and insensitive Westernisation.

In a nutshell, Shaykh Al-Nayfar quarrelled with the Personal Status Code’s contradiction with Islamic law in matters ranging from divorce to polygamy.

To an extent, the question of the status of women in society and Bourguiba Francophile signature on social and political renewal was at the core of the polarity begun in the 1970s by the rising voices of Islamism, which at the time confined its activities to protection of the Islamic heritage, namely, Quranic teaching, education and guidance.

The controversy arises in Article 28 [Epa]

These questions proved sufficiently relevant in the early 1980s in the shaping of the moral, social and political agenda of the Islamic Tendency Movement, the Nahda Party’s precursor in Tunisia. The tension with Bourguiba’s brand of reform overshadowed the rise of Tunisian Islamism. Like Al-Nayfar, Shaykh Rachid Ghannouchi had issues with the Personal Status Code but that did not mean he is opposed to gender equality. To the contrary, he champions women’s rights.

He sought to found for a brand of equality that was sensitive to Tunisian specificity, accounting for religious faith and Arab identity. This was the subject of his own treatise “Women: Between the Quran and the Reality of Muslims”.

The current contests and counter-contests over the draft law on the so-called “complementarity” must be understood in this context. The “complementarity” law has implications for the “sanctity” accorded to the Personal Status Code by many Tunisians, men and women. The Nahda Party has repeatedly declared its commitment to the Code and willingness to work within its framework.

Does the draft “complementarity” law represent a kind of volte face?  

Equality vs. complementarity

Under the section on “rights and freedoms”, there is evidence of innovation and insistence on the inviolability of citizen’s rights, sanctity of humanity, dignity, and body, making illegal practices such as torture or unlawful detention. Thus stipulates Article 2 in the draft constitution, affirming the value of sanctity of life in the previous one.

The task has been painstaking with the legislators giving more than two versions for each article in one draft I have seen.

The controversy surrounding “complementarity” arises in Article 28, which is crystal clear about banning all forms of discrimination and violence against women. What is not clear, including why the constitution is in the first place dealing with family matters, is the subtext of the wording in this article.

The specific context “complementarity” is mentioned in Article 28 is the family. The text goes something like “The state guarantees the protection of women’s rights and consolidation of [past] gains based on women being fundamental partners to men in nation-building, with their roles complementing one another within the family.”

The gains are clear, and in many ways this confirms what Nahda has all along stated that it is committed to the 1956 Personal Status Code. Of course, under Tunisian Law, the Personal Status Code as a “majallah” (legal code) is no more than an ordinary law, and thus takes secondary status to the constitution. Perhaps this is what justifies women’s fear for the future of “equality” if the new constitution takes precedence over the Personal Status Code.

Amongst those gains were women’s right to file for divorce, claim maintenance, and many cases has custodianship rights after divorce. The key issue is that of equality. The ambiguity built into Article 28 is not helpful.

How married couples perform “complementarity” within the family is open to interpretation, especially in a society where local custom and religious norms are part of the template of identity. This is one reason why critics of this type of wording, in particular the reference to how husbands and wives go about “complementing” each other’s roles inside the private realm, view this as a form of subverting the existing legal paradigm, Bourguiba’s Personal Status Code, which is clear about equality.

Noteworthy here is the fact that in private matters of money-spending, women had the right to spend their money or income as they choose; but in matters of inheritance Islamic Law remained supreme, according women half the share of male inheritors.

In family matters, there was no obligation for married women to spend their private money on maintenance and may do so only if they choose to do so – and most do regardless of what the law says. This was slightly modified in Article 23, Law 93 – 74 of 12 July 1993. This law affirms mutual obligation and burden-sharing in matters of provision for the family, for the greater sake of common welfare, of spouses and their children. Even here, despite reference to local norms and traditions, women alone determine what degree of help they may lend to their husbands in matters of providence.

Equal Complementarity or Just “Complementarity”

Tunisian law-makers can, and I’d wager they will diffuse the controversy by opting of equality. Complementarity is never “equal complementarity” – whatever that means if it had ever existed anywhere.

At this stage of Tunisia’s transition, there are issues that can be resolved by clear language. Language implies power, and in this case building ambiguity in the new constitution will not make for smooth transition. By opting for the word “equality”, the Nahda Party and its partners can kill two birds with one stone: they commit unequivocally to “equality” as well as “equal complentarity” – not just “complementarity”.

Dr Larbi Sadiki is a Senior Lecturer in Middle East Politics at the University of Exeter, and author of Arab Democratization: Elections without Democracy (Oxford University Press, 2009) and The Search for Arab Democracy: Discourses and Counter-Discourses (Columbia University Press, 2004).