- By Monica Marks
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.