Rabat- It is no secret that the news cycle has a selective memory, and Morocco is doing a great disservice to itself by allowing headlines and the social media sphere to be dominated by its lapses in human rights — especially when it can do better.
The country’s National Women’s Day on October 10 is an opportune time for the government to look beyond superficial celebrations, and make a staunch commitment to a zero-tolerance policy on violence and discrimination against women to elevate women’s legal status.
One of the marking points in 2018 for women is the passage of Law no. 103-13 on combating violence against women, in September 2018, after more than a decade of advocacy by civil society organizations.
Progressive legislation but loopholes exist
Morocco’s violence against women law provides protective measures for violence survivors but gaps persist. While it contains a detailed definition of violence against women that encompasses the broad range of forms of violence, including physical, psychological, sexual, and economic, the law does not provide a definition of domestic violence or criminalize marital rape.
The Law allows for protection orders that prohibit an accused person from contacting, approaching, or communicating with the victim. However, contrary to the recommendations of the United Nations, the Moroccan law predicates protection orders on survivors filing criminal claims, which is not possible for all survivors because of the requirement and the social and familial pressure against bringing criminal cases. Further, the legislation’s provisions permitting the protection orders to be cancelled in case of reconciliation adds undue pressure on survivors to drop the claim. To its credit, protection orders are issued in addition to rather than in lieu of other legal remedies.
The law also establishes service and protection measures for survivors, such as medical care and shelters, as well as psychological therapy for the perpetrator. Yet, the available measures can only be issued during a criminal prosecution or after a criminal conviction or after a criminal conviction. The law also increases penalties for existing criminal offenses but does not criminalize marital rape. It does, however, increase penalties for some forms of violence in the penal code when committed within the family and establishes new crimes including forced marriage, squandering money or property to circumvent payment of maintenance or other dues arising from a divorce, expelling or preventing a spouse from returning home.
The Law, obligates public authorities to take prevention measures, including programs to raise awareness on violence against women. It also provides for specialized units to serve the needs of women and children in courts, government agencies, and security forces, and local, regional, and national committees to address women’s and children’s issues.
Snapshot of the Moroccan Legal Framework on GBV
In general terms, Morocco is noted for its progressive stance toward legal reforms on Gender-Based Violence (GBV) relative to other countries in the MENA region. In recent years Morocco has taken substantial steps and civil society has made great strides in establishing legal reforms.
The status of women and the legal context for gender-based violence are addressed primarily in the Moroccan Constitution, the 2018 Law no. 103-13 on combating violence against women, the Penal Code, and the Moudawana. There is no clear prohibition of domestic abuse in the civil, criminal, or family codes. The Constitution establishes the primacy of international law obligations over national law and therefore binds Morocco to CEDAW and the Convention on the Rights of the Child. Thus, women must rely on general battery provisions in the penal code. Some argue that the 2011 Constitution’s prohibition of “all violations of physical or moral integrity” extends to domestic violence, though this is not explicitly articulated. Reform of the Code of Criminal Procedure (CCP) also helped in this regard.
Beyond the Law?
While Law 103.13 is a significant step towards the conscious elevation of women’s legal status in Morocco, the realization of the rights contained therein are subject to several limitations when it comes to implementation.
Notably, the justice system is splintered along geographic lines because of the disparate treatment, remedies, and access afforded to women in urban and rural regions. Conservative rural areas of Morocco have less access to civic education and legal literacy, and thus many women in rural areas are not aware of their legal rights. Consequently, rural women are often unaware of the legal opportunities available to them and remain untrusting of formal justice systems.
While social realities must be considered by legislators, the law has an educational function and sets norms for what society thinks is right and what is wrong. To harness the transformative power of the law, it is crucial that those responsible for enforcement are also held accountable for following through with their obligations in accord with the letter of the law.
* Leila Hanafi is a Moroccan-American international development lawyer, is a Board member of Morocco World News, recipient of doctorate in law from the UK, principal of ARPA International Law firm www.arpainternational.org