Enforcing pro-women law reform

Widad Naggar (not her real name) does not know how old she is. “I guess I’m 46 or so”, says the mother of four children from Helwan, one of Cairo’s poor neighbourhoods. Widad’s birth was not officially registered, so she cannot tell how old she is. Hundreds of thousands of other Egyptian women share that fate. For decades, Widad had neither birth certificate nor identity card. She was unable to vote and could not handle official formalities on her own. Her husband Magdi had to accompany her whenever something needed to be sorted out at school or with the authorities – because of her lack of papers. “I often felt very ashamed,” she says.

Widad always managed somehow, until her husband fell seriously ill. The family faced a real crisis. “I had to earn money but could not find a proper job without papers. And I didn’t have any money to apply for papers.” By chance, she heard about the ADEW, the Association for the Development and Enhancement of Women. Formed in 1987, this was the first Egyptian women's organisation to specifically take up the cause of women who head households (mu’ilaat) in Cairo’s slum areas.

Thanks to legal assistance from ADEW, Widad completed the application forms for a birth certificate and an identity card. An ADEW activist even accompanied her to the government office. The organisation also paid the fee worth about five euros, a great help for Naggar, who only earns the equivalent of € 50 per month.

Once she had papers, Widad found a formal job as a cleaner for a small development agency in her neighbourhood. True, her income doesn’t even pay for the food for her family of six needs, but she is content nevertheless. “My two oldest children also make money. And it matters to me to have a formal job, with a contract and social security. Now no one can put pressure on me any more because I do not have ID papers. And it is not a catastrophe to fall sick.”

Double burden

Widad was lucky. There are hundreds of thousands of women in the Middle East and in North Africa, if not millions, who do not have any papers and never will. The ADEW is not able to assist everyone. “Obviously we are not the government,” says lawyer Montasser Ibrahim. “We want to create some pressure and make the authorities improve their services. But, at the end of the day, the state must fulfil its responsibilities.”

The lack of personal documents is just one of many challenges women face in the Arab world. However, this example is a telling example of how state failure affects poor women in particular. Of course, it is not only women who are adversely affected by bad governance under Arab dictatorships. But gender-specific discrimination created by laws make women even more vulnerable than men. And wherever the written law does grant men and women equal rights, women are often denied those rights, because they are too poor to pay bribes or because misogynist judges so decide.

The fate of development expert Muna Salameh (not her real name) is typical. She wanted to assert her formal rights when she married. In Jordan, as in all Arab countries, the law of personal status depends on a person's religion. “Jordan’s matrimonial law for Muslims allows women to include the right to take up gainful employment and an unconditional right to divorce in their marriage contract,” Muna explains. “If women do not specifically insist on these rights, they lose them. My husband and I had discussed the issue and decided to include the clauses in our marriage contract.” However, the registry official refused to register the marriage. “He only relented when, after a long discussion, a lawyer we know pointed the relevant legal provisions out to him.”

Sustainable social and economic development is only possible if men and women have equal rights. This awareness is not new in the Arab world (see text box). However, formal legal equality, in itself, does not suffice to safeguard improvements in the lives of women and girls. Unless it is enforced, new legislation does not make any difference.

Fighting discrimination

Arab women’s-rights activists have developed new strategies in recent years, in order to boost the rule of law through actual enforcement and the general acceptance of new legislation. German Technical Cooperation, GTZ, is among the agencies that support them. The reform of Egypt’s nationality law provides an example of how non-governmental women’s organisations are campaigning.

Before 2004, children of foreign fathers did not have the right to their mother’s citizenship, even if she was Egyptian herself, and she was raising the children by herself in her home country. Accordingly, hundreds of thousands of children, teenagers and adults were living like foreigners in their own country. They could not automatically attend state schools, were not entitled to social security and were not entitled to apply for jobs in the civil service. For mothers, this meant endless trips to the authorities, which took energy, time and money.

Faiza Tahnawi, who was an independent member of Egypt’s parliament from 2000 to 2005, describes how she became interested in the subject, gradually at first and then adopting it as a major cause. “I stumbled across the problem of nationality more or less by accident, during a regional Arab conference on women’s rights. I was shocked, and decided to dedicate all my energy to getting the law reformed.”

Initially, resistance in parliament was strong, Tahnawi recalls. “A number of female MPs, and even journalists, advised me not to put the problems of ‘those’ women on the agenda, saying that they had, after all, made their own free decision to marry a foreigner. As if a woman betrayed her country just because she marries a non-Egyptian!”

While Faiza Tahnawi argued for reform, an alliance of feminists and NGOs organised a nationwide media campaign. A number of female journalists were prepared to support the cause through their newspapers and on radio and television broadcasts. A documentary was produced (My child, the foreigner), which showed the precarious situation of Egyptian children without passport.

A highlight of the campaign was a major conference, during which some of the women and children concerned were filmed talking about their problems. “We had expected that the people concerned would be too shy to speak publicly about their suffering, but the reports were very striking, and a number of staff from ministries and authorities were visibly touched,” recalls Fatma Khir, an Egyptian journalist. She believes that personal, direct interaction considerably contributed to the campaign’s success. Even before the law came into force, 6,000 people applied for Egyptian citizenship within a few days in the greater Cairo area.

Divorce law for women

The laws around divorce provide another example of legal discrimination against women. Unequal treatment of women in current legislation of Arab countries is not necessarily related to Islam. When the individual Arab states were formed in the first half of the 20th century, they adopted European laws, which were discriminatory under the former occidental Zeitgeist – sometimes even more so than Islamic law.

It was an exigency of state formation to codify the traditionally decentralised Islamic law. Such national standardisation was regarded to some extent as progress, because greater legal certainty and binding effect for all citizens were desired. However, standardisation also meant that interpretations of the law unfavourable for women became generalised and individual freedom was curtailed. This was the case, for example, for divorce laws which, as it currently stands, greatly disadvantage women in nearly all Arab countries.

In 2000, Egypt introduced khulaa divorce. Prior to that reform, only men in Egypt had the right to a divorce (talaaq) without being required to give any reason and without a judicial decision. Women, in contrast, could only file for divorce if they could prove failures (such as infertility, considerable physical violence, desertion of failure to provide for a wife) on part of their husbands. A woman could lawfully divorce her husband (tatliiq) only if a judge confirmed such a fault.

Since the introduction of khulaa, women in Egypt can file for divorce without disclosing their reasons. To do so, however, they must renounce certain rights: the second (often larger) part of their dowery gift (mahr/mahr mu’akhar – which a bride receives as security in the event of divorce or widowhood), and the right to personal maintenance payments. However, khulaa divorce does not affect maintenance payments for their children, rights of custody and the right to the marital home. Even though khulaa divorce may mean that a woman foresakes material security, several hundred women in Cairo alone applied for divorce under the new law on the very first day after the law was passed.

Participatory monitoring

Not before long, however, problems with the new law emerged. Many judges were unfamiliar with it, or claimed to not know it. Many women mistakenly believed that they would lose custody of their children, the right to the marital home and all financial rights in the event of khulaa divorce. According to the new law, the divorce proceedings should be concluded within six months but, in some cases, they have dragged on for up to two years. Reality of reform thus lagged well behind expectations.

In 2004, ADEW, the women’s organisation, launched a project previously unheard of in the Arab world. The approach of “participatory monitoring” meant that 1,200 divorce cases in courts all over Egypt were analysed in order to identify the expectations of clients, judges, female lawyers and advisors. The people involved were not only observed and evaluated, but the approach also served training purposes. The result was higher acceptance and better quality of the monitoring process. Participatory monitoring provided opportunities to review the issues and discuss interim results of the study on a regular basis.

This approach set standards for improved governance in the judicial system. There were several practical implications. It was discovered that most men do not pay maintenance to their divorced or disowned wives, so a welfare fund for destitute divorced women and their children was established. It follows a Tunisian model and is managed by the Nasser Social Bank, which is funded by zakat payments. Zakat (alms given under Islamic law) is one of the five pillars of Islam. The welfare fund is to be funded through a special fee on all registry office documents.

Outlook

In most Arab countries, secular regimes have not succeeded in solving the problems facing their people in decades. Despite an immense wealth in commodities and high level of investment in education, Arab countries have not managed to catch up scientifically or technologically. Instead, corruption, nepotism and poverty are spreading.
Disappointment over the failure of secular nationalism has led to a reorientation towards religion and an emphasis on Islamic values in the Arab world. This trend was strengthened by the fact that Saudi Arabia actively supported cultural Islamisation with the monetary force of its oil revenues. Islam is today a defining factor of people’s identity, particularly among the middle-aged and youth generation. Religion plays a major role in discussions about development and governance.

Given weak state institutions, many women tend to seek out customary or religious legal institutions. Though these bodies are often marked by extreme patriarchal attitudes, they are at least affordable and familiar. Furthermore, they are geared to resolving disputes. Any meaningful development policy will have to take these institutions into account.

Good governance is currently the greatest challenge in developmental terms for Arab nations. Important indicators of improvement are the participation of women in cultural, economic and political affaires, and the opportunities for women to assert their human rights. Formal legal reforms and consistent laws form the basis. However, for women to be able to enforce their rights as well, there needs to be more widespread awareness of the laws and greater cultural acceptance of human rights as well as women’s rights. Judges, female lawyers and judicial officers should be given constant and ongoing training. Participatory monitoring and lobby work within Muslim institutions are promising instruments for promoting pro-women progress.