The new Family Code of Mali and Why its Promulgation Has Been Delayed
FRIDAY FILE: The Personal Status and Family Code of Mali was adopted in 2009 by the National Assembly, but promulgation by the President of Mali has been delayed until now due to the mobilization of Muslim religious organizations opposed to it.
AWID interviewed Djingarey Ibrahim Maiga, the President of Femmes et Droits Humains, and Yaba Tamboura, member of the Steering Committee of Collectif des Femmes du Mali (COFEM) on the status of the new Personal Status and Family Code of Mali (hereafter referred to as the Family Code).
By Massan d’Almeida
AWID: Can you remind us of some of the background to the revision of the old Family Code?
Djingarey Ibrahim Maiga (D.I.M.): A large majority of CSOs, Muslim religious organizations and state structures participated in the drafting process of the new Family Code. Women’s organizations, human rights organizations, and religious leaders in the cities and villages of Mali were involved in the revision process through discussion and debate sessions. There were also training and awareness-raising workshops on the provisions of the old Code, highlighting the controversial points raised during the debates, which were mainly related to discrimination against women. These points were revised and a proposal was made in order to abolish the old Code and replace it with a new one. The new Code would take into account the provisions of international and regional conventions that Mali has ratified and the Malian Constitution, which guarantees equality for all, without any discrimination.
AWID: What is the current situation regarding the new Family Code of Mali and why has its promulgation been delayed?
D.I.M.: The new Family Code was approved on 3 August 2009 by the National Assembly (NA). This Code is a genuine renewal of the family law and civil status as it fills some legal gaps. It takes into consideration the constitutional proclamations as well as the international conventions ratified by Mali relating to principles of equality for all. In addition, it re-establishes equality between boys and girls, and children born within or outside marriage, who will all now have rights to inherit from their parents without discrimination. The Code was sent back for a second reading because some of its provisions were subject to disagreement, in particular, from Muslim religious organizations.
Yaba Tamboura (Y.T.): The new Code is currently going through a second reading at the NA where the revision process is carried out by the Law subcommittee. After the subcommittee completes its work, the document will be submitted to the Government for its opinion, and then civil society organizations (CSOs), including women’s rights organizations, will be consulted. Although the CSOs do not sit on the subcommittee of the NA, they can be heard if required before the dossier is transmitted to the Government. The CSOs and the National Human Rights Commission are lobbying to ensure that the provisions regarding women’s rights are preserved in the new Family Code and they are supported by the Ministry of Justice. There is also a pressure group led by Groupe Pivot Droit et Citoyenneté des Femmes (GP/DCF), consisting of eight associations that promote and protect women’s rights. They approached the subcommittee, which informed them on the progress of the dossier, which is slow due to divergence of viewpoints on certain issues. We have confidence in the Law subcommittee, whose influence puts the Muslim religious organizations in an uncomfortable situation since they have increasing difficulty in advancing their arguments and they speak of deserters among their ranks.
AWID: What are the points of disagreement between the women’s rights activists and the Muslim religious organizations?
D.I.M.: There are a number of articles that are issues of contention. Article 5 concerns the integrity of the human person. According to the Muslim religious organizations, this Article could be used to oppose Female Genital Mutilation (FGM). But while Type II (excision) is the most widespread form of FGM in Mali, according to Islam it is neither an obligation nor a requirement, but rather an optional act.
Article 56 concerns the choice of domicile. According to the new Code, this choice could be based on the professions of either of the spouses. This constitutes a real advancement for women’s rights, because Article 34 of the old Code stipulated that the husband was the head of the family. As a result, the household expenses weighed mainly on him; the choice of the family residence was his; the wife was obliged to live with him and he was obliged to accommodate her. Due to this provision, many women therefore lost their job opportunities and income sources in order to follow their husbands.
Article 281 relates to the secularism of marriage, which has been the main cause of contention within the Muslim religious organizations. In fact, 35% of women are dispossessed and chased out of the matrimonial home because they do not have a civil marriage certificate. Islamic marriage does not have a contract that serves as concrete proof of the marriage bond, which means that in the case of divorce or the death of their husbands, women face difficulties claiming their rights before the law.
Article 282 sets the minimum age for marriage at 18 years for both women and men.
Article 311 relates to the obligation of obedience of the wife, which has been replaced in the code by mutual respect. Articles 556 to 573 relate to the authority of the father which has been replaced by parental authority.
The controversial Articles therefore concern issues which women’s rights activists are working on in order to improve the daily lives of women and to promote their fundamental human rights. This new Family Code is a true effort to harmonize Mali’s national laws and align them with international laws on women’s rights and the rights of the child; such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDEW), ratified by Mali in 1985, the Protocol to the African Charter on the Rights of Women, ratified by Mali in 2005, and the Convention on the Rights of the Child.
AWID: Did Muslim religious organizations participate in drafting the new Code? If so, why did they react so violently and in opposition to its promulgation? And what triggered their reaction?
Y.T.: Yes, the Islamic High Council had two representatives on the Drafting Committee, who worked on the drafting of the new Family Code. The problem is that Muslim religious organizations do not agree among themselves. I participated in the second review of the Code review, and they caused delays because they would say one thing one day, and the opposite the next, saying that their supporters did not agree. I think that, above all, they fear losing the patriarchal power which the old Family Code gave them.
D.I.M.: The Muslim religious organizations perceive the new Family code as showing clear willingness by the Government to serve foreign visions to our society. They disagree with the principles of secularism in terms of marriage, the age of marriage, the provisions around inheritance, and they are fighting for the legal recognition of religious marriages, providing the same rights and obligations to the spouses in polygamous unions while maintaining the obligation of obedience of the wife to her husband, but also the contribution of the two spouses to household responsibilities.
Therefore, they have shown their strong opposition to the promulgation of the Family Code through a large mobilization and a march. In response to their mobilization the President of the Republic resubmitted the Code for a second reading in order to review the points of disagreement and to propose changes.
AWID: According to the Islamic Council, the new Family Code is not suitable for the societal values of Malians. What do you have to say about this?
Y.T.: I would say that this is not true, because in the Family Code, there is no provision that goes against our laws and the conventions and treaties signed and ratified by Mali. They want to mix things up and spread confusion in the minds of the people who are mainly illiterate[i] by mixing up customs, traditions and religion. There are some points of view that they defend that do not exist in the Quran.
AWID: What does the new Family Code represent for women and women’s rights in Mali?
D.I.M.: This new Family Code represents a valuable tool for the promotion of women’s rights and combating discrimination and violence against women, and thus the promotion of gender equality in Mali.
AWID: What are the chances that the new Family Code will soon be promulgated?
D.I.M.: There are chances that this Family Code will be promulgated but it may be with some discrepancies in the texts linked to the review. But the organizations that promote and defend human and women’s rights are doing their best to maintain the essence of the articles.
Y.T.: I do not think that the promulgation of the new Code will be indefinitely stalled. I am optimistic that it will come into effect before the end of the mandate of President Amadou Toumani Touré.
[i] Women represent 51% of Mali’s population according to the results of the General population and settlement census of 2009. More than 70% of them live in rural area; 83% never went to school; 14% only have a secondary school level and only 0.1% went to university (Source : IPS )