The Tunisian President wants to cut family law free from sharia and dispel the taboo regarding gender inequality in inheritance: one of the last taboos in the Arab-Muslim world

This article was published in Oasis 26. Read the table of contents

Last update: 2022-04-22 09:57:23


The Tunisian President wants to cut family law free from Islamic law and dispel the taboo regarding gender inequality in inheritance, one of the last taboos in the Arab-Muslim world. The feminists are supporting him, the religious institutions are opposed and, surprisingly, Ennahda’s Islamists are keeping resoundingly silent. We went personally to follow a debate that promises to be revolutionary as far as the role of religion in Islamic societies is concerned.


Tunis – In an orderly residential quarter of Tunis, the words “Feminist University” mark the entrance to the premises of the Tunisian Association of Democratic Women (ATFD – Association Tunisienne des Femmes Démocrates). The office on the ground floor of an anonymous little white villa is a temple to the fight for women’s rights in Tunisia, one of the most progressive countries in the Arab-Muslim world from a women’s-rights-and-freedoms point of view. Inside, the air is thick with a political activism that – along with the badly stubbed-out cigarettes – takes you back to a distant era of militancy and social battles in a younger Europe.


The walls are hung with black and white photographs of historic female activists and images of street protests. Leaflets scattered over a table talk in French and Arabic about the “founding of citizenship and equality from a women’s perspective” and “women’s participation in political life”, whilst advertising a theatre play on the subject of gender equality in inheritance, entitled “Terka” (“Inheritance”). And it is precisely inheritance that has become the latest cause for the women’s associations that, in Tunisia, have a long and deep-seated history of battles and achievements.


Khadija Cherif is the ATFD’s second-in-command. At the end of the summer, she and the activists from her own and other women’s groups celebrated what she calls an epochal success. On 13 August (Women’s Day), the President of the Republic, Beji Caid Essebsi, promised to review two sensitive topics: marriage between a Muslim woman and a non-Muslim man and equality in inheritance shares. Circular 216 of 1973 (which everyone nevertheless calls “Circular 73” and which forbade this kind of mixed marriage) was repealed one month later. And now the country is debating the inheritance question.


Intervening in the area of inheritance law remains taboo in the Islamic world. In Tunisia, even the leader who managed to cut the regulation of various aspects of family law free of sharia preferred, in his day, not to clash with the religious institutions and a still conservative society. It was 1956 when the founding father and president, Habib Bourguiba, introduced the Personal Status Code. This abolished polygamy, established a minimum marriageable age for girls, substituted judicial divorce for “repudiation” and imposed the requirement that the bride, too, should consent to the marriage.


“Independent Tunisia’s first Constitution was launched in 1959 but many said at the time that the real fundamental law had arrived three years earlier, when Bourguiba had put Tunisia on the path to modernity,” Khadija Cherif says. At that stage, however, the president who, thanks to the huge popular legitimacy he enjoyed, had dared to touch norms regulated for centuries by the religious law, had come to a halt before the issue of equality in inheritance.


Secularist, republican, activist and a feminist, Cherif was removed from government in 2015 as a result of Islamist pressure after being appointed Minister for Women, the Family and Children. She thinks that Bourgiba signed up to a modernist reading of Islam with his pull away from sharia in 1956 but that he fell short of separating state from “church”. The current Tunisian President, on the other hand, came to power after the 2011 revolution and the promulgation of a new Constitution that sets out the equality between men and women in black and white. Unlike his illustrious predecessor, he bases justification for his summer proposal on the need to make the Tunisian laws comply with that text undersigned by all the political parties (both secular and Islamist) in a moment of national unity. So not a modernist reading of Islam but a clear invocation of the separation of politics from religion that puts Ennahda’s Islamists with their backs up against the wall, being as they are in a coalition with the President’s secular party, Nidaa Tounes.


“It was necessary to put Ennahda to the test,” Khadija Cherif says, echoing the words written by the Tunisian journalist Fawzia Zouari in the Francophone magazine Jeune Afrique: “It must be admitted, it is a malicious way of making Ennahda come out into the open. The local Islamist party is in an embarrassing position: it cannot go against women, nor can it disappoint the West, which is calling on it to provide proof of its ‘feminist’ and ‘democratic’ spirit.”



Islamists Put to the Test

Meherzia Labidi is wearing a string of pearls that pulls her veil tight under her chin. She is walking in one of courtyards at the Bardo Palace (seat of the Tunisian Parliament), where the blue of the doors contrasts with the light colour of the slim marble columns. She is smiling as she proudly states that she was that Assembly’s first woman vice-president, from 2011 to 2014. And to those who ask her how Tunisian society has changed since that time in 1956 when Bourgiba came to a halt before the inheritance issue, she recalls that many people – “and very many progressives” – told her, after her appointment, that she was a woman and that she should not have been there, occupying that chair: “Women have changed, not society.” Labidi is one of Ennahda’s MPs. Ennahda is the Islamist party that won the 2011 elections and then went on to support a government of technocrats after the political crises in 2013-2014, when the movement’s opponents accused it of Islamizing society and being unable to govern.


It is two verses of the Qur’an (4:11 and 2:221) that regulate the issues of inheritance and the marriage of a Muslim woman with a non-Muslim man. If a Muslim man can marry a Christian or Jewish woman (i.e. one from the so-called “Peoples of the Book”), the same does not go for a Muslim woman. And those who are against a review of the inheritance rules recall that the Qur’an’s treatment of the issue leaves no room for interpretation: a woman is entitled to half the man’s entitlement. The text is clear. Although the debate touches on practices directly regulated by the Qur’an, Ennahda remained surprisingly silent both when the circular on mixed marriages was repealed in September and is still keeping quiet now, as the country tackles the discussion about inheritance law.


“Were I to listen to my feminist side, I would say equality and that’s the end of it,” Labidi says, “but I do not claim to be more intelligent that Bourguiba. There’s a huge gap between talk and practice. Amongst religious legal thinkers, there are those who are asking for equality: we need a debate in which the experts on Muslim law are involved. If the issue of inheritance is affected, then it will be necessary to review the whole family structure. As far as marriage is concerned, on the other hand, even the most conservative jurists have adopted differing positions right from Islam’s very beginnings. A Muslim woman who wants to live her religion can ask her husband to convert; if, on the other hand, religion is not important to her, her actions will be guided by love.” Meherzia Labidi is part of the more “reformist” wing of the party. If, in 1977, the leader of the Islamist movement, Rached Ghannouchi, called for Bourguiba’s Personal Status Code to be abrogated and sharia established, nowadays he seems to have made room for this “reformist” wing, at the more conservative current’s expense.


It is Tuesday morning and Ennahda’s parliamentary group has just ended a meeting: the members take a break at the Parliamentary canteen where the menu offers vegetable couscous with lamb and rayeb (fermented milk). Ajmi Lourimi MP (who is considered one of the movement’s ideologues) states that he does not have a position on the inheritance issue, just as (he explains) Ennahda does not have a clear or unanimously held position in the debate: “I think that one can be a sound believer and nevertheless defend gender equality in inheritance. You don’t need to be a secularist or an atheist to realise that it’s a social order issue with an economic aspect.”



Tunisi,  working-class neighborhood near Medina


And yet, during the 1980s and 1990s, there were hundreds of Islamist militants (including Lourimi himself) who ended up in prison for an idea: that of the advent of an Islamic state founded on laws taken from the sacred texts i.e. the Qur’an and the hadīth. And if, in 2016, Ennahda announced its historic decision to separate that which the region’s Islamist movements traditionally unite – preaching (da’wa) and politics – many of its rivals see this change of direction not as an evolution towards a sort of “Muslim democracy” along the lines of the European Christian democracies but, rather, as a matter of political opportunism. “They became realists the moment they came to power and they have exercised that power in a liberal society that is more akin to Italy than Yemen. And one that does not want an Islamic state,” explains Lazhar Akremi, ex Minister and ex-spokesperson for the President’s party.


It is, perhaps, too early to understand whether Ennahda’s silence nowadays is linked to that decision to separate preaching from politics, to a real evolution or to mere calculation. “Specialization”, in any case, rather than “separation”, is what Ajmi Lourimi emphasizes. For Samir Dilou, a lawyer, ex-Minister for Human Rights and spokesperson for Ennahda’s two governments, the step taken in 2016 means “dropping political Islam, turning the page of political Islam: it’s a journey. Tunisia doesn’t need a pan-Islamic party. What it needs is a Tunisian party without ties with other brotherhoods. The questions in Tunisia must receive answers in Tunisia. To say ‘Islam is the solution’ (the Muslim Brothers’ electoral slogan in Egypt) is like going to a doctor who tells his patients, ‘Medicine is the solution’. People don’t need to be given answers in the religious context, because they don’t need to rediscover their religion. They need political and economic prescriptions. The separation issue is a matter of honouring the law regulating parties, just as in business: we’ve been given permission to sell fridges and we can’t sell nuclear reactors.” This explanation does not convince secular, feminist activists such as Khadija Cherif, however. According to her, there has not been any separation of preaching from politics within Ennahda: “The preaching takes place more discretely nowadays. What worries me is the work Ennahda is doing at the educational level, with the young and in a social welfare context, through private institutes that are not monitored by the state. The day it achieves a majority, it will do the same as Erdoğan: he Islamized society, in the end.”



In the Wise Men’s Palace

It is an ancient palace that houses Beit al-Hikma, the Tunisian Academy of Sciences, Letters and Arts. The name refers to the prestigious house of Islamic knowledge founded by the caliph al-Ma’mūn in Baghdad during the ninth century. The Tunisian foundation, to which writers, scientists and intellectuals all belong, is located on Carthage’s seafront. Coloured majolica tiles adorn the office of Abdelmajid Charfi, the president of Beit al-Hikma, Emeritus professor of Tunis University and member of that committee of “wise men” set up by President Essebsi to reflect on the inheritance question. According to Charfi (who is considered one of the leading figure of the on modernist Islamic thought), Ennahda’s resounding silence regarding these reforms is taking into account both the balance of power and the fact that the request has come from the head of the party with whom the Islamists have an agreement. At the same time, “it reflects what is happening in society: part of Ennahda’s rank and file has changed but so have some of its leaders, even if there remain those within the movement who reject the slightest affront to what they consider to be the Muslim community’s consensus.” And what is certain is that the balance of power is not in Ennahda’s favour, weakened as it has been by the test of governing from 2012 to 2014. Furthermore, the Gulf crisis has weakened Qatar’s backing and whilst America and the West had supported the Islamists in the region early on, they subsequently backtracked a little. The party is keeping a low profile and therefore the only real opposition to the Tunisian president’s reformist proposals for the time being – at least on paper – has come from the official religious establishment. University, mosque and debilitated temple of Tunisian Islamic knowledge, al-Zaytuna has published a communiqué in which it opposes both the repeal of Circular 73 on marriage and reform of the inheritance law. Intervening in the Tunisian national debate, the prestigious Egyptian university of al-Azhar has done the same.


For Mounir Rouis, director of al-Zaytuna’s Higher Institute of Theology, there is no room for doubt or manoeuvre: the sacred texts are quite clear, both on the marriage question and on inheritance. And yet he seems to want to extend a hand to the government: “Al-Zaytuna is not always opposed. It is not opposed for the sake of being opposed, but it wants to be involved in the debates affecting religion: we are ready to send experts. Bourguiba involved the ulama in the drafting of the Personal Status Code.”


Amongst the religious scholars who defended that reform at the time was Fadhel Ben Achour, one of the greatest Islamic thinkers and Tunisian intellectuals. “I am happy to be sitting now at the desk that was his; we will return to those glories,” says professor Rouis, indicating the enormous, solid-wood table cluttered with books and coloured folders. Traditionally, Sunni Islam’s religious institutions follow government, Abdelmajid Charfi recalls. He does not expect Al-Zaytuna to put up any real opposition to the proposed reforms beyond the simple communiqué. Indeed,


“Islam’s history shows that the representatives of official institutions never say ‘No’ to political power: on the contrary, they follow it. Left to themselves, without any intervention from the political powers, these same representatives have conservative positions but they can change them, depending on how the political power is exercised.”


The committee on which Professor Charfi sits also includes figures with a modernist Islamic background but it lacks jurists and religious experts. The Grand Mufti of Tunisia himself (Othman Battikh, who supported Circular 73’s repeal) remains opposed to the proposed inheritance reforms, as does the Minister for Religious Affairs, Mohamed Khalil. And yet, “Islam’s history shows that it is not unusual to adopt new approaches to the text,” explains Mariem Masmoudi, a Tunisian-American activist who is working on constitutional processes for the International Institute for Democracy and Electoral Assistance. “Bourguiba (himself a lawyer) did not do everything single-handedly but worked, rather, with a team that also included religious scholars from the traditional institutions: this fact (which is not being repeated nowadays with Essebsi) allowed him to conquer even the most conservative fringes of public opinion.”



Two Sets of Interests Stand to Gain

Bochra Belhaj Hmida, chairperson of the governmental committee working on the inheritance issue, talks explicitly of battle as she sits mending a blue lace dress in her house in the chic suburb of La Marsa, a few kilometres from Tunis. “In the Arab-Muslim world, it is politics that has put religion at its service, in order to preserve the status quo. When they do not want to touch the Qur’an, it is because they want to preserve the status quo. When they want change, they find the ways to achieve it. I have the right not to choose the most retrograde path, because if one is retrograde about women’s rights, one is retrograde about everything.” A lawyer and one of the earliest feminists, Hmida sees the new challenge as the culmination of years of battles. In her opinion, it is possible to change the law nowadays because women in Tunisia are independent economic actors and heads of families.


Those who defend sharias supremacy in family issues often talk of a request from an elite rather than a demand from the people. If it is true that marriage between a Muslim woman and a non-Muslim man once involved only the richest women (who went to study or work abroad), nowadays, according to Hmida, the majority of these marriages occurs amongst the poorest groups, amongst women who work in small factories with foreign owners and employees or those who have emigrated to Europe. The inheritance question, too, would involve the poorest women, above all, because the question is likely to be resolved by way of a legacy or gift within the richer or more educated strata of society. Hmida considers that the reforms will have a strong impact elsewhere in the region: “What is happening today in Tunisia is strengthening women in other Muslim countries, given that the governments are competing with each other. The expression ‘Tunisian exception’ bothers me: it calls the struggle of other women into question. We Tunisians have an interest in not remaining alone, in not remaining an exception. And we are ever less so.”


Chairperson Bochra Hmida certainly has not escaped criticism for what she is doing. If those opposing Essebsi’s proposals on the inheritance issue are saying (in Islamist quarters, above all) that this is not the right moment to touch topics that are so divisive during a difficult transition period, the criticism coming from the secularist camp and the groups born of the 2011 revolution is that of working with a president smacking of the ancien régime and one who does not have women at heart, but only political profit. A date will soon be chosen for the hitherto deferred local government elections and the ninety-year-old leader would like to stand again in the presidential elections in 2019. The repeal of the marriage circular was announced the day after Parliament approved a bill providing for an amnesty for former officials under Zine El-Abidine Ben Ali’s regime. An indignant part of civil society is accusing the president of aiming at covering over a controversial step backwards with his feminism. Hmida’s response is sharp, “That’s not my problem. As a feminist, I want women to gain in civil standing and civility.  If he gains as president, well, good for him! I certainly won’t let slip the chance to give women more rights.”


Amidst all the political controversies, Islamist doubts and feminist expectations, the only thing that is certain is that the debate will take place in Parliament, putting the means of a still imperfect democracy to the test. However, after detailed argumentation on the reasons for defending the traditional inheritance rules, Meherzia Labidi, Ennahda’s MP, concludes her exegesis thus, “And if, in Parliament, the majority is in favour of equality, well, high time too! But may everything happen through a debate: God won’t let us end up in hell over questions of inheritance.”