Stichproben. Wiener Zeitschrift für kritische Afrikastudien Nr. 12/2007, 7. Jg. The Colonial “Emancipation” of Algerian Women: the Marriage Law of 1959 and the Failure of Legislation on Women’s Rights in the Post-Independence Era Neil MacMaster Abstract The failure of the newly independent Algerian state, after a long war of decolonization in which women played a major role, to introduce progressive reform to women’s legal, and thus social, status is widely recognized. The article explores a neglected aspect of this problematic by showing that binary perceptions of a radical colonial/post-colonial hiatus can be misleading. Through a focus on the reform of marriage and family law, it is shown that both colonial and post-Independence states proved weak and ineffective in the face of the entrenched power of patriarchal family structures and ideology. Algerian post-independence nationalist and feminist discourse tended to be structured in relation to the manichaean opposition between the 130 year regime of colonial violence and repression and the post-colonial liberated order that, it was imagined, would sweep away all the structures of the ancien régime. This included the forms of domination that had affected women, from alienation of land rights and dislocation of family structures to endemic poverty and prostitution. However, French colonialism in its terminal phase was highly ambiguous and Janus-faced since it was simultaneously extremely violent and repressive towards Algerian women (destruction of villages, torture, rape…) and reformist, enunciating a significant body of liberal “emancipation” measures,1 particularly in regard 1 “Emancipation,” which should be read throughout in “scare-quotes,” was the term utilized by the French government and military to refer to reforms that would ensure 92 Stichproben to the reform of the statut personnel, the laws on marriage and the family governing Muslims, in 1959.2 The purpose of this article is to “fracture the binarism” of the colonial/post-colonial categorisation by tracking the legal position of women through the crucial transition over the two decades spanning the period of French domination and the newly independent Algerian regime (c.1954-75). Far from being marked by a radical break in 1962, it is argued that there existed deep continuities between the colonial and post-colonial epochs in the social and ideological structures of Algerian patriarchy,3 and it was this atavism that explains the secretive marginalization by post-Independence governments of a liberal code of rights “inherited” from an alien, secular and western regime, and the simultaneous inability to introduce a new family code until the reactionary law of 1984. As Algeria moved towards independence in 1962 many commentators on the international socialist left were optimistic that the new Republic would liberate Algerian women simultaneously from the fetters of colonialism and “feudal” patriarchy. Frantz Fanon, for example, in L’an V de la révolution algérienne, optimistically forecast the birth of a “new society” and a “radical mutation” in the role of women, gender relations, and traditional family structures (Fanon, 2001[1959]: 10, 14). Although constituting a tiny minority, the women fighters (moudjahidate) who transmitted weapons and bombs in the urban networks or served as nurses in the maquis, had received enormous attention in FLN (Front de Libération Nationale, National Liberation Front) propaganda and the global media as equality of rights between Algerian Muslim women and women in metropolitan France in relation to voting, education, professional training, employment opportunities, health care and welfare rights. Frequently implicit within this was an assimilationist agenda that sought to transform Algerian women into westernized beings that would share all the cultural features of bourgeois French women, in relation to everything from dress style to consumerism and an idealized model of the couple bound by mutual affection. 2 The legal reform of 1959 took place in two stages, first an Ordinance of 4 February provided a succinct summary of the legislation, followed by a decree of 17 September which elaborated how the ordinance was to be implemented. Since the legislation introduced a far-reaching and radical revision of existing law and a large degree of unification of differing customs and schools it approximated to a de facto new code. 3 The term patriarchy is used here to refer to a family structure, reinforced by classic Muslim and customary law, that prioritized male kin-based solidarities and power and subordinated women to agnates and the reproduction of the male descent group. The colonial “emancipation” of Algerian women 93 heroines of the Revolution who challenged stereotypes of Muslim women as passive creatures confined under the severe thumb of Islamic patriarchy (Amrane, 1991, 1994; Whitfield, 1996).4 Algerian women, it would seem, had through both their heroic sacrifice and the demonstration of an ability to act on a par with men, earned recognition of their moral right to full post- independence equality. However, this was not to be. Much of the debate on the failure of the Algerian state in relation to women’s rights, although recognizing the need to examine a complex of factors, from economic change, urbanization and female employment, to access to education, housing, and health care, has centered on the various projects for a new code on marriage and the family (statut personnel). Some feminists have argued that to centre on legal reform and individual rights, is to impose a western model that may obscure, as “declension narratives” claim, the forms of traditional status and community-based power held by Algerian women (Bulbeck, 1998: 16; Lazreg, 1994). However, the modernization of family codes has been one of the key instruments by which independent Muslim nations, since Kemalist Turkey in the 1920s onwards, have through “top-down” intervention attempted to end the subjugation of women, and liberate the potential of half the population to play a full role in economic, social and political development (on the importance of codes of personal status see Anderson 1968, 1971; Moors, 1999). Algeria is no exception and reform of the family code has been the single most crucial issue around which both the Algerian women’s movement and international feminist organizations have, and continue, to campaign (Knauss, 1987; Lazreg, 1994; Bouatta, 1994; Cherifati-Merabtine, 1994; Gadant, 1995; on the international dimension see Shaheed, 1994 on Women Living Under Muslim Laws (WLUML)). Mounira Charrad has, to date, provided the most cogent explanation for the post-independence failure of Algeria to elaborate a family code that would match the needs of a rapidly changing society and bring Muslim women fully into the cité. In a comparative study of state formation in the 4 Most research on Algerian women during the war of independence has tended to centre on the role of the most prominent and educated moudjahidate, but in many ways this numerically small group was atypical of the great majority of women, most of whom were peasants and illiterate. Space does not allow a fuller treatment of the complex differentiations of class and status of Algerian women, but in general I am concerned here with the basic legal rights that applied to all women without distinction. 94 Stichproben three Maghrebi nations, she argues that the very different outcomes in family legislation between the progressive Tunisian code of 1956, the conservative Moroccan code of 1958, and the peculiar “stalled’ situation in Algeria that lasted until 1984, can be explained by the relative ability of central governments to exert political domination over traditional kin or clan-like bases of power that defended the most conservative readings of Maliki law.5 Charrad provides a useful macro-level hypothesis for an understanding of post-independence Algeria: the newly formed state showed deep contradictions in its drive to assert national integration over and against localized or regionalist interests, while simultaneously allowing space for kin or clan-based associations which paralyzed moves to legislate on family law and to assert control over the private domestic sphere (Charrad, 2001: 179-82; for similar analysis in relation to legal reform in Iraq and South Yemen see Hatem, 1999: 73-6). This article seeks to develop this model further, by looking first at how the French regime attempted to tackle the issue of a marriage law in 1959, but in a situation in which domination by a huge army of occupation might have enabled such an agenda to be forced through. Between January 1957 and late 1959 the joint military-civilian regime in Algiers, as part of an “emancipation” strategy, instituted a range of initiatives that were intended to extend legal rights and to “liberate” Muslim women from ignorance and the crushing weight of patriarchal domination, measures that included unveiling campaigns, mobile female medical teams in the rural zones (EMSI), improved access to schooling, youth training, joint European-Muslim women’s circles, extension of the vote, and a new family law (Seferdjeli, 2004, 2005; Sambron, 2002, 2005; MacMaster, forthcoming). The concern here is only with the latter, which was by far the single most important and contentious aspect of reform since it appeared to many Algerians to interfere with the sacred “reserve” area of religion. The Governor General, Robert Lacoste, first ordered the establishment of a legal commission to draft a new family code in April 1957, but it was 5 Marriage and family law in Algeria was based on an enormous regional and even individual variation from customary law among the Kabyle people, to the Ibadite code of the Mzab, and the minority Hanafi school of law, but the Maliki variant of Sunni law was predominant and it was this which was largely applied in the move to create a unified system of law. The colonial “emancipation” of Algerian women 95 only after extensive consultation between Paris and Algiers and several working parties and redrafting processes that a final, brief Ordinance of 4 February 1959 was published by the new Gaullist government (on the 1959 legislation see Roussier, 1960; Borrmans, 1977: 481-93; Pruvost, 2002).6 Space allows only a brief summary, but the crucial elements, which marked a distinct break with the dominant Maliki tradition of law, were as follows: • The practice of child marriage, by which many girls aged as young as 11 or 12 became pregnant, was banned by setting a minimum age for women of 15 years, and for men of 18 years. • The power of parents or guardians to enforce marriage with a partner of their choosing (djebr), by which young women were tied to men that they did not know and who were often much older, was replaced by the free consent of both spouses. • To prevent abuse by kin, the contracting spouses had to appear in person before a state official who would validate birth certificates and other forms of identification or of previous dissolved marriage, assure the freedom of consent, register the marriage and issue a livret de famille. • Repudiation by a simple unilateral decision and verbal pronouncement of the husband, a major cause of family instability and the abandonment of wives and children, was replaced by judicial divorce. Only a judge could dissolve a marriage on the request of either the husband or the wife, and both had to be present in person to curb the standard practice of male kin representing the “interests” of women in court. • The judge adjudicated, in the best interests of the children, who was to have care of them, and decided on the level of family support that should be provided for them and their mother. The Ordinance, for all its brevity, offered a radical change in Muslim family law that was fully on a par with the Tunisian Code of 1956, on which it was closely modeled. The provisions of the Tunisian legislation, almost 6 A first attempt at codification in June 1957 resulted in a complex draft of 143 pages. The Ordinance of 4 February, which was in part based on this, provided an extremely succinct statement of the new law. This brevity undoubtedly reflected the wish of the Gaullist government in Paris to force through a radical revision of the statut personnel as rapidly as possible, in order to impact on the volatile war scenario, and without becoming bogged down in the delay of detailed elaboration by legal experts, a process that took place in a parliamentary commission between February and the decree of 17 September. 96 Stichproben universally accepted today as one of the most progressive of Islamic codes, was almost identical, except for the failure to ban polygamy which the Algerian government viewed as an almost redundant practice, confined to an aged minority of males, that would eventually disappear of its own accord. The generals and administrators who jointly governed Algeria during this period (1957-9) decided to engage in an “emancipation” strategy for a number of, often contradictory, reasons. During 1956-7 the French army was surprised and alarmed by the evidence of the involvement of Algerian women moudjahidate in the nationalist struggle and, fearing that the FLN was about to accelerate this mobilization decided to offer a counter-strategy to win hearts and minds. Secondly, Tunisian President Bourguiba’s family code of 13 August 1956 was followed within days by the creation of a Moroccan legal commission on family law, and this immediately galvanized the French government to do likewise. France, whose position as a colonial power was under strong attack in the UN and before international opinion, could not be seen to be lagging behind its Muslim neighbors in the area of human rights. Moreover, since Muslim states had led the way in reform it was felt that France could now do likewise without being attacked by Algerian nationalists as imposing a western and secular model. Thirdly, the main French strategy for retaining Algérie française, symbolized by the huge economic investment of the 1958 Plan of Constantine, was intended to undercut the roots of rebellion through economic modernization and this developmental approach increasingly recognized the need to transform the position of women through education, political rights, and integration into the labor market. Finally, and most important of all, the psychological warfare bureaux that dominated military thinking between 1957 and 1959, saw emancipation as a means to penetrate the key bastion of Algerian national identity and culture, the private sphere of the Muslim family, and to gather intelligence.7 “Emancipation” was also designed to place the FLN 7 Space does not allow detailed treatment of the primary logic of women’s “emancipation” as a military and counter-insurgency strategy (see MacMaster, forthcoming). Here we are concerned with the reverse side of the coin of such strategies, the liberal reformist measures which confronted the FLN with the dilemma of quite concrete and apparently “progressive” measures such as mass inoculation against disease, expansion of educational provision, and in this instance, for example, full enfranchisement and prevention of forced marriage of pre-pubescent girls. The colonial “emancipation” of Algerian women 97 in an uncomfortable dilemma: either it agreed with the advancement of women’s rights and so acknowledged the progressive role of its enemy, the colonial state, or it opposed reform and revealed reactionary colors. However, despite such arguments, the drawn out discussions that took place within the colonial government over the preparation of the family law between early 1957 and late 1959 revealed major internal divisions inside the French government as well as strong opposition among conservative religious elites (imams, cadis, cheiks) who, as clients of the French, normally supported and benefited from colonial power. These tensions need to be placed within the context of a tacit political compromise that had existed for many decades between the European colonial and the pro-French Algerian elites. The statut personnel served as the key mechanism by which the French legitimated their continuing domination and denied Algerians, with a few exceptions, political rights as French citizens. Muslims, it was claimed, with their attachment to “un-Western”, “barbarian” practices such as polygamy, arranged marriage and repudiation, could not be integrated into French society: but, as a quid-pro- quo colonial government promised to protect Islamic law in the crucial area of marriage and family legislation, a “reserved” area that would be guarded from the incursion of western values and secular French models of society. The European acceptance of Muslim family law as a “no-go-zone” meant that religious leaders, including those in the influential Ulema movement, were given space since the 1930s to elaborate a profoundly conservative position on women’s rights (Merad, 1967; McDougall, 2006: 90- 6). During the 1950s a small minority of educated Algerian évoluées or feminists began to attack the alliance between colonial government and conservative Islamic notables as a “double imperialism,” or as Fadila Ahmed claimed, “we, the women of Algeria, have two gaolers: colonialism… and the apathetic creatures who cling on to customs and traditions inherited not from Islam but from their ignorant fathers. The second gaoler is worse than the first” (Al Manar, 24 July 1953, “Les deux geoliers de la femme”).8 Until 1957 the Algerian government, advised by its own administrators and experts in Islamic law and customs, had hesitated to interfere with the sensitive issue of marriage or family legislation, particularly as there continued to exist, since the great anti-French revolts of 8 This, and subsequent quotations in French have been translated by the author. 98 Stichproben the nineteenth and early twentieth century, a fear of stirring up insurrection guided by “fanatical” jihadists, religious confraternities or pan-Arabic militants. During the Algiers army coup of 13 May 1958 psychological warfare officers secretly orchestrated mass demonstrations during which columns of Algerian women marched into the central Algiers Forum and “spontaneously” unveiled and joined hands with ecstatic European crowds in acts of inter-racial “fraternization.” So successful were the propaganda impacts in the international media that the generals immediately decided to accelerate the emancipation agenda. But when General Salan instructed Villeneuve, Deputy director of political affairs, on 16 June 1958 to revive the first attempt at a family law drafted in 1957 the latter warned this was too “radical,” a tampering with the religious status quo, and a “powerful attack on the Muslim statut personnel.” He noted that earlier reforms, such as the Kabyle law of 1930, had made little impact on behavior because of the backwardness of women. If a new law was to have any influence it needed to be proceeded by “an exceptional campaign of female education” and a prior evolution of the family cell towards a modern conjugal unit.9 Villeneuve had raised a fundamental question that went to the heart of any “emancipation” strategy “from above”: could radical legislation that was in advance of society transform custom and practice, or might it be so far ahead as to generate major opposition and even open revolt? Villeneuve, by emphasizing long-term gradualism, was pronouncing a classic conservative opposition to reform, and at the same time pointing to the real difficulties faced in trying to transform the inertia of embedded patriarchal values and the family structures of Algerian society. De Gaulle, made aware by his advisors of the importance of bringing Muslim opinion on-side, ordered Salan on 15 November 1959 to re-launch the plan for a new code by consulting a commission of European experts in Muslim law, as well as Algerian judges (cadis) and religious leaders. However the commission rejected the government draft proposals in their entirety: in the words of one member, the Muslim dignitary Hamza Boubakeur, the project was based on the code of President Bourguiba, who he regarded as a secularizing despot, and “is absolutely revolutionary in relation to marriage, its consequences and inheritance… it entails a total 9 Centre des archives d’outre-mer (hereafter CAOM) 12CAB207, Note from Villeneuve, sous-directeur des affaires politiques et générales to his directeur, 5 July 1957. The colonial “emancipation” of Algerian women 99 upheaval of Muslim law,” an opinion shared by European legal experts on the panel who were “rather astonished by the brutality with which one overturns such highly venerable institutions.”10 Boubakeur had penned an earlier violent, and misogynous diatribe against legal reform, noting the dangers of an “occidental contamination” of the Algerian family and by forms of secular liberalism that encouraged western women to lead a degenerate and hedonistic life-style, symbolized by the nudity of the beach and cinema screen.11 The resistance of the commission to significant reform was symptomatic of the long-term “pact” between conservative European administrators and Algerian clerics to maintain the status quo on women. Somewhat more unexpected was the opposition to the draft law by the Delegate-General Paul Delouvrier who, although appointed by de Gaulle in December 1958 to replace Salan and reassert the control of civil government and Paris over the generals, seems to have rapidly absorbed the traditional remit of the Algiers administration not to tamper with the volatile issue of Islam. The Delegates’ main concern, as it had been for several prefects when consulted on the initial 1957 draft, was that the new law threatened to generate strong resistance among an intensely religious population that viewed existing family laws as sacred. Reform would then, he claimed in a letter to the Prime Minister, serve as the “hobby-horse of FLN propaganda...the accusation of ‘de-islamization’ “ will be brought against France engaged in a “new Crusade against the crescent.”12 The answer of the Gaullist government, bent on a rapid modernization of Algeria after the announcement of the Constantine Plan in October 1958, was simply to over- ride the commission and to impose the Ordinance of 4 February 1959, drafted in Paris, on a rather angry Delouvrier. The predictions of mass resistance proved to be well founded, but this did not take shape as a distinctive armed revolt, already a monopoly of the FLN, but a more silent passive resistance or refusal by Algerian society to abide by the new legislation. This is where it becomes important to move 10 Minutes of the Commission d’Étude de la situation de la Femme Musulmane, 5 December 1958. 11 CAOM 14CAB233, Report of Professor Hamza Boubakeur, Projet de Réforme du Statut Personnel de la Femme Musulmane et de la Femme Kabyle en Algérie, 27.pp, nd. 12 CAOM 14CAB9* (under derogation), Delouvrier, Délégué Général, to Prime Minister, 18 July 1959. 100 Stichproben beyond legislative texts, which some historians frequently and uncritically assume to achieve their objectives by the simple fact of promulgation, to assess the degree to which texts, mediated by policing agencies, courts and social practices, translated into a host of variable outcomes (see Moors, 1999: 142-3). The rural interior (bled), in which most of the Algerian population was located, had for over a century been what the colonial government euphemistically called “under-administered,” largely abandoned and without roads, electricity, schools, investment and basic infrastructure. Despite the attempts of the army to rectify this situation, local government during the war became even more tenuous as both European and Muslim municipal councilors fled FLN assassination. One sign that colonial Algeria constituted a “weak” or failing state in the bled was the failure since the law of 23 March 1882 to establish the état-civil, the allocation of an identifying patronymic to each individual, and a universal register of births, marriage, divorce and death. Populations in the mountain or desert areas had long avoided registration, viewed by them as a key bureaucratic mechanism by which the modern state imposed its authority, including taxation, conscription and other burdens. The chaos of the war, during which over two million peasants were uprooted while hundreds of thousands joined the FLN or engaged in labour migration to coastal cities and France, made administrative control even more difficult. The government estimated that the number of “lost” (omis), those who had never been registered and had no existence for the state, increased from 100,000 in 1913 to 230,000 in 1959.13 In late 1960 the Algiers government, investigating how the courts were implementing the new family legislation, was shocked to find the extent to which the population simply avoided the law, such as the requirement for young spouses to appear in person before an official to register marriage or for cases of repudiation to be referred to a court. But even when this was the case, the absence of an état-civil record often made it impossible to verify if couples were under-aged, or if a man was already married. The Prefect of Oran summarized the situation in late 1961: The reform of the status of women is less and less talked about since it has become normal to avoid it. The decree of 17 September 1959 [which implemented the Ordinance of 4 13 CAOM 81F1223, A. Jacomet, Sécrétaire Général du Gouvernement to Secrétariat Général pour les Affaires Algériennes, Paris, 11 April 1959.