WUNRN
Mali - New Family Code Law - Revision Delay
20/04/2011
The Personal Status and Family Code of
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
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 FamilyCode 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 FamilyCode
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
FamilyCode 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 )