C Explanatory memorandum by Ms Gafarova,
rapporteur for opinion
1 General comments
1. I wish to congratulate Mr Klich on his comprehensive
report, based on several visits and extensive consultations with
the Moroccan representatives both from the governmental and parliamentary
side, which is consistent with the idea of co-operation underlying
the “partnership” status, as well as with representatives of civil
society. I welcome the rapporteur’s call for additional information
and comments on my part as concerns balanced participation of women
and men in public life and politics. I will endeavour to complement
the report also in respect of other matters covered by
Resolution 1818 (2011), defining the scope of parliamentary co-operation with
Morocco, which are relevant to the mandate of the Committee on Equality
and Non-Discrimination, namely discrimination on grounds of sexual
orientation and gender identity as well as racism and xenophobia.
2. Over the past few years, the Committee on Equality and Non-Discrimination
has followed relevant developments thanks to the active participation
and valuable contribution of the Moroccan delegation in the work
of the committee itself and of the Parliamentary Network Women Free
from Violence. At the same time, members of the committee have taken
part in several activities in Morocco, including a seminar on the
role of the opposition in parliamentary democracy held in Rabat
on 19 June 2014. In addition, the report on women’s rights and prospects
for Euro-Mediterranean co-operation, prepared by Ms Fatiha Saïdi
for this committee, devoted a great deal of attention to the situation
in Morocco. The relevant adopted texts are
Resolution 2012 (2014) and
Recommendation
2053 (2014).
Note
3. In 2013, on the occasion of the previous evaluation of the
partnership for democracy in respect of the Parliament of Morocco,
the Committee on Equality and Non-Discrimination highlighted that
positive developments had taken place in legislation and policies,
notably concerning equal opportunities for women and men in political
and public life and increased awareness among the authorities and
the general public on issues including gender-based violence and
trafficking in human beings. In the last two years, the acquis in matters
of political representation remains strong and gender parity continues
to be part of the political debate, but the attitude of the authorities
seems to have changed. The authority on gender equality and the
fight against discrimination, envisaged in Article 19 of the Constitution
of 2011, for instance, has not been set up and the process which
should lead to its establishment has been a political stop-and-go.
2 Women’s rights
2.1 Gender equality in the Moroccan Constitution
4. Article 19 of the Constitution of 2011 enshrines
the principle of gender equality and gives the Moroccan State the
ambitious task of creating parity between women and men. It also
provides for the establishment of an authority for parity and the
fight against all forms of discrimination.
5. Since the Constitution was adopted, the setting up of the
authority has been considered a top priority by all those committed
to gender equality, particularly at civil society level, and the
Parliamentary Assembly also stated that the authority should be
set up “as a matter of urgency” and endowed with “sufficient human
and financial resources”.
Note However, the process
leading to the setting up of the authority has not been prompt.
The relevant draft bill was approved by the government only in March
2015 and still has to be discussed in parliament. The draft has
raised criticism both from politicians from the opposition and representatives
of civil society,
Note as it designs a weak authority, not
able to act on its own initiative and with purely consultative functions.
The very composition of the authority, which according to the draft
bill should include a number of government representatives, would
hinder its independence.
6. Once again, legislators have an opportunity to take the lead
and improve the draft bill they will debate. In carrying out this
important task, they should take into account the indications coming
from women’s organisations of civil society. Even in this respect,
the National Human Rights Council has provided sensible recommendations
as far back as 2011, by means of a comparative study on the experience
of equality bodies in various countries, particularly of Europe
and America.
7. As concerns international obligations on women’s rights, I
mentioned in the opinion of 2013 that Morocco had not yet signed
and ratified the Optional Protocol to the Convention on the Elimination
of all Forms of Discrimination Against Women (CEDAW), which recognises
the competence of the Committee on the Elimination of Discrimination
against Women to receive complaints from individuals or groups.
Unfortunately there are no positive developments to mention in this
respect. The Assembly’s recommendation to this end, contained in
Resolution 1873 (2012), has not yet been followed.
2.2 Political representation of women
8. Thanks to a quota system using women’s lists to cover
60 seats reserved for women, the current composition of the House
of Representatives, the lower chamber of the Parliament of Morocco,
has 67 female members out of 395. Seven of them were elected through
the general lists. While this is an encouraging result and marks
a positive trend (female parliamentarians almost doubled as compared
with the previous legislature), I hope that future developments
will show further improvement. Women should in fact be represented
at the different stages of political activity, particularly within
political parties, rather than simply being recruited to form special
lists.
9. There has been a slight improvement as concerns women’s representation
in the government. Mr Abdelilah Benkirane’s first cabinet had been
widely criticised for featuring only one female member, namely Ms Bassima
Hakkaoui, Minister of Solidarity, Women, Family and Social Development.
In its current composition, the government has 5 female members
out of 38, including 2 ministers (Ms Hakkaoui and Ms Fatema Marouane,
Minister of Handicrafts and Social Economy) out of 25, and 3 female
ministers delegates out of 13. These figures are low and not particularly
encouraging, and they certainly leave room for improvement. While
gender equality is not merely a matter of numbers, a more proportionate
representation of women in the composition of the cabinet is nevertheless
necessary for Morocco to abide with Article 19 of its Constitution.
10. The situation may evolve in the near future, as local elections,
originally scheduled for June 2015, are now foreseen in September
2015. They will take place under new legislation which is currently
under discussion at the Moroccan Parliament. I hope that our Moroccan
colleagues will seize this opportunity to implement the principle
of parity. In March 2015, Morocco’s National Human Rights Council
made an important contribution to the public debate on electoral
law by publishing a memorandum including “forty-five recommendations
for more inclusive elections”. This text proposes amendments and
measures to contribute to achieving the constitutional goal of parity
between men and women, but also greater participation of young people
and persons with disabilities in the political process.
11. Increasing women’s representation at the level of local authorities
would provide the double benefit of increasing the legitimacy and
representativeness of local governing bodies, and of introducing
a new generation of women in the political arena. Political activity
within local and regional authorities often represents a step in
a political career which may later lead to higher mandates at national
level.
2.3 Family law and the issues of inheritance and polygamy
12. The Moudawana or
Family code, adopted in 2004, marked a turning point and was greeted
as substantial progress for women. However, the gap between this
text and its actual implementation has hindered to a great extent
its innovation potential. Limitations to women’s access to justice
and the lack of uniform application of the regulations in the country,
with differences in particular between urban and rural areas, has
considerably weakened the impact of this code.
13. Training the judiciary and the legal professions can play
a positive role and contribute to improving women’s access to justice.
I welcome the co-operation between the European Commission for the
Efficiency of Justice (CEPEJ) and Morocco, which has had observer
status with this body for two years. Recent co-operation activities
include the visit of a delegation of experts of CEPEJ to Morocco
from 21 to 24 April 2015, a meeting between the Moroccan Minister
of Justice and Liberties, Mustapha Ramid, and representatives of CEPEJ
as well as the Directorate General of Programmes of the Council
of Europe, on 12 May 2015 in Rabat, and the participation of a delegation
of the Ministry of Justice and Liberties in a workshop on “Improving
day-to-day justice” organised by CEPEJ and the Tunisian Ministry
of Justice in Monastir (Tunisia) on 1 and 2 June 2015.
14. Besides incorrect or inconsistent application of the Family
law and other relevant pieces of legislation, some shortcomings
are to be found in the provisions themselves, notably as concerns
the regulations on inheritance. In this respect, the Family Code
has not reformed precedent provisions based on religious jurisprudence,
stating that male relatives are entitled to double the share of
women. Discrimination of women could not be more evident. I believe
that it is time for Morocco to initiate a debate on the reform of
inheritance law, to bring it into line with the general principle
of gender equality now underlying the country’s legal system.
15. Although polygamy may be seen as a politically delicate issue
in Morocco, I cannot but reiterate what has been said on this subject
by several rapporteurs of the Committee on Equality and Non Discrimination, such
as Ms Nursuna Memecan and Ms Fatiha Saïdi, and what I myself wrote
in my previous opinion on co-operation with Morocco. As I recalled
in that text, the Committee on the Elimination of All Forms of Discrimination
Against Women made it clear that “[p]olygamous marriage contravenes
a woman's right to equality with men, and can have such serious
emotional and financial consequences for her and her dependents
that such marriages ought to be discouraged and prohibited”. Both
the principle of gender equality and material considerations should
lead to reforming family law and banning polygamy.
16. There has been no positive development in this respect. In
spite of the Assembly’s calls, no political debate has been initiated
on the abolition of polygamous marriage, and the government does
not show a will to take steps in this direction. I wish to underline
that a number of countries with a majority of Muslim population have
successfully abolished polygamy. These include Tunisia, a country
from the same region which shares a great deal of cultural features
with Morocco, as well as Turkey and my own country Azerbaijan.
2.4 Violence against women
17. Violence against women is widespread in all countries
and Morocco is no exception to this rule. In 2006, a network of
10 Moroccan non-governmental organisations committed to fighting
violence against women established an Observatory on violence against
women. The observatory’s sixth report, presented in January 2015,
shows an increase of this phenomenon, probably linked to increased
awareness and visibility.
18. I am pleased to mention that the infamous Article 475 of the
Criminal Code, which allowed for the rapist who married the victim
to avoid criminal prosecution, was abolished as recommended by the
Assembly, vocally requested by civil society and promised by Minister
Hakkaoui.
19. While this was a step in the right direction, much work remains
to be done to provide the country with a comprehensive set of laws
to prevent violence, protect victims and prosecute perpetrators.
A draft bill on fighting violence against women was prepared by
Minister Hakkaoui in co-operation with the Ministry of Justice and
Liberties in 2013 but its discussion by the government was postponed.
A new version was expected to be presented in October 2014. Further
to divided opinion within the government, important parts of the
draft, in particular those concerning marital rape and theft between
spouses, were deleted.
20. I can only recommend that Morocco rapidly adopt effective
and comprehensive legislation to prevent and combat violence against
women. Violence against women is a severe violation of women’s rights
and hinders their enjoyment of any other right. Tackling gender-based
violence should therefore represent the top priority of any State
committed to implementing gender equality. The Council of Europe
Convention on Preventing and Combating Violence against Women and
Domestic Violence (CETS No. 210), referred to as “the golden standard”
in this field, should be used as a source of inspiration and a benchmark
by Moroccan legislators.
3 Discrimination on the grounds of sexual orientation
and gender identity
21. In the opinion adopted by the Committee on Equality
and Non-Discrimination in 2013, I underlined that lesbian, gay,
bisexual and transgender (LGBT) people face discrimination in several
respects, including access to education, health care and work, and
that discrimination was largely undetected and systematically unreported.
22. The criminalisation of homosexual acts under Article 489 of
the Criminal Code, providing for harsh sentences of six months’
to three years’ imprisonment and fines of 200 to 1 000 Moroccan
dirhams, is at variance with human rights standards and with Article
24 of the Moroccan Constitution (enshrining the right to private
life) as it represents a violation of the right to privacy and to
dignity. In addition, it contributes to perpetuating prejudice and
may be perceived as a justification for other forms of discrimination
against LGBT people.
23. In recent years, an increasing number of convictions have
been made public by human rights organisations, making these human
rights violations more visible. The international website Erasing
76 Crimes estimated in August 2014 that eight people were in prison
in Morocco for acts of “deviancy” (homosexual acts) and that “dozens
more” had reportedly been arrested and tried. More recent cases
include that of two men arrested and convicted in December 2014
in Al Hoceima, and three men arrested on 16 May 2015 in Taourirt, one
of them simply for having arranged for the other two to meet. Disturbingly,
in this case the sentences were three years’ imprisonment.
Note
24. This situation is not acceptable in a country which committed
itself to respecting human rights and is actively co-operating with
the Council of Europe to this end. I can only reiterate the call
on the Moroccan authorities to repeal Article 489 of the Criminal
Code as a matter of urgency.
4 Fighting racism and xenophobia
25. For a long time a country of origin of migration,
Morocco is now also one of transit and even of destination. Large
numbers of people from Sub-Saharan Africa travel through Morocco
on their journey towards Europe and, given the increasing difficulties
of reaching their final destination, they often find themselves
forced to extend their stay, often in clandestinity. In addition,
a growing number of foreigners from the same countries, but also
from Asia, migrate to Morocco for reasons of work or business, or
enrol in local universities.
26. Morocco is strengthening its ties with Sub-Saharan countries,
particularly in the central and western part of the continent, and
“South-South co-operation” is an important axis of its international
relations. While the Moroccan authorities invest in political and
economic co-operation with the region, it is crucial that they pay adequate
attention to the problem of racism, in particular against black
foreigners, which has become endemic.
27. In September 2013, the Moroccan Government launched a programme
of regularisation of undocumented foreigners. About two thirds of
27 000 applicants received a one-year residence card which, according
to the national authorities, should be automatically renewed upon
expiration. This programme was a step in the right direction as
it helped thousands of people from over 100 different countries
to resurface from illegality and made them less exposed to abuses
from the police and criminality. However, the end of the “special
programme” suddenly announced in February 2015 seemed to mark a
change of attitude of the authorities and left a number of applicants
in a legal limbo.
Note In addition, this announcement
was immediately followed by the mass arrest of over 1 200 foreigners
in northern Morocco, denounced as arbitrary, abusive and illegal
by organisations like the Euro-Mediterranean Human Rights Network
(EMHRN) and the International Federation for Human Rights (FIDH).
28. Two years ago, we recommended that programmes to combat racism
and xenophobia be developed, based on three elements: awareness-raising
for the general public; training of law-enforcement officials, particularly
immigration officials, border guards and judges; and information
on relevant legislation and legal remedies, targeting both concerned
groups and lawyers.
29. Some positive developments can be noted in respect of the
first of those elements. On 21 March 2014, on the occasion of the
International Day for the Elimination of Racial Discrimination,
the first national campaign to fight racial prejudice and discrimination
was launched in Morocco. “My name is not Azzi”, from the derogative word
often used to address black people, aimed to convey the message
that racism existed in Morocco, albeit denied and often unconscious,
and that it needed to stop. The campaign can be considered successful,
as it sparked a heated debate which certainly contributed to raising
awareness on the issue of racism. Much work remains to be done,
as racism and discrimination are rife, both in society and, according
to some commentators, within the institutions.
Note
