C Explanatory memorandum by Ms Gafarova,
rapporteur for opinion
1 General comments
1. I wish to congratulate Mr Volontè on his comprehensive
report, which reviews the state of progress achieved in implementing
the political commitments undertaken by the Parliament of Morocco
in the framework of its request for the status of partner for democracy.
2. In the present opinion I will complement the information and
analysis provided by Mr Volontè as regards both the balanced representation
of women and men in public life and politics (which is one of the
political commitments laid down in the request for partner for democracy
status by the Moroccan Parliament) and “a number of specific measures
[which are] essential to strengthen democracy, the rule of law and
respect for human rights and fundamental freedoms”, as listed in
Resolution 1818 (2011), by which the Assembly granted partner for democracy
status to the Moroccan Parliament. I will also refer to some recommendations
included in Assembly
Resolution
1873 (2012) on equality between women and men: a condition for the
success of the Arab Spring.
3. Before starting my analysis, I would like to commend the Moroccan
authorities for the constructive spirit of co-operation and dialogue
which has characterised relations with the Parliamentary Assembly
and the Council of Europe in recent years, in the area of equality.
I would like to mention the participation of Bassima Hakkaoui, Minister
of Solidarity, Women, Family and Social Development, in the Assembly
debate on the report of the Committee on Equality and Non-Discrimination
on “Equality between women and men: a condition for the success
of the Arab Spring” (April 2012). Other activities include the active
participation of the members of the Moroccan delegation in the activities
of the committee and the Parliamentary Network “Women Free from Violence”
and the organisation of events and conferences on the situation
of women in co-operation with the European Centre for Global Interdependence
and Solidarity (North-South Centre) and other Council of Europe structures.
I trust that the content of this opinion will be considered as constructive
suggestions for future work, in the context of a dialogue which
I hope will grow deeper.
2 “Ensuring equal opportunities for women and men
in political and public life” (political commitment undertaken by
the Moroccan Parliament; sub-paragraph 8.6 of Resolution 1818 (2011))
4. The electoral legislation currently in force in Morocco
made it possible to achieve significant progress in women’s political
representation in parliament. As Mr Volontè recalls, 67 of the 395
members of the House of Representatives (lower chamber of the Moroccan
Parliament) are women. This represents an increase of 34 women compared
to the previous legislature.
5. These figures are largely the result of a quota system reserving
60 seats for women, with seven more women having been elected from
the general lists. I hope that this additional share will grow in
the future, reflecting the significant role that women have acquired
over the last decades in all areas of Moroccan public life. Political
parties should play a greater role in this process, ensuring more
balanced participation of women in their activities at all levels
and introducing gender-sensitive mechanisms for the selection of
candidates. The recommendations formulated by the Assembly in its
Resolution 1898 (2012) on political parties and women’s political representation
are fully relevant for Moroccan political parties.
6. As Mr Volontè notes, today only one woman sits in the Moroccan
Government. As the presence of seven women in the previous government
shows, the country is culturally and politically ready for a more gender
balanced cabinet. I trust that the gradual enforcement of the new
constitution through the adoption of the organic laws, particularly
as regards the implementation of article 19 on the principle of
gender equality, will have an impact also on Morocco’s political
life. If the State “works to put gender equality into practice”,
as the constitution stipulates, future governments will necessarily
have a more gender-balanced configuration.
3 “Fighting all forms of discrimination (in law
and in practice) based on gender … Fighting all forms of gender-based
violence; actively promoting equal opportunities for women and men”
(sub-paragraph 8.20 of Resolution 1818 (2011))
3.1 Discrimination against women
7. The principle of gender equality is embedded in the
2011 Constitution. Its Article 19 reads: “Men and women should enjoy
equal rights and freedoms in all civil, political, economic, social,
cultural and environmental matters set forth by this title and by
other provisions of the Constitution, as well as in the conventions
and international pacts duly ratified by the Kingdom and this, in
respect of the provisions of the Constitution, the constant features
and the laws of the Kingdom. The Moroccan State aims to create parity between
men and women. For this purpose, an Authority for parity and fight
against all forms of discrimination is established.”
8. I would like to reiterate the recommendation already made
by the Assembly in its
Resolution
1873 (2012) on equality between women and men: a condition for the
success of the Arab Spring, that the Moroccan authorities should
“set up, as a matter of urgency, the authority for parity and the
fight against all forms of discrimination foreseen in Article 19
of the constitution, and endow it with sufficient human and financial resources”.
9. Since the Parliament of Morocco was granted the status of
partner for democracy, an important, positive development has occurred
as regards the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW): in April 2011, Morocco withdrew its reservations
to Articles 9.2 (equal rights with regard to nationality) and 16
(equality in marriage and family life). Currently, Morocco maintains
a reservation to Article 29.1 – on the obligation to submit to arbitration
on the interpretation or the application of the Convention – and a
declaration to Article 2 on the obligation to pursue a policy on
eliminating discrimination against women by all appropriate means
and without delay, stating that the Government of Morocco is ready
to apply the provisions of the article as long as these do not conflict
with Islamic law.
10. I hope that in the near future Morocco will also sign and
ratify the Optional Protocol to the CEDAW, which recognises the
competence of the Committee on the Elimination of Discrimination
against Women to receive complaints from individuals or groups,
as recommended in
Resolution
1873 (2012).
3.2 Violence against women
11. In Morocco, awareness is increasing on the prevalence
of violence against women, a violation of human rights and a major
obstacle on the path towards gender equality which is widespread
and often underestimated. Political will to eradicate this scourge
exists and is shared across the political spectrum. This should
help take the necessary steps, which include changes in legislation
and new policies.
12. One main priority should be revising the 1962 Penal Code,
which is exceedingly outdated: it places emphasis on the “honour”
and “respectability” of women and their families, while neglecting
the need to protect victims. To give an example, rape – which is
not gender neutral but consists of “a man having sexual relations with
a woman against her will” – is considered as a “decency offence”;
the severity of the punishment for rape varies according to the
victim’s marital status; sentences are harsher if the victim loses
her virginity.
Note
13. The case of Amina Filali, a 16-year-old girl who committed
suicide after being forced to marry her rapist, sparked outrage
in Morocco’s public opinion. Article 475 of the Penal Code on the
abduction of a minor allows for a rapist who marries the victim
to avoid criminal prosecution.
Note This is not only unjust but imposes
a double violence on the victim.
14. Many voices in Morocco demand that this provision be repealed.
The Assembly joined these voices just a few weeks after Amina’s
dramatic gesture: in its
Resolution
1873 (2012) on equality between women and men: a condition for the
success of the Arab Spring, it asked Morocco (and Tunisia): to repeal
‘the legal provision which enables the rapist of a minor to avoid
criminal prosecution if he marries the victim’.
15. I am pleased to hear from various sources that the government
has declared its intention to amend the Penal Code, in particular
Article 475.
Note I also welcome the decision expressed
by Minister Hakkaoui to declare 2013 the year to combat violence
against women
Note and to submit to parliament a specific
bill on violence against women. I hope that the Moroccan authorities
will decide to make use of the Council of Europe expertise in this area
by seeking advice on the draft, also to ensure that it is fully
in line with Council of Europe standards. In this context, I totally
support the appeal to the Moroccan authorities to consider accession
to the Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (Istanbul Convention,
CETS No. 210), which offers the most advanced and far-reaching set
of provisions in this field and is open to non-member states.
3.3 Trafficking in human beings
16. Trafficking in human beings is a human rights violation
which affects women disproportionately. Morocco is a country of
origin, destination and transit for victims of trafficking. A large
number of trafficked persons transit through Morocco on their way
to Europe. These include women, children and men, mostly trafficked
for purposes of forced labour and sexual exploitation. Moroccan
women are forced into prostitution in Gulf States, Jordan, Libya
and Syria, as well as in European countries, while men are reportedly
promised regular jobs in the Gulf but then face confiscation of
their passports and forced labour upon arrival.
17. Countering transnational trafficking requires intense international
criminal co-operation. Morocco is co-operating on this matter with
various counterparts, particularly European organisations: for instance
the Euromed Police III programme, funded by the European Union,
comprises training activities for police forces in several areas
including trafficking in human beings.
18. Internal trafficking is also rife in Morocco. Involuntary
servitude of young girls from rural areas (the so-called
petites bonnes, “little maids”)
is a widespread phenomenon. These girls, as young as 13, often face
non-payment, physical, psychological and sexual abuse and sometimes
restrictions on movement. A Human Rights Watch report published
in November 2012 states that child domestic workers – mostly girls
– work for 12 hours a day, seven days a week, for as little as US$11
a month.
Note They are sometimes denied adequate
food. In extreme cases, they are victims of severe mistreatments
and are even murdered. The press regularly reports on similar episodes.
In March 2013, the death of a 13-year-old girl in Agadir shocked
the public opinion once again and gave rise to questioning of the
Minister of Justice by parliament.
Note
19. In May 2013, the Moroccan Government presented a draft bill
on household work confirming the strict prohibition of employing
minors under 15. This law has been criticised by Moroccan human
rights organisations: the Moroccan Organisation for Human Rights
(OMDH) found in particular that the law should provide harsher sanctions
and a control mechanism: lacking which, the current text is weak
and ineffective.
Note On the other hand, the law has innovative
provisions as concerns foreign workers, providing for the first
time an obligation to register them at the Ministry of Employment.
This should help tackle trafficking for forced labour and other
forms of abuse that numerous women, particularly from Sub-Saharan
African countries and Asia, currently face in Morocco.
20. Effectively tackling human trafficking requires strong and
structured co-operation. For this reason, I strongly support the
draft resolution’s call on the Moroccan authorities to consider
accession to the Council of Europe Convention on Action against
Trafficking in Human Beings (CETS No. 197). This convention offers
an effective, far-reaching framework for action and co-operation
and several non-Council of Europe member States have signed and
ratified it.
3.4 Discrimination on the grounds of sexual orientation
and gender identity
21. In Morocco, lesbian, gay, bisexual and transgender
(LGBT) people face discrimination in access to education, healthcare
and work.
Note Discrimination is, however, largely
undetected and systematically unreported, also because homosexuality
is criminally sanctioned.
22. Same-sex consensual acts are criminalised under Article 489
of the Moroccan Penal Code of 1962, stating that any person who
“commits a lewd or unnatural act” with an individual of the same
sex may be sentenced to between six months and three years’ imprisonment
and fined 200 to 1 000 Moroccan dirhams. While these provisions
were infrequently enforced in the past, recently there have been
a number of convictions. Four people were prosecuted in May 2013,
including two men from Souk el-Arbaa, not far from Rabat, who were
sentenced to three years’ imprisonment.
Note
23. These sentences and the provisions in the Penal Code on which
they are based are in breach of the principle of non-discrimination,
as well as of human rights including the right to privacy and to
dignity. While it may take time to promote a change of mindset and
achieve tolerance and respect for LGBT people, criminalisation of
homosexuality should be repealed as a matter of urgency.
4 “Ensuring that the Family Code is fully implemented
while initiating a public and political debate with a view to reviewing
the provisions which are at variance with international human rights
standards, including on the issue of polygamy” (sub-paragraph 8.21
of Resolution 1818 (2011))
24. Almost ten years after the adoption of a new Moudawana or Family Code, there
is still room for improvement in Moroccan family law and its implementation.
The remarks made by my predecessor, Ms Nursuna Memecan, rapporteur
for opinion for the Committee on Equal Opportunities for Women and
Men on the request for Partner for Democracy status with the Parliamentary
Assembly submitted by the Parliament of Morocco, still apply. As
she noted two years ago, the gap between the law and its implementation
is wide.
25. As pointed out by the United Nations Committee on Racial Discrimination
(CERD), a particular problem is that the Family Code is not applied
in a uniform manner throughout the country, with vulnerable segments of
the population, such as women and children living in remote areas,
suffering double or multiple discrimination.
26. Training activities for staff within the judiciary and the
legal professions, carried out by the authorities also in co-operation
with the civil society and international partners, should continue.
A wide range of actors, including non-governmental organisations,
have set up activities to raise awareness among women and educate
them on their rights under the law. Improving women’s access to
justice is crucial and should represent a top priority in this area.
27. In this context, it should be welcomed that, in May 2013,
the Committee of Ministers of the Council of Europe accepted Morocco’s
request for observer status at the European Commission for the Efficiency
of Justice (CEPEJ). CEPEJ has already been working closely with
the Moroccan authorities for over a year to help evaluate how the
country’s legal system works and to provide guidance on reform.
This forms part of a wider Council of Europe programme – together
with the European Union – to help strengthen the independence and
efficiency of legal systems in Morocco and Tunisia. I hope that
it will have a positive impact on women’s access to justice and
the implementation of the Family Code.
28. In her opinion on the request for Partner for Democracy status
with the Parliamentary Assembly submitted by the Parliament of Morocco,
Ms Nursuna Memecan had already pointed out that, although the Moroccan
authorities have restricted the conditions to contract polygamy
marriages so as to strongly discourage them, polygamy is lawful
in Morocco. Since the adoption of Assembly
Resolution 1818 (2011), there has been no change as regards the legal provisions
on polygamy. In addition, no public debate on its possible prohibition
has been initiated, contrary to the recommendations of the Assembly
in
Resolution 1818 (2011) and
Resolution
1873 (2012).
29. I would like to recall that, according to the Committee on
the Elimination of all forms of discrimination against women, “Polygamous
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.
The Committee notes with concern that some States Parties, whose
constitutions guarantee equal rights, permit polygamous marriage
in accordance with personal or customary law. This violates the
constitutional rights of women, and breaches the provisions of article
5.
a of the Convention”.
Note
5 “Fighting racism, xenophobia and other forms of
discrimination” (sub-paragraph 8.16 of Resolution 1818 (2011))
30. A growing number of foreigners, particularly from
Sub-Saharan countries, migrate to Morocco for reasons of work or
to study. While the country’s economic development creates jobs
appealing to foreign migrants, its co-operation programmes and inter-African
international relations attract numerous students, particularly
from the western and central parts of the continent.
31. Migrants and students from Sub-Saharan Africa face prejudice
and discrimination. Traditional stereotypes, dating back from the
times of slavery, are mixed with new fears of foreigners “stealing”
jobs from Moroccans. Modern stereotypes related to the prevalence
of AIDS, political instability and criminality in Sub-Saharan countries
complete the picture.
32. Although racism, especially against black, non-Muslim foreigners,
has been reported by the Moroccan media for years,
Note and has been pointed out by the
United Nations Committee on Racial Discrimination (CERD)
Note and
Moroccan non-governmental organisations, it remains a taboo in a
country where hospitality is an important value. Due to underreporting
and limited access to justice for the groups concerned, cases of racial
discrimination and racism hardly ever make it to court.
Note
33. The Moroccans authorities should develop programmes to combat
racism and xenophobia, based on three elements: awareness-raising
for the general public, conveying the message that no discrimination
can be accepted based on any ground, including racial discrimination;
training of law enforcement officials, particularly those who are
in charge of dealing with immigration, as well as border guards
and judges; information on relevant legislation and the availability
of legal remedies, addressed to concerned groups and lawyers.
34. I would also like to make a brief reference to the situation
of people who are in need of international protection and migrants
who transit through Morocco on their way to other destinations.
The challenges faced by Morocco in this area have been the subject
of an in-depth exchange of views between the Moroccan Parliament
and the Committee on Refugees, Migrants and Displaced Persons (Rabat,
5 April 2013).
Note
