15 - 21 November 2001
Issue No.560
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Al-Ahram Weekly Online 15 - 21 November 2001 Issue No.560 |
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Irreconcilable differences
Efforts to even out gender inequalities are encountering fierce opposition from countries crying foul on grounds ranging from unconstitutionality to cultural incompatibility. Reem Leila reports
Since the late 1990s, government and non-governmental bodies alike have begun to recognise two important points: the international human rights movement has benefited men more than women; and women's rights constitute an essential component of development. In the belief that all African governments and NGOs can be encouraged to bring about equality for women, from 12 to 16 November, a conference will be held in Ethiopia to discuss and ratify the African Charter on Women's Rights. The Charter's 27 substantive articles outline signatories' obligation to pursue equality in education, health care, employment, family life, and participation in public and political life.
photo: Khaled Goweily
The charter is more radical than most of its predecessors, since it seems to have bypassed one stumbling block that has proven intractable in the past: it calls upon all African governments to work towards transforming not only law but also culture to achieve gender equality. It proceeds from the assumption that all practices that harm women, no matter how deeply they are imbedded in culture, must be eradicated. It provides a framework for change, supplying guidelines for ending practices that harm women under the guise of social conformity, economic necessity, or cultural preservation.
As such, the charter may encounter more vehement resistance to implementation on the part of signatories -- even moderate governments that wish to improve their record of women's treatment. According to Ambassador Ahmed Fathallah, assistant to the minister of foreign affairs for international treaties and legal affairs, Egypt has submitted many reservations to the African Charter, perhaps more than to any other major human rights treaty. Most of these reservations concern areas of fundamental importance to the achievement of women's equality, such as family law and Shari'a. A few others are related to the constitution.
The legislative committee of the National Council for Women (NCW), along with the Ministry of Foreign Affairs, have examined the charter to determine its compatibility with national legislation. The points to which Egypt objects include article 7, which sets a minimum marriage age of 18 for men and women alike; prohibits polygamy; requires that every marriage be recorded where possible in writing, and registered in accordance with national laws to be legally recognised; grants men and women the same rights and responsibilities towards their children; allows married women to keep their maiden names; and allows the children of a married couple to use their mother's maiden name either separately from or jointly with their father's.
According to Fawziya Abdel-Sattar, professor of law and chairwoman of the NCW's legislative committee, the Egyptian constitution sets the minimum age for marriage at 16 for women and 18 for men. She contends that it is impossible for Egyptian society to raise the required age of marriage to 18 for the girls. "Egypt is largely rural, and people in such areas tend to marry off girls even younger than 16. How can we raise the minimum age to 18?" she demands in exasperation.
Personal status laws, however, diverge widely among Arab countries, some of which prohibit polygamy entirely. Countries that take the Shari'a as a or the main source of legislation cannot prohibit men from marrying more than one woman. Still, within this general guideline, certain points are subject to intense controversy. According to Zeinab Radwan, dean of the Cairo University's Dar Al-Ulum (Fayoum Branch) and member of the official Egyptian delegation to Ethiopia, Islamic law allows polygamy only under certain conditions: "A man's first wife could be barren, or seriously ill; he may love her yet want to have children. In other cases, it is possible to imagine that a woman has no money and no place to go to if her husband divorces her," argues Radwan.
The Egyptian delegation must also oppose the clause requiring the registration of marriage contracts, since Shari'a does not require that such contracts be registered in writing with a public notary; on the other hand, it does require the presence of two reliable witnesses and the public declaration of the marriage.
Demands for gender equality in responsibilities and rights towards children, whether the parents are divorced, separated or widowed, have also come under sharp scrutiny. Islam regulates rights of guardianship and custody closely, as Radwan argues; children are placed in the custody of women form the time of birth until the end of their childhood. "Women are the only ones who are capable of taking care of children during these early stages of life," she explains. Thereafter, Islamic legislation transfers custody to men (the father, another male relative, or a legal guardian), "since they are the ones capable of caring for children at this time." Furthermore, Islam instructs women to keep their father's name even after marriage due to "Islam's philosophy of heritage and kinship. As for the children, Islam states that they should be named after their father and not their mother, except in cases of adultery," says Radwan.
Article 8 stipulates that divorce and annulment of marriage may be effected only by judicial order; and grants women and men the same rights and responsibilities after divorce, separation or the annulment of a marriage with respect to children and property.
Abdel-Sattar objects: "Egyptian personal status law permits a man to terminate the marriage contract unilaterally without resorting to the court. Women can do the same by resorting to Khul' (which allows women to obtain divorce on the condition that they return the dowry and forsake alimony). Also, women can ensure that their marriage contracts stipulate their right to divorce unilaterally (the 'Isma), which makes it unnecessary to seek a divorce in court."
Other points in the charter that the Egyptian delegation opposes include article 14, which calls for the protection of women's reproductive rights, particularly the right to medical abortion in cases of rape and incest. Article 20 asserts that a mother becomes the guardian of her children in the event of her husband's death. Article 21 states that any property left by a deceased spouse may be inherited by the surviving spouse, who is also entitled to continue living in the marital house. It also grants women and girls the same inheritance rights as men and boys.
The Egyptian constitution, however, deals with abortion as an offence punishable by a variety of measures, "which could include three to five years' imprisonment. Abortion is forbidden except in cases where the mother's and baby's health is at risk," points out Abdel-Sattar.
Inheritance rights have also triggered fierce opposition. Radwan notes: "If anything, the argument that Islam enshrines women's status as inferior to that of men indicates inadequate knowledge of Islamic legislation." A careful examination of the Islamic philosophy of inheritance, she contends, reveals that Islam takes into account certain considerations that have nothing to do with gender, but have been subjected to an erroneous, gender-focused reading. "While women inherit half the share of men in some cases, in others they inherit an equal share, and sometimes even double the share of men, or more. Indeed, there are instances in which women are entitled to inherit, while men are not," explains Radwan. Under Islamic law, therefore, the marital abode may make up part of the inheritance, and must be distributed accordingly among the legal heirs.
The ministry of foreign affairs, according to Fathallah, has recommended that Egypt postpone ratification of the charter, at least for the time being. "This," he opines, "is in our best interest, until we determine whether they are going to approve amendments to articles on which Egypt has recorded its reservations."
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