The Malikite school of Islam accorded Tunisia a unique legacy in women’s rights. Polygamy, for example, was almost absent long before its official prohibition under Bourguiba. In the city of Kairouan, a stipulation was added to most marriage contracts to the effect that ‘the husband promises voluntarily to his wife to abide by the prohibition, according to the custom of Kairouan’, a city with a long tradition of monogamy. This stipulation, even though it speaks of a ‘voluntary’ promise on the part of the husband, was considered binding de facto. The position of women was further strengthened by another stipulation according to which the first wife could repudiate a second wife and effectively enforce divorce in case her husband breached the monogamy clause. The significance of the monogamy stipulations is illustrated by the fact that, whenever a wife took her husband to court over a breach of that clause, her position was supported by the judiciary in charge.
While such customs and traditions strengthened the role of women in Tunisia’s society, religious traditions and customs nevertheless long undermined women’s effective participation in society. Some modernist thinkers, such as Tahar Haddad, tried to challenge such conservative thinking at the beginning of the 20th century. In 1929 Haddad published several articles in the newspaper al-Sawab advocating women’s judicial and social emancipation, and in 1930, he published a book entitled Our Women in the Sharia and in Society (Imraatna fi al-sharia wa-al-mujtama), which shocked many conservative Muslims in Tunisia. Haddad held that women’s rights are given by God and argued in favour of innovative practices in the fields of marriage and inheritance to enhance the position of women in society. His publications, however, encountered such fierce criticism and so outraged mainstream society and Islamic scholars that he was forced to quit his studies at Tunis’ law school and was eventually forced into exile. With the beginning of Tunisia’s movement of independence from France, some Tunisian women became more active in society, even though the majority remained uneducated and continued to perform the traditional roles of wife and/or daughter. Some urban families began to educate their daughters, who went on to establish women’s associations, although such associations were at that time often exclusive clubs that admitted only the country’s female elite.
During the regimes of Bourguiba and Ben Ali following Tunisia’s independence from France, Habib Bourguiba, the country’s first President, enacted a series of laws to advance the position of women in society. Convinced of the importance of modernizing and secularizing the Tunisian people, Bourguiba sought to integrate women into social and professional life. To that end, he dismantled Tunisia’s religious institutions, such as al-Zaytouna Mosque, which had, until then, dictated the guidelines for the country’s educational system. He created a modern educational system that was accessible to both genders equally, which explains in part why more than 90 percent of women aged 15 to 24 are now literate.
In 1956, Bourguiba enacted Tunisia’s Personal Status Code, a set of laws and principles promoting women’s rights. Most importantly, it for the first time officially prohibited polygamy and repudiation, established a minimum age for marriage, empowered women to seek divorce, and deemed the consent of both man and woman necessary for marriage. Although Tunisia’s Constitution enshrines the principle of equality between men and women, the Personal Status Code still stipulates that the husband is the head of the family. Also, certain provisions, such as the criminalization of marriage between a non-Muslim man and a Muslim woman and unequal inheritance rights, undermine the practice of full gender equality in Tunisia. Tunisia has not signed the International Convention on the Elimination of All Forms of Discrimination Against Women.
Under President Zine al-Abidine Ben Ali, many secular women’s organizations were created. These organizations also managed to increase somewhat the rights of women in Tunisia. In 1993, for example, they lobbied successfully for a stipulation in the Personal Status Code according to which wives are not obliged to obey to their husbands. In 2007, Ben Ali implemented two laws strengthening the right of housing for mothers who have custody over their children and increased the minimum marriage age to eighteen years for both men and women.
While hailed in the West for its promotion of women’s rights, many of the regime’s gender policies discriminated against conservative Muslims. For example, anti-hijab policies were partially legitimized through Tunisia’s secular women’s associations under Ben Ali, some of which publicly associated the veil with backwardness and berated veiled women. The police often removed the veils of women in public, while law number 108 banned the hijab in state offices and educational establishments. Religiously conservative women were therefore largely excluded from the benefits of earlier gender policies.
Because of the persistence of conservative values and the lack of full gender equality, many women perform traditional roles despite having received an education. Thus, while women comprise almost 60 percent of students enrolled in Tunisia’s higher-education system, they constitute only about 27 percent of the workforce. This indicates that pressure to perform the traditional roles of wife and mother still prevents many women from working. Some government regulations make it more difficult for women to find work: mothers working in private industry, for example, are granted only 30 days’ paternity leave, making it difficult for many to combine work with family life.
After the revolution and with the ascent of Tunisia’s moderate Islamist Ennahda party, many secular women fear that their achievements and rights enacted under earlier regimes are threatened. Such fears were realized when the ruling party proposed an article in the Constitution under which ‘The state guarantees the protection of women’s rights and consolidation of [past] gains based on women being fundamental partners to men in nation-building, with their roles complementing one another within the family’. Such a stipulation of complementary gender roles would undercut earlier references, especially in Tunisia’s Personal Status Code, to equality between men and women, as the Personal Status Code is subordinate to the Constitution. The precise meaning of ‘complementarity’ is also subject to interpretation and hence to arbitrary application. From a secular point of view, such an article would consequently threaten women’s status and their role in the family and society.
Ennahda’s moderate Islamists, including women, justify the reference to ‘complementarity’, saying that this does not mean that women are inferior to men but only that they are different and hence have different roles in life. According to Ennahda, men and women are equal in dignity but should not enjoy equal rights in every aspect of life, as they do in Western societies: men should have more rights in some areas and women in others. Ennahda holds that, even though the family is a woman’s primary responsibility, women can also be active in society and politics, noting that a women was appointed to the position of vice-president of Tunisia’s Constituent Assembly, the highest position held by a women in the Arab world.
Ennahda thereby differentiates itself clearly from Tunisia’s religiously more conservative minority Salafists, who advocate a full separation of the sexes in the public sphere and who disagree with many aspects of Tunisia’s Personal Status Code, such as the prohibition of polygamy and the equal role it prescribes for men and women.
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