For gender justice in Arab countries, abolish colonial laws!

It’s not just a failure on the part of the police in Arab states, it’s also a huge failure on the part of legislation – or a lack of it. Most Arab states do not recognise the term “femicide” or consider misogyny a hate crime. Penal codes are greatly lacking with an absence in laws that define, specify and punish gender-based violence and marital rape.

Arab governments have their priorities all wrong. While they are busy banning the new Buzz Lightyear film Lightyear, or hunting down people for waving rainbow flags or arresting young women for making TikToks, every week another woman is horrifically murdered by a stalker, boyfriend, ex-husband, or male relative.

The latest case of femicide was just last week in Palestine - on 26 July 2022, 30-year-old Rabab Abu Siam was murdered by her ex-husband in front of her three daughters in her parents’ yard.

It is the same story each time – for months Rabab had been reporting that her ex-husband was threatening her, but the authorities failed to take action, just as the Egyptian authorities failed to take action when Nayera Ashraf’s family reported her murderer’s threats, and just as the Kuwaiti authorities failed to protect Farah Akbar last year despite her sister taking a restraining order out on her murderer.

''Even as one by one each Arab country won its independence, these first so-called “modern” nation states decided to leave some of these colonial-era laws in their new penal codes – they clearly picked and chose the laws that would serve the patriarchy and every cis gendered heterosexual man.''

What many of us Arab women conclude from these cases is that our governments do not think that our lives are worth protecting.

It’s not just a failure on the part of the police in Arab states, it’s also a huge failure on the part of legislation – or a lack of it. Most Arab states do not recognise the term “femicide” or consider misogyny a hate crime. Penal codes are greatly lacking with an absence in laws that define, specify and punish gender-based violence and marital rape.

There has been some headway when it comes to domestic abuse laws, with Saudi Arabia and Lebanon both having passed their anti-domestic violence laws in 2014, Tunisia passing its Law on Eliminating Violence Against Women in 2017, and Morocco passing its anti-domestic violence law in 2018, but the existence of these laws and getting the police and courts to actually implement them is another story.

Too many women and girls fall through the cracks – and there are too many cases of women going to the police only to be brushed off, not have statements taken, and be sent back to their abusers.

In addition, in many Arab countries, clemency is still given during trials to men who murder a female relative if the crime was committed in an “act of rage,” such as Article 252 in Lebanon’s Penal Code. Article 60 in Egypt’s Penal Code gives a man clemency if he murdered a female relative “out of good faith.” And almost every Arab state has an article in its penal code that provides a lighter sentence for a man who has murdered a female relative if he catches her in the act of fornication or adultery.

It is not just women and girls who live in constant fear in the Arab world at the moment – it is anyone who is not a cis gendered heterosexual man.

During Pride Month in June, a number of Arab countries renewed their crackdowns on the LGBTQ+ community, with government ministries in both Kuwait and Saudi Arabia encouraging citizens to report any businesses or products they see sporting a rainbow flag, and even Lebanon, which is considered by many to be the friendliest Arab state towards the queer community, has spent recent months cracking down and rounding up any members of the LGBTQ+ community found to be gathering together.

Annoyingly, when such news stories are reported on and discussed by the West, the reporting tends to allude to the fact that these are Muslim-majority countries, and Western news outlets love to remind us that these are countries that practise Shari’ah law. And while Gulf countries do incorporate Shari’ah law into their rulings, it is a Western misconception that it is Islam that is the root cause for the persecution of the queer community and lack of gender justice in the Arab World.

The reality is that when it comes to the penal codes of Arab countries, particularly with regards to laws surrounding rape, adultery, homosexuality, and murder, they are the remnants of British and French laws from the 19th century. When the British and French colonised the Arab world, they also introduced their laws into those countries.

And even as one by one each Arab country won its independence, these first so-called “modern” nation states decided to leave some of these colonial-era laws in their new penal codes – they clearly picked and chose the laws that would serve the patriarchy and every cis gendered heterosexual man.

In her new book These Bodies of Water, Egyptian-British author, poet, and playwright Sabrina Mahfouz explains how Egyptian jurists drew up post-independence Arab states’ penal codes such as the Kuwaiti one in 1962, comprising of a mixture of Egyptian, Islamic, and British and French laws.

Take, for example, the law that allows clemency or a lesser sentence for men who murder a female relative after catching them committing an act of fornication or adultery. This comes from Article 324 of France’s 1810 Penal Code which stipulates that “He who catches his spouse, his female ascendant, female descendant or his sister in the act of adultery or illegitimate sexual relations with a third party and commits unpremeditated homicide or wounding against the person of one or the other of them may be exempted from liability. He who commits murder or wounding may be liable to a lesser penalty [in view of extenuating circumstances] if he has surprised his spouse, female ascendant or descendant or sister with a third person in a suspicious situation.”

From Noor Mukadam in Pakistan, to Sarah Everard in the UK, @aymankhwaja argues that it is not only Pakistan that has a problem with femicide – it is a global crisis. The patriarchy is real, and it kills. https://t.co/VnnAdzL3XC

— The New Arab (@The_NewArab) July 27, 2022

The same applies when it comes to laws in Arab countries that punish homosexuality. Homosexuality was not a punishable offence before the British and French colonised Arab countries and brought in their prudish sexual standards. Britain’s 1885 Penal Code criminalising homosexual behaviour was introduced to all of its colonies. Prior to that, gender identities and romantic relationships in the countries of the Islamic Empire tended to be fluid.

The only way Arab states will achieve true gender justice is to abolish every colonial-era law. But what should they replace their outdated penal codes with?

Islamic movements such as the Muslim Brotherhood and Islah have been arguing for decades that Islam is the solution when it comes to reform. But when you study the ideologies of these movements, and their beliefs when it comes to the place of women and on being queer, these are not movements that believe that queer people should exist, nor that women should be given full agency. They believe in the concepts of “wilayah” and “qawaama” – guardianship and the belief of men having a “degree above women” – which would see women still being under the rule of male guardians, as they are now in most Gulf countries.

The patriarchal interpretations of Islam that they believe in would mean that one patriarchal law system would be replaced with another.  

The only way forward for women, girls, and the queer community to live safely in Arab states is not only for an abolishment of current penal codes, but for a new secular penal code to be put in its place, and if inspiration is to be taken from Islamic law, it should be through the lens of an intersectional feminist interpretation of Islam that has social justice and gender equality at its core.

The global Islamic organisation Musawah – which means equality in Arabic – is one example of a movement that is working hard to campaign for the reform of Arab states’ laws so that they are non-discriminatory towards women and other genders, as well as for the reform of personal status codes and family law. Arab governments need to engage with organisations like Musawah rather than take inspiration from Western models that are fuelled by capitalism and which still sneakily uphold the patriarchy.

Yousra Samir Imran is a British Egyptian writer and author who is based in Yorkshire. She is the author of Hijab and Red Lipstick, being published by Hashtag Press in the UK in October 2020

Follow her on Twitter: @UNDERYOURABAYA

Have questions or comments? Email us at: editorial-english@alaraby.co.uk

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.