By Lucas Bento

The beginning of the Arab Awakening was defined by a wave of protests, demonstrations and revolutions that collectively rejected autocratic rule and singularly expressed a preference for democratic governance. As democratization is an ongoing process, the emerging democratic projects in the region are currently in a state of flux. Worryingly, in the absence of adequate reforms to promote the rights of marginalized groups, such as women,[1] it is debatable whether the revolutions will ever blossom into sustainable democracies. While women in those countries played a key role in the revolutions- significantly contributing, among other roles, as organizers, advocates, protesters, and medics- the 2011 Global Gender Gap Report [2] ranked Egypt 123rd and Tunisia 108th in the world for gender-based disparities, such as economic participation and opportunity, and educational attainment.[3] Given their central role in the revolutions, “[w]e can no longer afford to minimize or ignore the contributions of women and girls to all stages of conflict resolution, peacemaking, peace-building, peacekeeping and reconstruction processes.”[4] Though it seemed that women in those countries were destined for full emancipation, a number of developments are now undermining prospects for gender equality.

Tunisia

With progressive reforms dating back to the mid 1950s, Tunisia has held one of the best track records for women’s rights in the region.  For instance, reforms in 1956 promoted equal status of women and men, which enabled women, among other things, women to initiate divorce proceedings.  A 1993 amendment to the law granted women the right to pass their name and nationality to their children.[5]  The reformist mood was well captured in a motto on a 1958 stamp: tahrir al­mar’a (“liberation of the woman”).

Over half-a-century later, Tunisia continues to impress. In 2011, women occupied 27.6% of the Tunisian parliament.  This outshines female political representation in many Western nations, including the United States.[6] Recent developments, however, are undermining Tunisia’s progress.  A highly controversial issue is Article 28 of Tunisia’s Draft Constitution, which states that “women are complementary to men.” The vagueness and implied gender subordination of this language has led the UN to express concern over the draft provision whereby “[r]ights are guaranteed to women not on the basis of them being entitled to human rights by virtue of the fact that they are human, but rather, them being complementary to men.”[7] Moreover, despite enormous advances since the 1956 reforms, discrimination still exists in matters of inheritance and child custody, and the situation is showing no sign of improvement.[8] On the political participation front, the country’s 41-member government contains only 3 women.[9] Although the government has lifted reservations to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), it has nonetheless adopted a general declaration implying that it will not implement reforms that conflict with Islamic principles.[10]

Egypt

While women had achieved parity with men in ancient Egypt,[11] and enjoyed greater legal and economic rights than even their Greek counterparts, the Egypt of today is experiencing considerable activism from women’s rights groups alarmed by the campaign statements of Mohammed Morsi, Egypt’s first democratically-elected president, who promised to “ensure women’s access to all their rights, consistent with the values of Islamic law, maintaining the balance between their duties and rights.”[12] This subordination of women’s rights to a certain interpretation of Islamic law has led the Egyptian National Council for Women to reject a draft of the Egyptian Constitution.[13]  Although Egypt’s latest draft constitution is silent on the matter, a former draft included a clause that would limit the rights held by women to those compatible with the “rules” of Islamic jurisprudence.”[14] The new draft contains friendlier language, providing that “[e]quality and equal opportunities are established for all citizens, men and women, without discrimination or nepotism or preferential treatment, in both rights and duties”;[15] “[t]he State shall ensure maternal and child health services free of charge, and enable the reconciliation between the duties of a woman toward her family and her work”;[16] and “[t]he State shall provide special care and protection to female breadwinners, divorced women and widows”'.[17]  Upon closer analysis, however, it is intriguing that the State is assigned a role in enabling the “reconciliation between the duties of a woman toward her family and her work”, particularly when no equal provision exists for men.  Parliamentarians are also discussing a law which will repeal a ban on female genital mutilation,[18] a practice that violates international human rights law.[19] The 64-seat quota for women’s representation in parliament was also abolished.[20] Currently, only 2% of the seats in the Egyptian parliament are held by women- amounting to just 10 women out of 508 members. The absence of female political representation is thus a cause for concern.

Libya

Like Tunisia, Libya has also had its fair share of progressive policies under previous regimes. In 2004 it was the first Arab country to adopt an optional protocol allowing women to petition a UN committee about violations of their rights.[21] The Gaddafi regime also mandated equal pay for men and women. Although women have been able to vote in Libya since 1964, gender equality has faced considerable cultural and religious obstacles. Indeed, laws on the subject were often ignored or sidestepped by Islamic and local custom.[22] Like other states in the region, the Gaddafi regime did not fully subscribe to CEDAW, given the incompatibility of two provisions (Articles 2[23] and 16(c) and (d)[24]) with Libya’s Personal Status Code, which regulated the role and status of women in society. In the absence of reforms thus far, a recent report has criticized Libya for “clamping down on women’s rights.”[25] For instance, Libya’s new electoral law contains no quota for the representation of women in elected bodies.[26]

Ways Forward: Strategies for Change

The best way to assess the progress of a democracy is to test its commitment to protect marginalized groups. Although Tunisia, Egypt and Libya have made some progress, serious issues must be addressed to further promote and strengthen equal rights for women. As new political structures are formed, new social contracts are also cemented between the respective governments and their people. It is imperative that women be explicit parties to these social contracts, as opposed to mere (“complementary”) third-party beneficiaries.

A number of legal, social and economic tools and strategies are available to both policy-makers and civil society to improve equal rights for women. But policies should not merely seek to promote equality. They should also focus on empowerment and education. As U.S. President Barack Obama noted, “now that [there is] a democratically elected government in Egypt, [it must] recognize the rights of women, which is critical throughout the region. These countries can't develop if young women are not given the kind of education that they need.”[27] Female illiteracy stands at about 35% in Egypt and Tunisia, with Libya faring a little better at 17%.[28]  Female education and literacy is important because it “correlates with employment and involvement in professional and civic associations [and] is also a powerful predictor of activism for women’s rights.”[29]

Although quotas and the presence of women in national assemblies and parliaments are to be commended,[30] political participation must go beyond legislatures. Indeed, democratization “entails an expansion of political participation in such a way as to provide citizens with a degree of real and meaningful collective control over public policy.”[31] For example, civil society can play an important role in shaping public policy. There is a long tradition of women’s rights groups using a number of tools to influence favorable policy outcomes. For instance, in Egypt, CEDAW was used by activists to leverage government reform on nationality law, allowing women married to Palestinian men to pass their nationality to their children.[32] Other legal instruments can also be used to bolster activists’ advocacy, such as UN Resolution 1325, which acknowledges the importance of the participation of women and the inclusion of gender perspectives in post-conflict governance. To this end, the international community, and particularly international NGOs, can assist local groups to devise policy and on-the-ground solutions to effect greater gender equality.[33]

Understandably, policymakers in Tunisia, Egypt and Libya will experience difficulties in balancing cultural and religious priorities with the need to safeguard and promote women’s rights. In Tunisia, for instance, the Islamist En-Nahda party faces significant pressures from Salafists who advocate for a stronger role of Islamic law in the country’s sociopolitical fabric.   But the foundations for change exist, and with the timely implementation of policies and ground-level programs focusing on economic empowerment, education and equality, the rights of women can be significantly improved.

About the Author

Lucas Bento, Esq. LLB LLM PGDip is a trial lawyer at an international law firm in New York City. He is a member of the New York Bar and sits on the Executive Committee of the Intra-American Affairs Committee at the New York City Bar Association.  His writings have included articles in the New York Times, the International Herald Tribune, the Diplomat, and the Berkeley Journal of International Law.

Adeel Ishtiaq served as Lead Editor for this article.

Endnotes

1. Belinda Goldsmith, “Arab Spring to take years to improve women’s rights: activists”, Reuters, Dec 4, 2012, available at http://www.reuters.com/article/2012/12/04/us-women-arabspring-idUSBRE8B314F20121204 (noting that “[t]he Arab Spring has failed to deliver greater political power to women in the region or to offer them better protection from sexual harassment, but may yet yield female-friendly reform”)

2. The Global Gender Gap Report, introduced by the World Economic Forum in 2006, provides a framework for capturing the magnitude and scope of gender-based disparities around the world. The index benchmarks national gender gaps on economic, political, education- and health-based criteria and provides country rankings that allow for effective comparison across regions and income groups and over time.  See The Global Gender Gap Report 2011, World Economic Forum, available at http://www.weforum.org/issues/global-gender-gap

3. Libya was not ranked by the report.

4. Kofi Annan, Report of the Secretary-General on gender mainstreaming in peacekeeping activities, February 2003, A/57/731.

5. See also David Ghanim, Iraq’s Dysfunctional Democracy, (Praeger, 2011) at 44 (exploring this reform in the context of Article 18 of the Iraq Constitution, which provides that anyone who is born to an Iraqi father or to an Iraqi mother shall be considered Iraqi).

6. In 2012, women held 90, or 16.8%, of the 535 seats in the 112th U.S. Congress. See “Women in Elective Office 2012”, Fact Sheet, Center for American Women and Politics, available at http://www.cawp.rutgers.edu/fast_facts/levels_of_office/index.php

7. UN working group on women calls on Tunisia to protect achievements in equality, UN News Centre, available at http://www.un.org/apps/news/story.asp?NewsID=42712&Cr=Tunisia&Cr1=s

8. “World Report 2012: Tunisia”, Human Rights Watch, available at http://www.hrw.org/world-report-2012/world-report-2012-tunisia

9. “Women’s rights regressing in Arab Spring transitions?” Democracy Digest, Mar. 8, 2012, available at http://www.demdigest.net/blog/2012/03/womens-rights-regressing-in-arab-spring/

10. Convention on the Elimination of All Forms of Discrimination against Women: Declarations, Reservations and Objections to CEDAW, Division for the Advancement of Women, available at http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm (“The Tunisian Government declares that it shall not take any organizational or legislative decision in conformity with the requirements of this Convention where such a decision would conflict with the provisions of chapter I of the Tunisian Constitution”).

11. “The Status of Women in Egyptian Society”, Middle East & Islamic Studies Collections, Cornell University, available at http://www.library.cornell.edu/colldev/mideast/womneg.htm; See generally, Jayawardena, Kumari,Feminism and Nationalism in the Third World. (London: Zed Books Ltd, 1986).

12. See Freedom and Justice Party, “Election Program”, available at http://www.fjponline.com/view.php?pid=80

13. “Egypt's National Council for Women rejects constitution draft”, Islamopedia Online, Oct. 22, 2012, available at http://www.islamopediaonline.org/news/egypts-national-council-women-rejects-constitution-draft

14. Leyla Doss, “Constitution draft raises concern about women’s rights”, Egypt Independent, Oct. 10, 2012, available at http://www.egyptindependent.com/news/constitution-draft-raises-concern-about-women-s-rights

15. Principle Five, Egyptian Draft Constitution, translated in Fouad Elgarnousy, “Egypt’s draft constitution translated”, Egypt Independent, December 2, 2012, available at http://www.egyptindependent.com/news/egypt-s-draft-constitution-translated

16. Article 10, Egyptian Draft Constitution, translated in Fouad Elgarnousy, “Egypt’s draft constitution translated”, Egypt Independent, December 2, 2012, available at http://www.egyptindependent.com/news/egypt-s-draft-constitution-translated

17. Id.

18. Aswat “Egypt: Has the Arab Spring Been a Disaster for Women?” allAfrica, Nov. 13, 2012, available at http://allafrica.com/stories/201211131290.html

19. See “Sources of international human rights law on Female Genital Mutilation”, United Nations Entity for Gender Equality and the Empowerment of Women, available at http://www.endvawnow.org/en/articles/645-sources-of-international-human-rights-law-on-female-genital-mutilation.html

20. “Women’s rights regressing in Arab Spring transitions?” Democracy Digest, Mar. 8, 2012, available at http://www.demdigest.net/blog/2012/03/womens-rights-regressing-in-arab-spring/

21. Sarah Birke, At a glance: women’s rights in Libya, The National, Mar.  22, 2011, available at http://www.thenational.ae/news/world/africa/at-a-glance-womens-rights-in-libya

22. Lawrence Davidson, “Post Gadafi Era: Libyan Women Losing Rights”, Global Research, Centre for Research on Globalization, Dec. 11, 2012, available at http://www.globalresearch.ca/post-gaddafi-era-libyan-women-losing-rights/5315104 (noting that in Libya “[t]he tribes are tied to traditions that are strongly patriarchal.”)

23. CEDAW, Article 2 states: “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women”.  See  Convention on the Elimination of All Forms of Discrimination against Women, Division for the Advancement of Women available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article2

24. CEDAW, Article 16 states: “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: . . . (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount. . . .”

25. Lawrence Davidson, supra n. 23.

26. “Women’s rights regressing in Arab Spring transitions?” Democracy Digest, Mar. 8, 2012, available at http://www.demdigest.net/blog/2012/03/womens-rights-regressing-in-arab-spring/

27. President Barack Obama, “Third Presidential Debate Transcript”, Commission on Presidential Debates, Oct. 22, 2012, available at http://www.debates.org/index.php?page=october-22-2012-the-third-obama-romney-presidential-debate

28. “Egypt,” CIA World Fact Book, https://www.cia.gov/library/publications/the-world-factbook/fields/2103.html#eg; compare with the United States where female illiteracy is 1%.

29. Ellen Lust, The Middle East, (CQ Press, 2011), at 94-95.

30. But see David Ghanim, supra n. 6, at 45 (arguing that “the quota for women in parliament is an elitist solution that makes sense only within the politics of identity. Democracy, on the other hand, means ensuring human rights for women, gender equality, and the empowerment of all women, and not only a few women elites”).

31. Rex Brynen, Bahgat Korany and Paul Noble, “Theoretical Perspectives on Arab Liberalization and Democratization”, in Brynen, Korany and Noble (eds.) Political Liberalization and Democratization in the Arab World, Volume I (Boulder and London: Lynne Rienner Publishers 1995) at 3.

32. CEDAW, Article 9(2) provides for a woman’s right to pass her nationality on to her children.  See also “The new Egypt: Leaving women behind”, Al-Jazeera, Mar. 8, 2011, available at http://english.aljazeera.net/indepth/features/2011/03/201138133425420552.html.

33. See “Arab Spring and Women’s Rights”, Council on Foreign Affairs, Mar. 8, 2012, available at http://www.cfr.org/women/arab-spring-womens-rights/p27604  (“The transitions to electoral democracy in several Arab countries present an opportunity not just to tackle proportional political representation for women, but also harmful traditional practices, Worden says. She recommends the international community turn the spotlight on these issues and work with local rights groups who are pushing for more space for women and have the advantage of being trusted by local society”).

34. See also Lakshmi Puri, “The Role of Women in Democratic Transition”, United Nations Entity for Gender Equality and the Empowerment of Women Nov. 23, 2011, available at http://www.unwomen.org/2011/11/the-role-of-women-in-democratic-transition/ (noting that empowering women “makes good economic sense”).