Continuing Ben Ali’s Feminist Legacy
Under autoritharian rule Tunisia offered open spaces for feminist discourse and a tangible legal framework for women’s rights that were unparallaled in most other states with muslim reference. After the popular uprising which ousted president Ben Ali, though, these achievements have become a crucial stake in the negotiations on what the ‘new’ Tunisia should look like. Maaike Voorhoeve has examined the most recent, post-revolutionary developments in the field of women’s rights in Tunisia.
Since Tunisia’s independence, emancipation and feminist measures have been crucial elements of Tunisian politics. The most famous example is probably the Tunisian Personal Status Code, which regulates issues pertaining to marriage, divorce and inheritance: unlike other countries in the region, this code deviates significantly from Islamic legal maxims such as polygamy, child marriage, forced marriage and repudiation. However, after the Tunisian revolution of 14 January 2011, these achievements have become a crucial stake in the negotiations on what the ‘new’ Tunisia should look like. In this paper, Maaike Voorhoeve describes the legacy of the authoritarian regimes of Habib Bourguiba (1956-1987) and Zine El-Abidine Ben Ali (1987-2011), and examines recent, post-revolutionary developments in the field of women’s rights.
Directly after Tunisia’s independence in 1956, the president of the new Tunisian Republic, Bourguiba, issued a personal status code (PSC). As a result, the role of Islamic law in this domain was ended or at least curtailed, and a more egalitarian family was established. This code was then, and still is, famous within the Muslim World and beyond for its abolition (or re-interpretation) of classical Islamic precepts.
In the years that followed, other codes were issued which aimed at women’s emancipation as well. In 1959, Tunisia proclaimed a constitution, protecting the equality principle, and measures were taken to enhance female participation in society: women were granted active and passive voting-rights (1957), an effective programme of family planning was introduced  and women were granted a right to education (1980). In 1985, Tunisia ratified the Convention on the Elimination of Discrimination against Women (CEDAW), which, on the basis of the constitution, prevails over Tunisian national law. These measures together are generally termed le féminisme Bourguibien.
Ben Ali (1987-2011)
When Ben Ali came to power in 1987, he continued Bourguiba’s feminist politics, and even enhanced several measures issued by his predecessor. A telling example concerns the PSC: even if this code was very women friendly, it did provide that the wife should obey her husband. Under Ben Ali, this principle was replaced by the less straightforward phrase that the husband is the ‘head of the family’ (1993). In the same vein, the minimum marriage age, which under Bourguiba was set at 15 years for girls and 17 years for boys, was raised to 18 for boys and girls alike (2007). Ben Ali equally took a number of measures to improve the situation of divorced women. The first concerned maintenance upon divorce: although the PSC was the only family code in the region obliging the man to pay maintenance to his ex-wife upon divorce, this was often not enforced in practice. In order to improve this situation, Ben Ali created a state fund to secure payment of maintenance to mother and children after divorce (1993).
The second measure concerned the nationality code, allowing women to pass on their nationality to their children. This was crucial to prevent women who had married a foreigner losing custody upon divorce on the grounds that the child had a foreign nationality (1993). The third measure provided that couples could choose to marry in community of goods, as opposed to the general practice where the spouses do not share any goods, even if these are acquired during marriage. The community of goods could prevent women who did not earn a living during their marriage ending up with empty hands upon divorce (1998). Fourth, the mother who has custody over her children obtained the right to stay in the marital home after divorce (2008), even if this belonged to the father.
Besides the rights within the family, Ben Ali extended women’s civil, political and social rights from education and political participation to participation in the labour market. An article was inserted in the Civil Code providing for equality in chances and treatment in matters of work and profession (1993), and in 2000, the provision that women need their husband’s consent to sign a labour contract was abrogated. Both measures answered to the situation where women constitute a significant portion of the national work force and reflected not only increasing rights, but also increasing duties for women to contribute to the household.
The ‘feminist’ laws were often applauded by the international community, as Tunisia was among the most – if not the most – feminist countries in the region. They were, however, generally the fruit of authoritarian rule.
An authoritarian legacy
The feminist laws and policies described here were almost all imposed from above, hence the term ‘state feminism’. Those issued before 1959, such as the PSC, were imposed by President Bourguiba, since the Republic did not yet have a constitution that secured a separation of powers. The laws issued after 1959 were equally authoritarian: despite a formal separation of powers, Tunisia was governed by one ruling party, and the president had almost unlimited legislative powers. This context where feminism is imposed from above makes Tunisian intellectual Kmar Bendana characterise the Tunisian feminist politics as ‘paternalistic’, aimed at ‘educating the people’. Especially the personality of Bourguiba’s personality especially, is often associated with Tunisia’s ‘father’, who knew what was best for his people.
The term ‘state feminism’ is defined by Tunisian feminist Sana Ben Achour as follows: It designs “the state’s will to accelerate the process of equality between the sexes and is employed … to distinguish between feminism as a social movement, driven by women’s collective claim for equality and social change on the one hand, and feminism as a doctrine and politics from the state.” The concept of state feminism appears contradictory, in that it designates the enhancement of rights and freedoms for a group of people, while being authoritarian at the same time. Now where did this interest for feminism come from?
In the first years after independence, Bourguiba’s politics were entirely directed towards reform on various levels, including the economic, religious and social level. His aim was to make the Tunisian people advance and to make them deserving of sovereignty. The emancipation of the woman became the lever of Tunisia’s modernist politics. Under Ben Ali, state feminism served a different goal: in a context of outraging violations of civil and political rights, the protection of women’s rights became a means to gain legitimacy, both on the national and on the international levels.
The governments of Bourguiba and Ben Ali cautiously protected their feminist politics. They installed official institutions that promoted state feminism, such as the Tunisian women’s organisation UNFT (Union Nationale de Femmes Tunisiennes, established in 1957), a research centre for women’s affairs (CREDIF), and a special Secretary of State dealing with issues concerning women and the family, later transformed into a Ministry. In the meantime, all voices of contestation were silenced through censorship and by making life difficult for those who dared to disagree. But despite (or because of) this repressive context, state feminism was indeed contested.
In the 1970s, a ‘political feminism’ emerged. Crucial actors who dominated the public debates were the independent women’s rights organisations Association Tunisienne des Femmes Démocrates (ATFD) and Association des Femmes Tunisiennes pour la Recherche et la Documentation (AFTURD), together with the Tunisian League for Human Rights. These movements called for a number of changes, such as the abolition of the reservations to CEDAW and the elimination of the Islamic inheritance law from the PSC. They also lobbied for a better protection of women in the field of penal law. The main issue for these organisations was that the state installs an effective policy against domestic violence, which is considered a huge problem in Tunisia. But they also lobbied for a more effective penalisation of rape and a penalisation of rape within marriage.
These organisations also lobbied for the enhancement of the position of Tunisian women on the labour market, arguing that women are suffering more from unemployment than men do, that they earn about 20% less than men, and that their working conditions are often bad. Sometimes, the advocacy was successful. For example, in 1998, a law was issued providing that single mothers could claim child maintenance from the biological father of their child, and in 2004, sexual harassment was made punishable.
From the early 1970s, state feminism was also criticised by other factions in society, such as the Mouvement de Tendance Islamiste (MTI, later Ennahda), which promoted limitations of contacts between the sexes and a revival of traditional forms of dress. It called for a reform of the PSC by restricting divorce rights and reintroducing polygamy. They argued that the PSC had caused huge problems within Tunisian families, leading to skyrocketing divorce rates. In the period of economic hardship of the 1980s, the movement further claimed that allowing women to have a job was hurting the Tunisian economy.
While these movements had been muffled for decades, they finally had the opportunity to voice their claims openly once Ben Ali had been ousted on 14 January 2011.
After the revolution: Democratic renegotiation of the feminist laws
Very shortly after Ben Ali’s departure, the ATFD and AFTURD organised a march under the slogan ‘March for citizenship and equality’. At this occasion, women were walking with banners saying ‘Don’t touch my PSC’, ‘All united for our achievements’, and ‘A constitution that guarantees the rights of Tunisian women’. Many demonstrations followed, such as the ones on national women’s day on 13 August 2011 and 2012. These marches symbolise the fear among many Tunisians that the departure of Ben Ali would lead to a deterioration of women’s rights. This fear was fuelled when, on the first democratic elections (held on 23 October 2011), the Islamist movement Ennahda obtained 40% of the votes, thus obtaining 89 seats in the Constitutional Assembly that is to write a new constitution, and some key ministries.
Another factor that contributed to the unrest is the sudden visibility of international Salafist organisations such as Hizb Uttahrir and Ansar al-sharia, and the fact that a Salafist political party was authorised to run in the next elections (to be held in 2013). Also, a salafist non-governmental organisation (NGO) was authorised, which is considered by some as the introduction of a moral police, similar to the one in Iran and Saudi Arabia, since its goal is to encourage people to respect religious mores, such as wearing the veil.
Regardless of these developments, the demonstrations organised by the women’s rights organisations and their lobbies have had a certain effect. On 16 August 2011, the council of ministers, which then formed the interim government, repealed all reservations to CEDAW, except the general one, providing that the entire convention did not apply for as far as it was contrary to Article One of the Tunisian constitution (providing that the state religion is Islam). Also, the interim government decided on a quota of 50% of female participation in the Constitutional Assembly. In August 2012, a working group within the Constitutional Assembly proposed to insert an article in the constitution which provides that the state assures the condemnation of all forms of violence against women’.
Besides these achievements, the advocacy of the feminist activists has also prevented the roll-back of certain laws. For example, when rumours said that Ennahda wished to reintroduce polygamy, the movement immediately intervened by denying this and by stressing that the PSC is in accordance with Islamic law. In November 2011, a female member of the Constitutional Assembly belonging to Ennahda, Souad Abderrahim, declared in an interview that single mothers form a dishonour for an Arabo-Islamic society, and should not receive any care from the government except in cases of rape (both Bourguiba and Ben Ali have established several measures to support single mothers). This was highly criticised by civil society actors such as Association Amal, a centre for single mothers, which forced Abderrahim to apologise the next day.
In March 2012, there was a rumour that Ennahda wished to change the first article of the Tunisian constitution by providing that Islamic law would become the principal source of legislation. This caused much distress in the Tunisian society, since this could involve the abolishment of those women-friendly laws that are considered contrary to Islamic law. However, after the outburst in civil society, Ennahda announced that the party committee had voted against this change. In August 2012, a working group within the Constitutional Assembly proposed an article for the constitution providing that women are ‘complementary’ to men. Again, after much outrage, the proposal was retracted in September 2012.
But on a different level the current government has succeeded in a roll-back of what some may see as feminist laws. In Bourguiba’s and Ben Ali’s secularist politics, public officials and students were prohibited to wear a veil, and ‘extremist clothing’ was outright banned from the streets as everyone who dared to wear a niqab  or a julab  would be arrested on suspicion of belonging to a terrorist organisation. After the revolution, people claimed the right to wear Islamic dress: Tunisia witnessed a significant increase of salafi dress in the public sphere, veiled women organised demonstrations claiming the right to wear a niqab, and female students claimed their right to wear a niqab in university.
In March 2011, the interim government made one very specific, but nevertheless symbolic, concession by deciding to allow women to wear a veil for their ID card pictures. Additionally, at the beginning of the academic year 2012-2013, the minister of higher education allowed female students to wear the niqab in class. These developments are met with much frustration, as some continue to consider the veil a sign of female oppression, while others accept that wearing a headscarf should be part of religious freedom in a democratic state.
Tunisia is currently at a crossroads between authoritarianism and democratic rule. In this context, women’s rights form a crucial stake. This is not only true because the feminist laws issued under the previous regimes were imposed on the Tunisian population in an authoritarian way, making a democratic renegotiation of these laws inevitable. That women’s rights form a crucial stake in the current context is also due to the fact that the authoritarian feminist laws were very progressive, while the current government is relatively conservative. This situation has caused an intense fear among Tunisian feminists for a roll-back of the achievements in the field of women’s rights, however undemocratic these achievements may be.
While the government tries to renegotiate the authoritarian legacy in a democratic way, civil society is being incredibly vigilant. As a consequence, they have succeeded in preventing some important roll-backs, which ironically turned the previous feminist opposition (ATFD and AFTURD) into the custodians of the authoritarian legacy.
About the author
Maaike Voorhoeve is a researcher at the law faculty of Amsterdam University. She writes for CAI‘s Gender Issues Unit, where this discussion paper was first published (developed with the assistance of Claudia Forster-Towne and edited by Kate Morgan). Voorhoeve’s book Gender and divorce law in North Africa. Sharia, custom and the Personal Status Code in Tunisia was published this year. Follow her on twitter.
 Voorhoeve, M., 2013. Gender and divorce law in North Africa. Sharia, custom and the Personal Status Code in Tunisia. I.B. Tauris: London.
 Legalising the import of condoms (1961) and abortion (1973).
 Tunisia is one of the few Muslim majority countries where international conventions have a higher hierarchical status than the national law.
 Bendana, K., ‘Transition dans le féminisme?’, La Presse, 6 August 2012.
 See for example Murphy, E.C., 2003. “Women in Tunisia: Between state feminism and economic reform”, in Abdella Doumato, E. and Pripstein Posusney, M. (eds). Women and globalisation in the Arab Middle East. Gender, economy & society. Lynne Rienner Publishers: Boulder. See also Ben Achour, S., 2001. “Féminisme d’État : Féminisme ou défiguration du féminisme ?”, in Mélanges Mohammed Charfi. Centre de Publication Universitaire: Tunis.
Rassemblement Constitutionnel Démocratique, RCD.
 Bendana, K., ‘Transition dans le féminisme?’, La Presse, 6 August 2012.
 Voorhoeve, M. (forthcoming). Women’s rights’ in Tunisia and the democratic renegotiation of an authoritarian legacy, Islamic Law & Society.
 Ben Achour, S., 2001. “Féminisme d’État : Féminisme ou défiguration du féminisme? ”, in Mélanges Mohammed Charfi. Centre de Publication Universitaire: Tunis.
 Geisser, V. and Gobe, E., 2007. La question de l’authenticité tunisienne: Valeur refuge d’un régime à bout de souffle ? L’Année du Maghreb, iii, pp. 371-408.
 Centre de Recherche, de Documentation et d’Information sur les Femmes.
 Ben Achour, S., 2001. “Féminisme d’État: Féminisme ou défiguration du féminisme?”, in Mélanges Mohammed Charfi. Centre de Publication Universitaire: Tunis.
 Ben Achour, S., 2001. “Féminisme d’État: Féminisme ou défiguration du féminisme?”, in Mélanges Mohammed Charfi. Centre de Publication Universitaire: Tunis. See also Daoud, Z., 1993. Féminisme et politique au Maghreb, soixante ans de lutte, Edition Eddif: Casablanca.
 Rape is currently punished with the death penalty, but the Penal Code provides for the possibility to escape charges by marrying the victim. This is due to an article on sex with a minor, providing that the charges are dropped if the ‘victim’ marries the perpetrator and which, according to these activists, is applied in cases of rape. See for example the interview with Bochra Bel Haj Hamida, lawyer and member of the ATFD. Ghribi, A. ‘Tunisian law allows rapists to avoid prosecution in case of marriage with victim’, 29 March 2012.
 Fitoussi, E. and Baron, A. ‘Tunisie : La lutte contre l’exploitation des femmes peut être un moteur de changement social global. Entretien avec Ahlem Belhadj, présidente de l’Association tunisienne des femmes démocrates’, January 2012, Afrique21.
 See for example Boulby, M., 1988. The Islamic challenge. Tunisia since independence. Third World Quarterly, 10(2), pp. 590-614.
 29 January 2011.
 The prime minister, the minister of education, the minister of religious affairs, the minister of justice, the minister of the interior, the minister of human rights, etc, all belong to the Ennahda movement. The minister of women’s affairs is a woman belonging to the second largest party, CPR.
 حزبجبهةالإصلاحالإسلامية (the Front of Reform).
 الجمعيةالوسطيةللتوعيةوالإصلاح (Centrist Association for Sensibilisation and Reform).
 The general reservation provides that the convention does not apply for as far as it is incompatible with Article 1 of the Tunisian constitution (providing that Islam is the state religion). Articles 9 paragraph 2, Article 15, and Article 16 paragraphs c, d, f, g, and h only apply for as far as compatible with Tunisian national law.
 Decree-law 2011-35 of 10 May 2011.
 Radio Monte Carlo Doualya, 9 November 2011.
 The 1959 constitution only provides that the state religion is Islam.
 Charrad, M.M., 1998. “Cultural diversity within Islam: veils and laws in Tunisia”, in Bodman, H.L. (ed.). Women in Muslim societies: Diversity within unity. Lynne Rienner Publishers: Boulder, CO.
 Face covering veil, sometimes even covering the eyes.
 White dress for men.
 Geisser, V. and Gobe, E., 2007. La question de l’authenticité tunisienne: Valeur refuge d’un régime à bout de souffle? l’Année du Maghreb, 3, pp. 371-408.
 Decree 717-1993 of 13 April 1993.