Tunisian Constitutionalism and Women’s Rights

—Adrien K. Wing, Bessie Dutton Murray Professor of Law, University of Iowa College of Law

The world was in shock and awe in the winter of 2010 when Tunisia, a small North African country, was able to remove its twenty-three-year leader President Zine El Abedine Ben Ali from power in less than a month—and with relatively little violence. The spark that set off this remarkable event was the self-immolation of a young man, a twenty-six year old fruit vendor named Mohamed Bouazizi. The local police in his small town prohibited him from selling produce as a means to eke out a poor living. Shockingly, rather than accepting this fate, Bouazizi set fire to himself. The acts of the Tunisian police had violated Bouazizi’s basic human dignity and revealed the hopelessness inherent in a corrupt system in which he could see no future. Bouazizi’s bold final act touched off a firestorm of activity throughout the Middle East and North Africa—and ignited global attention.

Tunisia  was  an  unlikely  birthplace  as  a  catalyst  for  revolution  and change. It is a favorite playground of European tourists with warm weather, self-contained seaside resorts, fantastic Roman ruins, and sizzling hot sands made famous by the Star Wars movies. It is not a nation that is immediately associated with warriors on the battlefield. I have visited this beautiful country several times, and it always brings to mind the smell of jasmine. This national flower is often sold even in small restaurants. Men regularly  place  it  behind  their  ears  and  people  accept  it  in  the  form  of fragrant  garlands. As homage to this national symbol, the events taking place in Tunisia are often referred to in popular media outlets as the Jasmine revolution.

Tunisia has been at the forefront of women’s rights in the Arab world since its independence. Under the founding president Habib Bourguiba, the country banned polygamy, embraced secularism, and improved women’s status. As the result of the October 2011 election won by the moderate Islamist party Ennahda, many fear a retreat on women’s issues. Concerns have been raised regarding the reinstitution of polygamy and potential changes to currently egalitarian divorce laws.

On the positive side, new Tunisian election laws required fifty percent of candidates running for office for the National Constituent Assembly to be female. Although women were not at the top of the party lists, they managed to win twenty-four percent overall. Interestingly, the United States has only seventeen percent female members of Congress.

In a promising move, the newly elected president, and longtime rights activist Moncef Marzouki, promised equal rights for women in Tunisia. On the other hand, continued incidents of sociopolitical coercion against women with respect to dress—such as forcing female university lecturers to wear a veil—have cast some uncertainty on the future outlook for gender equity in Tunisia.

Developments on the constitutional front are not promising in many ways. While Tunisian constitutional draft Article 22 states men and women are equal, another article may contradict that.  Article 28 views women as complementary rather than equal to men in family life. “The government guarantees the protection of women’s rights and supports their achievements; it also considers woman a true partner to man in building the nation. Their roles complement each other within the family.”  This language has led to protests by many women who see this clause as evidence of retrenchment.

Protests concerning this and other clauses have led to an extension of the constitutional process which was supposed to end this fall. Instead, it may run until next spring.  At that time the Assembly is supposed to approve the text by a two-thirds majority. If they cannot, there will be a national referendum.

In my view, the extension is positive. Rushing to complete the process may actually work against women. The extra time may give more ability for all those concerned to do things they were not allowed by the Ben Ali regime. They can now lobby their new representatives, and they can protest to affect governmental and public opinion. I consulted on the South African constitutional process. There were several years of discussions involving political parties and the public, an interim constitution, review by a new constitutional court, and finally the 1996 permanent constitution.

Another positive sign can be found in a little-quoted part of Article 28 which states:  “The State guarantees the extermination of all kinds of violence against women.” This section is very progressive and similar to a clause on the 1996 South African constitution.  Needless to say, state-sponsored violence affects women around the world. Ironically, the Tunisian police recently raped a woman and then charged her with public indecency. Offenses like these would be addressed by this clause if it were in effect. President Marzouki did issue a State apology. Yet, most violence occurs in the private sphere of the family, which the Tunisian and South African clauses also directly address.

Finally, I envy that Tunisia is able to make constitutional revisions at this historical moment of the 21^st century.  At least, their country has founding mothers and fathers working together on their new document. At least, their new constitution will include a gender equality clause. I don’t see the United States getting such a clause in its constitution for the foreseeable future. Perhaps in my lifetime, we will. While pretty words are certainly no guarantee of actual equality, they can be a start. Let’s watch Tunisia closely to see how those words turn out.

[Editor’s Note: For a fuller treatment of this subject, see Adrien Katherine Wing, The Arab Fall: The Future of Women’s Rights, 18 U.C. Davis Journal of International Law and Policy 445 (2012)]