Moroccan law is greatly influenced by Islamic jurisprudence. There are four main schools of Islamic law: Maliki, Hanafi, Shafi, and Hanbali. Traditionally, the Maliki school of law has more heavily impacted Moroccan law. This school of law is credited to Malik ibn Anas, a Sunni Islamic jurist in the 8th century. The Hadith greatly influenced this school of law. The Hadith is the second most respected source of Sharia law in Islam.
Maliki School of Law’s View on Abortion
The Maliki School of Law differs from the other main three in many notable ways. One of these is its view on abortion. The Maliki beliefs in regards to abortion are the most severe of the four main schools of law because they forbid abortion, regardless of any circumstances such as rape or incest. Because of the Maliki School of Law’s prevalence in Morocco’s political and judicial culture, laws and punishments in regards to abortion are harsh.
Moroccan Penal Code In Regards to Abortion
Prior to 2011, the only case in which abortion was permitted was in regards to the mother’s health. Morocco’s Penal Code Art. 453 stated: “Abortion is not punished when it is a necessary measure to safeguard the health of the mother and is openly practiced by a doctor or surgeon with the consent of the spouse.” However, in any other case, women would be punished for seeking an abortion. The Moroccan Penal Code Art. 454 said a woman “who has intentionally aborted or attempted to abort or who has consented to use means indicated or administered for that purpose shall be punished by imprisonment from six months to two years and a fine of 200 to 500 dirhams.”
In 2016, however, Article 453 was amended at the bequest of King Mohamed VI of Morocco to legalize abortion in regards to incest, rape, and malformations of the fetus which the Minister of Communication and government spokesman, Mustafa Jalfi reported in a press conference following the Governing Council. King Mohammed ordered this in response to reports by the Moroccan Association for the Fight against Clandestine Abortion that around 800 illegal abortions were performed daily in Morocco.
Case of Hajar Raissouni
Hajar Raissouni, a 28-year-old woman from Morocco, was arrested along with her fiance, Rifaat al-Amin, after leaving a gynecologist’s office on August 31, 2019 in Rabat, the capital city of Morocco. She was accused of receiving an abortion and of having premarital sex – both of which are illegal in Morocco. She and her fiance were sentenced to one year in prison while the doctor accused of performing the abortion recieved a two year prison sentence along with being banned from practicing medicine.
According to Reuters, Raissouni and her fiance, as well as the accused doctor, vehemently deny any abortion. As well, they say that Raissouni was only seeking treatment for a blood clot.
The case is further complicated by the fact that Raissouni is a journalist for Akhbar Al Yaoum, an independent newspaper that frequently condemns the government and state of Morocco. In 2016, Morocco abolished prison sentences for infractions to Morocco’s laws governing the press. However, watchdogs have reported an increase in the number of journalists in legal trouble unrelated to their journalistic work. This conflicts with the Constitution of Morocco. Title II Art. 23 says “No one may be arrested, detained, prosecuted or condemned outside of the cases and the forms provided by the law.”
On October 16, 2019, King Mohammed issued a pardon for Raissouni, her fiance, and all medical personnel involved in the case. According to the New York Times, The Ministry of Justice of Morocco said that the pardon was a result of King Mohammed’s desire to “preserve the future of the two fiancés who planned to found a family in accordance with religious precepts and the law.”
Both the domestic and international response to this case were strong. In Morocco, protests were staged outside of the courthouse where Raissouni and al-Amin were sentenced in Rabat. In addition, criticism of the government of Morocco has increased alongside accusations of their abuse of power in order to limit women’s rights as well as free speech. Both of these accusations about this limit of freedoms would be in direct conflict with the Constitution of Morocco. Title II Art. 19 says “The man and the woman enjoy, in equality, the rights and freedoms of civil, political, economic, social, cultural and environmental character, enounced in this Title and in the other provisions of the Constitution.” In addition, Title II Art. 25 says “The freedoms of thought, of opinion and of expression under all their forms[,] are guaranteed.”
According to BBC, Raissouni informed the AFP news agency that her case had started “healthy and useful” debate in Morocco. She adovcated for the decriminalization of other jailable offences, such as sodomy and eating in public during Ramadan.
This case has raised concerns about women’s rights in Morocco and about freedom of the press. According to the New York Times, in Reporters Sans Frontières World Press Freedom Index, Morocco ranked 135 out of 180 countries, meaning that it is frequently thought of as abusing its legal and political power to limit and scare the press.
As the Morocco’s court system continues to develop and modernize, its Hanafi school of law influences legal institutions more and more. An example of this is Morocco’s reform of the Family Law, or Moudawana, in 2004. According to the Centre for Public Impact, the reformation greatly increased the rights for women in Morocco in terms of divorce, child custody, and opportunities. The Hanafi school of law is more pro-choice than the Maliki school of law.
Women’s freedoms in Morocco are more restricted than in other countries. This in turn leads to calls for legal change in the country through various forms of social unrest.
Amanda Turner is currently a freshman at Duke from Haverford, Pennsylvania. She is studying Public Policy and Global Health.