Mauritania's Failure to Adapt Gender-Based Violence Laws

Images of Mauritanian activists given used with permission of owners and subject. Images of Mauritanian activists given used with permission of owners and subject.

Mauritania's Failure to Adapt Gender-Based Violence Laws

By : Elizabeth Schenker

While rape is often underreported globally, women in Mauritania have a very specific reason to underreport: fear of criminalization. According to research published in 2018 by Human Rights Watch, many Mauritanian women who reported being raped were subsequently arrested for the Islamic crime of Zinā, or fornication. Women who do not provide sufficient evidence of rape are often not believed and can face imprisonment for a minimum of four years. While police demand a great amount of evidence from the victim, HRW points out that the state of Mauritania has limited forensic capacity to investigate rape. The circumstance of rape victims being accused of Zinā is perhaps the most obvious human rights abuse in the application of the law but it is far from the only troubling consequence. Zinā has been invoked in cases of men and women being alone together in public, foreign employees working in private homes without proper documentation, and to persecute sex workers. What is perplexing in all of these instances is that both Mauritanian law, partly derived from the French code civil, and Islamic law have more specific and appropriate mechanisms for all of these situations. Why the overextension of Zinā, and how can it be changed?

Modern applications of Zinā by Islamic constitutions diverge significantly from classical sources. The Quranic definition of Zinā is straightforwardly limited to sexual intercourse between two consenting and unmarried parties, and a Zinā accusation requires four eyewitnesses to the act itself. This makes it very difficult to accuse another person. A position paper by Karamah, a group of Muslim women lawyers who advocate for human rights, discusses the validity of Zinā in terms of modern national law versus Islamic jurisprudence. The paper discusses human rights problems stemming from Zinā laws in Pakistan, which operate in a remarkably similar way to the application of Zinā in Mauritania; both laws conflate fornication and rape. Karamah highlights the difference between the quranic source and modern construct, which mainly relate to forgiveness and the categorization of sin. Quranic sources place much greater emphasis on forgiveness than punishment in regard to Zinā. Zinā constitutes two different levels of sin: sin against God and sin against the community. A sin against God is personal, and cannot be forgiven by human authorities, while a sin against the community can be punished or forgiven by the community itself. Zinā can therefore only be categorized as a sin against the community when it is publicly known; otherwise, it is the responsibility of the individual to repent. According to Karamah, the special emphasis  put on protecting the innocent by the way it was written in the Quran. Witnesses needed to be men, where an act of Zinā is more likely to be committed in spaces dominated by women at the time of the creation of such laws. This also suggests that it was thought more likely for a woman to be falsely accused. The position paper also stated it would be better to let the guilty get away with the crime than to punish the innocent.

The broader modern interpretation of Zinā rose alongside the birth of Islamic constitutionalism in the 1980s. Many Islamic constitutions, including Mauritania’s, came into being as a response to colonialism. In the post-colonial era, many Muslim-majority countries saw Western bureaucratic norms as a failure, especially economically, by the end of the 1970s. Islamic constitutions marry Shariah laws to governmental structures left behind from colonial rule, encoding a permanent tension between the two. The Mauritanian constitution is no exception to this trend. Islamic law in the Mauritanian constitution is often far from specific, and indeed the Mauritanian constitution states all Islamic law is binding.

This legal tension played out in the recent battle to offer clearer laws protecting victims of rape in Mauritania. In November 2019, a new law was proposed with the full support of the newly elected administration entitled “Law to protect women and young girls.” Proposed changes to the law focus on different types of gendered violence, touching on issues of emotional, domestic, and sexual violence. The law gives a broad definition of violence, discussing a ‘culture of suffering’, ‘impacting harm’, and ‘control of women’s lives’.  While Mauritanian legal scholar Hamoud ould Ramdan critiqued this language as unclear, the broadness could perhaps also allow an evolving approach to understanding violence. Ramdan also saw controversy in the law giving women permission to leave their homes without a male family member’s permission if they were fleeing situations of violence, which could be in direct opposition to Shariah law. The law defines emotional violence as controlling women’s private lives, and both sexual and domestic violence can be paired with establishment of a women’s right to bodily autonomy. The law would create a formal definition of rape, remove the statuate of limitation for reporting rape, and articulate distinct punishments in the penal code between rape and attempted rape. Beyond establishing legal language, the law would also form the creation of judicial, health, and social support for survivors of violence.

Like all Mauritanian laws proposed in the senate, it had the seal of approval from the Minister of Islamic Affairs, meaning that it was in compliance with Shar’iah law. Many Mauritanian women’s rights activists saw aspects of the bill as a victory, especially the legal definition of rape, and thought that the bill, having the support of the administration, would be certain to pass. Surprisingly, the law was quickly moved into review and was sent back twice by the senate. This is virtually unheard of for a law that has the support of the executive branch of the government. In reaction to the law, a critique was issued called the Petition of Imams, written by a group comprised mostly of Islamic scholars. The group also includes many members of the Mauritanian High Council of Fatwa. The authors of the petition objected that Shar’iah law is not mentioned in the law itself as a justification for the law’s existence. This criticism claims the law is premised on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Beijing Declaration of 1995. The group declared the law haram and compared it to pork. Interestingly enough, the criticism was more focused on the source of the law than the specifics, as none of the aspects that Ramdan saw as being anti-Shar’iah were mentioned.

Women’s rights activists in the capital of Nouakchott objected immediately. Hashtags were created, conferences were held, and protests were organized in favor of the law. One of the most prominent activists was Dickle Dia. Herself a survivor of incest, she grew up seeing domestic violence as an inescapable fact of life in her village. Dia believes that the best way to support Mauritanian women escaping violence is to facilitate economic independence. This guides the vision behind her NGO “AFPHY” which creates cooperatives of rural female potters and finds modern applications for traditional goods. AFPHY organized a conference in partnership with the United Nations Population Fund and the NGOs One Young World and Thrive to discuss this law. Dia acknowledges the power Islamists have in her country, and listed some of the reasons why this law upsets them (e.g. making fathers acknowledge children, which would end the practice of secret second marriages), although she states that this law contains nothing against Islam or the Quran. Her solution to passing the law is lobbying, but with one particular actor needing to take a stronger role. She stated if the UN were to pressure the Mauritanian government, they would follow suit.

Marietta Diagana, the head of Women Rights at the Mauritanian office of the UN High Commission on Human Rights, also supports the law. Diagana has had a long career working on the rights of women in Mauritania. and shared her experience working at the women’s prison in Nouakchott from 2005-2010. From her estimations, 6 out of 10 prisoners were sentenced with the crime of Zinā. Diagana believes that Mauritanian life is rapidly changing, and that the definition of Zinā is changing as well, “There are many things that are clear in Islam but people interpret how they want to,” she said.

In a country grappling with rapid social and cultural change, the authority of religion was seen as something that would remain static and somehow preserve stability.

Some women’ rights activists believe that this is not the law they would want on a personal level, but that it could be workable at a national level. This position is not one that Mauritanian women rights activists can take publicly. In rural parts of the country, customary law and tribal law supersede both regional and national rule. The family unit and ethnicity may be much more likely to impact a decision about sexual or domestic violence than the court of law. On the law Jamil Mansour, the former leader of the Islamic Brotherhood Party and major political actor, and typically a necessary political ally to accomplish any goal, took a tone of general indifference. He argued that most decisions about women’ rights will take place at a tribal level regardless of the national legal framework. Regarding the law, he said he would wait to see if it was implemented in a way that respects Islam before taking action.

Mauritania has undergone rapid demographic and cultural changes in the past few decades. The country has rapidly urbanized due to droughts in the 1980s, which saw the population switch from being roughly 75 percent nomadic and 25 percent sedentary to the present inverse.  Diagana remarked that the popularity of the law among women in the capital indicated a broader change in the country. “Women are conscious now. Women study and work...In the nomadic culture, life was simpler.” In a country grappling with rapid social and cultural change, the authority of religion was seen as something that would remain static and somehow preserve stability. However, the application of Islamic law is also in cultural upheaval.

After months of lobbying and action, the law failed quietly. While cultural change is a factor in the shifting understanding of Zinā and Mauritanian law specifically, the debate around the origins of Zinā laws can be seen as part of a greater debate about the compatibility of social change with an Islamic framework. This debate was prominently featured by the opponents of the new law, who mostly paid more attention to the origin of the law than to its details. Legal scholars Ahmed & Ginsburg (2015) wrote about the creation of new Islamic constitutions in the wake of the Arab Spring, and the reaction of some American politicians. For some American commentators they argued, “the choice between Islam and democracy is a zero-sum game”. In fact, the viewpoint of mainstream Islamists may not be so different from that of many womens’-rights focused NGOs, that uncritically implement Western secular norms. The Mauritanian activists supporting stronger laws understand that they need to tread more carefully, working with what is possible in the current Mauritanian cultural context. Both Diagana and Dia see the “sensibilization” of Islamic leaders as a necessary step to creating lasting change in their country. Diagana believes that most of the Islamic leaders acting against the law are unaware of its contents. Creating a human rights narrative that embraces Islam and is inclusive of Islamic figures will make change more palatable to a society facing rapid cultural and social transformations. Dia’s work centers on this, albeit at a less abstract level, as the female potters employ traditional techniques that can be employed in modern construction and are more suited for the climate of Mauritania than foriegn concrete. Dia argues that Western authorities often overlook the value of traditional knowledge; this applies equally to the dexterity with which Mauritanian activists are navigating political change in their society.

In the Shadow of Malala: The West’s Unsaved Others

Malala Yousafzai has made a number of headlines in the past few weeks: Nominated for a Nobel Peace Prize, addressing the UN on the occasion of “Malala Day” dedicated to youth education, meeting with the Obamas in the Oval Office, chatting with Queen Elizabeth at Buckingham Palace, speaking at the World Bank’s “International Day of the Girl,” and receiving the honorary Canadian citizenship. In case you missed it, even The Daily Show’s Jon Stewart declared his wish to adopt her.

Many have written about Malala’s fame. Journalist Assed Baig argued that Western journalists and politicians have used Malala to appease their white man’s burden, to hide their sins in Afghanistan and Iraq, and to divert attention from the Western-caused suffering of many in the region. In a recent piece on Al-Jazeera, Murtaza Hussain compared Malala to nine-year-old Pakistani girl Nabila Rehman who came to Washington D.C. to testify before Congress about the drone attack that killed her grandmother last year. Only five out of 430 representatives came to hear Nabila’s story. For Hussain, Malala Politicians and pundits used Malala as the human face of the American-led War on Terror, on behalf of whom “the United States and its allies can say they have been unleashing such incredible bloodshed.” Nabila, on the other hand, had become, “simply another one of the millions of nameless, faceless people who have had their lives destroyed over the past decade of American wars.”

By shedding light on the suffering, past and present, of people in the Middle East, such critical interventions expose Western political propaganda’s use of Malala. But who are Malala’s others? For she has many. And they are not just those in the Middle East, but in the heart of the West itself. Certainly, Malala’s near-canonization diverts attention from the chaos and injustice of the War on Terror in the region. But what about those black, brown, and white poor bodies, in the West, that remain in Malala’s shadow?

Malala rose to international fame following a failed assassination attempt by the Taliban on 9 October, 2012. Taliban gunmen shot her in the head and neck as she was returning home on a school bus in the Swat district of Pakistan. The attack received worldwide media coverage and prompted condemnations from President Obama, US Secretary of State Hilary Clinton, and British Foreign Secretary William Hague. Days after the attack, Malala was flown to the Queen Elizabeth Hospital in Birmingham for surgery and rehabilitation. Former First Lady Laura Bush wrote a Washington Post op-ed comparing Malala to Holocaust diarist Anne Frank. Angelina Jolie donated 200,000 dollars to the Malala Fund. The young girl received the Simone De Beauvoir Award (previously given to Ayaan Hirsi Ali). Foreign Policy voted her among the top one hundred global thinkers in 2012. Time magazine listed Malala among the one hundred most influential people in the world in 2013. She had also made it to the magazine’s shortlist of Person of the Year in 2012. At sixteen, Malala has already published her first autobiography, I am Malala, and has her portrait commissioned for the National Gallery in London.

As the French magazine Le Point put it, Malala had become “an enterprise,” one that is run by the world’s largest independently owned public relations firm, Edelman. The multimillion dollar firm had allegedly dispatched five employees to assist Malala and her family, pro bono, in managing the media interest in her campaign. McKinsey, the renowned American global management consulting firm, is also involved in the campaign, handling the Malala Fund for the education of girls.

Of course, Malala is a modern-day heroine, and a great model to many. She was shot by the Taliban for speaking up against their ban on girls’ education, most famously in a 2009 series of blog posts commissioned by BBC’s Urdu service website. But Malala’s message of girls’ right to education cannot but be eclipsed by her larger-than-life persona that Western states, international organizations, public figures, and public relations firms have manufactured. This essay is not about Malala, the person, as much as it is about her international circulation as an icon. It is not about Malala’s deeds, unquestionably noble, but about Western politicians and media figures’ fascination with this young girl.

The history behind Western media narratives about Muslim women’s plight is by now all too familiar. As Lila Abu Lughod has shown, in the context of the post 9/11 War on Terror, Western political projects, including the United States War on Afghanistan, justify themselves by purporting to liberate and save women. Decades earlier, Frantz Fanon wrote about France’s project to colonize Algeria by unveiling/civilizing its women. Laura Bush’s unwavering commitment to brown women attests to the tenacity of the narrative. In fact, the former First Lady explicitly framed her Washington Post op-ed, “A Girl’s Courage Challenges Us to Act,” as a follow-up to her first presidential radio address. During that address in November 2001, Laura Bush justified the invasion of Afghanistan in the name of the liberation of its women, claiming that “the fight against terrorism is also a fight for the rights and dignity of women.” Bush ends her most recent op-ed with the following words: “Today, for Malala and the many girls like her, we need not and cannot wait. We must improve their world.” Plus ça change…Eleven years after the invasion of Afghanistan, Bush is still bent on saving Muslim women. Eleven years after asking her initial question, “Do Muslim Women Really Need Saving?” Abu Lughod is still trying to explain why, in fact, they do not.

Activists, artists, and intellectuals have repeatedly challenged everyone from Bush to the bare breasted women of FEMEN in their imperative to liberate Muslim women by speaking on their behalf. One recent example is thisbeautifully-executed Muslim superhero cartoon. Third world feminists have powerfully formulated these critiques for decades. But there is something peculiar about Malala that cannot be explained only by exposing the fetish of saving the brown woman. The critique must move further into the underbelly of this affective excess, to recuperate those other brown women that the “we” of Laura Bush does not want to save Otherwise, the analysis remains politically incomplete and critically lopsided, further reproducing the fixation on brown women “over there.” There is something about this sixteen-year-old amassing award after award and prize after prize that says much more about the West than it does about Malala, Pakistani girls, or the right to universal education.

This painful story “over here” is particularly poignant given the collapse of public education in the United States. The US president commends Malala on her “inspiring and passionate work on behalf of girls education in Pakistan" just as twelve-year-old Laporshia Massey died because the government did not find it necessary to pay a full-time nurse at her under-funded Philadelphia school. To be sure, no one will award Laporshia a Nobel Peace Prize. She is not Pakistani, not a Middle Eastern Muslim girl shot in the head by the Taliban. No one will send Laporshia a helicopter to fly her to a hospital. She is just a poor black girl from Philly. She suffocates quietly in her classroom. She is told “there’s no nurse, just be calm.” She is ordered to wait even as Laura Bush implores, “we need not and cannot wait. We must improve their world.” The world that must be saved is far away over there; ours is doing just fine. In his meeting with Malala, president Obama signed a proclamation to mark Friday as the “International Day of the Girl.” The proclamation reads: "on every continent, there are girls who will go on to change the world in ways we can only imagine, if only we allow them the freedom to dream." Young girls from American public high schools are pleading with their government to build schools, not prisons. They are dreaming out loud, but who is listening?

Muslim girls’ right to education must also be brought into relief in France, which bans Muslim girls donning the headscarf—the one Malala wears—from attending public schools. Many believed that the 2004 law, which instituted a ban on “conspicuous signs” of religious affiliations in French state schools, was specifically targeting Muslim girls wearing headscarves, and through them, the country’s Muslim minority. The secular republic ostensibly banned the headscarf to safeguard France’s laïcité. But many intellectuals and public figures couched the ban in a rhetoric of gender equality whereby the secular law saves women from the tyranny of their religious communities. Lest we forget, the headscarf controversy itself dates back to 1989, as Joan Scott shows in The Politics of the Veil, when three French Muslim girls (of Moroccan origin) who refused to remove their headscarves were expelled from their Middle School in the Parisian suburb of Creil. Canada will not grant them honorary citizenship, but the King of Morocco himself will intervene to convince them to remove their headscarf when entering a classroom. But, as Scott shows, in a clear demonstration of their personal conviction, they continued to wear the hijab in the school’s hallways and courtyards. Their struggle did not go down in history as a story of Muslim girls’ fight for equal education. Nor did that of fifteen-year-old Cennet Doganay (of Turkish origin) who shaved her head to be able to attend class. Following the ban in 2004, Doganay tried to substitute a beret and a bandana for her headscarf, “but they still refused to let her into class." The BBC, who reported her story, did not ask her to blog about her experience.

There is something about Malala, and it is not the white savior complex,” or not only that. It is the erasures that are enacted by her global circulation as an iconic brown, Muslim girl. Malala screens from view the Laporshias and Cennets in our midst. There is something about her hypervisible presence that further enacts a symbolic violence against the poor, black, and brown bodies, in our midst in Europe and the United States. These bodies are constantly erased from public, undeserving as they are of collective “white” middle-class attention and care. These bodies are ordered to enact their own self-erasure: by being quite, not blogging about injustice; by hiding their difference, not flaunting their scarves; by accommodating dominant social values, not subverting them. Would a million prizes for Malala wash away the hefty price of an American or European education?

Yes, Philadelphia may not be the Swat Valley, but one has to wonder, given the history of mass school shootings in the United States that have taken the lives of American children and teenagers. The Pakistani government, following Malala’s shooting, ratified the Right to Education Bill; the United States has yet to pass a law on gun control. Yes, the girls of Creil were not shot in the head. But the comparison is not meant to suggest similarity. The juxtaposition of these differently-situated young brown female bodies is necessary if we are to grasp the connections between the injustices they face. Mapping these connections does not equalize experiences; it reveals how education is a common discursive thread, differently-deployed, across these stories. It forces us to contemplate the terms of “girls’ right to education,” of which Malala has become the poster child. It impels us to specify the subject of these rights, and to identify those whose exclusion is masked in the process.

Exclusion is universal; it is historical and contextual. In Jim Crow America, black girls were not allowed in public (white) schools. In Taliban-dominated Swat Valley, girls are not allowed in public (boy) schools. In republican France, veiled girls are not allowed in public (secular) schools. In many places around the world, from Philadelphia to Santiago, poor girls (and boys) are not allowed public schools altogether. Schools are places where the exclusionary logics of racism, republican secularism, Islamism, and neoliberalism, as different as they may be, become manifest. Schools are the locus where such exclusions are enacted, learnt and normalized. Schools are where children become versed in the grammar of national culture. They are where “others” are taught that they are unwelcome into the fold of the nation, society, and community.

Exclusion is not a Taliban-created exception. It is all around us. And there is something about Malala, as a poster child for girls’ right to education that is meant to make us think otherwise. There is something about an internationally-endorsed, officially-supported, generously-funded, Nobel-prize nominated, and branded campaign for education, starring a brown Muslim girl, that sharply contrasts with recent student protests in QuebecChile,France, the United StatesSpain, and the United Kingdom (among other places). There is something deeply wrong when gender is deployed as the sole source of inequality that must be addressed (albeit in far-away places). There is something deeply wrong when transnational state feminism displaces class inequalities, deeply felt in the languishing state of public education, onto the body of a Taliban-shot sixteen-year-old girl. Such a displacement undermines Malala’s just cause against religiously-inflected social injustice by making it exceptional, by severing its links to global demands for equal and free education. If feminism is not to be co-opted by a neoliberal discourse, as Nancy Fraser recently argued, we must be aware of the fetishization of gender inequality that makes moot all other inequalities.

Western governments have used the figure of the victimized brown woman in the past to justify overseas action, intervention, expansion. Here, they are also using it to whitewash and legitimate the withdrawal of the state from the public domain. As if this child’s small body, stretched and overblown by awards and honors, is supposed to hide the ever-shrinking state; as if Malala’s inflated body will cast a large enough shadow over the growing pool of bodies the state has abandoned.