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.
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.