- 1 On the massive changes that affected women in southern Yemen, see Dahlgren, 2010.
- 2 On mahr debates in Aden, see Dahlgren, 2005.
1After the withdrawal of British colonial rule from the Southern part of Yemen in 1967, women’s rights became one of the priorities on the agenda of the newly independent country. The policy of taḥrīr al‑mar’a (women’s emancipation), as it was officially called, was a result of the anti‑imperialist and “progressive” policies of the National Liberation Front, which took over after the British left. In line with that policy, women were invited to join in public life — in education, employment and politics — “alongside their brothers”, as official discourse put it. This was evident in a call to all women, regardless of social or ethnic background, age or civil status, to undertake education and join the labour market, as well in attempts to eradicate misogynist attitudes in the public sphere.1 In order to reform intimate relations in the home, a statutory family code was drafted soon after independence (Law no. 1 of 1974). During the period the code was in force, it engendered both positive and negative reactions. For men, the provision limiting the mahr (dower) to a nominal sum was welcome as it reduced marriage expenses and made marrying affordable for every man. Women, however, tended to view such a limitation negatively as they considered mahr a form of security for the future and a symbol of a woman’s desirability.2 Women emphasised the idea of free‑choice marriage, which they believed was brought about by the code.
2Meanwhile, in the northern part of what is today the Republic of Yemen, referred to as the Yemen Arab Republic until Yemeni unity in 1990 and ruled by military technocrats with strong ties to the centuries‑old tribal system, a family code was enacted in 1978 (Law no. 3 of 1978). This was a more conservative reading of Islamic law than the southern code, mixed in with customary conventions regulating family life and restricting the movement of women. In May 1990 the two Yemens united to form the Republic of Yemen based on a parliamentary system with a strong president. While many state institutions were simply merged and some previous conventions were allowed to continue on both sides, only two years after unity, both the 1974 family code and the 1978 Family Law were cancelled and a new personal status law was issued by presidential decree. It had been drafted before unity in what was then North Yemen by jurists of Shāfi‘ī and Hādāwī (Zaydī) law schools. For women’s rights advocates, men and women on both sides of the previous border, this was unwelcome news. Yet the move towards a more conservative legislation regarding women’s rights in their most intimate relationships, namely those within the family, was celebrated by those who believed that the old southern law simply gave women too many rights.
- 3 This study is based on three years of ethnographic fieldwork in Aden carried out between the years (...)
3Those critical of the 1974 family code also suggested that it stood outside Sharia. In this paper, I discuss the articles of the 1974 family code in light of what people in Aden, the former capital of the South thought about it while the code was still in force. I interviewed both men and women usually in their homes, which I visited with a research assistant, a student from Aden University. I contrast these views with perspectives that have come up during other periods of reform, both before and after unity. I look at the different periods of debate in light of the family codes of other Arab countries and Islamic jurisprudence (fiqh) at large in order to discern the particular issues of Yemeni men and women who bargain for their rights and to see how southern Yemeni perspectives differ from northern concerns.3
4Aden became a British colony soon after 1839 when ships of the East India Company arrived in and took possession of the town, which had a long history as an important port for Asia, Africa and Europe. With independence in 1967, Aden became the capital of a new state patched together from various sheikhdoms and emirates that earlier had been in alliance with the British. Already in the early decades of the twentieth century, women’s rights had emerged in popular debates in Aden as part of national discussions on modernity and advancement. Under the British Empire, Aden was a busy port and a hub of commerce, manufacturing and transportation in the Arabian Peninsula. Debates on modernity, education, suffrage and women’s rights often took place in men’s clubs and intellectual discussion forums. While the British brought the culture of clubs and associations to Aden, Indians, Europeans and to a lesser degree, local men from the upper strata socialised in their own clubs. Local men’s clubs attracted writers, scholars and notables. In the early 1950s, women came out of their homes to join public life. In the beginning, elite women paved the way for female socialising outside the neighbourhood. Soon a women’s movement emerged, led by colonial wives engaged in charity work. In the 1950s these societies radicalised; their leadership passed into local hands, and they played an active role in the anti‑colonial struggle. The societies joined forces with political associations and the trade union movement in the fight for independence within the framework of national unity. All of these discussions and struggles formed the basis for post‑independence women’s emancipation politics called taḥrīr al‑mar’a.4
- 5 Reprinted in al‑Hamdānī 2005, p. 395‑454.
5In the early twentieth century, some families became influential on the political scene. One such family was the Ismā‘īlī family of Luqmān. Originally from the northern Yemeni area of Ḥamdān, the family had fled to India in the eighteenth century, escaping Zaydī oppression, and from there came to Aden. The patriarch of the family, Ibrāḥīm Luqmān, settled in Aden in the late nineteenth century and established successful businesses with the backing of the British. His grandson, Muḥammad ‛Alī Luqmān, advocate and writer, published the first Yemeni novel, Sa‘īd (1939).5 His book Why has the West Advanced? (bimādhā taqaddum al‑ghabiyūn?), originally published in 1932, was a critique of “backwardness” in the East while also hailing Western modernity. Later, the book was reprinted and discussed in newspapers, which made the issues inside accessible to a wide readership. Some of the topics Luqmān points out as backward are “the shameful position” of women as “objects of pleasure for men only”, and the lack of educational opportunities in the British Colony of Aden.
- 6 The other early Arabic language newspapers were Ṣawt al‑Jazīra, established in 1939 and Al‑Akhbār a (...)
- 7 ṬāḤir 1981, 25; Douglas 1987, p. 72‑73; Muheirez, 1985, p. 207.
6In 1940 Luqmān founded one of the first Arabic‑language newspapers in Aden, Fatāt al‑Jazīra.6 The paper devoted regular pages to women in a section called Our beautiful half. These pages presented matters of “advancement” in women’s position along with useful advice on child care and household chores. For the newspaper, progress included emulating the British educational system and the limited roles for women as allowed by the colonial masters. These roles included the professions of teacher and nurse and welfare activities among the colony’s poor. Luqmān also played a prominent role on the political scene of the 1950s and 1960s, first in the Arab Reform Club, a loose association of Adeni intellectuals, and later in the Aden Association, which promoted independence for Aden in the manner of Singapore, that is, a state separate from the surrounding countryside and Protectorates and a member of the British Commonwealth.7 Muḥammad ‛Alī Luqmān’s sons Ḥamza Luqmān and Farūq Luqmān were also prominent figures in the colony’s politics and literary life; the women of the family, however, did not become public figures. The Luqmāns were one of the many remarkable families in Aden alongside the Ghānims, the Makāwīs, the Ḥasan ‘Alīs and others, whose members nurtured the colony’s cultural life.
- 8 Anderson, 2008 , p. 11‑39.
7Following independence in 1967, women’s rights were actively promoted by the women’s league, which in 1968 took the name General Union of Yemeni Women (GUYW) in order to continue the active role of its predecessors in the 1950s. Women were thus the first social force to organise after independence, a matter that was later reflected in the policies of the new regime. However, demands for regulating marital relations in a statutory code came from different quarters, not only the women’s camp. Common to all were demands to guarantee women protection from ill treatment in marriage. The first attempt to achieve legislation after independence was the Zinjibār Circular in 1971, unofficially issued by the local authorities in the province of Abyān some 50 kilometres east of Aden. The custom of issuing legal circulars was an old one in this area; emirs and sultans who ruled before independence had used it to issue legislation in the absence of any parliament or other legislative bodies.8 The Zinjibār Circular was issued because local people had become impatient with the slow process of issuing new legislation in the capital Aden. The Circular was drafted by local dignitaries who had participated in the struggle for independence, together with the centrally appointed governor and local qāḍīs (judges), such as qāḍī Yaḥyā ‘Abd Allāh Qaḥṭān. He commented on the discussions surrounding the question of limiting polygamy in the Circular:
- 9 Al‑‘Arabī magazine, issue 162 (May 1972), p. 127 as quoted in Ghanem 1972, p. 100‑101.
“At the beginning there were always difficulties, but we found a general awareness which enabled us to apply the clauses of this Circular which need to be further established to convince the people. The Circular is not inconsistent with Islamic Sharia, and the Qur’an ordained that “if you fear that you shall be unjust, then one (wife only)”.9
- 10 Al‑‘Arabī magazine, issue 162 (May 1972), p. 127 as quoted in Ghanem 1972, p. 101.
8The circular limited polygamy to cases of illness of the wife, her infertility or infidelity. It set 15 as the minimum legal age for marriage, made the bride’s consent a requirement for marriage, limited the dower (mahr) to an affordable 200 Yemeni dinars, granted women the right to apply for the dissolution of a marriage owing to a husband’s prolonged absence (two years) and proclaimed out‑of‑court repudiation (ṭalāq) to be void.10 This circular and the debates prior to independence in which women’s rights had been raised as part of a “modern state” paved the way to drafting a national legislation.
9The two Yemeni states were among the first on the Arabian Peninsula to issue a statutory family code, that is, a state law which replaced the earlier practice of a judge managing justice in his court according to his knowledge and understanding. In Aden these courts were part of the British colonial system and the Anglo‑Muhammadan law practice developed earlier in colonial India. The colonial court system was based on court hierarchy, something alien to Islamic legal principles. Divorce cases that were brought to court (men’s right to repudiation [ṭalāq] did not require a visit to the court) were litigated in the Supreme Court, while maintenance orders were dealt with in the Magistrates’ Courts. Female litigants often had to run two separate law cases in order to safeguard their legal rights. The number of female applicants was low, at most some ten cases a year throughout the 1950s.11
10Like some other laws at the time of early independence, the 1974 Family Code was publicly discussed at gatherings as well as in government controlled media: newspapers, the radio and TV. It can be said to represent a reformist interpretation of Sharia. Some provisions, such as the dower (mahr), had already been the subject of debate among the public in colonial times. Along with the regular legal authorities, the process of drafting the new law involved lay persons such as women’s activists, a sign of the new administration’s attempt to issue laws in response to popular demand.
- 12 The Middle East, February 1983, p. 46‑47.
11The entire process of discussing the draft law lasted three years. The legislative authority at the time was the People’s Supreme Council, formed by a few independents and the National Front, a political party that was formed on the basis of the National Liberation Front (NLF), which gained power after the British left and acted in alliance with two smaller parties, the Ba’ath Party and the small communist party, the People’s Democratic Union. Mass organisations close to the ruling party, such as the Women’s Union, also played a role in discussing the draft law, as did the Ministry of Justice and Waqf (religious endowments). The provisions were further debated over a period of four months in public meetings in the countryside and in the main towns. Women’s Union activists participated in these meetings and later reported on the issues the draft raised among the people. One of the most‑debated matters was the question of how long a woman has to wait to divorce a husband who has migrated and left her on her own. During the period of public discussion, women were in favour of more radical reform measures than men, women’s activists reported.12 Women were eager to render polygamy illegal, and to ensure that women could keep their housing after a divorce, as one of the activists who participated in these meetings later recalled to me.
12In public meetings, the question of compatibility with Sharia came up frequently and members of the drafting committee were reportedly at pains to defend the new law within an Islamic context. One drafting committee member commented:
“We researched the old books of ḥadīth (tradition) to show that we had not created anything; everything is in Islam. We only gave vitamins to old ideas, to have them triumph.”13
13As Women’s Union activists recalled, in hindsight, one of the main achievements of the 1974 law was that it did not form a law around women, a kind of mudawwana (law collection) with provisions that placed women under male authority. As one activist for women’s rights explained, this would have sent the wrong signal that women were not legal persons in their own right, that a “woman’s place” was at home and under male ‘isma (authority) with the man as her wakīl (representative) in society outside the home.
- 14 The idea that women gained all their rights, legal, political and social only after independence wa (...)
- 15 I interviewed 311 women during the years 1988–89, 1991 and 1992. For further details on my fieldwor (...)
14The men and women I interviewed in the late 1980s in Aden when the 1974 law was still in force agreed that the law promoted women’s rights. At that time, it was popularly called the Women’s Law. I met many men who praised the law as it had “given women their rights”, as commonly expressed in the late 1980s. These men knew that women’s rights were something that made the PDRY stand out among conservative Arab states, and thus it was a source of national pride. Few men were critical, but those who were, claimed that the law gave women “too many rights”. Women tended to view the law as the first time that they had had legal rights.14 Many interviewees put it this way: women gained their rights after independence, and one of its main achievements was the 1974 law.15
15A close look at the law shows that the main provisions benefiting women included the following: the bride’s consent to marriage (§ 3); an age requirement for all marriages (18 for men and 16 for women, §7); the prohibition of an age gap of more than twenty years between the spouses unless the woman had reached 35 years of age (§9); the woman’s right to apply for court separation on the same grounds as a man (§29); the right to receive reasonable compensation in divorce if the husband is the source of discord, not to exceed the dower (§30b); rendering out‑of‑court repudiation void (§25a, b); limitations on bigamy, subject to a court decision (§11); the woman’s right to keep her children (a boy until age 10 and a girl until age 15) even if she remarries (§46); and the stipulation that women can act as witnesses for marriage on the same grounds as men (§8). The law acknowledged ṭalāq but made it subject to a court decision and subject to financial compensation to the wife (30a).16 In contrast to colonial practice, when maintenance applications were handled by a different court than the one for the divorce application and unlike today’s practice, which has returned to this complicated procedure, according to the 1974 law the court was entitled to deal with maintenance and custody settlements in connection with a divorce ruling in one hearing. Under the present law (the Personal Status Law or PSL, of 1992), the wife has to file a separate application to obtain support (nafaqa) for her and her children, or to get custody (ḥaḍāna).
- 17 In 1998 I carried out a small inquiry on mahr in Aden. I interviewed 26 men and women of all social (...)
16The women I interviewed17 were mostly critical of the government measure to limit the dower (mahr). Mahr is the money or valuables paid by a groom to his bride, and it remains her property throughout the marriage; no one else is allowed to touch it. In the 1974 law, mahr was limited to a nominal sum of 100 dinars (about twice the monthly salary of a white‑collar employee). Women tend to view mahr as a woman’s right and as a security should her marriage be terminated. According to Islamic principles, mahr is a woman’s property, and she is not liable to use it to support the family. Those women who agreed with the limitation thought that women needed to work alongside their husbands and that in any case marriage should be based on companionship rather than being a maintenance relationship. Limiting the mahr facilitated the conclusion of marriage contracts for men who had previously been required to raise huge amounts of money before they could dream of taking a bride. However, demands had already been made during the colonial period to curb mahr and other marital expenses for men. Among the most vocal in making these demands were Islamic notables such as Shaykh Muḥammad al‑Bayḥānī, a leading twentieth century Adeni ‘ālim (Islamic learned). In this respect the “Women’s Law” clearly favoured men.
17The 1974 law did not separate the duties of spouses in marriage as did the northern Yemeni law of 1978; the 1992 PSL that followed is particularly explicit on what constitutes women’s duties. The 1974 law did not elaborate on marital duties other than the issue of support during the marriage:
“Marriage is a contract between a man and a woman who are equal in rights and duties, and is based on mutual understanding and respect (…) (§ 2). Furthermore “Expenses in respect of marriage and the conjugal home requirements shall be borne by both husband and wife according to their means” (§ 17).
“Both husband and wife share their joint life expenses after marriage, but where either of them is unable to do so the other spouse shall be liable for maintenance and for shouldering the burdens of the married life” (§ 20).18
- 19 [And what burden were it on them if they had faith in Allah and in the Last Day, and they spent out (...)
- 20 El Alami and Hinchcliffe 1996; Nasir 2002, p. 66‑68.
18Similar provisions for the support of children and elderly parents are found in §§ 22 and 24. It follows that failure to provide such maintenance is a legitimate cause for judicial separation, not only for women but also for men (§ 29c). Even though the wife’s duty to participate in supporting the family is in accordance with standard reading of Islamic law based on Sura 4:34, Adeni women’s activists insisted that the provision had a Quranic basis.19 Men have a conditional right to take a second wife in the event of the first wife’s sickness or barrenness and with her consent, subject to written permission by a divisional court (§ 11). Such a limitation is typical of Arab family codes; i.e. Iraqi Law no. 188 of 1959, Libyan Law no. 10 of 1984 and Syrian Law no. 34 of 1975.20
- 21 Law no. 3 (Family Code), 8 January 1978, as translated and reprinted in 14 Ann. Rev. Population L. (...)
19Even though classical Islamic jurisprudence (fiqh) does not recognise duties in marriage outside sexual exchange and maintenance that form the requirements for the wife’s obedience (ṭā‘a), the north Yemeni code of 1978 gives detailed provisions for gendered spousal rights and duties. A man’s rights in marriage are described in chapter 3, § 27 and combine those rights with the Islamic requirement of obedience on the wife’s part. According to the law, the husband can expect the wife to be present in his house and to carry “out his wishes and fulfil her work in the house of matrimony”. Article 27.2 orders her to “make herself available for legitimate intercourse without the presence of any person”. Furthermore, the wife is bound never to leave the house without the husband’s permission. The husband cannot, however, stop her if she has a “legitimate excuse” or if “custom dictates” or if there is “nothing to bring dishonour or disregard to her duties toward him”. These conditions are in connection with taking care of her assets or performing her duties such as taking care of her elderly parents, with the condition that there is no one else to serve them.21
20The northern Yemeni code applies the legal notion of nushūz (disobedience, the status of a runaway) to women in § 38. A court shall consider a wife to be a runaway if she no longer obeys her husband. She can avoid such a status only if her husband has failed to pay her prompt dower (mahr mu‛ajjal) after contracting the marriage. A second cause for a wife to avoid the legal status of a nāshiza, or runaway, is when a husband does not provide a dwelling in accordance with her social standing (bayt sharī’), and that “she does not feel security for herself and for her assets with him”. Other ways of avoiding nushūz are the husband’s refusal to provide support or the court’s inability to make him provide as the husband has no visible means. All of these are legitimate reasons according to fiqh for a wife to seek a divorce, but according to the 1978 law, a wife has the right to ask for divorce only if the right is conceded to her in the marriage contract (§ 68). Women have the right to ask a court for the annulment of the marriage, but the grounds for this are different from the above provisions for nushūz. Leprosy, insanity, apostasy, alcoholism and refusal to submit to Islam were legitimate reasons that a woman could use in the 1978 Family Law to have her marriage annulled in court (§ 45‑47).
21The duties of the husband towards his wife are less elaborate and include providing legitimate housing, paying for the wife’s expenses and her clothing and being fair between her and his other wives in regard to expenses and housing if they are gathered in one house (§ 39). The law does not mention polygamous unions located in separate dwellings, something that is also common.
22Article 40 in the 1978 law provides details about the place of dwelling. These are customary concerns rather than matters of Islamic jurisprudence.
“It is required that the legitimate dwelling should be independent [and be a place] where the wife finds security for herself and her assets, taking into consideration the social standing of the husband, the dwelling of his peers, city customs and the protection of the wife. The husband may live in one house with his wife and her children whether they are born to her or to another wife, even if they are adult. His parents and the women prohibited to him may also live with him if their housing is his duty, unless this causes the wife any stress if such a condition was not provided for in the [marriage] contract.”22
23After the unification of the two Yemens in 1990, the joint Personal Status Law (1992) described men’s and women’s duties in marriage in line with the northern code. § 40 of the 1992 law is merely a copy of § 27 of the 1978 northern code with the legal notion of ṭā‘a (obedience). These provisions include
- 23 Personal Status Law (Law no. 20 of 1992). The provision “without any other person present” (§40.2) (...)
“that she should allow him to have lawful sexual intercourse with her without any other person present” (§ 40.2), and “that she should undertake her [household] work in the matrimonial home in the manner of her peers” (§ 40.3), also “that she should not leave the matrimonial home without his permission” (§ 40.4).23
24The Republic of Yemen has undergone several legal reforms in relation to family affairs, starting with the enactment of the Personal Status Law (PSL) in 1992 (qānūn al‑aḥwāl al‑shakhṣiya, Law no. 20 of 1992). This law was amended in 1998 and 1999. In debates surrounding the PSL, concerns about the compatibility of the provisions with Sharia including marital age and bayt al‑ṭā‘a (“obedience”) have been raised.
25In a bid to marginalise the previously influential women’s movement in the south, a state committee on women’s affairs was set up by the government sometime after unity. Southern and northern women’s unions had joined together in 1990 to form the Yemeni Women’s Federation, a nationwide movement with local committees in most governorates. Yemen is divided into twenty governorates and the capital Sana’a. GUYW activists were now working with their northern sisters whose experience in advocating women’s concerns was much more modest. Their main activity in the erstwhile north was running literacy classes for women, but they lacked official support. The Women’s National Committee (WNC), the state body established after unity, was assigned the task of monitoring national progress vis‑à‑vis women and representing the country in international women’s conferences. The WNC is the state body typically found in Arab states where female politicians in kinship relationships, married to or in other ways close to the ruling male elite, have been given opportunities to have a career. However, it has also attracted women with genuine activist backgrounds. The WNC has organised a number of seminars on local and national levels and published booklets on questions of women’s rights and women’s advancement or impediments in legislation. Non‑governmental women’s and human rights organisations have participated in such discussions, and the Yemeni press has occasionally published news about these debates.
26In relation to women’s rights in family legislation, participants in these debates have pointed out how customary practices sometimes dominate over Islamic jurisprudence (fiqh) in provisions that have to do with women’s rights in marriage and divorce even though the code is considered to be in accordance with Sharia. The questions raised include how customary ideas and practices prevailing in different parts of the country prevent women from obtaining their rights. As an example, child marriage is rather common in some rural areas while in towns the typical age for women and men to marry is around twenty. The custom of paying the bride’s father, common in northern Yemen, is unheard of in the south.
27In a study on Cultural Aspects Affecting Gender in Yemen published in 2005 based on research in the southern governorates of Aden, Laḥj and Abyan, and carried out by the Women’s Research and Training Centre at Aden University, the authors explain:
- 24 Bafaqeeh and Sa‘ad 2005, p. 28‑29.
“The misconception continues to remain between traditions and the religious values that surround women with a number of practices and popular beliefs that discriminates between genders, males and females, from the day they are born”.24
28In this study which worked with a sample of 462 men and women, institutions concerned with social upbringing such as the family, schools, media, teacher training and religious institutions are evaluated based on how they disseminate traditionalist ideas on gender roles that discriminate against women. Furthermore, the study indicates that in talking about gender roles, on the one hand, people often get mixed up between biological and social roles, and on the other hand, that they have customary ideas about men having the upper hand, thus giving women a secondary position in society. The study further elaborates on how misconceptions of Islam promote customary views when two concepts of superiority are mixed up, one based on customs and the other on Sharia, so that men’s superiority is understood as men being given power over women (ibid., 31‑32).
29In the study carried out in three governorates (Aden, Laḥj and Abyan), male and female respondents both viewed women’s participation in decision‑making in positive terms when it was a matter of family decisions. There is equality and no discrimination in the family regarding the permission to go out of the home or in the question of mistakes committed by a family member. These results mention local differences on gender issues within Yemen. At the national level, such differences are dismissed, and customs most detrimental to women found in the country are taken up as a national standard, as women’s rights activists have often insisted.
30The blurring of Islamic concepts with customs comes up in legal debates as well, particularly in discussions on what rights women should be allowed and what duties they have to their husbands. In interviewing women in Aden in the early 1990s, I heard complaints from many women, irrespective of social standing, that in the new atmosphere that had come with unity, their husbands had changed and had come to believe that the era of women’s liberation was over. It was now the wife’s duty to serve the man at home, regardless of whether she worked outside the home. Her duty was to have everything ready at home whenever her husband arrived. Some men even threatened to take a second wife as a means of forcing his wife to compromise. Such threats were seldom carried out, but men who considered taking a second wife saw it as a positive option, as such men have told me. Women complained that they were no longer considered by men as partners in building society, but instead were treated as part of the ḥarīm, the sacred private area, ruled over by the male, as they imagined had always been the case in the north. As one highly educated woman with a state job complained to me, she was respected at work by the men under her, but once she went home she became her husband’s servant. Such dramatic changes in public views are common in Yemen and do not necessarily mean that men’s support for women’s causes during the PDRY was feigned. Many people explained such a change by pointing out that times were different. The debate on women’s rights and the Yemeni family, which flourished in newspapers right before unity and some years thereafter, had altogether stopped by 1992‑1993. This period coincides with economic problems and high inflation that impoverished the middle sectors of society, which had previously been well off. In such insecure times, the foundations for stable social relations, both within the family and in the public sphere had vanished.25
31Political developments during the 1990s and early 2000s were not favourable to southern Yemeni women. This resulted in paralysis in women’s activities in the south, and local commit tees that had previously been active in all major districts had to close down. Some, such as the clubs in the Adeni districts of al‑Tawāhī and al‑Manṣūra, were closed simply because the premises where clubs functioned had been given to old or new owners as part of the government’s process of redistributing nationalised state property. The Women’s Law was replaced with the Personal Status Law (1992) two years after unity. The Yemeni Women’s Federation struggled to have a national voice without the official support that their cause had previously enjoyed in the south. Alongside independents, the Federation included activists from all political parties, ranging from Socialists to Islamists and ruling party members. Internally divided, it had problems in presenting a common front against the 1991 draft law on personal status. At issue were the different expectations for women’s rights in both parts of the previously divided country, as well as the intense propaganda against the 1974 southern law, which was characterised as “deviating from Sharia”, while the 1992 PSL was considered to be “in accordance with” the holy book. As a National Women’s Committee report on The Status of Woman in Yemen (1996) put it:
- 26 The Status of Women in Yemen 1996, p. 19.
“… the present Law of Personal Status has considered the rights and obligations of the wife and the husband as well as the rights of the child from an Islamic perspective”.26
32 Several people challenged such misconceptions, but few did so in public. Among them was Abū Bakr al‑Saqqāf, a professor at Sana’a University and an active intellectual figure in the north. He wrote a long article entitled “The Personal Status Law Project and the Future of Social Development”, in support of the 1974 law and critical of the 1991 draft:
“Those beautiful words in the Quran describing marriage have been sacrificed [in the draft law] and instead marriage is addressed only as sex. By focusing on sex, the notions of nushūz (rebellion by the wife) and bayt al‑ṭā‘a (house of obedience) have entered the law”.
33He further maintains that these two notions degrade the value of marriage as an institution and transforms it into a relationship “devoid of beauty, humanism, Islamic comportment and solidarity”.
- 27 Al‑Saqqāf in Al‑Ayyām newspaper, 25 March 1992.
34Marriage becomes merely a sexual relationship, which is a misconception of Sharia.27 This, he suggested, follows the logic, typical of government policies by and large, of going with the worst option and presenting it as the best choice. According to him it would be wrong to consider the 1974 Family Law as outside Sharia, as that law was the result of a long struggle by men and women in the south to obtain political and economic freedom and to put in place a secular government. This secular rule was not established as an act against Islam, al‑Saqqāf concluded. His article was one of the few public writings on the PSL draft sent to parliament while it was out of session, to be enacted in the end by presidential decree. Parliament never debated the bill, except for the lonely voices of the southern women MPs who tried to raise a debate, but failed to get the support of male parliamentary members.
- 28 In Yemen, zaffa means wedding party, which culminates in the bride’s penetration.
- 29 Al‑jumhūriya al‑yamaniya, wizārat al‑shu’ūn al‑qānūniya, qirar jumhūrī bi‑l‑qānūn raqm (20) li‑sana (...)
35Southern women activists were confused by their new circumstances following unity in which their voices had become marginalised. Activist women studied the Qur’an and the Sunna as a strategy for challenging those who claimed that women’s rights were something outside Sharia; they became knowledgeable on how to defend the 1974 law as being fully compliant with Sharia. By August 1992 the new PSL had replaced the 1974 law. The 1994 civil war dashed hopes for a united country on a fair basis and paralysed civil society. As a consequence, further detrimental amendments to the 1992 PSL encountered little resistance. These included in 1998 discontinuing the payment of compensation to the wife following an unjust divorce (§71 in 1992 PSL), and tying marital age to a provision allowing the guardian of a minor to marry her off (zaffa28) merely on the condition that she is fit for sexual intercourse (§15, as amended in 199929).
36The dawn of the millennium brought more legal battles in the field of family law. Southern women’s rights activists felt that they had won an important victory in 2000–2001 following a draft law that was being prepared in parliament, initiated by the Iṣlāḥ, the leading tribal and Islamist party, to introduce new provisions on bayt al‑ṭā‘a (“obedience”, i.e. the husband’s authority over his wife). Iṣlāḥ was now an opposition party; among its ranks were MPs who were eager to change the PSL to suit their conservative ideology. The formulation of an obedience principle now included provisions allowing the husband to send for the police to bring back a wife who had taken refuge in her father’s home after the couple had had an argument. A group of women’s rights activists in Sana’a and Aden discussed the proposal and framed it as a form of violence against women, the subject of a nationwide campaign in the 1990s in Yemen. The activists appealed to the Yemeni president and informed the embassies of donor countries in Sana’a. For President Saleh, this offered a long‑sought opportunity to pose as a champion of women’s rights, a line that in other circumstances, he was not eager to follow when trying to balance his position between conservatives and liberals. He thus decided not to sign the proposed law. This was viewed positively among women’s and human rights activists throughout the country.
- 30 The criterion for a legitimate marriage is that the bride is capable of sexual intercourse (Law no. (...)
37The case of ten‑year old Nugūd, widely reported in the international media, offered an opportunity to place an age requirement on marriages and curb the numbers of child brides. Nugūd managed to travel by herself to the capital and obtain a divorce for a marriage which her father had contracted on her behalf with a much older man. In the countryside it is common for the qāḍi (judge) who contracts the marriage to take the father’s word that his daughter is of legal age. The case became an international cause célèbre and magnet for criticism of the Yemeni state. The government was quick to see a chance to please Western donor countries leading the campaign against child marriages and decided to have parliament re‑issue an old proposal put forward by the National Women’s Committee for a minimum age requirement of 18 for both men and women.30
38In the 1992 law, the marital age for both boys and girls was decreed as fifteen (§ 15). This is in accordance with provisions in the northern Yemeni family code (Law no. 3 of 1978), in which the legal age for boys is fifteen; for girls it states,
“it is not permitted to be alone with her or to marry her or to penetrate her unless she has reached the age of sixteen and she is able to sustain intercourse.” (§ 11).
- 31 El Alami and Hinchcliffe 1996.
- 32 A field study carried out in 2006 revealed that child marriage among Yemeni girls reached 52.1%, co (...)
39As I mentioned above, this provision was changed in 1999 when the law was amended in the parliament. The age question echoed the 1978 northern law, which stated that the bride had to be able to sustain intercourse. The notion of maslaḥa, or common good, was also added in the provision. Still, the age limit was set at fifteen, not sixteen as in the previous law (Law no. 24 of 1999, amending § 15 in the 1992 law). In other Arab countries the legal age is set in family laws bearing in mind requirements of maturity and sustainability of married life, and the minimum marriageable age is often 18.31 Women’s organisations and human rights groups demanded higher age limits for both men and women.32 For instance, in the 1974 southern family law, the legal age for marriage was eighteen for boys and sixteen for girls (§ 7).
40The proposed amendment namely to raise the legal age for marriage to eighteen for both boys and girls was originally presented by the Women’s National Committee, and later on 61 members of parliament sponsored it. The proposal divided the Iṣlāḥ party in particular, between those who agreed with the amendment and those who objected to it, claiming that it was against Sharia. Members of parliament also received a letter signed by seventeen men of religion; at the forefront was Shaykh ‘Abd al‑Majīd al‑Zindānī, member of the Higher Council of the Iṣlāḥ Party, and a controversial figure in Yemeni politics with Salafist sympathies. The message stated that limiting marriage for girls was a restraint on what was permitted in Sharia, and that the amendment was unconstitutional because Islamic Law was the source of all law. The assistant secretary general of the Iṣlāḥ party, Muḥammad Assadī, was reported to have said, “The marriage age is an Islamic rule, and political parties cannot intervene in such affairs”.33
41As the Iṣlāḥ party was divided on the issue and given that child marriages were a constant source of bad press abroad for Yemen, there was little chance that other parties would support Iṣlāḥ’s conservative wing.
42In parliamentary debates, other views were also presented. According to Shawqī ‘Abd al‑Raqīb al‑Qāḍī, a renowned Islamic scholar and Iṣlāḥ member of the parliamentary Committee for Rights and Liberties, an age requirement for marriage was in accordance with Sharia. In an article published in the Yemen Times, he said:
“To protect these young girls, Sharia was sent down to us to establish well‑being and elude evil. We have sufficient evidence from the Quran and the Hadith [sayings of the Prophet Mohammed PBUH] and medical facts to rest reassured of the legitimacy of prohibiting early marriage, and work to draft a law that prevents such violations against children.”34
- 35 “Females who get married too early are deprived of education. They aren’t mature yet. A lot of mone (...)
- 36 A “fatwa” against Yemeni law setting minimum age for marriage (Idem).
43In a later comment al‑Qāḍī said early marriage was a violation of women’s rights and obstructed social development.35 Raising the minimum age for marriage to eighteen also gained the support of an Islamic scholar called ‘Abd al‑Azīz al‑Aṣlī, a member of Iṣlāḥ, who said in a press interview that girls needed to be given time to complete high school and that “at 18 years they are mentally and physically ready for marriage”.36
- 37 Yemen Times, 10‑13 April 2008.
44The amendment was rejected by the Evaluation and Jurisprudence Committee of the parliament, which ruled that the question is a health issue and could not be generalised. The issue was thus sent to the parliamentary health committee in order to address the questions raised during the debate that early marriage was detrimental to a girl’s health. The health concern was addressed among others by Dr. Najīb Ghānim, MP and former minister of health from Iṣlāḥ party, who presented a medical paper to parliament on the dangers of premature pregnancy. The paper convinced many MPs that young girls getting married was wrong. Among those who changed their minds was MP Fu’ād Daḥāba, an Iṣlāḥ party member, who was recorded as saying, “If it is my personal opinion, I believe 18 is the right age, because marriage is such a big responsibility”.37
45In a later session parliament debated a government proposal together with a proposal by the Sharia Legislation Committee to set the minimum marriage age for a girl at either fifteen or eighteen. These proposals were voted down in favour of a third proposal, submitted by independent MP Sakhr al‑Wajīḥ, establishing the minimum age for marriage at seventeen for both genders. With the minimum age for marriage legalised and set at seventeen, violators, or those wrongfully establishing a marriage license, would be punished by a fine of YR 100,000 and/or up to one year in prison. The government proposal also called for punishing anyone who contracts such a marriage or acts as witness to such a marriage by up to six months in prison or a fine of up to YR 50,000. However, in the parliamentary Sharia Law Legislation Committee, it was proposed that the girls’ guardians should be the ones punished, not the marriage administrator or witnesses. The committee argued that the governmental proposal contradicted Sharia. Some MPs also suggested that a marriage age for girls should be tied to the girl’s mental and physical maturity. In early 2013 the draft law was still pending in the parliamentary committee.38
46In this article, I have presented some of the most heated debates on women’s rights in Yemen. While earlier debaters tended to appeal to arguments of modernity versus tradition, following Yemeni unity debates have been couched in reference to Sharia. As women’s public roles have changed, so have the political platforms on which women can voice their demands. Women’s accomplishments in education, health care and labour participation were significant in erstwhile South Yemen, while women’s organisations in the north were still engaged in instructing women how to read and write. Advocates of limited role models for women have attacked women’s advancement in the south by claiming that such rights were outside Sharia. Amal al‑Ashtal, a Yemeni social scientist, calls such views “arbitrary Shariaism”39. For women’s rights activists, it has become clear that the fight for women’s rights in Yemen continues and that women need to be cognisant of their rights, as well as the ways in which such rights can be argued in reference to divine law.