Algerian Women between French Emancipation and Religious Domination on Marriage and Divorce from 1959 Ordonnance no. 59-274 to the 1984 Code de la Famille

Abstract The impact of the Code de la famille on Algerian women has been felt for 27 years and criticism of it is based on is supposed adherence to Shari'ah. This is not an adequate assessment of this legal document or its amendments. It is a more complex issue that involves the attempt of society to re-define its identity as Algerian and Islamic after independence. In attempting to establish Algerian women's identity there was a shift from fearless independent combatants who moved among men during the struggle for independence to a space for women as strictly wives and mothers within the context of the home. The analysis is based mainly on the Code de la famille as well as the Qur'an and it demonstrates that is not exclusively based in elements of Shari'ah but rather a patriarchal framework supplemented by elements that are not truly Islamic. Keywords: Code de la famille, Ordonnance No. 59-274, Islamic law, Algerian women, Algerian Identity Introduction Women were an integral part of the liberation struggle and they were sisters in arms to their Algerian brothers in the National Liberation Front (Front de Liberation Nationale--FLN). Had it not been for women such as Djamila Bouhired, and Djamila Boupacha and Zohra Drif who were instrumental in strategic operations as depicted in Pontecorvo's The Battle of Algiers (La battaglia di Algeri), Algerians would not have won their independence. Women were on the front lines of the battle against the French and were more fearless than their FLN colleagues in perpetrating violence. Throughout the process these same women believed that they would also be integral to the new government and that they would have equal rights as Algerians after independence. The 1962 Algerian Constitution guaranteed "the same rights and same duties" (Article 12); "the right to vote" to every citizen at least 19 years of age" (Article 13) as well as obligatory education "offered without other discrimination than that resulting from the aptitude of each individual (Article 18). However, at the same time, Algerians shouted "Algerie musulmane." And this is also reflected in the same constitution in Article 17 which states, "The family, the basic unit of society, is placed under the protection of the state" and also in Article 4 "Islam is the religion of the State..." This shift toward an Islamic identity was in direct response to being forced by the French to accept a Francophile identity that made no provision for Islam but did identify Algerians as distinct from the French. And the dual focus of religion and family signaled a change in identity for women especially those who had fought with men and moved among men during the war. In order to be accepted into the new national and Algerian framework women were expected to shift to pre-war patriarchal patterns and roles. Ten women were elected deputies of the new National Assembly and one of them was Fatima Khemisti. It was Khemisti who drafted a bill to raise the minimum age of marriage for women to 16 and allow women more educational opportunities. (Moghadam 133-134). This bill was a step toward allowing women access to roles as students and professionals. During this time (after the war) there were exorbitantly high marriage and birth rates (Moghadam 135). Between Ben Bella and Boumediene the regularization of equal rights did not materialize for women. And during the presidency of Houari Boumediene there was a policy against any form of birth control unless a woman already had four children. The underlying project of the government was socialism and growth of the Algerian population as a traditional and family-centered society as outlined in the constitution. As such, on the surface it seemed to be shifting away from Islam, and if that was the intention-the Algerian pubic may not have been ready to discard Islam or patriarchy from its identity or its mores. It was an arduous journey from a Shari'ah-based society (pre-colonization) to the secular French legal code (which defined Algerians as inferior) and then to a constitution and legal code which had an identity crisis as mostly secular with Islam as the state religion and later through the patriachically defined aspects of the Code de la Famille. …