Gender Justice and Legal Reform in Egypt. Mulki al-Sharmani
the codification have always been constrained by its piecemeal approach of “splitting the difference” between conservative religious establishment and scholars, on the one hand, and Egyptian feminists who were seeking more rights for women, on the other. For example, the various reforms that were introduced since codification tried to curtail some of the husband’s unchecked power and rights (such as expounding on the content of spousal maintenance or granting wives the right to financial compensation when unilaterally repudiated by husbands for no fault on their part). Still, these reforms remained partial and never displaced the hierarchies in spousal and parental rights that privilege husbands and fathers, and which are grounded in the fiqh construction of marriage.
Hence, one main and constant challenge for Egyptian women’s rights advocates who have been lobbying for gender-sensitive reforms in different eras has been to negotiate the boundaries of what is possible in terms of legal changes that would substantively change gender rights in the family, and to determine the most viable strategies toward realizing these reforms. Kholoussy, for instance, notes that the early generation of Egyptian feminists never challenged the hierarchical and complementary notion of spousal roles that were transplanted from Islamic jurisprudence into the first codified personal status law. Rather, they focused on seeking gradual and piecemeal reforms (Kholoussy 2010: 12). And in later eras, for example under the rule of presidents Sadat and Hosni Mubarak, the challenge of lobbying for gender-sensitive reforms that did not collide with dominant religious discourses was compounded by two additional challenges. One new challenge had to do with the rise of Islamist groups since the 1970s, and the Egyptian state’s concern to claim religious legitimacy in its struggle against Islamist groups. This concern impacted the scope and nature of gender-sensitive reforms that the state was willing to support and introduce. Another challenge was the increasing unpopularity of the regime, especially under the rule of Mubarak, due to its undemocratic and corrupt governance. This latter challenge created a dilemma for women’s rights groups who, on the one hand, needed the support of the state to lobby for gender-sensitive reforms, and on the other hand, either wanted to maintain their independence from the regime or were frustrated and hindered by the state’s top-down approach toward reform.
These challenges were also pertinent to the reforms of 2000–2005 and had their implications for the outcomes in legislated codes and their implementation, as will be elaborated on in the course of the book.
Background of the Study and Research Data
This book draws on a research project that I undertook in the Social Research Center (SRC) at the American University in Cairo from 2007 to 2010, under the title Reforming Egyptian Family Laws: A Study of Legal Changes, Court Room Practices, and Gender Justice. The study was part of a multidisciplinary research program titled Pathways of Women’s Empowerment, which began in 2006 as a consortium of researchers convened through regional hubs in Africa, Asia, Latin America, and the Middle East. This consortium, in the words of its coordinator Andrea Cornwall, “set about a multi-stranded enquiry into the processes of change in women’s lives, exploring not only efforts to instigate change through laws, policies, and programs, but also ‘hidden pathways,’ made possible through more diffuse economic, political and cultural changes” (Cornwall quoted in Al-Sharmani 2013b: x).
The field research for this study was carried out by a team consisting of myself (the principal investigator) and my colleagues, Sawsan Sharif and Fayrouz Gamal, research assistants at the SRC. Since our study was a multidimensional inquiry into an unfolding reform story about family law, we conducted the fieldwork in two phases. In the first phase (January 2007 to March 2008) the research focus was on two issues: investigating the process of lobbying for and promulgating the new family courts law as well as studying the implementation of the law, and in particular women’s use of the new courts system and their experiences and challenges in the legal process.
The second phase of the research (April 2008 to July 2010) focused on women’s use of khul‘ in comparison to fault-based divorce both in the courtroom and in the larger socioeconomic and familial contexts in which these women’s lives were situated. The research also explored the empowering and disempowering effects of khul‘, investigating what this contested yet increasingly useful legal option for women revealed about the disconnect between the lived realities of Egyptian marriages and the legal construction of marriage, as the latter is based, in Sonneveld’s words, on a “maintenance–obedience” relationship (2012: 123).
In this second phase of the study, marriage norms and practices of selected women and men were also researched to investigate how family law and the studied legal reforms may impact women’s and men’s views, aspirations, and choices regarding marriage. In addition, state and non-state initiatives, which were being formulated at the time to propose and advocate for new and comprehensive gender-sensitive substantive family laws, were also investigated.
I conducted interviews with different key actors who were involved in lobbying for the new family courts law, as well as with relevant stakeholders who were debating/contesting this new courts system. In addition, I conducted interviews with key actors who were spearheading initiatives to lobby for a comprehensive, gender-sensitive, substantive family law in the second phase of the study, and took part in workshops that were organized by a number of key women’s rights groups around this issue.
For the research on the implementation of the new family courts and the khul‘ law, my colleagues and I conducted interviews with a total of 194 disputants. These disputants were predominantly women (with the exception of eleven male disputants) since our focus was to investigate women’s use and experiences of the researched new laws and given the constraints on our research resources. These interviews were carried out in women’s rights organizations, near court premises, and some in our office premises. The disputants were based in the governorates of Cairo, Giza, Gharbiya, and Qalyubiya.
We also interviewed a total of thirty-three individuals who were working in the new family courts in Cairo, Giza, Alexandria, Banha, and Munufiya. They were settlement specialists, court experts, and judges. My colleagues and I interviewed twelve settlement specialists who were based in Cairo and Giza. We also observed some of the mediation sessions that these specialists and their other colleagues conducted over a period of several months. Furthermore, we conducted four focus group discussions with lawyers in Cairo and Giza. In addition, I interviewed eight judges and ten court experts. I also observed court proceedings in two family courts in Giza and Cairo over a period of six months in 2007. Then, over a period of three months in 2009–2010, I observed court proceedings in a Giza family court as well as mediation sessions conducted by court experts there. In addition, I reviewed thirty written court judgments of some of the khul‘ and fault-based divorce cases that we researched.
For the research on the interplay between marriage practices and the studied legal reforms, we conducted interviews with a hundred women and men of different marital statuses in Cairo and Giza. The interviews were conducted in our office premises, except for some that were conducted in the workplace of the interviewees.
The question of resources and access to interlocutors is important, particularly in a study like this where fairly extensive field research was undertaken. Needless to say, being based at a research institution in a university provided us with invaluable resources. Specifically, the SRC provided us with transportation, which made undertaking fieldwork in different governorates possible. In addition, my institutional affiliation and professional ties with colleagues at the SRC facilitated my access to a number of key interlocutors such as prominent lawyers and judges, members of the National Council for Women, members of the Women’s Committee at the NDP, members of nongovernmental women’s rights organizations, religious scholars, and public thinkers. Our institutional affiliation and resources made no difference with regard to access to the courts. In fact, in the first few months of the research, I repeatedly tried to organize access to courts through formal institutional arrangements but nothing materialized. Rather, our access to the courts came about informally and organically. We were able to establish initial contact with two settlement specialists through our interlocutor lawyers, and these specialists in turn helped us establish contact with other specialists at other courts. Also, my contacts with judges were established through various informal ways. With some of the judges, I was able to establish contact and secure