Egypt’s Constitution Draft in Depth

With the battle for the Egyptian constitution escalading between the ebb tide of secularism and the flow waves of right-wing political Islam, we sat with Ghada Shahbender, activist and board member of the Egyptian Organization for Human Rights (EOHR) and Nedhad Abul Komsan, lawyer and head of the Egyptian Center for Women’s Rights (ECWR) to unravel the debate about the status of women in the new draft of the constitution.

Since Shahbender moved into the circles of human rights activists in 2005, she has always adopted the following standpoint, “against the oppression of any man, women, or child, Christian, Muslim, Jewish, Baha’i, or atheist, urbanite, from the rural area or Bedouins; so I am for human rights and against oppression and violations of these rights” she tells us. The mother and human rights activist iterated her firm stance on human rights, and that when she comes to the defence of women’s rights it is in that context; “I do not call myself a feminist, I will defend women’s rights in the context of human rights”, she affirms. In the past few months Shahbender has been invited to discuss the writing of the constitution, her philosophy was to tackle it from the angle of human rights in general.

There was much debate about trafficking of women and children, where the political Islam branch was against that article, and she was for an article against human trafficking; “why is this article saying only women and children? Do we approve of trafficking men? I am not always on the platform for protecting women blindly”, she asks. In terms of legislation, Shahbender is adamant in fighting for laws that protect children and women, and in that context, she will also fight for the rights of fathers to see the children because, “in the end of the day when a man and a woman divorce, it is their adult decision, the child should not be used as tool, the child should not be deprived of his or her father, the father should not see the child at a police station, at a club, or some garden, and should not be deprived of the child’s paternal  grandparents”, she tells us.

Nehad Abul Komsan, on the other hand, focuses primarily on women’s rights through the ECWR. The centre specializes in the empowerment of citizens to demand their rights from the government while in the process exposing the system’s failures and weakness in gaining these rights. The only direct service that the NGO offers is a legal one especially to women, who are in need and can’t afford a lawyer or legal advice. “There are some women who could face the highest injustices like physical abuse or sexual abuse, but don’t take legal action because they she can’t afford it, so the centre offers such people legal aid”, Abul Komsan tells us. Not only does the centre get to help the woman in need and empower her with legal aid, but also challenges and exposes the system of its failure in order to better the process for justice and rid institutions of deeply rooted corruption.

ECWR also worked on political women’s rights, for years the NGO has fought for the women’s quota in parliament under Mubarak and won it. Abul Komsan also is an advocate for women’s informative participation in elections both as voters and as candidates. “Women have been hailed as the largest percentage of Egyptian voters in elections post revolution, women now are 24 million votes”, she tells us.

Revolting Women

A women’s uprising, for Shahbender, had to come up because of the Arab uprising at large. “Women’s rights come up because we really have a problem in women’s rights in our society just as we have a problem of children’s rights in our society.  Same as religious freedoms in the context of more freedoms, so there is going to be a very long societal strife over all of these issues, over freedoms in general”, she says. Shahbender sees Egyptian society now as made up of two main forces; “one that is resistant to change and one that is progressive in calling for change”, she describes. There are both forces all along the political spectrum, “we will see progressive people among the Salafis, and we will see progressive people among the Muslim Brotherhood and amongst the Revolutionary Socialists, just like we will see some very conservative people among the Revolutionary Socialists, the Brotherhood, and Liberals, etc.”, she explains. The human rights activist believes that if we move away from the classic political categorization, “we can see Egypt now as the ground for strife between progressive forces that are calling for real change, and conservative forces that are resistant to change”, Shahbender spells it out.

As for Nehad Abul Komsan, “the battle has just begun for women post revolution. Women in Egypt are very strong. There are two contradictory actions that happened. On one hand, with the rise of political Islam, women have regressed on the professional political level; they been sacked off the quota in parliament, and no proper alternative was put in place, women have been dismissed from ministerial positions; under Mubarak there were four women ministers, now there are only two. Even the woman advisor, out of 22 whom President Morsi appointed for the women’s rights file, is more conservative on women’s issues than most men. On the other hand, women are advancing on the general level.  Following the downfall of Mubarak, women organized a protest in Tahrir on 8th of March 2011, where they were harassed and beaten, but a year later when the same protest was organized, thousands marched reaching 20,000 protesters”, she describes women’s position post revolution.

Egyptian women are known for their endurance, after the revolution, ECWR started talking with women to mobilize for their rights, but were faced with sayings ‘oh it is not the time,’ ‘let’s build Egypt first,’ ‘women’s rights will come eventually with the revolution.’ “All these sayings are nonsense, there is no country whether post revolution or war, where women gained their rights automatically after. Women are always used as fuel for change and revolution, and as soon as victory is achieved, they are robbed of their rights to gain more freedoms. This is a misconception that some Egyptian women had that as soon as we have a revolution, we will automatically gain our rights, but that is not true. Revolution is something great, Mubarak didn’t leave any option for the people, he shut all the doors in the face of reform and possibilities, but the revolution is not an off-and-on button, it won’t take you to paradise; you have to work hard for those rights”, she assures us.

In the Battle for the Constitution

“We have to work for the constitution as it is going to be there forever, but we also have to know that it is going to be changed, if we get a really bad constitution this time around, we can demonstrate to bring down the constitution that we are not happy with; in Arabic, work for the constitution as if it lives forever, and work for its end as if it dies tomorrow”, Ghada Shahbender speaks to us about her stand regarding the draft of the constitution about which she has been engaged in discussion forums pre-committee, as well as meeting with political parties to discuss and comment on the content of it.

She does this in parallel to the fight for dissolving the committee and forming a more representative one. “It is my belief that a committee that is not made up of 50% men 50% women is not representative for starters” she firmly says. There are too few women in the constitutional committee, and Shahbender believes that they are not representative of all Egyptian women just as the whole committee is not representative of the Egyptian people; “it is heavily slanted towards political Islam”, she describes.

Article 2

Article 2 is the most problematic in the draft of the constitution for Ghada Shahbender. “This is a battle that was lost for the liberals in the 1971 constitution”, she tells us. The article of 1971 says that legislation will be drawn from the principles of Islamic Shari’a. “I am ok with that because principles of Shari’a are not in violations of human rights. However, the current extreme right of political Islam demands that it comes from the mandates of Islamic Shari’a, and that is very problematic because the mandates of Islamic Shari’a are in fact interpretation of the principles and get very detailed, which opens the ground for a lot of confusion, and extremely subjective views”,  she explains. The principles have not changed over 1400 years; however, there are mandates that have changed with time. A lot of debate and confusion will arise; which mandates do we adopt? By whose interpretation? “In the fight over article 2 in the constitutions, the Salafis want to include the mandates of Shari’a whereas the moderate Islamists are saying no we are good with just the principles as it is spelled in the 1971 article.  The liberals, who lost the fight in 1971, are now also fighting to keep the principles; this is the beginning of conflict and strife”, Shahbender paints us the direction of the political spectrum inside the constitutional committee.

Article 68

In the fight for women and children in specifically both Ghada Shahbender and Nehad Abul Komsan agreed that the most dangerous article in the constitutional draft is article 68. “It pertains to the equality between men and women without violating the mandates, not the principles, of Shari’a. This is highly problematic because the extremists of political Islam are portraying those who oppose it as opposing Shari’a. When no one is disagreeing about the principles of Shari’a, the whole society is in agreement about article 2; the main disagreements are the mandates because they go in very minuet details that we can hardly find two people agree upon a certain mandate”, Abul Komsan explains to us the risk of the article.

Shahbender shares the same view for another insightful reason saying that “when we explore the article that protects women’s rights (article 68); it says that the state will protect the right of women within the context of domestic obligation and as per the Shari’a. That in itself discriminates against women. I am all for domestic obligation for men and women, why are we talking of as per the Shari’a only regarding women, not to both men and women?” she asks.

The refusal of the committee to have an article that stipulates that Egypt will adhere to all national conventions and agreements is another major problem in the constitution for Ghada Shahbender. “Egypt ratified the Religious Freedoms Convention and the Convention Eliminating all forms of Discrimination Against Women (CEDAW), but CEDAW was ratified with reservations so that compliance does not conflict with Islamic Shari’a (article 2). If we exclude an article that says that Egypt will adhere to all national conventions and agreements, there are risks of regression under religious freedoms and women’s rights”, she explains the repercussions.

Nehad Abul Komsan talked to us about the history of what she called “mother of all battles in the draft of the constitution” article 68. “The root of article 68 is a cheap counterfeit of articles 8,9,10, and 11 of the 1971 constitution, which simply describes women’s most important role in society is to reproduce and be the primary caregiver for the family at home, and if she has extra time then she could work at which point the government is responsible to provide the woman a way to sustain this balance between the family burdens and work. This concept is highly deficient because what is the role of men in the equation? Even if we assume that the women is the sole caregiver at home for the whole family, then what is the government providing her in return? There is no health insurance, no social security, no housing, or any form of social welfare for divorced or single mothers. Even for women who are not in a financial need for all these services, the constitution treats any woman as a house servant who changes diapers, and that’s it”, she spills out.

Mandates versus principles of Islamic Shari’a

Abu Komsan explaining the problems of Islamic mandates:  “The new constitution comes with a new flavor of Islamist extremism, where we started to hear of 9 years as the new minimum marriage age. The current draft of the constitution does not include all these details like marriage age, but it sets the mandates of Shari’a as what governs women’s role from which the law is written; this opens the wide door of interprations of Shari’a. The Shari’a mandates are set by Sheikhs, who are influenced according to the social, culture, political, and economical climate of the time when the mandate came out for that specific case, and it is up to the current Sheikhs interpretations to what is applicable and what is not; this is a high risk of contradictions meaning in one country you may find a woman leading a country as a prime minister like in Pakistan, an Islamic country with Shari’a mandates, and at the same time women are banned from driving a car in Saudi Arabia, an Islamic country with Shari’a mandates; which one do we follow? You have Shari’a mandates allowing women to lead a country, and Shari’a mandates in other countries banning women from driving.”

Shahbender on the subject of guardianship and marriage age: “The current law allows a girl to marry at the age of 16 with the approval of her parents; her legal guardian will sign the document. One cannot sign a legal document until the age of 21, but at the same time is considered a man at the age of 18 ready to serve in the army; so a boy at the age of 18 cannot buy property, but his country can endanger his life. The whole debate about the legal age of marriage for men and women has to be linked to the legal identity, it also has to do with the notion of guardianship; are parents free to do what they want with their kids? The whole concept of protecting minors, the problem is that some children don’t have parents, we have over 1 million street children, who is responsible for those children? Who is responsible for protecting children from abuse from their parents?”

Abul Komsan also has some views on absolute guardianship: “The debate about absolute guardianship, some of extreme Salafis in the committee argue that yes, the father should possess an absolute guardianship, even if he burns his child; he is free to do what he will with his child. The other side of this debate is what is called responsible guardianship, where the father has the absolute guardianship, but the government has the right to try and investigate any violations committed against the child’s wellbeing. So when a father gets a girl out of school to marry her off to some old man whether Egyptian or from the Gulf in what is called ‘masked prostitution’, under responsible guardianship, the state has the right to prosecute and punish him, but not under absolute guardianship.”

How to change this mess?

For Shahbender: “EOHR is asking President Morsi to halt all the work of the constitutional writing committee until the high constitutional court rules on its validity. However, in the big picture, especially in the sense of what history of dictatorships taught us, abuse of power is not from the constitution, it is legislation and more important practice. I think the fight for freedom is a social one. More so, we will fight for the constitution and legislation, because they are tools in our fight; however, essentially it is a social fight pertaining to practices. Work for the constitution as if it lives forever, and work for its end as if it dies tomorrow.”

For Abul Komsan: “The constitutional committee legal legitimacy itself is questionable, and it has to be dissolved. If the assembly persists on continuing, we only have one option; Tahrir Square.  The overall Egyptian society, men and women both, is objecting to the constitutional assembly. The Egyptian woman is strong and we already created a huge buzz around article 68 to not let it pass like a knife through butter. This is the one article a lot of members in the assembly are threatening to withdraw unless it changes. What if it passes? We go to the streets, Tahrir square is quite big, and if we were able face Habib el Adly’s bullets and tanks sure we can do anything, we will take our rights with our hands.”

Whether the committee is dissolved or not, it is certain that the fight for more freedoms and rights will transcend the ink on paper this constitution may or may not bring us. 

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