Photo: flickr-user Jon Bowen (Creative Commons)

The project Women’s Human Rights and Law Reform in the Muslim World seeks to map family and criminal law reforms in the period 1995-2015 in Afghanistan, Egypt, Iran, Lebanon, Morocco, Pakistan, Saudi Arabia, Sudan, Tunisia and Yemen. How have women activists in Muslim countries advocated for legal reform in the years since the 1995 Beijing Declaration famously stated that “women’s rights are human rights”? The project is funded by the Rafto Foundation which is a non-profit and non-partisan organization dedicated to the global promotion of human rights. The project is part of an initiative taken by Rafto laureates Shirin Ebadi, Rebiya Kadeer, Malahat Nasibova, and Souhayr Belhassen, and facilitated by the Rafto Foundation to establish a Women’s Network, which is an international network of high-profile and influential women to improve women’s human rights and enhance gender equality in Muslim societies. In supporting local activists and civil society organizations with a common platform, the objective of the Women’s Network is to raise the voices of women in Muslim societies, and to address the religious, legal, social, political and cultural mechanisms that prevent women’s voices from being heard.

Note: this text contains romanisation of Arabic, which may render small passages of text unreadable. For a correctly transcribed text, please download the PDF version of this report

Introduction

To date, Yemen has had no legislation regulating the minimum age of marriage. What exists is a regulation under Article 15 of the Personal Status Law that states that a marriage cannot be consummated until the woman is “ready,” that is, has reached puberty. Nonetheless, child marriage is a prevalent problem in the country, not only due to widespread poverty, but also because of tribal cultural practices and the lack of legal enforcement of the Personal Status Law in many parts of the country. Yemen is one of only two countries in the world that does not stipulate any minimum marriage age for boys or girls (the other being Saudi Arabia). The comparable MENA countries in terms of legislation, Iran and Sudan, do have a minimum marriage age, set at 13 for girls and 15 for boys in Iran and at 10 for girls in Sudan (in the latter case subject to the permission of a judge).

The years 2009–2014 saw a protracted struggle to introduce a minimum marriage age in Yemen, both before and after the 2011 uprisings that toppled Ali Abdallah Saleh’s regime. However, the escalation of conflict in the country has so far stalled these efforts. What follows is an analysis of the political process and the ideological and religious arguments used for and against the introduction of a minimum marriage law in Yemen in the 2009–2011 period as well as during the National Dialogue Conference (NDC) that was set up for the 2013–2014 transitional period.

 

This study has been funded by the project “Women’s Human Rights and Law Reform in the Muslim World”, funded by RAFTO. I would like to thank Liv Tønnessen and Mari Nordbakk for inspiring and driving the progress of this report, and the Gender Cluster at CMI for their constructive feedback on the draft.

Approach and methodology

This report did not become what it was meant to be. The original idea when conceived was to follow the conclusion of the National Dialogue Conference in 2014 and the implementation of its recommendations into more woman-friendly laws as the transitional period was coming to an end. The plan was to follow a broader set of topics pertaining to family law, such as the right of a woman to pass on citizenship, marriage and divorce rights, as well as the minimum marriage age issue. However, as events unfolded near the end of the transitional period, things went from bad to worse in Yemen, and the launching of the Saudi military campaign in March 2015 effectively put an end to whatever legislative process remained. It became clear that the NDC recommendations would not be implemented anytime soon.

The choice to make this a study of the minimum marriage age was made on the basis that this issue had been discussed in heated debates even before the NDC, in 2009–2010, with much media coverage and involvement from actors both for and against the law. This is also an issue that has been central in many other MENA countries, and one that stands at the core of the interpretation of the meaning of the marriage contract in the Islamic legal tradition.

Methodologically, the ideal would have been to conduct fieldwork in Yemen and interview actors involved in both the 2009–2010 and 2013–2014 debates and legislative processes. However, the security situation in the country in 2014–2015 made this impractical. The decision was therefore made to make this a more clearly focused discourse analysis where the pro and con arguments heard during the two rounds of debate could be analysed. For this purpose, media reports in English and Arabic have been used, as well as social media, blog sites, and reports from Yemeni and international organisations. While neither exhaustive nor fully representative, they convey the range of arguments made both in favour of and against enacting a minimum marriage age into law in Yemen.

Yemen: political background

The turbulent and complicated political history of Yemen since 1990 is part and parcel of the negotiations that took place in the 2000s on issues such as women’s rights, including the minimum marriage age. The discourses over these issues can only be understood against the background of the political forces that became a set of uneasy alliances in 1990. As a consequence of the fall of the Soviet Union, in 1990 the former People’s Democratic Republic of Yemen (PDRY, or South Yemen) agreed to a “re-unification” with the Yemen Arab Republic (North Yemen), under the leadership of North Yemen’s then-president, Ali Abdallah Saleh. The former president of South Yemen, Ali Salim al-Beidh was instated as vice president. The two parties they represented, respectively, the General People’s Congress (GPC) and the Yemenist Socialist Party (YSP), agreed to a transitional power-sharing arrangement, which collapsed in 1993. One of the main reasons behind the collapse was the rise of a new political party, the Yemeni Congregation for Reform (al-tajammʿu al-yamanī li-l-iṣlāh), generally known as Islah. This party came out of a more Islamist-oriented faction of the GPC that held power in the North and for a long time had been influenced by the Egyptian Muslim Brotherhood. Salafis and some tribal leaders also constituted part of the core of the early Islah movement (Schwedler 2006). The party also attracted women – including southern women – who saw their role as “pious moderns” as liberating them from restrictions on their political activity, among other things (Philbrick Yadav 2010a). The platform was essentially in direct opposition to the secular republicanism of the GPC and the socialist policies of the YSP.

In the first multiparty election in 1993, Islah became the second-biggest party (gaining 62 out of 301 parliamentary seats). It soon pushed through a constitutional amendment that rendered the Sharia as “the basis of the law in an interpretation consistent with the interests of the community and its development” (Carapico 1998, 174). This constitutional amendment triggered a series of changes to the South’s previously secular-socialist legislation in order to bring the law into conformity with the constitution (Molyneux 1994; Würth 2003). For example, apostasy was made a capital offence, and Islahi leaders circulated fatwas that labelled socialist leaders as apostates (takfīr). National school curriculums were Islamised and gender segregation became mandatory in primary and secondary schools throughout the country.

The rise of Islah drove a wedge between the GPC and YSP that eventually resulted in a civil war in 1994. In the following two decades, president Saleh was forced to navigate a balancing act between Islah and YSP, between tribal interests and an increasingly resentful urban population, and between northern Houthi/Zaydi groups and an ever more discontented southern population that begrudged the steadily encroaching northern influence. By 2000, it was clear that Islah was the sole party capable of challenging the Saleh regime. Joining the YSP in an uneasy alliance called the “Joint Meeting Parties” (JMP), Islah became increasingly critical towards the Saleh regime in the 2000s, but nonetheless suffered an electorate setback in 2006.

By the 2000s, even what remained of the YSP could be heard articulating its criticism of the regime in partly Islamic terminology, a strong indication of the Islamisation of public debate. What took place in Yemen during this decade has been called “discursive and institutional Islamization” (Philbrick Yadav 2010a, 5) – in the sense that demands were raised and debates held entirely within the Islamic paradigm – even beyond Islah and Salafi circles. Sectarian differences seem to have mattered less in this regard. {1}

In institutional terms, the early 2000s saw women being shut out from formal offices of power, based on the principle that women should not hold authority (wilaya) over men. Especially in the South, where women had held formal offices in most governorates, this caused resentment. On the other hand, Islah also argued for arenas within the field of health, education, development and culture where women could contribute to the advancement of the nation, thus creating a segmented public sphere. By 2007, 13 women had been elected to the 130-seat Shura Council (10% of the total membership) (Philbrick Yadav 2010a, 22).

During the 2000s, Islahi women’s rights activists had been adamant in stating that the major obstacle to women’s public participation was not Islam but ʿurf (the customary practice and legal system upheld by the Yemeni tribes) and taqlīd (tradition without independent interpretation) (Philbrick Yadav 2010a, 17). Typically, the Islah argument has been that rights and obligations (huqūq and wājibāt) are to be balanced among men and women. If they are equal in the sum of rights and obligations, they are equal.

The Yemeni economy saw a sharp decline in the 2006–2012 period. In 2009, World Bank estimates set a poverty rate at 42%, which had grown to 55% by 2012. Unemployment was estimated to have doubled from 2010 to 2012, rising to near 29%. Among young people, unemployment was estimated at 60%. By the same report, women represented less than 1% of the labour force. Almost half of the population lived with food insecurity in 2012, and female illiteracy was estimated at 69% in that same year (World Bank 2012).

 

{1} Yemen is divided between Shafifiı Sunni and Zaydı Shia, with the latter making up about one third of the population. In legal terms, the two schools do not differ very much, and historically fiqh texts authored by Zaydıs have been used by Shafifiı scholars and vice versa. Thus, in the 2000s, the Islamisation of public debate took place across the sectarian divide.

The Islah Party in the 1990s and 2000s

The Islah party was founded in 1990, following reunification of the two Yemens. It was an amalgamation of three different, but influential social forces in North Yemeni society: the Muslim Brotherhood, powerful tribal factions, and more radical, Wahhabi–Salafi oriented groups. Ali Abdallah Saleh quickly co-opted the party, using it as leverage against the former ruling party of South Yemen, the YSP. However, from 1997 to 2011, Islah in effect acted as an opposition party, formalised in the Joint Meeting Parties, although frequently also supporting the ruling General People’s Congress. During the 2011 uprisings, the party was divided on the exit of Saleh, the manner in which his departure should take place, and (not the least) on what was to follow.

The triad of interests within Islah has, for as long as the party has existed, meant that opinions have been divided on specific issues, as well as when it comes to the realpolitik of alliances. The founding charter of Islah depicts Islam and Islamic values more as a backdrop for social development rather than as the core. However, the Salafi–Wahhabi faction, represented most vocally by al-Zindani, has voiced opinions that goes well beyond that of the party program.

Family law in Yemen before 2011

The complex political history of Yemen since 1990 cannot be detached from the efforts of Yemeni women to achieve legal, social, and political equality in a country that, at least on the surface, is one of the most patriarchal of all Arab countries (Dresch and Haykal 1995; Carapico and Würth 2000; Longley 2000). The 1991 re-unification of the two Yemens rapidly came to mean eradication of the relatively progressive legal structure of the former PDRY. As has been shown by Dahlgren (2013), the family law that had been force in South Yemen was relatively woman-friendly and was commonly known as the “Women’s Law.” That law (formally known as Law no. 1 of 1974 in Relation to the Family) set a minimum age for marriage at 18 for men and 16 for women, made the bride’s consent a legal requirement, made polygamy subject to a court decision (and only allowed under strict conditions), and made talāq (repudiation) divorces void. It also granted a woman the right to keep her children in the case of divorce (a boy until age 10, a girl until age 15). Furthermore, the law indicated that the burden of contributing to the expense of family life fell upon both men and women, thus reflecting the socialist ideal of both genders contributing to the nation. However, as Dahlgren (2012) points out, even in 1974 efforts were made to present the law as “Sharia-compliant.”

In the North, on the other hand, the family law in force upon unification was enacted in 1978 (known as Law no. 3 of 1978). This was a much more conservative interpretation of Sharia principles, allowing for talāq divorces and placing no restrictions on polygamy (Dahlgren 2005). The minimum age for marriage was set at 16, on the precondition of “maturity,” that is, that both the bride and groom are able to sustain intercourse.

Both Yemeni states signed the Convention on the Elimination of All Forms of Discrimination against Women in 1984, with no reservations referring to the Sharia (as is the case for several other Arab countries). Upon unification, no further reservations were added (CEDAW 2007).

Also upon unification, a new family law was promulgated (known as Law no. 20 of 1992). The new law mainly followed the northern tradition and entailed limitations of women’s rights within marriage and after divorce. As Würth (2003, 21) explains, it “imposed state control where it served men and failed to do so where it served women.” For northern women, the law did not change much, but for southern women, it was a severe setback. However, as also pointed out by Würth (ibid.), the political climate in post-unification Yemen was simply too polarised to render any discussion of family law meaningful. The confrontation lines were primarily between Islamists and socialists and corresponded to the North/South divide.

 

Photo: flickr-user Jon Bowen (Creative Commons)

 

The role of Islah in later amendments to the 1992 law is particularly instructive, as it demonstrates not only Islamisation of the debate, but also the sharp divisions inside the party. After success in the 1993 elections, Islah was instrumental in securing a legal amendment that made the Sharia the sole source of law in Yemen, thus effectively terminating the legal influence of socialist-oriented voices from the former South (Philbrick Yadav 2010b, 209). Then, in 1999 Islah supported an amendment that made the family law even less woman-friendly, with precise reference to the Sharia as the sole source of law. Now the marriage age was no longer set with reference to age, but was merely “maturity,” understood as sexual maturity. However, even Islah representatives were divided over the issue, and Islahi women, in particular, argued that mental maturity should be included as a precondition for marriage.

Nonetheless, advocates for women’s rights achieved a few small victories in the early 2000s. For example, in 2001, women’s rights activists and NGOs blocked a proposed amendment that would have allowed police to forcibly return a wife to the conjugal home. (Würth, 2003, 28).

2009–2010: Initial debates on a minimum marriage age in Yemen

Underage marriages are a real problem in Yemen, and both domestic and international organisations have frequently drawn attention to the issue. By far, the most widely published story is that of Nujood Ali, who was married off at age nine and repeatedly raped by her husband. Her unemployed father (who had 16 total children) claimed poverty as the reason for marrying her off. As a 10-year-old and assisted by an aunt, Nujood took the unprecedented step of making her way to court to file for divorce, which she successfully obtained on the ground that her husband had consummated the marriage before puberty. Nujood’s case was a landmark mainly because it granted the divorce upon the grounds that the consummation of a marriage (dukhūl) should only happen after puberty, not because the marriage itself was illegal (Newton, 2009). Together with her lawyer, Shada Nasser, the story of Nujood caught the attention of western media, and together they were named “Women of the Year” by the American magazine Glamour in 2008 (Hersch, 2010).

A first attempt to pass a minimum marriage age took place in 2009. The problems related to early marriage had then been already under thorough scrutiny from women’s organisations in Yemen for several years. With the support of Oxfam and the Women’s National Committee, the Women’s Studies Centre at Sana’a University conducted a baseline study in the Hodeidah and Hadramawt governorates that maps marriage practices, cultural and religious justifications for early marriage, and the medical and social impact of such marriages. The study then suggests ways of changing these practices (Al-Shargaby et al. 2005). The publication was originally prepared in preparation of the country’s third “Five Year National Development Plan,” based on the Millennium Development Goals. A team of researchers, most of them female, from Sana’a University were part of the process, and the publication in many ways formed a baseline for the discussions that were to follow.

The draft law introduced in 2009 was in fact an amendment of Article 15 of the existing Personal Status Law (formulated after unification in 1992 and amended in 1999), which prohibited consummation of any marriage before a woman is “ready for intercourse” (ṣāliḥa li-l-waṭ), even if she is older than 15 years of age. However, as stated above, that existing law did not prohibit entering into a marriage contract (ʿaqd) before age 15. The Minister of Justice, Dr. Ghāzī al-Aghbari introduced the proposed amendment, which would have set the minimum age of marriage at 17 for girls and 18 for boys. The draft furthermore imposed imprisonment or a fine on any father (or wali) who married off an underage child.

The bill finally failed in parliament in 2011. Twenty-three members of parliament from the Islah–Saleh alliance rejected the bill and cited incompatibility with the Sharia foundation of the constitution. Most activists and analysts viewed this as part of Saleh’s political balancing acts to stay in power, this time at the expense of increased rights for Yemeni women (Raja 2013). Saleh made this decision in spite of the fact that in December 2011, Human Rights Watch had estimated that 14% of girls in Yemen were married before they turn 15, and 52% were married before they turn 18 (HRW 2011). In addition, in 2011, Yemen was ranked at the absolute bottom of the World Economic Forum Global Gender Gap Report (135 out of 135 countries) (Hausmann, Tyson, and Zahidi 2011). {2}

However, pressure groups against child marriage argued that the question should be discussed in parliament again before the issue was placed before the Sharia Legislative Council. {3} When that finally occurred, the GPC suggested a minimum age for both genders of 16, but was opposed by Islah representatives who again voiced the standard argument that no changes could be made because the Sharia does not prescribe a minimum marriage age. The prominent Islah representative and Salafi, Shaykh Abd al-Majid al-Zindani, called for demonstrations in Sana’a to protest against the law and mobilised Salafi women in particular to organise protests (al-Sharq al-Awsat, 2010). Al-Zindani was one of the founding members of Islah and was well-known in Yemen for his strict views on Islamic family law. He was also the founder of al-Iman University in Sana’a, a Wahhabi Saudi oriented and funded institution. {4} During the controversy, al-Zindani used al-Iman University as a base for the opposition. He also voiced the opinion that any legal change to set a fixed minimum age would be a threat to “the culture of the Yemeni community” and used his influence to call upon the citizens to reject the proposed bill (Yemen Nation, 24 April 2010). Later, in 2014, in what was interpreted as an act of defiance, al-Zindani married off one of his own grandsons to a 14-year old girl.

The proposed bill drew opposition from three groups of Islamists on three separate grounds. The first group argued on constitutional grounds that regulating marriageable age was contrary to the Sharia, deemed in the constitution to be Yemen’s sole source of law. This was the viewpoint voiced by the female director of the Department for Women’s Affairs at the Ministry of Awqāf, Ibtisām al-Dhufarī, who stated in an interview with Deutsche Welle Arabic that “Yemeni society is a Muslim society and its constitution is derived from the Islamic Sharia, which does not specify an age range for marriage.” (al-Sarmi, Deutsche Welle Arabic, 11 April 2010).

Second, al-Zindani and several of his followers applied fiqh reasoning to oppose the law, to the effect that underage marriage itself is not unlawful, whereas pre-puberty consummation is (al-Sarmi, Deutsche Welle Arabic, 11 April 2010). In his reasoning, al-Zindani echoed the Wahhabi arguments voiced in a corresponding debate taking place in Saudi Arabia, where the Ministry of Justice in 2010–2013 attempted to introduce a minimum marriage age for boys and girls at age 16. This attempt, too, was eventually quashed by the ruling of Grand Mufti Shaykh Abd al-Aziz al-Shaykh, who infamously deemed the marriage of pre-pubertal girls as permissible, “even in the cradle.” {5}

A third argument that surfaced in the debate was the notion that a minimum marriage age was a “western concept” that was used to pressure the Yemeni government. For example, in an interview with the newspaper al-Jumhor, the Islahi parliamentarian Abd Allah al-Adini strongly voiced the opinion that western powers were using the law to compel Yemen to engage in anti-terrorism efforts and had threatened to withhold aid unless the law passed: “We are against the law that will set an age to regulate marriage, as this is coming from the West (yu√tı min al-gharb), because follow our culture and our Islamic identity, and our religion which regulates all aspects of life.” (al-Mamluh, in al-Jamhur).

It is important to note that Islah, which al-Zindani represents, was notably divided in the discussion that ensued in this second hearing in October 2010 before the case was to be placed again before the Sharia Legislative Committee. Contrary to al-Zindani, many Islah representatives (male and female) voiced the opinion that underage marriage amounts to “legitimate rape.” (Al-Sharq al-Awsat, 29 October 2010), Among them was Dr. Shawqī bin ʿAbd al-Raqīb al-Qāḍī, an Islah parliamentarian who was the leader of the parliamentary Committee for Rights and Liberties (ḥuqūq wa-ḥurriyāt). He was also one of the co-authors of the aforementioned baseline study on early marriage (al-Shargaby et al. 2005). In a paper entitled “Legal Evidence, Scholarly Truths, and Logic Justification to Forbid Underage Marriage” (al-adilla al-sharʿiyya wa-‘l-ḥuqqūq al-ʿilmiyya wa-‘l-mubarrirāt al-manṭiqiyya li-manaʿa tazwīj al-ṣaghīrāt), he presents an argument based on Sharia justification with reference to the Quran and the Sunna, to the effect that the mother is the main guide for the young child – understood that the mother should not be a child herself – as well as more humanist (basharī) arguments that take as their starting point the many social and medical problems arising from early marriages (al-Qadhi 2009).

Al-Qadhi’s overall argument is one of maṣlaḥa, that the well-being of a child is part of the well-being of the community in general. God has sent down the Sharia for the best interest of humans, including children, whose rights must be safeguarded against parents who do not act in their best interests. Al-Qadhi’s study also refers to the famous Salafi television preacher Yusuf al-Qaradawī’s recommendation for a minimum marriage age (in Qaradwī’s opinion 16 for girls and 18 for boys). As well, it refers to al-Bukhārī’s Book on Marriage, which states that it is better to prevent parents from marrying off their children before they reach puberty. In other words, his argument stresses that marriage and its consummation should ideally happen at the same time (that is, between adults) and that an underage ʿaqd and a post-puberty consummation is in fact unlawful.

In the 2009–2010 debate, many speakers referred to the case of 13-year-old Ilham Mahdi, who died of internal bleeding after being sexually assaulted by her husband four days after her wedding (Al-Sharq al-Awsat, 29 Oct. 2010, supra). In his paper, al-Qadhi also makes reference to the tragedies that occur as a result of pre-pubertal marriages and early births.

The debate over the minimum marriage age also involved the highest ranks of the Yemeni fiulama (clergy) – some Islah members, others not (al-Thawra 9 July 2015). Upon request from a group of Islamic scholars (the mufti of Yemen), Shaykh Muhammad bin Ismail al-Amrani issued a fatwa in 2009 stating that it is unlawful to marry off girls before the age of 17. The mufti’s argument is based on physical and mental maturity and emphasises (like al-Qadhi) the role of the mother in the family. {6}

Although the bill in Yemen was never passed into law, many women’s groups saw the discussions in and of themselves as a substantial victory and a step forward (Ahmed 2014). Well-established organisations such as the Yemeni Women’s Union (YWU) and the Women’s National Committee (WNC) applied pressure on members of parliament and held several demonstrations in direct response to the ones mobilised by al-Zindani. The Centre for Gender Studies at Sana’a University, led by Dr. Hassaniyya Kadri, was also influential in the debate. However, the debate also laid bare the lack of women’s influence in both parliament and the judiciary. In reality, lawmakers at the time were simply not interested enough to push the bill through, instead focusing on the on-going power struggle between the GPC and the JMP. Prominent activist, editor, and (later) minister of information in the transitional government, Nadia al-Sakkaf, placed the blame for the failure squarely on Islah and its machinations to Islamise the Yemeni constitution and its family law: “This is because the political coalitions that came into power [post-2011] included an Islamic conservative party, the Islah, which pushed against women’s rights” (al-Sakkaf 2012).

 

Photo: flickr-user fiat.luxury (Creative Commons)

 

{2} Yemen also ranked at the absolute bottom in the 2012, 2013 and 2014 reports.

{3} The Sharia Legislative Council (Lajnat al-taqnīn aḥkām al-sharīʿa al-Islāmiyya) is a committee in the Yemeni parliament that has extensive rights in passing or failing bills.

{4} To Western intelligence services, al-Zindani is better known as a person on the so-called “terrorist list” following his early contacts with al-Qaida in the Arabian Peninsula (AQAP). Amongst others, he is said to have been the spiritual teacher of Anwar al-Awlaki, the Yemeni-American AQAP operative who was killed by an American drone attack in 2011. Al-Zindani’s status as aninternationally sought terrorist was largely ignored in Yemen and by the Islah party. Following the Saudi intervention in Yemen in 2015, al-Zindani is reported to reside in Saudi Arabia (Johnson 2006).

{5} The attempt in Saudi Arabia to introduce a minimum marriage age originated in a case very similar to that of Nujood Ali in Yemen. As in Yemen, the religious establishment argued that a marriage contract can be concluded at any time in the child’s life; consummation, however, should wait until the bride is “ready” (Chastain 2014).

{6} I have not been able to access the text of the fatwa itself, but it is referenced in later press. See, e.g., “Al-Q∂ı: Tazwıj al-ßghirt ÷hira murtabi†a bi-l-siy˛a wa-l-faqr” [“Judge: Phenomenon of Marrying Young Linked to Tourism and Poverty”], Mareeb Press (28 Feb. 2010), http://marebpress.net/news_details.php?sid=22766.

2011: The “Arab Spring” and the fall of Ali Abdallah Saleh

While the debate over the minimum marriage age was taking place, pressure was also mounting against the Saleh regime. The so-called “Southern Movement” (al-˛irak al-janubiyya), with its base in Aden, grew out of a movement of former southern officers who took to the streets to demand jobs and/or pension rights. The movement steadily grew after its establishment in 2007, and mass rallies were held in Aden to demand increasing self-rule, and – eventually – southern independence. In addition, in the northern governorate of Saa’da, the Zaydi Houthi movement (also known as Ansar Allah) arose in about around 2000 and grew increasingly critical of the Saleh regime. From 2004 to 2010, the Houthi movement was engaged in an insurgency against the Saleh regime that at times amounted to a civil war, with hundreds of thousands becoming internally displaced.

Thus, by the time the “Arab Spring” started in Tunisia and Egypt, Saleh’s position was already besieged. In 2011, the Yemeni uprisings were among those receiving the most media attention, due especially to the fact that then-president Ali Abdallah Saleh was the longest ruling head of state in the Arab world. The primary demands of the Yemeni uprisings were the same as in Tunisia and Egypt: the departure of the current (Saleh) regime. However, the complexities of Yemeni politics made it difficult for commentators to present a clear alternative to the ruling GPC. Power factors included the tribal structures, the unresolved “southern question” (of independence), the Houthi movement, the presence of radical Salafi groups (including al-Qaida in the Arabian Peninsula, or AQAP), and established parties (most prominently Islah).

After months of demonstrations, unrest, and violence, in November 2011 Ali Abdallah Saleh signed an agreement brokered by the Gulf Cooperation Council (GCC) to cede power to his vice-president, Abd al-Rabbuh Mansur Hadi, in exchange for immunity from prosecution. A transitional program was set up under the sponsorship of donors, its primary vehicle being the “National Dialogue Conference,” which was to restore the Yemeni state and stake out a new future. The transition has been described as an “elite-led political bargain, better described as a reshuffling of elites than as fundamental change” (Clausen 2015, 19).

Women played a pivotal role in the Yemeni revolution in 2011. The best-known public figure from the period is Nobel Laureate Tawakkul Karman, who represented the Islah party. A number of other women from different social and political backgrounds also took on roles as organisers and public orators (Raja 2013, 4–6). Still, as Jamila Ali Raja points out, the majority of the demonstrators came from “the 35 per cent of Yemeni women who were literate and the 5 per cent of women who [were] wage earners” (ibid., 7). Although women were able to carve out spaces to protest during the revolution, it is also clear that women’s participation was also used as a “tool” by established parties such as Islah (Shakeer, Marzouk, and Haddad 2012). In particular, Islah was accused of first encouraging women to participate in order to create “numbers on the ground,” and then, as the tide turned against the regime, enforcing gender segregation and eventually discouraging female participation though intimidation and other means.

The transitional period was marked by a significant deterioration in physical security and the rule of law in all governorates – including Sana’a (Gaston and al-Dawsari 2014). The deterioration ranged from a total breakdown of the rule of law (in Abyan, which was held by AQAP and Anṣār al-Sharʿīa) to judicial staff absenteeism and general insecurity of the population (in San’a, Aden, and Ḥaḍramawt). However, it is important to note that the formal sector was very weak in many governorates even before the revolution, and access to the judicial system was very unevenly distributed throughout the country. In the marginalised Marib governorate, for example, even during the 2000s, local tribes implemented justice and resolved conflicts through customary law. At the same time, Islamic militancy was on the rise, with Islamic educational facilities connected to AQAP drawing from discontent youth. This led to loss of respect for the tribal system and its ʿurf-based legal power, which in turn left no single institution capable of maintaining law and order.

In some governorates, what took place was in effect a “re-tribalisation,” as disputes were solved by other means than the formal courts, such as, for example, in Taizz, where shaykhs and armed leaders became increasingly influential at the expense of the formal sector (Gaston and al-Dawsari 2014). This pattern of security breakdown was repeated with local variation throughout Yemen during and after the 2011 crisis. Government security forces and police withdrew from most governorates, leaving the regions without functioning law enforcement and courts. For all intents and purposes, the state ceased to function.

This history means that the system of dispute resolution that exists outside of the formal legal system in Yemen should be taken into consideration when considering Yemeni legal issues and women’s rights – both because of the long history of traditional legal processes in Yemen and because of the actualisation of these processes following the 2011 breakdown of the formal judicial system. The implementation of ʿurf in dispute resolution may have been functional in the absence of formal law, but female activists generally agree that the breakdown of security was detrimental to women’s rights. This sentiment was voiced both by Islahi women and women representing more secular organisations (e.g., YSP).

The post-revolution period also saw an increase of activity at the level of the NGO/grassroots level, where women’s group were targeted by foreign and regional donors and NGOs to enable further female participation. For example, Yemeni women participated in a regional seminar entitled “Leveraging Women’s Power in the Arab Revolutions: We were together in the streets, we will not go home now.” {7}

Although the ousting of Saleh did not produce real political progress, one major outcome was the proliferation of women’s organisations and groups that campaigned for change within a range of sectors within the community (e.g., education, health). Another notable effect was the rise of individual women to prominent positions in Yemen. At the same time, the de facto breakdown of law and order was detrimental to women in most governorates, and their physical and legal security radically deteriorated.

{7} See information about this seminar at http://www.el-karama.org/projects-3/platforms-for-peace/yemen

2012–2013: Women push for a minimum marriage age within the national dialogue conference

 Abd al-Rabbuh Mansur Hadi, who took over as president in January 2012, was charged with overseeing the NDC that was to formulate a new constitution for the Republic of Yemen. The NDC came out of a GCC initiative in late 2011 for a transition following the violent aftermath of the revolution. However, the GCC plan did not state a quota for women’s representation in the transitional bodies, but limited itself to stating that women should have “appropriate representation” (Raja 2013). {8}

The NDC had representatives from a broad group of Yemeni interests, including the South, the Houthis, and women’s groups, all of whom were to provide input for a future constitution. Many were members of new parties that had sprung up as a result of the Arab Spring, including the “Arab Spring Party,” founded by young women and men from the “change squares” around the country. Further complicating the political picture was the rise of a new Salafi party known as the “Yemeni Rashad Union” (founded in March 2012), which in the run-up to the NDC voiced very conservative views on democratic processes in general and women’s roles in particular. {9}

The urgent need to restore the judicial system was an important element in the NDC. Most observers and participants also recognised the need to root and effectuate change on the local level: “For this transition to be a success, changes in justice and security conditions at a local level are as critical as top-down national reform” (Gaston and al-Dawsari 2014).

The proliferation of women’s groups during the revolution meant that when the NDC started, there was no doubt that women had to be represented. The NDC’s organising documents included a quota of 30% representation by women, but the selection criteria were so specific that the process of recruitment came under strong criticism. In reality, female representation never exceeded 25%. One reason for this was that established, male political factions were unwilling to forego their own representatives in order to achieve the female quota. The UN special envoy to sent to oversee the process, Jalal Ben Omar, went so far as to state, “Different Yemeni political powers have disagreed on everything. The only thing they agreed on was excluding women” (Ahmed 2014, 15).

Another reason was that Yemeni women themselves were fragmented alongside the North/South divide and the Houthi/non-Houthi line, as well as by their divergent views on the Islah party and its politics. The task of selecting representatives and of getting all these crossing viewpoint to come to the table was placed on the Women’s National Committee and the Yemen Women’s Union.

Among the main issues to be raised were female representation in governmental institutions and the minimum marriage age. Several Yemeni women’s organisations ran campaigns against child marriage at the time of the NDC, including the Yemen Women’s Union, which ran a substantial campaign in 2013. {10} Parallel to the on-going talks, the female representatives in the NDC, alongside cultural actors and others, held a demonstration in Sana’a on 9 September 2013 to call for an end to child marriages in the country (al-Jubari, Rammah, Yemen Times, 10 September 2013). {11}

The NDC started in Sana’a on 18 March 2013 and gathered 565 delegates, including an unprecedented number of women (although, as already noted, the quote for female representation was never met). Also unprecedented was the fact that 50% of the delegates were of southern origin (Schmitz 2014). The NDC was originally scheduled to start in April 2012, but was postponed repeatedly as the technical committee set up to organise the conference struggled to achieve representation especially from the South but also from the Houthis (Murray 2013). The southern issue and the Houthi claims were to become the two central problems to be overcome during Yemen’s transitional period, alongside the general need for transitional justice in most governorates. The NDC was supervised by a so-called “Group of Ten” that included the five permanent members of the UN Security Council, Saudi Arabia, Oman, Kuwait, the UAE and a delegation from the European Union. The NDC also received logistical support and expertise from the German government, facilitated though the Berghof Foundation. {12}

In total, the NDC issued nearly 1,800 recommendations on a wide range of issues, with the intention that these would be incorporated into a new constitution or implemented into legislation, executive decrees, or general policy. However, the NDC process had clear shortcomings. Despite its effort to be inclusive, Gaston (2014) concludes that the NDC was viewed by the general public – especially outside of the capital – as an externally driven process, implemented by the international community. This perspective was especially pronounced in the South, where the process was partly viewed as yet another set of legislative measures forced onto the society by northerners (ibid.). In retrospect, the NDC process has been described as a “facade,” with highly questionable selection processes for the representatives, all who supported President Hadi (Transfeld 2016). The recommendations themselves have been called a “roadmap to nowhere” (Transfeld 2014). To the youth who initiated the protests in Change Square of Sana’a, the NDC amounted to no less than a “high-jacking” of their aspirations (Alwazir 2016). Furthermore, to the general population, and to women especially, acute food shortages and general insecurity were expressed as more pressing issues than representative rights and the minimum marriage age (Oxfam 2012). Nonetheless, Gaston concludes that the NDC may have been the “most functional institution in Yemen” in 2013 (Gaston 2014).

The NDC tasked the “Commission for Rights and Liberties” with resolving the issue of child marriage. Islah representatives were again against this proposal and were thus perceived as polarising and trying to shut down the debate, particularly with their argument that Sharia as the sole basis of law precludes a minimum marriage age (Philbrick Yadav 2015). The same voices made the same arguments as in the 2009–2010 debates; however, this time the divisions within Islah came even more strongly to the fore, as the NDC’s system limited the number of representatives from each party. Nobel Laureate Tawakkul Karman, herself an Islah representative, was among those who were adamant that the NDC was a process set up not only to solve political issues, but also to confront societal problems. {13} According to Karman, a major part of this was to enforce through law a minimum marriage age (see HRW 2013).

Another major difference from the 2009–2010 debates was that those arguing for a minimum marriage age tied the issue more closely to the issue of citizenship rights (which was also discussed in the NDC). For example, the argument was made that because the right to full citizenship was granted at 18, the same age should apply to marriage (HRW 2013). {14}

Another issue that was brought up during the 2013–2014 debates was the relatively new tendency of poor families to marry off their daughters to relatively more wealthy men from Saudi Arabia or the Gulf. These marriages could be of very short duration (terminated by repudiation if the parties were Sunni, or contracted as temporary marriages if the partners were Shia), and observers warned that the frequency of such marriages had increased – most likely due to the general increase in poverty and insecurity (Haddash, Nadia, Yemen Times, 21 January 2013).

A final difference between the 2009–2010 debates and the NDC process was the more prevalent involvement of exile Yemeni groups and NGOs in the 2013–2014 debates. Media campaigns and internet activism ran alongside the NDC debates, by organisations such as “Girls, Not Brides.” Exile groups such as the “Independent Yemen Group” (based in London) appealed to the NDC representatives directly or to the then-minister of human rights, Huriyah Mashhour, to apply pressure on the NDC to stipulate a minimum marriage age. {15} Not unexpectedly, these organisations based their arguments on the medical and social costs of child marriage and on the rights of children. Minister Huriyah Mashhour herself wrote an op-ed for the Yemen Times where she argues that a minimum marriage age “does not in any way go against the core of the Islamic Sharia, a body of law that raises the status and dignity of human beings and protect their interests.”(Mashhour, Yemen Times, 5 November 2013). She also argues that “maturity” in this context must mean the maturity to bear the responsibilities of marriage (physically, mentally, and intellectually) and that Yemeni development will suffer unless child marriage is abandoned. However, it is interesting to see here that the minister of human rights still saw a need to defend Sharia legislation in what is essentially an argument that focuses on development.

Female doctors and medical personnel also threw their voices in, referring to the physical and psychological consequences of early marriage. Medical doctor Nawal Ba Abbad, a long-term advocate to end the practice, stated, “This is an opportunity to establish a minimum age of marriage. But it is a narrow window of opportunity.” (Abbad, N.B., CNN, 17 March 2014). Finally, economists and developments experts within Yemen also called for an end to child marriage. In an interview with the Yemen Times in August 2012, for example, professor of sociology Abd al-Baqi Shamsan and economic expert Ali al-Wafi both agreed that the practice in every way obstructs social development (Al-Ariqi, Ghayda, Yemen Times, 6 August 2012).

In the end, the NDC voted unanimously for a minimum marriage age of 18 for boys and girls and for the criminalisation of violations of this standard. However, this result was possible only after some representatives of al-Islah (Muslim Brotherhood and the Salafist members) had withdrawn from the committee.

Document 7 of the NDC, entitled “The Rights of Women in the national document” (ḥuqūq al-marʾa fī al-wathīqa al-waṭaniyya), contains the recommendations that resulted from these deliberations. {16} The document states that the state shall establish a Supreme National Council for Maternity and Childhood, requires a full restructuring of the National Committee for Women, and stipulates 30% female representation in the writing of the constitution and in future legislative assemblies. More generally, this NDC document on women’s rights states that “the state will take legal measures to empower women to practice their political rights and participate positively in public life according to the provisions of the constitution.” It goes on to declare that men and women shall have equal citizenship status (as shall persons of all sects and family backgrounds). The document also stipulates that children of Yemeni mothers should be granted Yemeni citizenship, regardless of the nationality of the father. The NDC document also outlines other rights, such as the right to suitable housing, access to education, protection from violence, and special rights for widows and single women. Furthermore, the document criminalises female genital mutilation. Finally, and most pertinent for this discussion, the final NDC recommendations stipulate a minimum marriage age of 18 for both genders and the legal prosecution of all those who violate this.

The NDC was concluded in January 2014, and Special Envoy Jalal Benomar (2014) was in a celebratory mode when addressing the plenary assembly: “You have presented an opportunity to create a new social contract and to meet the aspirations of Yemeni women and men for a country governed by the rule of law, justice, human rights, equal citizenship, democracy and good governance.” The recommendations of the NDC (including the recommendation on the marriage age) were to be placed before a transition committee. On 27 April 2014, the minister of justice and legal affairs presented a draft Law on the Rights of the Child, which would have set the minimum marriage age at 18 years for both boys and girls. The draft law was based directly on Document 7 from the NDC.

Initial analysts named women the greatest beneficiaries of the NDC (ACRPS Policy Analysis Unit 2014). They pointed especially to the issue of 30% representation and the establishment of national councils especially for women’s affairs. At the same time, it should be emphasised that the NDC subcommittee for state-building unanimously stated that Yemen is an Arab and Muslim nation and that the Sharia is the sole basis of law. Furthermore, subsequent events in 2014 and 2015 left the recommendations of the NDC as null and void and its draft constitution as a paper exercise. Thus, the potentially troublesome reconciliation between the “Sharia as the basis of law” and a fixed minimum marriage age has yet to be put to the test.

The NDC was, for most of the transitional period, the main forum in which to voice demands and grievances. For Yemeni women’s activists, it was a chance to translate the efforts and sacrifices made during the revolution into tangible, political reforms. Central among these was the demand for a fixed minimum marriageable age. However, demands from the women’s organisations that had sprung up during the revolution were far from unified. Rather, women’s organisations in Yemen were “scattered and fragmented” within the NDC (Raja 2013), and did not come up with a uniform and clear vision for reform. In retrospect, several activists and observers have commented on the lack of cohesion among female participants in the NDC. Well-known activist Bilqis al-Lahabi, who represented the southern faction stated that “we failed to form a collective pressure force” (Ahmed 2014, 16). A survey conducted towards the end of the NDC showed that respondents tended to see the female representatives as more concerned with their party lines or with their own concerns than with the general situation of women in Yemen (ibid.). The image of a “window that opened and then closed” was voiced by several of the women’s rights activists who participated in the revolution and the subsequent NDC, for example, by Bilqis al-Lahabi (ibid., 21).

{8} An initial quota of 30% was suggested in the original document, but this was rejected by the signatories, i.e., the GPC and JMP.

{9} Information about this party is available at http://www.islamopediaonline.org/country-profile/yemen/political-landscape/rashad-union-party. A 2012 interview with secretary general of the Yemeni Rashad Union, Abd al-Wahhab al-Humaiqani was published in the Yemen Times. Dawood. Ahmad, “Abdulwahab al-Homaiqani, Secretary-General to the Rashad Union to Yemen Times,” Yemen Times (2 July 2012), http://www.yementimes.com/en/1586/intreview/1081/Abdulwahab-Al-Homaiqani-secretary-general-of-the-Yemeni-Rashad-Union-to-the-Yemen-Times.htm

{10} See the Facebook page of Ittiḥad Nisā al-Yaman, https://www.facebook.com/search/top/?q=اتحاد%20نساء%20اليمن

{11} Al-Jubari, Rammah, “NDC members stage demonstration, demand minimum marriage-age law ,” Yemen Times (10 Sept. 2013). http://www.yementimes.com/en/1710/news/2857/NDC-members-stage-demonstration-demand-minimum-marriage-age-law.htm

{12} See http://www.berghof-foundation.org/programmes/middle-east-north-africa/national-dialogue-process-in-yemen/

{13} Tawakkul Karman’s Facebook page contains multiple entries on this topic during the 2013–2014 period. See https://www.facebook.com/Tawakkol.Abdulsalam.Karman

{14} This argument was raised for example by Sara al-Zawqari. S. Al-Zawqari, “Don’t Use Traditional Arguments to Justify Young Marriages,” Yemen Times (3 October 2013), http://www.yementimes.com/en/1716/report/2949/Don't-use-traditional-arguments-to-justify-young-marriages.htm

{15} The Independent Yemen Group has posted multiple Facebook entries on this issue. See https://www.facebook.com/Independent-Yemen-Group-312301968813414/?fref=ts

{16} http://www.ndc.ye/ar-page.aspx?show=71

2014–2015: The Houthi takeover and Saudi intervention, resulting in unfulfilled hopes for yemeni wom

The internationally backed transition process started to unravel in September 2014 when Houthi forces took over control of key military points, including in Sana’a itself.

In January 2015, the security situation in Yemen was highly volatile, with violent skirmishes in the centre of the capital. A draft constitution – based on the NDC recommendations of October 2014 – was submitted to the president on 7 January 2015. The Houthis rejected the draft outright. On 17 January, Houthi forces abducted President Hadi’s chief of staff and fighting ensued near the presidential palace. By the end of January, President Hadi and his cabinet had resigned, leaving the Houthis with effectual power in Yemen. Former president Ali Abdallah Saleh was blamed for interfering in the transition process, amongst others by facilitating the Houthi takeover of Sana’a and other strongholds in the country (Security Council Report 2015). In effect, the Houthi takeover meant the end of the constitution writing process.

In spite of this, the outcome documents of the NDC remained the target, as stressed by the Yemeni minister of NDC outcomes, who as late as 15 January 2015 emphasised that all the targets in Document 7 should be reached (NDC 2015). The Group of Ten also called for the continued implementation of the NDC recommendations, still viewed as the “most credible roadmap for meeting Yemeni aspirations to build a nation which provides security, stability, justice, development, equality and opportunity for all of its people” (G10 2014).

In March 2015, whatever roadmap may have been inherent in the NDC documents effectively ceased to exist, following a military intervention by a coalition led by Saudi Arabia. Operation “Decisive Storm” was a response to what was perceived from the Saudi side as an offensive against the Iran-supported Houthis. During this intervention, thousands of air attacks killed an unknown number of people and left the population displaced and in dire need of humanitarian assistance (Amnesty International 2015). The situation in Yemen today is one of the most acute humanitarian crises in the world. An ever-increasing percentage of the population lacks food security, and the human security situation is steadily deteriorating in all parts of the country (WFP 2016). Several of the women who participated in the NDC and got positions in the transitional government have left the country, thus leaving the organisational base weakened. The peace talks that have been held (and failed) have systematically excluded women, despite the insistence of the UN that women be part of the talks (HRW 2015).

For the Yemeni women, the five years that have passed since the 2011 revolution started have been, in effect, a series of unfulfilled aspirations. The minimum marriage age is no longer on any negotiation agenda. On the contrary, the dire humanitarian situation, protracted displacement, and overall insecurity is likely to have increased the number of child marriages throughout the country.

 

Conclusion

The 2009–2015 period saw Yemen going from great hope to the current situation of war and a general breakdown of security. In two protracted rounds, the minimum marriage age issue was debated by parliamentarians, legislators, activists, and – during the NDC – appointed delegates. This analysis of the two rounds of debate shows that the debate itself was held almost entirely within the Islamic paradigm, effectively rendering void arguments from the more secular members of the community (notably the YSP women). It also shows that the general fragmentation of Yemeni society and politics was reflected in the movements of women who struggled to raise their demands in one voice. Finally, the weak representation of women in parliament, in government, and in the judiciary meant that causes such as the minimum marriage age did not have sufficient champions.

 

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