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A couple sitting by the ocean in Rabat, Morocco.  © FADEL SENNA/AFP/Getty Images

(Tunis) - The Moroccan parliament should adopt the groundbreaking proposals made by a government-appointed body to enshrine individual freedoms, Human Rights Watch said today. In a memorandum published on October 28, 2019, the National Human Rights Council (also known by its French acronym, CNDH) recommended decriminalizing consensual sex between nonmarried adults and granting more religious freedoms.

The CNDH memorandum aims to contribute to the projected overhaul of Morocco’s penal code, which parliament is scheduled to begin reviewing on November 30. Many Moroccans have gone to prison for nonmarital sex, adultery, and homosexuality.  

“Morocco’s parliament should take the State out of people’s bedrooms and let them pursue their consensual private lives without fear of trials and prison time,” said Ahmed Benchemsi, Middle East and North Africa communications director at Human Rights Watch.

The CNDH is established by the constitution to provide guidance on human rights matters to Moroccan institutions.  

Its memorandum identified provisions of the penal code that violate or undermine individual freedoms, including articles 489, 490, and 491, which provide prison terms for same-sex relations, nonmarital sexual relations, and adultery, respectively. These provisions violate the right to privacy, as guaranteed under article 24 of Morocco’s constitution and the International Covenant on Civil and Political Rights (ICCPR), which Morocco has ratified.

In a report released in June, the Office of the General Prosecutor stated that 7,721 adults were prosecuted for having non-transactional sexual relations outside of marriage in 2018. The number includes 3,048 who were charged with adultery, 170 with same-sex relations, and the remainder for sex between unmarried persons.  

The CNDH also recommended specifically criminalizing rape in marriage, based on “the principle of considering consent the cornerstone of sexual relations between adults.” A law on violence against women, which went into effect in 2018, criminalizes some forms of domestic violence but fails to explicitly define and criminalize marital rape.

The council also urged repealing penal code article 220, which criminalizes proselytizing but only when done to lure people away from Islam.  The discriminatory law punishes “using seduction means in order to shake a Muslim’s faith or convert him to another religion” with up to three years in prison. Authorities have used this provision to deport foreign Christians , but also, to charge or convict Moroccan converts to Christianity allegedly for nothing more than talking about their new faith in the company of Muslims. In 2003, thirteen heavy metal musicians were convicted under article 220 for what the court called “Satan worship.”

The ICCPR protects the right or persons to free religious belief and practice, including the right to “teach” their religion in public and private.

The council recommends decriminalizing the act of eating or drinking in public during fasting hours in the month of Ramadan. Article 222 of the penal code punishes with up to six months in prison people “who are identifiably Muslim who ostensibly break the fast in a public place during Ramadan, without benefiting from one of the exceptions that Islam permits.”  

In 2009, the authorities arrested six religious freedom activists for planning a discreet forest picnic during Ramadan to protest article 222. Since then, the authorities have periodically arrested or prosecuted individuals who were eating, drinking, or smoking a cigarette publicly during Ramadan.

Under the Moroccan penal code, performing or undergoing an abortion is prohibited and punished with prison sentences, unless the procedure is “a necessary measure to safeguard the health of the mother.” The council recommends that the exception clause be broadened to include cases in which the abortion is in the interest of the woman’s “physical, mental and social health.” This wording, the council notes, comes from the World Health Organization’s constitution, which defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”

According to numerous studies, criminalization does not lead to a decrease in abortions. It rather compels women to resort to non-medicalized abortions that endanger their right to life, health, privacy, and freedom from cruel, inhuman, and degrading treatment. There are 600 to 800 abortions every day in Morocco, an estimated one third of them performed in non-medicalized situations. Decisions about abortion belong to a pregnant woman without interference by the state or others, Human Rights Watch said.

A few days after the council published its memorandum, Prime Minister Saadeddine El Othmani and Human Rights Minister Mostafa Ramid, both leading members of the Justice and Development Party (PJD), rejected the recommendations on individual freedoms, invoking Morocco’s (traditional) “value system.” The PJD has 125 seats out of the 395 in the Parliament’s lower chamber.

The only party in the parliament that publicly supported the council’s recommendations at time of writing is the Party for Progress and Socialism, which holds 12 seats. The press reported that several other parties intend to propose pro-individual freedoms amendments to the draft penal code during parliamentary review, as an “interaction” with the council’s recommendations.

More than 25 nongovernmental organizations, including the Spring of Dignity, a collective of  associations defending women’s rights, the Moroccan organization of Human Rights, and the Forum for Truth and Equity, declared their support for some of the council’s recommendations, with a focus on those concerning individual freedoms.

The CNDH’s memorandum also includes recommendations on other human rights issues, such as abolishing the death penalty, for which a de facto moratorium has been in effect in Morocco since 1993. Human Rights Watch supports that recommendation and opposes capital punishment on principle, because it is inherently cruel and irreversible.

“Parliament should implement the road map that the CNDH has provided to protect personal liberties,” Benchemsi said.  “The state has no business policing the intimate lives of consenting adults.”

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