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More than four years after ratifying the ICCPR, and six years after ratifying the Convention on the Elimination of All Forms of Discrimination against Women, the Kuwaiti government has made very little effort to modify the numerous provisions in its domestic legislation which discriminate on the basis of sex. Some of these discriminatory laws and practices have already been discussed, including violations stemming from Kuwait's implementation of its nationality law.82 This chapter highlights some of the worst instances of discrimination against women in three major areas: family law, criminal law, and laws and practices regulating voting, public service, and public affairs. In the case of family law, some categories of women face a second layer of discrimination, based on religion, which further reduces their rights and freedoms.

Human Rights Watch argued above that Kuwaiti reservations to the Covenant, which seek to absolve Kuwait of responsibility to implement the prohibition on discrimination on the basis of sex, are unacceptable. 83 In its Concluding Observations, the Human Rights Committee reiterated its position that the Covenant's article 2(1) prohibition on discrimination, including discrimination based on sex, and its article 3 guarantee of equality between men and women, are "essential obligations," and thus Kuwait's reservations to them are "without legal effect."

In addition to Kuwait's legal obligations under article 2(1) and article 3, it is also bound to ensure equality before the law, without discrimination. Article 26 of the Covenant states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

These obligations apply to all the rights guaranteed in the Covenant, including those rights which Kuwait has sought to limit through reservations asserting the permissibility of discrimination against women.

Kuwaiti law and practice discriminate against women in violation of the ICCPR. In particular, provisions in the Personal Status Law discriminate against women in relation to inheritance rights, the weight given to their testimony in judicial proceedings, and their rights in contracting marriage, during marriage, and at its dissolution. In addition, provisions of the Penal Code reduce or eliminate punishments for violent crimes committed by men against women, and criminalize abortion even when it is necessary to save a woman's life, and other laws and practices prohibit women from engaging in public affairs and public service, including voting and standing for election. Further, as we have seen, still other laws and practices discriminate against women in relation to passing nationality to their spouses and children, and effectively prevent women in some cases from living legally as a family with husbands and adult children who are not recognized as Kuwaiti nationals.

In its Concluding Observations, the Human Rights Committee declared that "Kuwait must grant women effective equality in law and practice and ensure their right to non-discrimination"; "[p]olygamy should be prohibited by law"; and Kuwait "should take all the necessary steps to ensure to women the right to vote and to be elected on equal footing with men," and ensure that women fully enjoy their right to equal access to public service.84 It also urged the government to "make provision for the protection of the right to life of pregnant women under article 6 of the Covenant,"85 and to "take all necessary measures to sensitize the population, so as to eradicate attitudes that lead to discrimination against women in all sectors of daily life and society." 86

Discriminatory Provisions in the Personal Status Law
Disputes involving family law in Kuwait come within the jurisdiction of the personal status divisions in the courts of first instance, appeal, and cassation.87 The courts apply Personal Status Law 51/1984 to cases involving Sunni Muslims, or non-Muslims when the parties differ in religion or sect.88 The Personal Status Law, based on the Maliki school of Islamic jurisprudence,89 discriminates against women in, inter alia, giving lesser weight to their testimony;90 affording them lesser inheritance rights;91 and assigning spouses unequal rights and responsibilities as to marriage, during marriage and at its dissolution. Judges have wide discretion in applying many provisions of the law, and are free to base their rulings on Maliki texts and doctrine when faced with personal status issues not directly addressed in the law.92

Among the most discriminatory provisions in the Personal Status Law are those regarding contracting marriage. Under the law, a woman is never free to make a marriage decision on her own. Unlike a man, she is not free to contract her own marriage but must have a male guardian (wali) contract on her behalf, regardless of her age.93 Muslim women are prohibited from marrying all non-Muslims, while Muslim men have much greater freedom to choose a spouse.94 After the age of twenty-five or upon becoming divorced, widowed, or otherwise not considered to be a virgin, a woman may choose whether to marry, but still may not contract her own marriage.95 A woman between 15 and 25 years of age (fata) may be prohibited by her guardian from marrying, and while she may appeal to the courts she still cannot marry if the court rules against her.96 In addition, the minimum age for registering a marriage is fifteen for women, two years younger that that of men.97 Witnesses to the marriage must be Muslim men for the marriage to be valid.98

During marriage, the law contemplates different rights and responsibilities for women and men, with a number of articles suggesting that wives owe husbands a duty of obedience which can be enforced by the courts. For example, a wife's mobility can be severely restricted, based on her husband's choices. She must move with her husband except if the court rules that it is not in the family's interest that she do so.99 She may only engage in "permissible work" outside the marital home if it is not contrary to the family's interests, and while the law contemplates that a wife going outside the marital house is not in itself a violation of her duty toward her husband (nashuz), it must be for "legitimate reasons."100 In addition, a man may legally have up to four wives simultaneously, while a woman may only be married to one man.

This pattern of discrimination extends to the marriage's dissolution, a process which is ultimately completely out of a wife's control. Under Kuwaiti law, a husband has a unilateral and unconditional right to divorce his wife,101 as well as recourse to judicial divorce.102 A wife, however, has only a limited ability to initiate divorce, either through asking her husband to divorce her in exchange for her providing him with financial or other compensation (khul`)103 or through petitioning the court for a judicial divorce. In all cases the decision is in a man's hands - either her husband's or a male judge's. The court will only consider petitions for divorce in a limited number of cases, subject to stringent conditions, with a high standard of proof. Either party can petition for a divorce based on injury, by words or actions, which make continued cohabitation impossible;104 or based on the husband's testimony that he has not had conjugal relations with his wife for at least four months.105 In addition, women can petition for a divorce based on the husband's failure to provide maintenance for his wife;106 the husband's absence for more than a year without a good reason if the wife can prove she was damaged by that absence;107 or the issuance to the husband of a final sentence of imprisonment for more than three years.108 The wife can also petition the court to annul a marriage on the basis of a certain physical conditions109 or on the basis of a difference in religion arising from conversion or the husband's apostasy from Islam after marriage.110 A wife's apostasy from Islam is not a basis for annulment.

In practice, judicial divorce and annulment rulings are difficult for women to obtain, particularly in cases where the wife must prove injury. By law a person claiming injury must provide at least two male witnesses, or a male witness and two female witnesses, who can attest to the injury.111 However, the law provides no clear standard of what constitutes injury, leaving the judge with wide discretion to decide what circumstances render cohabitation impossible. In particular, the law does not specify what level of domestic violence must be shown to qualify for divorce based on injury, and rulings in such cases can vary enormously depending on the judge and the social class of the couple.112 Nor does the law explicitly address whether a husband's marriage to another wife can be considered an injury to the other wife or wives, and judges typically require other evidence of injury in such cases. Women who are victims of domestic violence also may be asked to provide medical reports of beatings, or of a husband's drug or alcohol addiction, as proof that cohabitation is impossible. The court can also assign damages to the husband and/or wife responsible for making cohabitation impossible, leaving open the possibility that a battered wife could be required to pay her husband compensation should the judge decides that her behavior had provoked the husband to beat her.113

In addition to the onerous burden of proof, women wishing a divorce may also face judicial pressure to remain married. Regardless of how well supported a woman's claims of injury may be, the court is required to "exert its efforts to reach a reconciliation between the couple by any means possible."114 Social and family networks frequently also play a crucial role in determining a woman's ability to obtain a divorce. Family pressure may force a divorce on a recalcitrant spouse, while fear of shame may prevent divorce.115

Discriminatory Provisions in the Penal Code

The Right to Participate in Public Service and Public Affairs, and to Vote and Be Elected
Article 25 of the ICCPR guarantees to every citizen "the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country." Article 22 of the Covenant provides for "the right to freedom of association with others," subject only to those restrictions "which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." The Human Rights Committee has further stated that "the right to form and join organizations and associations concerned with political and public affairs is an essential adjunct to the rights protected by Article 25." 123

Kuwaiti women and men both face a variety of restrictions on their right to participate in public service and public affairs, and to vote and to be elected to public office. For example, Kuwaiti law includes extensive restrictions on freedom of expression124 and association. Clubs and associations must register with the government, and are prohibited from engaging in political activities,125 and political parties are effectively banned because no existing legislation authorizes their formation.126 Restrictions in law and practice on women's participation, however, are far more severe than those faced by men, and constitute a violation of the guarantee of non-discrimination in the Covenant's article 2(1).

Kuwait's election law denies all women the right to vote.127 It restricts male voting rights to male citizens over twenty-one of years of age, with a further prohibition on voting by naturalized male citizens prior to the passage of thirty years from the date of their naturalization.128 Only those with voting rights can stand for parliamentary or local elections.129 These restrictions to rights to freedom of expression and assembly, combined with the ban on voting and standing for election, significantly undermine women's ability to "take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves,"130 a right and opportunity guaranteed every citizen in article 25(a) of the Covenant.

The government of Kuwait has asserted that "[a]ll citizens in the State of Kuwait enjoy equal access to public service."131 However, Kuwaiti practice limits women's access to public service in violation of article 25(c) of the Covenant. Although women have constituted a majority of graduates of Kuwait universities since the 1970s, and make up almost a third of Kuwait's public sector employees, they hold less than ten percent of management positions.132 Women working in the public sector are mainly employed in teaching, nursing, and administrative/clerical support positions. While there is some ambiguity in the Judiciary Service Code regarding women's ability to serve as judges, in practice no women serve as judges in the court of cassation, appeals court, and court of first instance.133

Kuwait's denial of women's voting rights and limitations on access to public service violate the Covenant's requirement in article 26 that domestic legislation prohibit any discrimination and guarantee to all persons equal and effect protection against discrimination. Not only are these provisions discriminatory in themselves, but they leave women in a poor position to challenge the many other Kuwaiti laws and practices which discriminate against them. This vicious circle created by women's disempowerment is evident in the repeated failure of efforts by women and their supporters to overturn the ban on women voting.

Legislative and Judicial Responses to Women's Challenges to the Ban on Voting and Standing for Election
Efforts by legislators and activists to challenge the ban on voting date back to the 1970s, and have been consistently rejected in both political and judicial fora. The most recent legislative push for voting rights began with a May 1999 decree by the Amir, Kuwait's head of state, granting women the right to vote and run for election to public office beginning in 2003. As one of more than sixty decrees the Amir issued in the period after he dissolved parliament on May 4, 1999, the voting decree was subject to parliamentary approval after new parliamentary elections were held in July 1999. The government engaged in little lobbying on behalf of the decree, and it was voted down on November 23, 1999. Members of parliament submitted similar legislation, which again received little government support and was voted down on November 30, 1999. New voting legislation, including legislation granting women the right to vote but not to stand for election, is expected to be debated in the parliamentary session beginning in October 2000.

Legal challenges to the ban on women voting have also failed, despite several articles in the Kuwaiti Constitution guaranteeing equality among citizens. The most important of these is article 29, which states in part that "[a]ll people are equal in human dignity, and in public rights and duties before the law."134 The government has consistently taken the position that this article does not prohibit sex-based discrimination because it contains a qualifying clause which the government translates as "without distinction as to race [al-jins], origin, language or religion."135 In fact, the more common translation of the Arabic term al-jins is sex, not race, and the term is frequently used to mean sex in other Kuwaiti legal documents. Al-jins is also the term used for sex in the official translation of the United Nations Universal Declaration of Human Rights, a document cited in the Legal Advice and Legislation Administration's Explanatory Note to article 29.136

Narrow readings of jurisdictional provisions in Kuwaiti law have made it exceedingly difficult to mount constitutional challenges to the electoral law's ban on women voting. First, the election law requires that complaints regarding election results or procedures be brought by those eligible to vote, and thus prevents women from bringing complaints through that process.137 Second, the limited jurisdiction of the administrative courts has made it difficult for women activists to formulate a complaint that falls within that court's jurisdiction.138 Finally, the Constitutional Court does not accept cases brought directly by individuals, but rather hears constitutional challenges brought in the course of resolving other disputes in existing cases.139 Although the Council of Ministers or the National Assembly can refer disputes to the Constitutional Court for resolution, the government has not done so, and in July 2000 Kuwait's Ambassador to the United Nations told the Human Rights Committee that in his opinion, the Government would not do so in the future because it wished to avoid a constitutional conflict and political ill will, adding that "[t]his is a right that has to be taken by persuasiveness." 140

In February 2000, women activists adopted a new strategy to attempt to break the judicial roadblock. Taking advantage of a ministerial announcement encouraging potential voters to register, women who met the election law's age and citizenship requirements presented themselves to registrars in their home districts and asked to have their names recorded on the voter's roll. When they were refused, they went to police stations and registered complaints documenting their failed efforts to register. This step was intended to support their claim that the registrars' refusal was a form of administrative act, and thus judicable before the administrative courts.141

The cases all shared several points. In addition to the basic premise that the Ministry of Interior's refusal to register women voters was a negative administrative act; the cases all argued that article 1 of the Election Law violated provisions in the Constitution guaranteeing equality for women, and that the Ministry of Interior's refusal to register women voters was therefore an improper act. Several cases also argued that article 1 was also contrary to Kuwait's international human rights obligations.142

Some cases were rejected as non-judicable before the administrative court on the basis that failure to register women voters was not a negative act because the election law had no provision requiring their registration,143 while others were suspended pending a decision by the Constitutional Court on whether to hear arguments challenging the constitutionality of National Assembly Members' Election Law 35/1962.144 On July 4, 2000 the Constitutional Court rejected requests to hear all four cases referred to it by lower courts.

In rejecting the cases, the Constitutional Court took the position that the cases failed to meet the requirements for constitutional review, and that the plaintiffs' cases were actually original, direct challenges to the constitutionality of article 1 of the election law, "dressed, in contradiction to the truth, in the clothing of a subsidiary rebuttal" to another charge.145 In doing so it relied heavily on arguments, submitted by the Council of Ministers' Legal Advice and Legislation Administration. The core argument was that a constitutional challenge properly "takes the form of defense and not attack."146 That is to say, the government argued that a constitutional challenge is to be used by a person who is subject to the application of the law in the course of a lawsuit, as a means of defending against the application of that law, and is not meant to be used to demand directly the enforcement of a constitutional principle.

A fifth case, brought by a male registered voter, is expected to be heard sometime after the Constitutional Court reconvenes in September 2000.

82 See Chapter IV, above.

83 See Chapter II, above.

84 Concluding Observations, paras. 5-7.

85 Concluding Observations, para 9.

86 Concluding Observations, para. 6.

87 Personal Status Law 51/1984, article 345.

88 Article 346 states "(a) This law applies to whoever is subject to the school of Imam Malik, and those who are not are subject to the regulations specific to them. (b) If parties in a dispute are non-Muslim and differ in religion or sect the provisions of this law apply to them." In practice, this has meant that Shi`i Muslims cases are heard by a separate section of the personal status division of the courts. Personal Status Law 51/1984.

89 Sunni Islam recognizes four schools of jurisprudence: Hanafi, Maliki, Shafi'i and Hanbali.

90 For example, article 150(b) requires "two men or a male and two women or a notary public (ishhad rasmi)" witness an oral revocation of a divorce for it to be valid. Personal Status Law 51/1984.

91 Personal Status Law 51/1984, articles 288-336.

92 Personal Status Law 51/1984, article 343.

93 Personal Status Law 51/1984, articles 8, 30.

94 The law also prohibits apostates from Islam from marrying at all. Personal Status Law 51/1984, articles 18, 49.

95 Personal Status Law 51/1984, article 30.

96 Personal Status Law 51/1984, article 31.

97 Personal Status Law 51/1984, article 26. The Committee on the Rights of the Child has expressed concern at "the low legal minimum age for marriage for girls," and recommended that Kuwait "take all appropriate measures to raise the legal minimum age for marriage for girls to at least the same age as that set for boys." Concluding Observations, Committee on the Rights of the Child), para. 15.

98 Personal Status Law 51/1984, article 11.

99 Personal Status Law 51/1984, article 90.

100 Personal Status Law 51/1984, article 89.

101 Personal Status Law 51/1984, article 97, 104.

102 Judicial divorce or annulment may be more advantageous to the husband than unilateral divorce if it releases him from responsibilities to pay maintenance or requires the wife to compensate him for damages or the loss of her services to him or his children.

103 Personal Status Law 51/1984, article 111

104 Personal Status Law 51/1984, article 126.

105 Personal Status Law 51/1984, article 123.

106 Personal Status Law 51/1984, article 120.

107 Personal Status Law 51/1984, article 136.

108 The wife must wait at least one year after the start of his imprisonment prior before petitioning for divorce. Personal Status Law 51/1984, article 138.

109 The Arabic term `ayb, or defect, is used to refer a variety of conditions preventing sexual intercourse. Personal Status Law 51/1984, article 139.

110 Personal Status Law 51/1984, articles 143, 145.

111 Personal Status Law 51/1984, article 133.

112 Professor of Islamic Law Dr. Khaled Abou El Fadl, Human Rights Watch private communication, August 22, 2000.

113 Personal Status Law 51/1984, article 130.

114 Personal Status Law 51/1984, article 129.

115 Professor of Islamic Law Dr. Khaled Abou El Fadl, Human Rights Watch private communication, August 22, 2000.

116 Kuwait ratified the Convention on on the Elimination of All Forms of Violence against Women (CEDAW) in 1994. In its General Comment 19, the CEDAW treaty-monitoring body stated that "Gender-based violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men." In its recommendations to CEDAW states parties, the Committee named "Legislation to remove the defence of honour in regard to the assault or
murder of a female family member" as one of five "measures that are necessary to overcome family violence." U.N. Committee on the Elimination of All Forms of Violence against Women, General Comment 19, Eleventh Session, 1992, paras. 1, 24(r)(ii).

117 Penal Code 16/1960, article 153.

118 Penal Code 16/1960, article 182.

119 Penal Code 16/1960, article 174.

120 Penal Code 16/1960, article 175.

121 Penal Code 16/1960, article 176.

122 Concluding Observations, para 9. article 6(1) of the ICCPR states "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

123 U.N. Human Rights Committee General Comment 25, The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, Fifty-seventh Session, 1996, (hereafter, General Comment 25), para. 26.

124 See Chapter VI below.

125 Community Service Societies Law 24/1962, article 6; and Sports Organizations Law 42/1978, article 7.

126 "[I]t is well known that there are no political parties in the State of Kuwait. The Annotations to the Constitution state the following, concerning article 43: `Article 43 establishes the freedom to form associations and unions, but has not provided for the formation of organizations whose general description may put them in the category of political parties as such. The idea is that the constitutional clause is not meant to contain a provision that allows for the formation of parties. On the other hand, the absence of such a provision from the text does not mean the consecration of a constitutional ban that may indefinitely restrict any future action to authorize the formation of such parties, should the law-makers consider it appropriate. Therefore, the constitutional clause neither stipulates nor prohibits the freedom to form parties, but leaves the matter to the normal process of law-making, without specifying a direction for or against any such measure in the future.'" Report of the Government of Kuwait, para. 261.

127 National Assembly Members' Election Law 35/1962, article 1.

128 Article 6 of Nationality Law 15/1959 contains a similar provision restricting voting rights of naturalized citizens.

129 Constitution of Kuwait, article 82.

130 General Comment 25, para. 8.

131 Report of the Government of Kuwait, para. 328.

132 Kuwait Women's Issues Network Submission to the United Nations Human Rights Committee, July 2000.

133 Article 19 of Judiciary Service Code 23/1990 does not explicitly require all judges to be male, but subsequent articles on swearing in of judges and on appointment of chief justices and other positions in the court of cassation, appeals court, and court of first instance appear to specify male judges (rijal al-qadaa'). Judge Waal S. al-Saleh, of Kuwait's Ministry of Justice, acknowledged that no women serve as regular court judges, but asserted that some women did serve as investigating judges, as well as serving as lawyers. 1853rd Meeting of the United Nations Human Rights Committee, July 19, 2000.

134 Other provisions are article 6, which states that Kuwait is democratic and "sovereignty resides in the people"; article 7 which states that "Justice, Liberty and Equality are the pillars of society," and article 8, which states that "The State safeguards the pillars of society and ensures security, tranquility, and equal opportunities for citizens."

135 The Constitution of the State of Kuwait and the Explanatory Note, Legal Advice and Legislation Administration, Ministry of Justice, 1997, p. 13. (Arabic)

136 The Constitution of the State of Kuwait and the Explanatory Note, Legal Advice and Legislation Administration, Council of Ministers, 1997, pp. 73-74. (Arabic)

137 National Assembly Members' Election Law 35/1962, article 13.

138 Although the court's jurisdiction includes requests by individuals to revoke final administrative decisions, the complaints in these cases must be based on administrative decisions which a) lack proper jurisdiction; b) have a formal flaw; c) violate laws or regulations or improperly implement them; or d) are an abuse of power. Formation of a Division of the Court of General Jurisdiction to Review Administrative Cases Law 20/1981, articles 1 and 4.

139 Constitutional Court Law 14/1973, article 4.

140 Ambassador Dharar A.R. Razzooqi, Permanent Mission of Kuwait to the United Nations (Geneva), 1852nd Meeting of the Human Rights Committee, July 18, 2000

141 "The administrative authorities' refusal or refraining from taking a decision required by the laws or regulations is considered an administrative decision." Formation of a Division of the Court of General Jurisdiction to Review Administrative Cases Law 20/1981, articles 4.

142 See for example defense briefs for Naja Mohammad `Ali Ahmad, Hala Mohammad Ali al-`Abd al Muhsin, Fatima Hajji Khadr Mohammad `Abdali, Nadia `Ali `Abd al-Rahman al-Sharah, Nada Sultan Bilal al-Khamis, Zainab Hassan `Ali al-Harbi, and Badur Ahmad Bin `Issa, which argued that article 1 was contrary to the Universal Declaration of Human Rights, the ICCPR, and CEDAW. (Arabic)

143 See for example Dr. Badria `Abdullah Mohammad Hadi al-`Awadhi v. Deputy Minister of Interior, 165/2000 Administrative Department 1. (Arabic)

144 See for example the ruling on May 29, 2000 in Rola `Abdullah `Ali Hajiya Dashti v. Deputy Minister of Interior, 242/2000 Administrative Department 5. (Arabic)

145 This text appears in Farida Hamid `Abd al-Rahman al-Dashti v. Ministry of Interior, Constitutional Court case 7/2000; Rola `Abdullah `Ali Hajiya Dashti v. Deputy Minister of Interior , Constitutional Court case 9/2000; and Naja Mohammad `Ali Ahmad, Hala Mohammad Ali al-`Abd al Muhsin, Constitutional Court case 11/2000. (Arabic)

146 Council of Ministers Legal Advice and Legislation, representing the Government of Kuwait, Brief in Case 7/2000, Farida Hamid `Abd al-Rahman al-Dashti v. Ministry of Interior. (Arabic)

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