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II. Background

The Egyptian government’s obstruction of a woman’s right to divorce exemplifies its unwillingness to grant women legal equality. Profoundly discriminatory family, penal, and civil laws reinforce the unequal status of women in the family and in Egyptian society. Laws condoning domestic violence and policies that exclude women from the judicial bench foster and perpetuate women’s second-class status.

Women’s Status in Egypt

The State shall guarantee coordination between a woman’s duties toward her family and her work in the society, considering her equal to man in the political, social, cultural and economic spheres without detriment to the rules of Islamic jurisprudence (Shari’a).

—Article 11, Constitution of the Arab Republic of Egypt

Despite some improvements in their status over the past few decades, women remain worse off than men in Egypt by just about any measure. In 2000, the last year for which statistics are available, an estimated 56 percent of adult Egyptian women were illiterate as compared to 33 percent of adult men.¹ Women’s health and lives continue to be jeopardized in Egypt by harmful customary practices such as female genital mutilation (FGM), which is practiced on an estimated 97 percent of ever-married women in Egypt.² Women constitute only 21 percent of the labor force.³ On average, women are paid only 76 percent of men’s wages in the private sector and 86 percent in the public sector.⁴ An estimated 19 percent of women are unemployed compared to 5 percent of men.⁵ The share of women members in the Egyptian parliament does not exceed 3 percent in the lower house and 6 percent in the upper house.⁶ Rural women in Egypt are even worse off than their urban counterparts. In rural areas, although 20 percent of agricultural workers are women, they own only 6 percent of the land. They are also often prevented from exerting meaningful control over the little land they own since they are routinely coerced into surrendering control of land to their husbands or male relatives.⁷

Women’s second-class status translates into a lack of decision-making power in the family, even on the most intimate aspects of their lives. Many Egyptian women are forced into marriages by a male relative (usually their fathers), often before adulthood. As many as 20 percent of Egyptian women aged twenty to twenty-four were married by the age of eighteen.⁸ Among adolescents, as many as 9 percent of those aged fifteen to nineteen and as many as 20 percent of those age nineteen had already given birth to at least one child.⁹ Early marriage and childbearing does not only jeopardize a girl’s education, but can also puts her life at risk; early marriages increase the risk of maternal and infant mortality and make girls more vulnerable to sexually transmitted infections, including HIV/AIDS.¹⁰  Forced marriage, a slavery-like practice,¹¹ violates a number of international human rights norms, including the right to freely enter into marriage, the right to personal liberty and security, and the right to bodily integrity. Forced and early marriages are particularly acute in rural areas.

A number of Egypt’s laws and certain provisions in its constitution maintain and perpetuate women’s unequal status. Article 40 of the constitution states: “all citizens are equal before the law. They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed.”¹² Yet, article 11 of the constitution places certain limitations on women’s enjoyment of their rights. While article 11 explicitly refers to women’s equality in the “political, social, cultural, and economic spheres,” it leaves room for the denial of these rights if they are interpreted to be at odds with Islamic jurisprudence.¹³ 

Although women have nominal equality under article 40 of Egypt’s constitution, gender inequality persists in Egyptian society and numerous laws directly violate these constitutional guarantees. Under article 4 of ministerial decree¹⁴ No. 864 (1974), an Egyptian woman may not be issued a passport without the prior written consent of her husband or his legal representative. The law also allows the husband to reverse this consent at any time.¹⁵  Under this decree, a husband can prevent his wife from traveling, even if he had given his consent to her obtaining a passport or making previous trips. Although there was a proposal to change this law in 2000, the Egyptian government decided to drop this provision from the draft law just before passage, reportedly as a concession to religious conservatives, despite the fact that Muhammad Sayyid Tantawi, the Shaikh of al-Azhar University,¹⁶ had supported the new law even with this provision. Despite a 2003 reform to the citizenship law, Egyptian women still have an unequal right to pass on their nationality to their children if they marry foreigners.¹⁷  

Provisions of the penal code also discriminate against women. Egyptian law imposes harsher penalties for women committing adultery. A wife is penalized for two years,¹⁸ whereas a husband is penalized for no more than six months.¹⁹ For adultery, the evidentiary standards are different for women and men. While a wife is penalized for committing adultery anywhere, a husband must do so in the marital home in order for such an act to be considered adulterous.²⁰  The murder of a wife (but not a husband) in the act of committing adultery is categorized as an extenuating circumstance, thereby commuting the crime of murder to the level of a misdemeanor.²¹ 

The Egyptian Women’s Rights Movement

The Egyptian women’s movement, considered by many to be the forerunner of the Arab women’s rights movement,²² has been actively working to repeal discriminatory laws and advance women’s status in Egypt for decades. As early as 1951, Egyptian feminist Doria Shafiq and 1,500 other women stormed parliament demanding full political rights, a reform of the personal status laws, and equal pay for equal work.²³ Today, there are an estimated 16,000 NGOs working on various issues aimed at empowering Egyptian women.²⁴ However, the movement has suffered considerable setbacks over the past twenty years due to the rise of a general climate of religious conservatism adverse to women’s rights, widening state restrictions on civil society, and the cooptation of the women’s rights agenda by the government.

Women’s rights are often the main battleground for the ongoing confrontation between successive Egyptian governments and those seeking to increase the Islamic character of the Egyptian state. This has led some observers to mark the 1980s and 1990s as the beginning of Egyptian women’s “endangered rights.”²⁵ Successive Egyptian governments have routinely compromised certain rights to appease religiously-conservative elements in Egyptian society. For example, the government of the late Anwar Sadat decided to amend the Egyptian constitution in 1980, in order to make Shari’a “the principle source of Egyptian legislation.”²⁶ In this constrained environment, any departure from conservative interpretations of religious text by women’s rights activists has resulted in a backlash. Egyptian women who have raised concern about women’s status, particularly within the family under Egypt’s Shari’a-based personal status laws, have been accused of being “pro-western (i.e. feminist, liberal, or secular), antagonistic to Islam, and influenced by leftist ideologies.”²⁷ 

The rise in religious conservatism is not the only reason for the setbacks of the past twenty years. The Egyptian women’s movement is also affected by the state’s severe restrictions on civil society. Law No. 84 of 2002 (“the NGO law”), which requires all groups to register with the Ministry of Insurance and Social Affairs, greatly restricts the space for nongovernmental activism.²⁸ Many Egyptian NGOs view this requirement to register as a curtailment of their expression and association rights as well as a transparent attempt by the government to approve some NGOs and deem others illegal.  Although women’s rights groups were not necessarily the intended targets of the NGO law, they have been adversely affected by its restrictions. For example, on June 8, 2003, the New Woman Research Center, founded in the early 1990s to raise public awareness of women’s rights issues (including FGM and domestic violence), received a letter from the Ministry of Insurance and Social Affairs rejecting its application to register under the terms of a new law governing the activities of NGOs.²⁹ On June 15, 1991, the government closed the Arab Women’s Solidarity Association (AWSA), headed by secular feminist and author Nawal al-Sa`dawi, and reassigned its license and assets to an Islamic women’s organization.³⁰

The space for independent women’s rights activism has been further eroded by government efforts to monopolize the women’s rights agenda through the National Council for Women. The National Council for Women (NCW) was established by presidential decree in 2000 as an “autonomous body responsible for the empowerment of the Egyptian woman.”³¹ However, the autonomy of the NCW, which is presided over by First Lady Suzanne Mubarak, is questionable. In interviews with Human Rights Watch, several representatives of NGOs, who did not wish to be named, expressed concern that the channeling of considerable resources from international donors to the NCW ultimately furthers government control of the women’s rights agenda and weakens civil society.³² The independence of the NCW and its willingness to publicly criticize laws or policies adverse to women’s rights is also undermined by the fact that it is housed in the ruling National Democratic Party headquarters in Cairo. 

Egypt’s Discriminatory Personal Status Laws

Egypt’s personal status laws present a particularly egregious example of discrimination. The discriminatory personal status laws governing marriage, divorce, custody, and inheritance in Egypt deny women many of the rights protected under international human rights law. Throughout the Middle East and North Africa, these laws have institutionalized the inferior status of women in the family, undermining their legal standing in both the private and public realms. Personal status laws treat women essentially as legal minors under the eternal guardianship of male family members. These laws “deal with women as part of the regulation of the organization of the family, not as individuals with their own separate or equal rights.”³³

Despite advances women have made in Egypt in other areas, such as education and access to the public space, family law remains relatively unchanged and continues to undermine women’s full personhood in society. Personal status laws have been the most resistant to change, because in Egypt, “women are perceived as the bearers and perpetuators of cultural values and social mores,” which “increases the resistance to any change in their status or the laws that govern their lives.”³⁴ Unlike the rest of the Egyptian legal system derived from French civil law,³⁵ personal status laws for Muslim Egyptians³⁶ rely predominantly on Islamic law (Shari’a).³⁷  These religious-based personal status laws violate equality provisions in Egypt’s constitution because, as one scholar has noted, “while the latter [the constitution] guarantees equal rights for all citizens, the former [personal status laws] extends privileges to men in the family (in the areas of marriage, divorce, inheritance, and child custody) which are denied to women.”³⁸

All three of Egypt’s presidents since independence, Gamal Abdel Nasser, Anwar al-Sadat, and Hosni Mubarak, despite remarkably different political orientations, were, to different degrees, public proponents of women’s rights. However, they all shied away from directly addressing the stark gender inequality codified in Egypt’s personal status laws, which date back to the 1920s. Despite their varying efforts to advance Egyptian women’s status in the public sphere, they left the personal status laws in the implicit hands of the religious establishment, which was willing to ensure the religious character of the state by preserving male dominance at home. These contradictory tendencies have resulted in “the very anomalous situation of [Egyptian] women, who, even though they have gained more public rights (to education, work, and political participation), still confront serious forms of gender inequality in the family.”³⁹

While President Nasser’s 1962 National Charter, a “blueprint for socialist transformation in Egypt,” endorsed equality for women in voting, education, and employment, the gender inequities institutionalized by the personal status laws remained entirely intact.⁴⁰  It was under the leadership of President Sadat that the discrimination codified in Egypt’s personal status laws started to be addressed.  In 1979, President Sadat introduced several reforms (known as Jihan’s laws,⁴¹ for First Lady Jihan Sadat) to the personal status law. One of these reforms included Law 44, establishing polygyny as a ground for divorce in itself.⁴² While polygyny has always been a grounds for divorce, women need to provide evidence of “material/physical or moral harm making it impossible for both of the spouses to associate any longer with each other” resulting from the second union.⁴³ Passed during a parliamentary recess and subsequently approved by the legislature, these reforms were later deemed unconstitutional by the High Constitutional Court under Mubarak’s government in 1985. A strong women’s lobby at the 1985 United Nations World Conference on Women in Nairobi pressured the government to reformulate the laws; two months after the decision by the High Constitutional Court, a new law was passed restoring some of the provisions of the 1979 law.⁴⁴ While certain procedural amendments to the personal status laws⁴⁵ have been made under President Mubarak, the government has demonstrated reluctance in tackling these laws head on.

Domestic Violence in Egypt

A man has the right in Shari’a to discipline his wife. This is a fact. You cannot deprive him of it. But, this is a right in the Shari’a that is not enforced. God says that the best of you will never use this power.

— Hossam Abu-Yusif, state council deputy, Cairo, June 25, 2004

Domestic violence is a widespread and commonly accepted phenomenon in Egypt. According to some observers, “violence against women [in Egypt] is often understood as merely a problem of well-intentioned discipline getting out of hand.”⁴⁶ The government fails to keep accurate and up-to-date statistics on the levels of violence against women, making it extremely difficult to assess the nature and degree of such violence, the rates of prosecution and conviction, or the nature of punishment meted out in such cases. In fact, the last national survey that included statistics on domestic violence – the Egypt Demographic and Health Survey administered by the National Population Center (“the 1995 Survey”) – was conducted almost a decade ago.⁴⁷

The findings of the 1995 survey were startling. The survey’s sample included 7,000 married women ranging from fifteen to forty-nine years of age. It found that one out of every three “ever-married Egyptian women have been beaten at least once since marriage.” Of those women, 45 percent were beaten at least once in the past year and 17 percent were beaten three or more times during the same period. Forty percent of women between the ages of fifteen to nineteen and 20 percent of women forty to forty-nine years old reported being beaten during pregnancy. Women with only a primary school education or no education were three or more times more likely to be abused as compared with women who had completed secondary or higher education.⁴⁸

The 1995 Survey also assessed attitudes toward violence. It found that violence was so normalized in Egyptian society that nearly 86 percent of the women surveyed thought that husbands were justified in beating their wives under certain circumstances. On average, 70 percent of the women surveyed between the ages of fifteen to forty-nine felt that husbands were justified in beating wives who refused sex. An estimated 70 percent of women between the ages of twenty and twenty-nine surveyed by the National Population Center said that violence was justified if a woman “talked back” to their husbands; 65 percent said a beating was justified for talking to another man; 42 percent for spending too much money; 26 percent for burning dinner; and 50 percent for neglecting the children. ⁴⁹ Perhaps reflecting the social acceptance of violence against women in Egyptian society, many of the women that Human Rights Watch interviewed also endorsed domestic violence as a legitimate form of punishment for disobedience. 

While these figures are high, they are perhaps not surprising.  Many Egyptian women are accustomed to tolerating violence because the “disciplining” of “disobedient” women is sanctioned under Egyptian law.  Section 60 of the Criminal Code states that “the provisions of the penal code shall not apply to any deed committed in good faith, pursuant to a right determined by virtue of the Shari’a.”⁵⁰ This law, applying to any act of violence committed in “good faith,” has been used to justify domestic violence. Under the law, acts committed in “good faith” are described as circumstances in which:

1. the beating is not severe;
2. the beating is not directed at the face; and
3. the beating is not aimed at vulnerable “fatal blow areas.”⁵¹

Absence of Female Criminal Prosecutors and Judges

It is a fight between those who are convinced that women are not qualified to be judges – you’ll hear a hundred justifications [for this] – and the few that are enlightened, convinced that women can be judges. [But] they are powerless.

— Hossam Abu-Yusif, state council deputy, Cairo, June 25, 2004

Current governmental practice denies Egyptian women the opportunity to become judges. Their exclusion from the bench is not codified in any law (religious or secular) or in the constitution, but is simply a matter of standard practice based on stereotypical and biased views about women. By excluding women from the bench, Egypt is not only violating internationally protected equality provisions, but it is also blatantly violating its obligation to “guarantee equality of opportunity to all Egyptians” under its own constitution. ⁵²

The Supreme Council of Judges continues to reject the applications of all women applying to join the criminal department of the public prosecutor’s office (al niyaba al `amma) from which junior judges are chosen. The rejection of these applications is sometimes made without comment, while on other occasions the applicant’s gender is explicitly noted as the reason for the rejection.⁵³ Occasionally, rejected female candidates file suits before Egypt’s administrative courts demanding to have their application reconsidered. However, the administrative courts, while often backing the candidate’s professional qualifications, have consistently upheld the right of the Supreme Council of Judges to make its own decisions.⁵⁴ This process was overridden only once with the appointment by presidential decree of attorney Tahany al-Gebali, in 2003, to the High Constitutional Court. Both President Mubarak and First Lady Suzanne Mubarak supported the appointment, making it impossible for the Supreme Council of Judges to challenge the decision. A year later, Tahany al-Gebali remains the only female sitting judge in Egypt. Her appointment does not appear to have opened the door for the appointment of a future generation of female Egyptian judges.⁵⁵ 

Judges and other representatives of the Ministry of Justice were outspoken in their opposition to the inclusion of women on the judicial bench. They gave deeply discriminatory reasons for why women should not be criminal prosecutors or judges.  One judge who did not wish to be named told Human Rights Watch:

The nature of judicial work is very exhausting and requires that a judge not have his home in mind.… Judges are regularly transferred outside of Cairo…Will husbands allow their wives to live outside of the home? Will a family be able to bear it? 56

It was also suggested that women easily succumb to emotions, preventing them from making competent decisions. When asked why he thought women should not be judges, another judge told Human Rights Watch, “if a judge is tired, anxious, angry, or not in the right psychological or biological state of mind, they should not hear cases.”⁵⁶ 

Aside from these discriminatory reasons, government officials frequently offered cultural sensitivities as the primary justification for the continued exclusion of women from the judiciary. The chief judicial inspector, Judge `Abd al-Rahman Muhammad, told Human Rights Watch:

The Egyptian law and the constitution do not differentiate between men and women. We have women heads of universities, ambassadors - there is no difference. But there are some jobs like the job of prosecutors and judges, which women have not entered yet because society cannot accept it. If they go into that profession, they will have to work on criminal cases. The nature [of the work] is not suitable for women because they have to investigate murder, arson, rape. We still cannot imagine that a girl can play that role. When the culture of the people changes maybe they’ll accept it. With time, maybe the culture will change.⁵⁷

The absence of women’s voices in the judiciary renders the entire judicial process suspect. If members of certain religious, ethnic, or racial minorities, for example, were not allowed to become judges, members of that group could not help but feel alienated and disempowered in the courtroom. Nowhere is the absence of female judges more glaring than in matters relating to the family. Absent female voices and input informing the judiciary’s attitudes and approaches to legal questions, particularly in matters relating to marriage and divorce, the judiciary as a whole cannot claim to have a balanced and neutral framework through which it adjudicates family disputes. The ability of male judges to sufficiently appreciate the concerns of women seeking divorce is rendered questionable by the lack of participation of women in the judiciary.