Morocco’s new criminal code, a ray of hope for individual freedoms?

Morocco’s Justice Minister Abdellatif Wehbi confirmed in his latest statements, as quoted by the government-run Maghreb Arab News Agency (MAP), that the draft penal code has reached its final stages, indicating that it could be ready in February.

Wehbi highlighted during a seminar that the criminal law will see a revision of a number of articles, with the inclusion of new crimes, and the abolition of articles that have become outdated and unrequired.

Since the government announced in November 2021 the withdrawal of draft law No. 10.16 on the completion and change of the set of the Penal Code from the House of Representatives, human rights demands have returned to the fore to abolish a set of articles that are considered – according to a group of jurists and human rights defender – a barrier to individual freedoms, and they have stressed the need to make the laws relevant to and suit the latest transformations of modern society.

The human rights defenders' demands focus mainly on specific chapters (articles) that organizations and figures from civil society see as an "enemy" of freedoms and rights, including Article 220 on freedom of belief, Article 222 criminalizing iftar in public, Article 490 criminalizing consensual relations, Article 492 criminalizing homosexuality, and articles 449, 450, and 454 on criminalizing abortion.

Time for change?

Several statements made by the Minister of Justice Abdellatif Wahbi regarding individual freedoms, perhaps the most recent of which was lifting the penalty for "public intoxication", were seen as a positive step by human rights activists, hoping that they would be legally approved, for the sake of human rights justice, in a way that suits the requirements of a broad segment of society.

In a statement to Raseef22 regarding his expectations for amendments to the criminal law, human rights defender and researcher in religious affairs Abdelwahab Rafiki says that he hopes that the latter will see amendments related to human rights as a priority, especially those related to individual freedoms.

Morocco's new penal code may see changes that enhance and strengthen individual freedoms. What are the expectations of jurists and human rights defenders?

Rafiki believes that the provisions related to individual freedoms in the current criminal law limit individual privacy, because they interfere in people's lives, and in the way they are religious and their worship, all of which contradict a person’s right to individual choices, convictions and behaviors that do not harm others, and interfere with people's privacy, breaking into their homes and violating their secrets.

From this point of view, Rafiki stresses the need to review all the articles that interfere with the freedom of others, especially those related to consensual sexual relations (Article 490) and public iftar (Article 222).

Within the same context, Narges Benazzou, president of the 490 Coalition, also known as the “Moroccan Outlaw Movement”, tells Raseef22, "We have been waiting for more than a year for the amendments that the Minister of Justice intends to introduce to the criminal code, especially the aspect related to individual freedoms. Ever since the minister withdrew the draft penal code from parliament for review, we have demanded and hoped that this government would have the necessary courage to cut out some unjust articles that no longer have a place within our societies, especially article 490, which criminalizes consensual relations between adults outside marriage."

Benazzou adds that the Minister of Justice's recent media statements are pointing in this direction, but the matter has not been resolved as long as the draft has not come into existence, and has not been discussed and approved.

Towards the protection of individual choices?

The demands of human rights defenders related to freedoms depend on the rights of individuals, as they are a gateway for respecting personal choices and the privacy of citizens within society, regardless of their different convictions, stressing that the law must protect these choices and suppress them.

From this angle, human rights activist Ahmed Assid warned that the main approaches for an effective review of the criminal law that should be adhered to and defended are that individual freedoms are closely related to the concept of citizenship and the meaning of the “individual citizen”, without which there is no justice or actual equality. This necessitates removing the issue from the framework of traditional awareness and the old jurisprudence that was in force under the religious state, which gives priority to the "group" and the system of traditions at the expense of the individual, as well as considering religiosity as a personal choice and putting an end to the authoritarian climate that dominates the public sphere in the name of the official religion of the state.

Therefore, according to Assid, individual freedoms should be seen as an integral part of the system of freedoms and rights ratified by the Moroccan constitution, and a key lever for the success of the transition towards democracy. They must also be considered, as stipulated in the constitution, as an indivisible whole, and superior to the national legislation, in addition to recognizing the right of the individual to decide on his/her body regardless of gender, and to overcome the old view of guardianship that makes the body the subject of strict control that leads to criminalization, the perpetuation of social hypocrisy, the loss of human dignity, and the spread of intolerance and violence among the general public in society.

Women's rights

The issue of women is a primary demand for human rights defenders, especially with regard to the right to abortion, as articles 449, 450, and 454 criminalize abortion and only allow it within certain limits.

In the absence of official statistics, according to the Moroccan Association Against Clandestine Abortion (AMLAC), between 600 and 800 abortions are performed daily.

Human rights activist Aisha Ashfiei tells Raseef22 that these numbers could be higher in light of the dangerous and uncertain reality experienced by women who want to get rid of their pregnancies, starting with their conservative family environment, to a society of shame and scandal, as well as clandestine abortion lobbies and mafias.

The human rights movement calls for the promotion of individual rights that are shackled by articles of the current penal code in Morocco

Ashfiei confirms that, in light of these legal provisions criminalizing abortion, many women resort to using traditional methods that pose a great threat to women's health and in many cases, they lose their lives as a result, as happened months ago with the young girl Mariam who had been raped and died following an unsafe secret abortion.

According to the activist, the choice to have children and keep the pregnancy remains a personal choice, and thus preventing and criminalizing abortion is considered a violation of the right to life, because if a woman is not granted the right to an abortion – if it is her wish – she is sentenced to death, given that this will lead to thoughts of suicide to get rid of the pressure of the family and society.

Commenting on the cases in which the Moroccan legislature has allowed abortion – such as life-threatening pregnancies, incest, rape, serious birth defects, and potentially life-threatening diseases – Ashfiei believes that the application of these cases is linked to a judicial court ruling that takes a long time, at a time when a decision must be taken quickly before the abortion process becomes impossible.

The activist therefore calls for the establishment of a societal dialogue with the aim of pushing the Moroccan legislator to accept a safe medical abortion that preserves the dignity of women, because it is necessary to reduce all the psychological, physical and social traumas and tragedies that women live before, during, and after undergoing secret abortion.

Individual freedoms.. Towards more rights?

Will the abolition of criminal articles that repress individual freedoms become a move that grants Moroccans more rights?

Narges Benazzou responds with absolute certainty, and adds, "Of course, there are more than 15,000 legal prosecutions every year in Morocco, under Article 490, and young people and women, as well as the vulnerable groups of society, are the ones who suffer the most from the repercussions of this article and other articles that restrict freedom, as they are subjected to a double punishment by both society and the judiciary.”

She goes on to say, "If these chapters are abolished, the human and material resources that are wasted to pursue these young people, could be allocated to combat sexual violence and accompany its victims, and it would also be a strong sign that Morocco today is a country that respects the freedoms and privacy of its citizens.”

Will the abolition of criminal articles that repress individual freedoms become a move that grants Moroccans more rights?

For his part, Abdelwahab Rafiki notes the positive indicators in the statements of the Minister of Justice, Abdellatif Wehbi, hoping that the promises he promised will be fulfilled, in order to become more compatible with a modern state, and achieve consensus, and that a vote will be taken in favor of a legal amendment similar to the majority of votes in parliament so that it turns into a criminal law that takes into account people's rights, humanity and freedoms.

As for human rights activist Ahmed Assid, he believes that to achieve this breakthrough, the legal text must be a protector of freedoms and not an obstruction to them, in addition to working on abolishing articles that contradict other laws, and not just be mere superficial amendments. He says they should be contrary to this, and must have the nature of a deep and comprehensive review in order to respond to societal transformations.

According to these conditions, the activist says, “We will be able to obtain the text of a law at the stage level, because the problem with the current law is that all its articles related to individual freedoms have been put in place since 1962 in another reality that no longer exists, which requires reviewing and canceling these articles because they criminalize behaviors that are at the heart of freedoms related to individuals’ lifestyles.”