Article 11: feminists negotiating power in Egypt

Hoda Elsadda: Open Democracy

Faced with unequal power relations at the negotiating table and authoritarian consolidation, a member of the 50-committee explores how feminist voices achieved leverage when drafting the 2014 Egyptian Constitution to include article 11.

Caught between an authoritarian and exclusionary religious discourse on the one hand, and an equally authoritarian and exclusionary ultra-nationalist stance on the other, how can feminists in Egypt forge a space for voice and political change? What kind of leverage, if any, do they have? How do feminists negotiate with power? It's possible to engage with these questions by focusing on the negotiations that took place around article 11, or the “women’s article” as it is popularly known, in the 2014 Egyptian Constitution. I share these reflections from my position both as a feminist with a long history of engagement in women’s rights movements, and as a member of the 50-committee that drafted the 2014 constitution.

There is consensus in feminist circles that article 11 is an achievement, a significant step in the right direction for women’s rights in Egypt. It prescribes the state’s commitment to: ensuring equality between men and women; to implementing positive discrimination measures to achieve equality; and to combating violence against women. It is a rare example of negotiations that worked relatively well for women. This is not to claim that the constitution as a whole guarantees women’s rights or rights in general, nor is it to say that this is a gender-sensitive constitution. It is, however, to argue against the mechanical view that all political processes taking place under authoritarian regimes are necessarily fully engineered by an all-powerful regime, that concrete political gains are not possible, and that when they do happen, they can be explained away as a gift from the ruling elite, a trade-off, or a coping mechanism of a resilient authoritarianism. My aim is to provide a more nuanced understanding of how feminist platforms interact with power and ask: can feminists engage with power despite authoritarian consolidation? What does the process look like? What are the terms of engagement?  

I use power in this particular context to denote patriarchal domination enacted in the social and political spheres. Negotiations in the 50-committee for drafting the constitution in 2014 were not conducted on a level playing field, but against the back-drop of entrenched and deep-rooted unequal power relations. I will not focus on the negotiation strategies as such, but will attempt to answer the question: given the unequal power relations at the negotiating table, how did feminist voices achieve any leverage? Why did we succeed at this particular moment in including an article that championed women’s rights in the Egyptian Constitution? Three factors strengthened the feminist position: the divisive politics of Islamism vs. secularism, the internationalisation of women’s and human rights discourse, and the new political spaces that opened as a direct consequence of the 2011 revolutionary wave.

The context

All constitutions reflect the balance of power in society at a particular moment in history. In the Egyptian context, the voice of feminists was not amongst the powerful contenders at the negotiating table. The moment was one of heightened political struggle and violence with fighting on the streets between protesters - mostly Muslim Brotherhood supporters but also revolutionary youth - and security forces. There was ethical trauma and hysteria after the massacre in Rabaa in August 2013, a comeback of old regime figures, a rise in a militarized nationalist discourse, a media campaign vilifying protesters and protests in general, and growing disenchantment of ordinary citizens with the very idea of revolution or change. Despite the acknowledged and visible participation of women in revolutionary movements for change, women have been conspicuously excluded from key political processes since 2011.  The dominant perception among policy makers, was that women’s rights advocates had no evident influence on women voters, and were therefore not an effective pressure group to contend with.

That said, the air was also laden with high expectations for significant sectors in society. The new constitution was the first step on the road map agreed upon by the coalition that orchestrated the 30th of June 2013 popular revolt which led to the ouster of President Morsi and the beginning of a new political direction.

For the many who marched against the rule of Islamists, the new constitution was meant to right the wrongs embodied in the Islamist 2012 constitution. The air was also filled with dreams of change and the promise of a better life for all. There were strong doses of optimism in the midst of apprehension and overall fear for the future.

A liberal vs. Islamist constitution

A constitutional commitment to safeguarding women’s rights was absent from the 2012 constitution drafted by a constitutional assembly with an Islamist majority. The previous constitution of 1971 included article 11 in which the state was committed to enabling women to perform their duties towards their families and their work in society, and to ensuring equality between men and women in the political, social, cultural and economic spheres, while adhering to the principles of Sharia. The 2012 constitution annulled article 11 - the explicit commitment of the state to ensuring equality between men and women, and integrated the reference to women in an article about the family as the cornerstone of society. In the same article, the state is only committed to providing services to women in relation to their roles as mothers, and the ensure protection of female heads of households, divorced women and widows.

The assembly was elected by an Islamist majority Upper House, the Shura Council, despite lengthy negotiations with liberal and secular parties who tried to push for the formation of an inclusive constitutional assembly. Eventually, the few non-Islamist members withdrew. The absence of an article that commits the state to ensuring equality between men and women was just one example of the efforts of the 2012 Islamist assembly members to fast track the Islamization of both the state and society. The assembly added the highly controversial article 219 which had the potential to expand the jurisprudence of Sharia interpretations of civil laws. It also added an article that increased the authority of Al-Azhar in legislation and created a body of “scholars of al-Azhar” that had the power to oversee all matters related to Sharia, hence establishing for the first time a religious authority with powers over legislation. Article 44 was also added, forbidding “insulting the prophets and messengers”. The section on rights and freedoms concludes with a statement that “such rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society included in Part I of this Constitution,” in effect making rights and freedoms conditional on potentially orthodox interpretations of Sharia.

The above constitutional stipulations raised alarm amongst civil society groups and large sections of society in general, and amongst women in particular. There was a widespread feeling that women’s rights were under attack, and that many of the positive developments gained by women in the twentieth century were going to be abrogated.  Statements by Islamist preachers and leaders in the media, as well as by members of the new Islamist elite, stoked these fears by  announcing proposals to modify existing family laws. There was also the added fear of an Islamist future that was based on real and perceived shifts in the body politic.

An important characteristic of the 50-member constitution committee was that the majority of members identified themselves as liberals, or pro-democracy advocates, or secularists, or socialists, in contradistinction to the majority of members in the 2012 constitutional assembly who identified with the project of political Islam. All of the previous labels are controversial and the demarcations  between them are fluid and ambiguous. But the point is that their self-identification as well as the way they were perceived by society was that they were non-Islamist. Therefore, one of the goals of the committee was to “purge” the constitution of the perceived incursions made by the Islamists to inscribe the Islamist political project into the constitutional text. The most publicised example of this purge was the deletion of article 219. The extent and meaning of this effort is again controversial and needs wider discussion, but what is certainly true is that there was consensus on the necessity of reinstating article 11 and the commitment of the state to ensuring equality between men and women. The wording and content of the article was not unanimously agreed upon, and not all the 50-members were champions of gender equality. In fact, the final outcome was the product of bitter struggles and compromises. Nevertheless, one of the important factors that led to the approval of article 11 by members of the committee was their self-identification as pro-women’s rights. Championing women’s rights was yet again a marker of a liberal and modern identity, a continuation of the modernist narrative of the Egyptian nation-state. Feminist researchers and activists have critiqued this modernist narrative and have highlighted the dangers of the politicisation of women’s rights issues. However, it continues to be a dominant narrative that, in this case, worked for women.

Internationalisation of rights regimes

Sylvia Walby has argued that the last 20 years saw the integration of feminism in the international discourse of human rights with the emphasis on the responsibilities of states to protect those rights as a prerequisite for inclusion in the international regime of “civilized states”. In this international regime, “the nation-state has been the subject of a successful pincer movement by feminists organized at both grassroots and trans-national levels”. Examining processes of political change in Egypt, Mona El-Ghobashy starts with the same premise and has argued that the internationalisation of the political regime in Egypt since the mid 1990s, was a key factor that afforded “activists and ordinary citizens unexpected political leverage in their asymmetric share of public power with the executive”. This is particularly important within the context of an authoritarian regime. El-Ghobashy draws attention to the fact that despite the absence of democratic governance, the Egyptian state was a signatory to human rights conventions and bilateral treaties, which imposed international legal commitments, and that integration in the international standard setting regime created a space for rights activists to use the concept of the rule of law to contest state violations of rights. Not only did Egypt sign international conventions, but one of the persistent tropes in the dominant discourse has been the necessity of safeguarding the “image of Egypt”, a narrative about an imagined civilized and modern state as well as an important player in international politics. The reality of the internationalisation of Egyptian politics, plus the projected self-image of a modern state, afforded rights activists disproportionate powers vis a vis state representatives in international forums as they invoked the standards of the rule of law to challenge violations and argue for rights. The endorsement of the internationalisation of rights was another marker that distinguished the 50-member constitution committee from its predecessor. The 2014 constitution introduced an article that emphasized Egypt’s adherence to international human rights conventions:

The State shall be bound by the international human rights agreements, covenants and conventions ratified by Egypt, and which shall have the force of law after publication in accordance with the prescribed conditions” ( article 93).

Again, the article was subject to heated debate, but it was finally approved by  majority vote. Discussions of article 11 and women’s human rights definitely benefited from this direction amongst members, since women’s rights were an integral part of rights discussions and the membership of Egypt in the international community.

Post 25 January 2011: opening new political spaces

The revolutionary wave that swept Egypt in 2011 opened up new spaces for challenging dominant power structures and dominant authoritarian discourses, with varying degrees of success. The text in article 11 committing the state to protect women against all forms of violence is a direct consequence of post 2011 activism which culminated in passing a law that directly criminalized sexual harassment of women. Campaigns to raise public awareness on issues related to violence against women, in both the public and the private spheres started as early as the 1990s, with the work of a number of women’s organizations, notably al-Nadim, New Woman Foundation, and the Centre for Egyptian Women Legal Assistance. However, the issue was repeatedly swept under the carpet and treated as a social and political taboo. Discussions of incidents of violence against women in public forums were mostly drowned by arguments that blamed women for the assaults because they were either not dressed properly, or they were in the wrong place at the wrong time. Domestic violence was even more of a taboo because religious arguments were manipulated to justify violence against women in the family. It was only after the mass protests in 2011 that sexual harassment and assaults on women became the subject of public media debates

At the end of 2012 and start of 2013, incidents of sexual assaults against women present in large protests were reported. Activists recognized the problem and responded by organising groups that would intervene to help women who were assaulted in public spaces. Bassma (Imprint), Harassmap, Shoft Taharush (I saw harassment) OpAntish (Operation Anti-Harassment), and Tahrir Bodyguards were all established in 2012. The new groups, together with already established activist groups working on violence against women, notably Nazra, succeeded in raising media and public awareness of the extent and scale of the problem. They formed rescue groups that intervened to save women from attacks; they provided survivors with psychological and legal aid; they offered self-defence classes; they collected the stories of women who suffered assaults; and they pressured new political parties and civil society actors to recognize the problem unequivocally. January 2013 marked a turning point in the status of the issue of sexual violence against women as a matter for public debate, when survivors of attacks felt empowered to talk about their experience in public and on live TV. Together with the efforts of the anti-sexual harassment support groups - or possibly as a direct result of their efforts - these powerful public testimonials of women broke the taboo that inhibited discussions of the issue of sexual assault.  In June 2014, an anti-sexual harassment decree was passed imposing harsh sentences on offenders.

The conservative discourse on violence against women putting the burden of responsibility on women, was not invoked in discussions by members of the 50-committee. The issue of violence was presented in a generic manner with no attempt in discussions to highlight distinctions between public and domestic violence. Women’s roles in the revolutionary wave was cited repeatedly as evidence of the “worthiness of women”, and the importance of committing the state to ensure substantive rights as well as taking measures to protect them from violence directed against them as women. Violence against women, as women, and the necessity of combating it, had become part of dominant public discourses in the aftermath of January 2011. This can be counted as one of the unequivocal gains of the revolutionary movement.

Negotiations over constitutional articles were often arduous, severely contentious and bitterly contested. Political gains, even if they appear to be miniscule within the broader picture, are still important to identify and understand in terms of their micro-dynamics as part of the ongoing struggles for women’s and human rights. As a member of the 50-committee that drafted the Egyptian Constitution endorsed in January 2014, and a party to negotiations over many articles, I hope that the insights gained in the process can contribute to feminist debates about the possibilities and limitation of negotiating power.