Can Tunisia Find a Compromise on Equal Inheritance?

Sharan Grewal
Wednesday, September 26, 2018, 10:32 AM

Editor’s Note: This article originally appeared on Order from Chaos.

Published by The Lawfare Institute
in Cooperation With

Editor’s Note: This article originally appeared on Order from Chaos.

On August 13, Tunisian President Beji Caid Essebsi announced his intention to grant women equal rights to inheritance, reforming the existing code that limits women to half the share of men. Two weeks later, the Islamist party Ennahdha—Essebsi’s primary political rival—publicly rejected his proposal. With these initial positions staked out, the debate over inheritance is likely to become a major fault line ahead of the 2019 elections. It is therefore worth asking: Will Tunisia be able to find a compromise on inheritance reform?

Tunisia’s existing inheritance laws date back to the 1956 Personal Status Code. The Code, which banned polygamy and granted women equal rights to divorce, contributed to the legacy of Habib Bourguiba, Tunisia’s founding father, as a champion of women’s rights. Although the Code was progressive on many fronts, inheritance was a battle Bourguiba was unwilling to fight. The Code instead enshrines Islamic traditions almost verbatim, specifying not only the particular heirs that will receive inheritance, but the precise fractions to afford to each, generally following the Quranic injunction to grant women half the share of men.

Moreover, according to the Code, Tunisians cannot simply write a will allocating their inheritance equally. Article 179 permits individuals to distribute only one-third of their inheritance in a will, and cannot grant that third to any of their legally defined heirs (such as their daughters and sisters) without the consent of the others, provisions that stem from a hadith—reported actions and sayings of the Prophet—in Sahih al-Bukhari. Currently, Tunisians seeking to allocate their inheritance equally must instead transfer their property or wealth prior to their death.

Sixty years later, President Essebsi ventures where Bourguiba would not dare: the codification of equal inheritance. On August 13, 2017—National Women’s Day—Essebsi formed the Commission on Individual Liberties and Equality (COLIBE) to study what reforms needed to be made to bring laws in accordance with the 2014 constitution and international conventions. In June, the commission released its 235-page report, advocating for, among other issues, equal inheritance, decriminalization of homosexuality, and abolition of the death penalty. This National Women’s Day (2018), President Essebsi announced his agreement with the COLIBE report’s recommendation for equal inheritance, pledging to introduce a bill to the parliament in the coming months.

While most media coverage reported that Essebsi seeks to guarantee equal inheritance, what he and the COLIBE report in fact propose is a compromise. Essebsi has offered to allow individuals to continue to follow Islamic guidelines if they wish, but in the absence of such a will, to default to equal inheritance.

Even this compromise was too much for Ennahdha. On August 26, its Shura Council put out a statement rejecting Essebsi’s proposal as contradicting “peremptory texts in the Quran and Sunna.” Although Ennahdha has made considerable compromises in the past eight years—including not mentioning sharia in the new constitution and instead enshrining gender equality and freedom of conscience—it thus far appears unwilling to budge on inheritance.

What makes inheritance different from these previous compromises is how explicit the Quran is on this matter. Chapter 4, verse 11 declares: “for the male, the share of two females.” Subsequent verses detail, in no unclear terms, the consequences of disobeying: Whoever “transgresses [these] limits will be put into the Fire to abide eternally therein” (4:14). While Ennahdha had been able to justify its previous compromises on religious grounds, equal inheritance will be more difficult. To Ennahdha’s base, and perhaps to the majority of Tunisians, equal inheritance is a step too far. A recent survey by the International Republican Institute revealed that 63 percent of Tunisians—including 52 percent of women—oppose equal inheritance.

Despite this backlash, President Essebsi sees several interests in pursuing inheritance reform. If successful, it will allow the 91-year-old Essebsi to create a progressive legacy for himself much like that of Bourguiba’s. Even if not, focusing the nation’s attention on a divisive, “culture-war” issue ahead of the 2019 elections distracts voters from the deteriorating economy, potentially shoring up support for his ruling party, Nidaa Tounes. Finally, it puts pressure on Ennahdha, Essebsi’s political rival, to choose between pleasing its conservative base and cultivating its progressive image abroad.

So what happens next? President Essebsi is currently drafting a law to put forward to the parliament when it reconvenes in October. Although Ennahdha commands the largest share of parliamentary seats, equal inheritance could still pass even without their support, though it would require Tunisia’s severely fragmented secular parties to unite. Members of Essebsi’s own party are reportedly divided on his proposal.

A second scenario is that the parliament revises the bill in a way that allows Ennahdha to more easily sell it to its base. One potentially palatable compromise may be the reverse of Essebsi’s: to allow individuals to choose equal inheritance in their wills, but to default to an Islamic understanding in the absence of a will. The default would then still be in line with the Quran, pleasing Ennahdha, but progressives who wish to could now legally choose equal inheritance, a win for Essebsi. The difficulty here is that allowing individuals to freely allocate all of their inheritance contradicts the aforementioned hadith limiting wills to only one-third.

Another compromise would be to maintain the one-third limit, but to lift the restrictions on its use. Individuals could therefore allocate this one-third to female heirs to offset and equalize the two-thirds that will be allocated according to Islamic traditions. While this unrestricted allocation of the one-third is forbidden by the dominant interpretation in Sunni Islam, it is permitted in Shiite Islam, as Islamic feminists often observe. Some Ennahdha figures, including the newly-elected mayor of Tunis, have expressed support for Tunisians having greater freedom on matters of inheritance.

Whether Tunisia will be able to reach a compromise on inheritance will depend on the creativity and audacity of its political leaders. While we can expect a polarizing battle in the coming months, Tunisia has repeatedly surprised observers by coming together at the last minute to find common ground. It is likely to do so again on inheritance.

Sharan Grewal is a postdoctoral research fellow in the Center for Middle East Policy at Brookings. His research examines democratization, security studies, and political Islam in the Arab world, especially Egypt and Tunisia.

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