3.3. Challenges and Gaps 4. SOUTHERN AFRICA .............................................................................................................................................................................. 203

support women victims of violence.1476 Libya’s Decision No. 380 of 2012 established a psychological support centre for victims of sexual violence, and Decision No. 455 of 2014 established the Fund for Victims of Sexual Violence. Algeria established the “Aman” database in 2018 to record and track prevalence of VAW. In 2012, Tunisia established the National Centre for Psychological Support to Women Victims of Violence. Notably, in 2019, Egypt created the first national committee to combat FGM.1477

In 2020, Egypt’s Supreme Administrative Court ruled that the practice of “urfi” (unregistered) marriages of minors represented a violation of children’s rights and was inconsistent with the country’s practice of protecting and promoting women’s rights. The Court also endorsed Egyptian law setting the minimum age at 18 years, which it stated as being in line with the principle of Islamic Sharia. Many Egyptian girls are married before 18 through the signing of urfi contracts, with the contract officially registered only when the girl turns 18.1478 Figure 26 North Africa: women who have experienced physical and/or sexual violence from an intimate partner at some time in their life, 2019 (% of ever-partnered women)

Morocco 30.0% Tunisia 20.3%

No data available for Algeria, Egypt, Libya, Mauritania and Saharawi Arab Democratic Republic.

3.3. Challenges and Gaps

From the trends observed during the AWD, some challenges, gaps and contestations remain when it comes protecting women and girls from violence and harmful practices. The first gap observed concerns constitutional reform. Although most countries prohibit violence in all its forms under the constitution, there is no specific provision on the elimination of harmful practices.

Second, although countries have passed legislation to protect women from violence, notable gaps remain. Only three countries (Algeria, Morocco and Tunisia) have legislation that explicitly criminalises domestic violence. While domestic violence is prohibited in Algeria, laws often do not include prevention measures, such as protection orders.1479 In Egypt, while domestic violence may be punished under the Penal Code, judges have significant discretionary power.1480 For example, if the incident occurs at home or is carried out by a relative, penalties are often reduced to a suspended sentence or a fine.1481 During the Decade, the majority of North African countries did not pass legislation criminalising domestic violence, according to the sources consulted. Moreover, legislation in North African countries does not protect women from online violence and harassment. Since the Arab Spring, the number of cases concerning sexual harassment, in person and online, has increased in many countries, and enforcement of regulations to protect women is weak or lacking.

Despite legal reforms in nearly all North African countries, involving penal codes or specific laws on eliminating VAW, these do not cover the prohibition and criminalisation of marital rape. For example, in Tunisia, marital rape is not criminalised, and the Personal Status Code requires the husband and the wife to “fulfil their marital obligations according to custom.”1482 Not only are sexual relations considered a marital obligation but also this denies married women the right to seek justice and protection. In Egypt, marital rape is not considered a crime “under the constitutional principle that there is no crime and no punishment except as authorised by a legal text, such as the Penal Code.”1483 Furthermore, many laws do not clearly define rape. The Penal Code of Algeria, for example, considers rape a crime against the family and morality. It can be proved only through the use of medical expertise.1484 The Penal Code also does not recognise marital rape.

Third, not all North African countries have legislation on harmful practices. According to the available data, FGM is not widely practised in many North African countries. However, it may occur among migrant communities and nomadic tribes. Not all North African countries have legislation prohibiting and criminalising FGM; where it exists, the legal protection against the practice is weak. In fact, in only two countries (Egypt and Mauritania) is the practice prohibited under the law, with programmes in existence to eliminate FGM. While Tunisia does not have legislation explicitly prohibiting the practice, the Penal Code (amended in 2017) prohibits the mutilation or partial or full removal of a woman’s sexual organ.1485 Despite these prohibitions, FGM is still performed in

Egypt and Mauritania, given weak enforcement of the law. According to the sources consulted, no North African country implemented a national campaign as part of the AU Campaign to End Child Marriage in Africa during the AWD.

All countries in North Africa, except for Sahrawi Republic (no legal provisions found), have set the legal age of marriage at 18 or higher. However, child marriage continues to be practised in most North African countries. The practice can continue in part because provisions in the law allow for exceptions. In four countries (Algeria, Libya, Morocco and Tunisia), with the permission of a judge, marriage under the legal age can take place.1486 Child marriage can also take place with permission from the parents or guardian. From the sources consulted, only Egypt adopted a national strategy to combat child marriage during the AWD.

Fourth, human trafficking remains a serious concern, and the implementation of laws in this area is a challenge. Many countries in the North African region serve as a source, transit point and/or destination in the trade in human beings. Women in particular are now extremely susceptible to human trafficking.1487 In Algeria, the Penal Code criminalises trafficking but the country lacks a comprehensive anti-trafficking law that also addresses prevention and protection measures.1488 In other countries, like Morocco, the key challenge in implementing the law lies in identifying victims and encouraging them to report crimes perpetrated against them.1489

Finally, the continued existence of multiple (formal and traditional) legal systems results in conflicting interpretations of the various laws and allows for continued discrimination against women. This makes it difficult, if not impossible, for women to obtain access to justice for cases involving various forms of violence and harmful practices.