Dubbed the “the law of the underwear” by some pro-democracy activists for its socially restrictive provisions, the proposed penal code is the continuation of a strategy the regime has used since Morocco’s independence: the adoption of a broad range of socially restrictive laws that are largely impossible to uphold, but that can be used to crack down on members of the opposition when the opportunity arises.
While the regime rarely implements the more socially restrictive provisions of the current penal code, the police services and tribunals often use the vast and murky set of laws to intimidate political opponents or limit their professional activities. A case in point is the conviction of Hicham Mansouri, president of the Moroccan Association of Investigative Journalists and an active pro-democracy advocate. Mansouri was sentenced to a 10-month imprisonment for “complicity in adultery” on March 30. Far from being an isolated case, Mansouri’s sentencing is only the latest in a series of political arrests made under dubious pretexts ranging from public intoxication to prostitution. By widening the scope of criminalized social activities, such as outlawing “sexual” text messages or the possession of sexually explicit material, the new penal code would increase the range of tools available to the authorities to imprison those who call for political and social reform.
The use of socially restrictive laws also serves to placate the more conservative circles in Morocco, who are growing increasingly disgruntled with the vocal discourse of more progressive elements. For instance, Article 219 on the respect for religion seems to be aimed at local groups advocating for individual rights such as the Alternative Movement for Individual Freedoms (MALI), an advocacy organization that attempted, but ultimately failed, to organize public picnics during the fasting hours of the Muslim holy month of Ramadan in 2009. More troubling, the code contains provisions that allow for violent forms of social control. For example, article 420 effectively protects individuals who assault or even kill family members caught while engaging in “illegal sexual activities.”
Moreover, the revised penal code will also likely empower the security services to continue their predatory practices, particularly the extortion of young unmarried couples, single women, alcohol drinkers, people engaging in same-sex relationships and vocal atheists. Corrupt police officials use the provisions of the code to threaten citizens engaging in activities as harmless as holding hands or driving with a member of the opposite sex at night, to opportunistically scare vulnerable citizens into paying a bribe. By allowing the security services to continue extracting resources from the population under dubious pretexts, the regime is attempting to ensure the loyalty of local police officers and auxiliaries who might be tempted to support reformist voices in the country.
Finally, the new penal code would also protect loyalist regime members by making public criticism of their activities subject to prosecution. Article 448-2 would punish the non-consensual publication of online digital montages, a popular mean of contention broadly used in critical digital platforms, with up to three-year prison sentences. The provision is a clear message to local digital media platforms, which regularly mock corrupt activities of local politicians; it is a worrying sign of the authorities’ unwillingness to respect the democratic concessions begrudgingly granted during the heyday of the Arab Spring.
Four years after the start of the first pro-democracy protests in Morocco, the drafting of a more restrictive penal code is a clear message sent by the Moroccan government to the opposition: Either accept the status-quo or risk experiencing the full force of the penal apparatus.
Merouan Mekouar is an assistant professor of international development studies in the department of social science at York University, Toronto and a senior fellow at the Interuniversity Consortium for Arab and Middle Eastern Studies (ICAMES) in Montreal. He specializes in social movements, revolutions, and authoritarian resilience in the Middle East and North Africa region.