In 1962, just two years after independence from France, the Government of the Republic of Mali enacted the Code du Mariage et de la Tutelle (hereafter, the 1962 Code). This law was one of many passed by newly independent francophone West African states intending to modernise family life and marriage. Their emphasis on natural rights and equality traced back to the Enlightenment era via France's Napoleonic Code of 1804 (Kombo 2021). Roger Decottignies, a French jurist and founding dean of the University of Dakar's law school, predicted at the time that these new laws would revolutionise African gender relations:
Woman has emerged the big winner from these rules’ assault on African mores. She has succeeded in escaping from the degrading system of bridewealth, shaking off the yolk of insatiable parents, and finding her place in her husband's family, all while maintaining her legal independence and her share of marriage's benefits. … She has also managed to avoid competition from other wives, whether definitively through polygamy's suppression, or durably through a monogamous contract which her husband can only change with her accord. The African family of yesteryear therefore appears to have been destroyed. Its pillars have been dismantled. (Decottignies 1965: 274)
Decottignies warned, however, that ‘customary resistance to legal innovations in family affairs’ could ultimately undo these new states’ modernising projects (1965: 275). This warning was prescient: more than half a century later, opposition to lofty goals of gender equality remains strong. Progressive laws pertaining to marriage and women's rights have been challenged and even rolled back throughout West Africa (Bouland 2020; Kang 2015).
In Mali and neighbouring states, while post-colonial laws established some formal provisions for gender equality within the context of marriage, they were ambivalent in this regard and their implementation has allowed for considerable ambiguity and instrumentalisation. This article examines intersections between gender, marriage law and the Malian state, and highlights discordant notions that emerged amongst various segments of Malian society concerning rights, gender and what it means to protect women. These divergences, coupled with the structural failings of Mali's post-colonial state, have stymied efforts to ensure women's rights within a secular, egalitarian legal framework. My analysis focusses on Bamako, the capital city, where I have conducted ethnographic research on marriage since 2010, and on the city's three-tiered legal environment.
Celebrating marriage in Bamako
For decades, Bamako residents (known in French as ‘Bamakois’) have recognised three salient categories of marriage. These categories share many common features and are seldom mutually exclusive, despite their disparate origins; most couples marry using more than one category. Creative manipulation of the boundaries between categories has long been an essential feature of Bamako's marriage system. In addition to different rules and obligations for spouses to follow over the course of their marriage, each category entails its own set of rites to establish and celebrate the marital bond.
‘Traditional’ marriage: Konyo à la Bamakoise
Bamakois have adapted so-called ‘customary’ or ‘traditional marriage’ over the years from the many cultural groups whose identities they have claimed. Bamako has long attracted migrants from throughout Mali, with peoples of diverse geographic, linguistic and ethnic backgrounds sharing space and intermarrying. The marital practices and rituals that residents observe might not be linked to their particular ethnic ancestry or parents’ places of origin. As young people growing up in the city conform to cultural patterns set by native Bamakois, many urbanites’ village-based customs have faded while an increasingly standardised set of urban customs has emerged that govern how they contract and celebrate marriage.
In rural Malian communities, traditional marriage often begins at the initiative of families rather than individuals. A family seeking a bride for their son discreetly gathers intelligence about a potential match. If the signs are good, the family dispatches an emissary to broach the subject with the girl's parents. A gift of kola nuts to her kin symbolises their interest in her as their son's future wife. The two families then negotiate over bridewealth, gifts and the time frame of the ritual process. The heart of customary marriage in Bamanan communities is a ritual sequence known as konyo. This sequence begins with a series of bridewealth payments negotiated through intermediaries between the bride's and groom's families; negotiations and payments can play out over several years (Grosz-Ngaté 1988). Rites and transactions associated with konyo often purposely go unfinished, prolonging ‘the relationship of mutual dependence between intermarrying families through time’ (De Jorio 2002: 37). Konyo rituals might last up to seven days. Versions of konyo constitute the defining nuptial event in communities from Mali's southern Wasulu area (B. Camara 2011; I. Camara 2002) to the central Mopti region (Cunningham 2014).
Konyo has also become a common way for Bamako residents of many backgrounds to celebrate marriage. One notable difference from the process described above, however, is that young Bamakois themselves usually initiate the process, or at least aspire to; spousal choice has become an important goal for urban youths (Whitehouse 2016). The process is also frequently abbreviated. Following multiple bridewealth payments over a period of weeks or months, a wedding ceremony usually occurs in the groom's family home and requires little or no participation by the couple itself until the bride is delivered to the groom's family. Praise singers and drummers perform in the family courtyard or the street outside while maternal aunts and other female kin look after the bride. Seven days of seclusion for the couple might follow (see Brand 2001), but many urban newlyweds might skip this phase depending on their means or geographic origins.
A customary marriage ceremony demonstrates the commitment of both families (if not always of the bride and groom) to the union and confers some social legitimacy upon the union and its offspring. In Bamako, however, it is almost never the sole form of marriage celebrated by a couple.
Religious marriage
Religious rites, usually Islamic, constitute Bamako's most widespread type of marriage. One survey in the late 1990s (Miseli 1998) found that 96 per cent of city wives married through religious ceremonies. For Muslims, this entails a short ritual known in the Manding languages (which include Bamanan, the dominant language spoken in Bamako) as furusiri or ‘marriage-tying’ at a local mosque. Before male witnesses, an imam ascertains that bridewealth (in Arabic, mahr) has been properly paid. The imam then leads prayers with both families’ representatives, recites scripture regarding marriage, prays for divine blessings upon the newlyweds, and distributes kola nuts to those in attendance. The couple is usually absent from this ceremony and cannot therefore express consent in person; male relatives affirm consent on their behalf. Brides’ poor representation at their own weddings may stem from established interpretations within the Maliki school of jurisprudence that treat women as legal minors requiring male guardianship in important matters (Cooper 2010; Masquelier 2020). This practice remains very much at odds with the post-colonial state's more egalitarian aspirations and notions of personhood.
Nevertheless, an Islamic ceremony bestows social legitimacy upon the newlyweds and carries considerable moral weight in the eyes of society. Indeed, a Bamako marriage has been ‘generally not validated by the community’ until a religious ceremony takes place (Miseli 1998: 24). While a groom might commit during the Islamic wedding ceremony not to take additional wives, such monogamy agreements – a common feature of Islamic weddings in other societies1 – are unusual in Bamako religious ceremonies. Bamakois seeking to formalise such a pact usually do so using the third marital category.
Civil marriage
The institution of civil marriage is part of Mali's colonial legacy: French legal decrees established a marital framework that survives, in modified form, in the twenty-first century. Yet the colonial state, unable to enforce civil law uniformly, accommodated various customary laws and practices regarding marriage (Ba Konaré 1993; Burrill 2015, 2020; B. Camara 2011). Regarding women's rights, administrators drafted laws based on elder- and male-friendly interpretations of local custom so as not to stoke opposition to their rule: they saw African family structures as too sensitive to confront directly (Rodet 2007, 2019; Wing 2012).
The civil marriage process that Malians inherited from French law entails two official steps. An initial announcement of the couple's intent to marry, filed with local municipal authorities, must precede a civil ceremony by two weeks. Both the announcement and the ceremony require explicit consent from the bride and groom, whose physical presence at the ceremony is officially required (even if instances of marriage by proxy occur). Each wedding ceremony is performed by a public official, typically a mayor or other official of the local commune (municipal government). Most take place in a municipal office.
Civil marriage is not for all: many Malian couples, especially in rural areas, never celebrate one (Hertrich 2007). But because a union without a valid marriage certificate (acte de mariage) is unrecognised under the law and confers no official benefits, civil marriage has become widespread in urban settings. By the late 1990s, two-thirds of Bamako wives married in civil ceremonies (Miseli 1998). Many women in Bamako now seek the validation and legal protections a civil marriage theoretically provides. Civil wedding ceremonies have also become the pinnacle of the ritual marriage process, typically entailing white bridal gowns, trendy hairstyles, videographers, praise singers and boisterous processions of motorcyclists and rented luxury cars. While the official ceremony requires none of these trappings, by the early 2000s they had become de rigueur for many Bamakois.
Mali's 1962 Code sought to remake marriage practices in many respects. It required the consent of both bride and groom; it barred girls under age 15 and boys under age 18 from marrying;2 it qualified civil servants and their spouses for state benefits; it granted legal recourse to wives repudiated, abandoned or materially neglected by their husbands; and it established divorcées’ right to financial support from husbands who had wronged them. The code also maintained colonial-era conditions under which a husband could lawfully wed an additional wife. Having resisted a brief campaign by women's rights activists to abolish polygamous marriage at independence, Mali's founding fathers preserved the civil recognition of polygamy established under colonial rule.
Article 43 of the 1962 Code required a groom to choose an option matrimoniale indicating his preference for a polygamous or monogamous union. This provision, adapted from a 1951 colonial decree, was intended to provide couples with a means to reject polygamous marriage by selecting the monogamous option during the civil ceremony, an act known in French as signer la monogamie or ‘signing monogamy’ (B. Camara 2011: 233). Selecting the polygamy option by no means required the husband to bring another wife into his marriage; it merely established his legal right to do so without preconditions. A husband opting for polygamy in his civil ceremony had no obligation even to notify his existing wife (or wives) before marrying a new bride. Nor did choosing la monogamie definitively bar the way to polygamy: the law allowed husbands to change the option on their civil marriage contracts with their wives’ consent. Malian law still requires grooms to state their matrimonial option publicly during their civil ceremony. While survey data show about one in four Bamako wives actually living in polygamous marriages (Demographic and Health Survey 2019), my own sample of civil marriage registers (1991–2016) in Bamako's Commune V found that some 80 per cent of first-time grooms chose the polygamy option, leaving open the possibility of taking additional wives in the future.
While Mali's 1962 Code established various legal rights for wives, it was hardly animated by a spirit of gender equality. Male supremacy was apparent in Article 32, which stipulated that husbands owed protection to their wives and that wives owed obedience and submission to their husbands, and in Article 34, which defined the husband as the household's primary provider. These provisions, derived from the French Civil Code, made wives dependent on their husbands’ authorisation (Kombo 2021; Tounkara 2015). They also meshed with Islamic jurisprudence, as described above. The Code's framers, however, declined to criminalise violations of one explicit Qur'anic rule, namely the polygamous husband's obligation to treat his wives equitably (Decottignies 1965). In drafting the law to build their new nation, the men of Mali's post-colonial elite also served their own interests – often at women's expense.
Legal pluralism, ambiguity and risk
Bamakois generally understand these three forms of marriage as complementary, not competing, and they approach their timing and sequence in diverse ways. One couple might marry solely through an Islamic ceremony; another might celebrate Islamic and civil ceremonies years apart; and another might perform Islamic, civil and customary ceremonies all on the same day. The 1962 Code established civil marriage's formal pre-eminence, making it Mali's sole legally binding form of marriage, and prohibited a couple's customary or religious wedding until they performed a civil ceremony. An Islamic ceremony, however, has remained sufficient to legitimise a union socially, and since the government failed to enforce this provision of the 1962 Code from the outset (Boye 1987), most Bamakois have opted to celebrate religious weddings first, holding customary and civil ceremonies later (Antoine and Marcoux 2014; Marcoux et al. 1995).
Practical reasons underlie religious wedding ceremonies’ dominance in Bamako. Simple to organise and without bureaucratic entanglement, an Islamic wedding can initiate a sort of trial run for civil marriage, enabling ‘the future spouses to live conjugally without being legally married’ (Boye 1987: 19). Many couples face economic obstacles to civil marriage (Antoine and Marcoux 2014), particularly the need to acquire their own dwellings and save up for the many expenses accompanying civil wedding ceremonies. A civil wedding might follow up to several years later.
These three marital categories have created a system of legal pluralism that Bamakois may manipulate for practical and strategic reasons, moulding the institution of marriage to serve their needs (Brand 2001). A young couple might seal a religious union as a provisional marriage while assessing their compatibility. An unsuccessful union can be aborted under the rationale that it was never fully enacted to begin with (De Jorio 2002; cf. Cooper 1997). ‘For me, it's better to do a religious wedding and wait ten years before doing the civil wedding, which will let you get to know your spouse better and avoid the penalties of divorce’, a wife reported during my fieldwork in 2011.
What happens, however, when a couple's needs are at odds? A woman might prefer to delay pregnancy until civil marriage, seeking greater commitment from her husband, whereas he might rather delay civil marriage until proof of his wife's fertility. A young man pressured into marriage by a pregnant girlfriend might agree to a quick religious wedding ceremony but delay a more costly civil wedding, thereby saving money and steering clear of binding legal commitments while holding out for a better partner (Broqua and Doquet 2013). A woman might agree to a religious union with an already married man in hopes of his later conferring legal status on their marriage with a civil ceremony, whereas he might prefer to placate his first wife by keeping his second union unregistered with the state, thereby denying the junior wife and her children any future legal claim to his property. A polygamous husband might even celebrate a different form of marriage for each of his wives, depending on his circumstances at the time of union.
Having withstood French colonial efforts to render marriage more administratively ‘legible’ (Burrill 2015), the ambiguity generated by these multiple marital registers has enabled individuals to pursue their aims with flexibility (De Jorio 2002). But it has also produced risks, especially for women seeking greater clarity regarding their male partners’ obligations towards them. Amongst the most common risks for women is that a husband who officially opts for a monogamous civil marriage can later take another wife through a customary or religious union. Since the 1962 Code barred the state from recognising religious unions, this violates only the law requiring civil ceremonies to come first. Prosecutors ignored such infractions, allowing men to circumvent their monogamous marriage contracts with impunity. In the early 1990s, Adame Ba Konaré (1993) estimated that half of Malian husbands who signed monogamous marriage contracts eventually either reneged on them in this manner or renegotiated them. Still today, many a wife agrees to switch her matrimonial option to polygamy when the request arises, seeing formal polygamy – which mandates equitable treatment of co-wives – as preferable to sharing her husband with a mistress for whom his expenses would be clandestine (Schulz 2003; Tounkara 2015).
The environment of legal pluralism enables Malians with power and resources, notably men, to manoeuvre amongst the most suitable registers of law and mediation in any given circumstance. A man is far more likely to invoke religious authority to legitimise a union through an Islamic ceremony than to demand the strict punishment of adultery or insist on providing economic support to an ex-wife. He might access state benefits for dependents linked to him through civil marriage while using the lack of a civil ceremony to deny his responsibilities to other dependents. As political scientist Susanna Wing argues: ‘The problem is not customary or religious law per se, but rather the ambiguous and precarious position of individuals who might presume the continued protections of religious or customary norms only to find that these norms are not legally binding and, therefore, can easily be ignored’ (2012: 155). Over many decades, Malians’ practice of legal bricolage has undermined state legitimacy by widening the gulf between civil law and everyday practice. In as much as Bamakois have exploited this post-colonial polyphony of competing rules to pursue their individual goals, they have weakened marriage as an instrument of state-building and instead made it an institution of pervasive obscurity and uncertainty.
From legal agreements to legal reform
Mali's post-colonial state has made multiple engagements over the years to safeguard women's rights and promote gender equality. In 1985 – during a long period of military rule – it signed and ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Following the advent of political pluralism in 1991, Malian voters approved a new constitution prohibiting sexual discrimination. In the early 2000s, the Malian government signed and ratified the African Union's Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also known as the Maputo Protocol. This treaty (Article 2, Section 2) commits signatory states to work towards the ‘elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men’. Such practices have been interpreted to include polygamy: Article 6 requires signatories to recognise monogamy as the ‘preferred form of marriage’ (African Union 2019). Egalitarian interpretations of these and similar texts have led advocates of global liberalism to call for the suppression of a range of practices from female genital cutting to polygamy on the grounds that they are injurious to women (Mwambene 2017). Yet such practices have remained widespread in Mali, and the Malian government has shown little enthusiasm for abolishing them even after signing anti-discrimination treaties.
During the 1990s and early 2000s, in the wake of Mali's democratic transition and the enactment of CEDAW, momentum gathered in Bamako to create new institutions and laws protecting women's rights within marriage. Under the presidency of Alpha Oumar Konaré (in office from 1992 to 2002), the government established a Ministry for the Promotion of Women, Children and the Family, and created a task force to propose revisions to national laws, including the 1962 Code. Many Malian women's non-governmental organisations (NGOs) and Western donors were eager to see discriminatory provisions repealed and new protections added. Amongst the changes discussed to put Mali in line with international norms embodied by CEDAW and the Maputo Protocol were setting the minimum age at marriage at 18 for all, regulating bridewealth to make marriage more affordable, and eliminating wives’ legal obligation to obey their husbands, a provision many women's rights advocates regarded as antiquated (Wing 2012).
Momentum for modifying the 1962 Code slowed after Mali's 2002 election, which saw the country's first (and, so far, only) changeover between two elected presidents. Facing opposition from Muslim organisations, President Konaré did not secure the passage of the progressive family and marriage legislation he had sought. He passed the project on to his successor, President Amadou Toumani Touré, a retired army general who had overseen Mali's 1991–1992 transitional government before voluntarily stepping down. Reluctant to expend political capital by pushing controversial marriage and family laws through Parliament, Touré postponed legal reform until his second term (2007–2012), when he expected to enjoy greater leeway (Wing 2012). Touré's government and women's rights NGOs discovered, first, that Islamic civil society – once relatively passive regarding Mali's secular state and its laws – had become a political force to be reckoned with and, second, that contrasting notions of ‘protecting women’ were vying for supremacy in Malian society.
Reform and its discontents
In 2008, Ministry of Justice officials convened a working group in Bamako to write a Code des Personnes et de la Famille to supersede various laws governing marriage, family and legal guardianship (including the 1962 Code). Intended to be inclusive, the working group consisted of legal scholars, human rights advocates, representatives of women's NGOs and representatives of Islamic associations and Christian churches working alongside the Ministry's own personnel. This group built on the work shelved following the 2002 presidential election. Its draft contained significant proposed reforms with respect to marriage, including provisions seeking to prevent widows from being ejected from their homes after their husbands died, to establish equal rights for illegitimate and legitimate children, and set a minimum marriage age of 18 for both sexes. In lieu of the 1962 Code's requirement that wives obey their husbands and that husbands protect wives, it proposed language stating that spouses owed each other ‘mutual respect’. It also maintained civil marriage as Mali's only lawful nuptial type.
The Haut Conseil Islamique du Mali (High Islamic Council of Mali, or HCIM), an umbrella organisation of Islamic advocacy groups created at the initiative of President Konaré in the early 2000s,3 objected to the draft legislation. Many HCIM members were disappointed that the new code did not recognise religious marriage, and claimed that some of the document's provisions contravened Islamic law. Mali's Justice Minister, however, noting that representatives of these same organisations had participated in drafting the bill, declared that ‘the Muslim community's concerns have largely been taken into account’ (Famanta 2012: 216). On 3 August 2009, the bill (hereafter, the 2009 Code) was taken up by the National Assembly, Mali's Parliament, where it was approved by 117 votes to five, with four abstentions.
The bill's passage gave rise to an unprecedented public backlash. ‘This code is a shame, treason’, HCIM secretary Mohamed Kimbiri told a journalist. ‘We are not against the spirit of the code, but we want a code appropriate for Mali that is adapted to its societal values. We will fight with all our resources so that this code is not promulgated or enacted’ (IRIN News 2009). Crowds of protesters surrounded the National Assembly for weeks after the vote, demanding that the new code be scrapped. Religiously oriented activists were joined in their opposition by representatives of various neo-traditionalist groups mobilised around what they represented as the preservation of local custom. These groups included the N'ko writing movement (see Donaldson 2019) as well as Bamako's traditional neighbourhood chiefs (Koné 2018). In their bid to derail the new law, Mali's Salafi and Sufi Muslims put aside their doctrinal differences and found common cause even with Mali's brotherhood of hunters, despite the latter's heterodox practices and beliefs often associated with animism (Durán 2000). With Islamic organisations in the lead, a conservative coalition formed to defeat the reforms.
Anti-reform protests mounted by this coalition centred on grievances over a few of the law's 1,143 articles. First and foremost, Islamic leaders sought legal recognition for religious marriage. To imams in particular, officiating Islamic marriage ceremonies was a vital part of their role in community life, and they wanted the state to shore up their influence by making those ceremonies legally binding (Wing 2012). They argued that empowering the government to confer legal status on religious marriage, as many other secular states in the region (not to mention Europe and North America) did, would close the gap between civil law and everyday practice and extend legal protections to many more Malian wives.
Another grievance concerned the new law's elimination of the provision requiring wives to obey their husbands. To the 2009 Code's liberal backers, this change was necessary to bring the law into the modern era. ‘The word “obedience” or the obligation of obedience is somewhat outdated’, female parliamentarian Aissata Cissé Haidara told a Malian journalist (Segbedji 2009); ‘it reminds one of slavery’. Protest leaders countered that this change was incompatible with both Islam and Malian culture. ‘It's just the way our society is organised’, claimed HCIM president Mahmoud Dicko (BBC 2009). ‘The head of the family is the man, and everyone in the family has to obey him. It's like that to create harmony’. Dicko also objected to the raising of girls’ marriage age to 18, saying that it would lead to more unwed mothers. Other provisions in the 2009 Code branded as ‘contrary to Islam’ concerned inheritance, adoption and filiation.
In sum, reform backers’ visions of Malian women's ‘legal protection’ were anchored in state secularism and revolved around liberal ideals of gender equality and the elimination of legal discrimination. By contrast, patriarchal leaders of Islamic and neo-traditionalist advocacy groups sought protections for women that revolved around their subordination to men, particularly husbands. Islamic activists also sought to use legal recognition of religious marriage to extend some of the protections of civil marriage to wives who had never enjoyed them before, and in so doing sought to gain political validation for themselves.
In pressing the government to withdraw the proposed reforms, protesters framed them as an imposition by Western governments rather than a product of inclusive deliberations amongst Malians. HCIM secretary Kimbiri described the law as ‘imported from donors, notably the European Union, which conditions its aid on certain social reforms’ (IRIN News 2009). One editorial in the Bamako press lambasted it as ‘dictated by the West to set the country ablaze’ (Liberté 2010). Such critics, according to sociologist Assitan Diallo, contended that ‘pressures from the international community were forcing the authorities and legislators to bow down to material interests, selling out Malian social and religious values’ (2009: 121–122). The protesters also accused the law's supporters, most of whom were themselves Muslims, of being anti-Islamic. Rejecting the new code became, to many Malians, a matter of anti-imperialist principle and patriotic duty as well as religious conviction. On two consecutive Saturdays that August, in the most massive public protests the city had seen since those that toppled the military regime in 1991, tens of thousands of demonstrators filled the country's biggest sports stadium to denounce the law.
These rallies included thousands of women. While some of these women surely identified with the male protestors’ patriarchal agenda, many were motivated by distrust of the ‘intellectuals’ behind the reforms. Women who lacked formal schooling in French (Mali's official language) found themselves already alienated to some extent from the secular state and its system of civil marriage; they supported the Islamic groups’ call to recognise religious marriage, and viewed the 2009 Code as geared to urban elite women's needs (see Artner and Maluleke 2016).
Opponents of the law were also motivated by a flood of disinformation unleashed by protest leaders. Online and in newspapers, on private radio stations and in mosque sermons, messages warned that the new code would turn the traditional family structure upside down: children would no longer have to obey their parents and could henceforth inherit their family names from their mothers; wives would replace husbands as heads of household; and homosexual marriage would be legalised. While the 2009 Code proposed none of these changes, conservatives loudly claimed that it would spell the death of Malian kinship and culture. Asked whether his organisation had in fact propagated such misinformation, an HCIM official told me in a 2012 interview: ‘That's true – it's called propaganda, and it happens all the time’.
This propaganda found a receptive audience in Bamako amongst men whose patriarchal anxieties had already been stoked by years of economic precarity and concern over loss of domestic influence (Schulz 2012; Whitehouse Forthcoming). In an opinion piece, the editor-in-chief of a leading (and normally restrained) city newspaper labelled the law's provisions as ‘Satanic heresies’. ‘Don't be surprised to see daughters slapping their fathers, wives walking out after the slightest marital spat, weddings becoming rare and divorces common, and infidelity being the rule on both sides’, he warned (Doumbia 2009). Anti-reform rhetoric grew so heated that many of the law's supporters no longer felt welcome at their neighbourhood mosques, and several reported receiving death threats (Koné 2018).
Reform supporters were aghast at this torrent of falsehoods. ‘They misled an illiterate population, and they didn't even know what the code was about’, fumed a leading women's rights activist during our 2012 interview. ‘Those religious leaders were acting in bad faith’. Several of her peers made similar observations. Why, they wondered, had there been no outcry throughout the two months prior to the vote, during which the draft legislation had been before the National Assembly? Protest leaders managed to out-communicate would-be reformers at every turn, successfully framing the issue and preventing opposing messages from gaining traction in public discourse (Koné 2015).
A victory for patriarchal power?
Facing impassioned, well-coordinated opposition to its progressive family legislation, the Malian government reversed course. Before the month of August was out, President Touré sent the 2009 Code back to the National Assembly for revision, and issued a statement describing the step as ‘necessary to preserve tranquillity and social peace’ (L'Essor 2009). By that point, many parliamentarians were claiming that they had lacked time to read the entire code before voting on it. The HCIM and other Islamic civil society groups, with the political winds shifting in their favour, expanded fourfold their demands for changes to the document. Parliamentary leaders gave them free rein to amend the code to their liking in subsequent revision sessions, while women's rights organisations complained of being shut out of the process (Famanta 2012). Two years later, the National Assembly passed the amended legislation with unanimous support. President Touré signed Mali's new Code des Personnes et de la Famille (hereafter, the 2011 Code) into law the following month.
For perhaps the first time in post-colonial Mali, political Islam carried the day. The 2011 Code gave representatives of Islamic civil society what they wanted: unlike the 2009 version, the new law granted legal recognition of religious marriage and redefined marriage as a public (as opposed to secular) act. When Malians died without written or sworn testaments, articles inspired by Islamic jurisprudence would henceforth determine their inheritance, with daughters receiving only half their brothers’ shares of their late fathers’ estates. The 2011 Code also satisfied patriarchal demands by setting females’ minimum age at marriage to 16 (vs. 18 for males) and, especially, by requiring wives to obey their husbands.
From their egalitarian perspective, Malian women's rights activists perceived a reversal of years of efforts to eliminate discriminatory provisions from national law. ‘Not only were the areas of discrimination not lifted, but they added more’, a women's NGO leader told me a few weeks after the new law was enacted; ‘It was a disaster, because the provisions of the [colonial-era] law were better than those of our own code’. In 2012, another prominent women's rights activist characterised legal recognition of religious marriage to me as ‘a clever plan to put an end to civil marriage’. These advocates also frequently bemoaned Muslim organisations’ new-found power in Malian politics.
Yet while Mali's 2011 Code was a clear political victory for Islamic activists, it spelt trouble for officials seeking to implement it. First of all, its inegalitarian provisions drew the condemnation of international human rights groups. In 2017, the Bamako-based Association pour le Progrès et la Défense des Droits des Femmes (the Association for the Progress and Defence of Women's Rights) and the Banjul, Gambia-based Institute for Human Rights and Development in Africa sued the Malian government in the African Court on Human and People's Rights, claiming that the new code violated both the Malian Constitution and the Maputo Protocol by discriminating against women. The court rejected the Malian government's defence (which claimed that the 2011 Code merely reflected social realities on the ground) and ruled that Mali should again revise its family code (Kombo 2021). The Malian state had no obligation to comply, but the verdict highlighted enduring tensions between egalitarian and inegalitarian principles in Malian marriage law.4
More importantly, even a decade after the 2011 Code's passage, its core provisions had yet to be translated into legal and official practice, and prospects for their implementation remained dim. Advocates had promised that legalised religious marriage would end the abuses endemic to Mali's multi-tiered legal environment, such as husbands’ ability to practise de facto polygamy even after signing monogamous civil marriage contracts. But the government issued few of the required decrees to make religious marriage both legal and administratively feasible. Despite enjoying initial support from the country's prominent Islamic organisations, the administration of President Ibrahim Boubacar Keita (in office from 2013 to 2020) never attempted to translate the code into bureaucratic reality. Most notably, it neither defined who would qualify as ministres de culte (ministers of worship eligible to perform religious wedding ceremonies) nor established procedures to generate legal marriage certificates from those ceremonies. By 2020, some mosques in Bamako had begun issuing newlyweds their own marriage forms that municipal authorities, lacking instructions from the central state, were unable to validate. ‘When a minister of worship officiates a wedding’, Judge Mahamadou Diawara of the Bamako Appellate Court explained to me in 2020, ‘he's supposed to send the paper to the municipal official in charge of civil records, who is supposed to process it as a civil record. But today, none of these weddings is being entered in the civil records’.
Amidst this confusion, many other thorny questions lingered. Would the state be able to grant retroactive legal status to spouses in religious marriages predating the new law's passage, as many Muslim activists had promised? How would the law regard a husband who had signed a monogamous civil marriage contract but later taken an additional wife through a religious ceremony? Would it respect his original monogamous union, thereby invalidating his subsequent one, or would it legalise his subsequent union, invalidating his monogamous contract? In religious ceremonies from which brides and grooms had customarily been absent, who would verify their ages and their consent to marry?
The state offered nothing to clarify this murky situation. ‘On a purely structural, organisational level, nothing's changed – nothing’, Judge Diawara stated flatly. ‘And men continue to exploit this situation – they keep celebrating monogamous marriages at the municipal office and then go celebrate other marriages before their religious leaders. They're still doing so because the situation is so confused’. A decades-long process of reform, instead of resolving the social and legal ambiguities surrounding Mali's multiple registers of marriage, had amplified them.
Conclusion: The African Family of Yesteryear
In Mali during the early twenty-first century, the process of reforming marriage and family law highlighted Islam's ‘new symbolic function as an idiom of legitimacy’ in Malian public life (Schulz 2003: 166). In the process of legal reform, public officials and women's rights activists who had taken for granted the secular character of Malian law were outmanoeuvred by opponents seeking to use the state and its institutions to legitimise their interpretations of Islam for regulating marriage, gender roles and family relations. This political contest arose shortly before the country was torn asunder by armed conflict in 2012, with many of the belligerent groups mobilising under the banner of militant jihad. Both the controversy over the proposed family code and the subsequent armed conflict stemmed from public disaffection with Mali's secular post-colonial state and its governance of everyday life. A decade later, armed conflict has only widened. The political system that Malians inherited from French colonial rule, a hybrid of liberalism and authoritarianism, faces perhaps the greatest existential crisis in its history.
One could liken Mali's attempted family law reforms to a tug-of-war pitting advocates of women's rights and personal freedoms against defenders of identity and custom. By this interpretation, the events of 2009 to 2012 demonstrated that Mali's secular politicians had failed in their bid to modernise their country. Few Malians supported equal rights for women; some 60 per cent surveyed felt that women should remain subject to ‘traditions and customs’ (Afrobarometer 2013: 17). In passing egalitarian laws and signing international conventions out of step with Mali's more conservative populace, perhaps the reformers got ahead of themselves and misjudged their opponents’ strength (Koné 2015).
Such an analysis risks obscuring important distinctions within Mali's populace, however. Activists on both sides sought to protect women, albeit from different threats. Reform advocates wanted to protect women at the individual level against discriminatory practices. Their opponents feared that a focus on individual rights would accelerate the breakdown of social relations and collective political agency. Like many advocates of African ‘tradition’, they sought to protect women by maintaining bonds of hierarchical interdependence (see Boyd and Burrill 2020: 17).
Mali's politicians, for their part, wanted to have it both ways. By signing egalitarian laws and conventions, they hoped to satisfy powerful backers abroad (wealthy Western governments and international organisations on which the Malian state budget depended). At the same time, by not implementing them effectively, they could assuage key constituencies at home (traditional authorities, Islamic groups, and elder males more generally), ensuring their continued political survival. By this interpretation, maintaining ambiguity around core legal questions – who is married and who is not, which husbands can take additional wives and which cannot – has preserved the privileges of Mali's ruling elite.
Men built confusion into this system: maintaining uncertainty about marriage and the rights that come with it protects men's dominance in a context where their economic power has gradually declined relative to women's. This fits the pattern exhibited by Malian leaders of preferring uncertainty over predictability in many domains: whether implementing peace agreements, organising elections, establishing a system of land title, or allocating defence spending, authorities have repeatedly opted against order and clarity (Craven-Matthews and Englebert 2018; Neimark et al. 2018; Tull 2019). Perhaps meaningful state-led solutions to these problems, like meaningful marriage law reform with the trade-offs it imposes, were never actually on their agenda.
Mali's family law controversy demonstrates the law's limits for promoting changes within society. A state implementing laws opposed by much of its population endangers its own legitimacy. In the Malian case, donor countries’ efforts to incentivise progressive change proved not just ineffective but actually counterproductive in the face of objections from religious and neo-traditionalist groups. The efforts of modernisers and egalitarians ultimately empowered opponents of equal rights. Disputes over women's rights within marriage are highly political; West and North African precedent suggests that neither strict Islamic laws nor well-intentioned civil laws shaped by progressive readings of women's rights can, on their own, resolve them. And when these reform efforts fail, Barbara Cooper (2010: 17) writes, ‘it is women and children – who are so regularly invoked as the beneficiaries of interventions of all kinds – who are left in the cold’. Malian women of all backgrounds and ideologies who had hoped that legal reform would clarify and perhaps even strengthen their rights within marriage have been bitterly disappointed as legal ambiguity persists amidst the structural failings of the Malian state.
As for the demise of the ‘African family of yesteryear’ heralded by Roger Decottignies (1965), it has remained an illusion. While they may be weaker than they once were, patriarchal lineages and male household authority figures remain powerful in Mali and other African societies today, and a host of organisations has emerged to protect their dominance. In the third decade of the twenty-first century, the Malian state's ability and willingness to use the law to ensure gender equality is very much in doubt.
Acknowledgements
I would like to thank my colleagues in Bamako who made this research possible: Yaya Bamba, Djénéba Dembélé, Noumouké Keita and Nana Touré.
Notes
See Fortier (2011) and Yamani (2008) on twenty-first-century monogamy agreements in Mauritania and Saudi Arabia, respectively.
The 1962 Code retained the legal ages set by a 1939 colonial decree (Boye et al. 1991).
In a nod to Mali's official doctrine of state secularism, the HCIM was formally established as a civil society organisation rather than a government entity, yet it retains semi-official status as the country's pre-eminent organisation for representing Muslims to the state (Idrissa 2017).
Marriage laws in many other African states are rife with similar contradictions (Mwambene 2017).
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