TAMAYNUT ASSOCIATION
12, Rue Oued Souss-Agdal, Rabat-Telephone-Fax : 00212(0)37730139
NGO accredited in accordance with the Resolution of the ECOSOC32/95
tamaynut@hotmail.com
11/11/2002

The Human Rights Commission appointed a special reporter to follow the violation of indigenous’ rights during the year 2001. He presented the first report to the Human Rights Commission during its 58th session in March 2002 after he received, during July 2001, the representatives of the organizations of indigenous in the world, among of which in particular the Amazigh organizations, namely the International Amazigh Congress (Paris), the Amazigh Committee for Development and Human Rights (Lausanne), Tigmi Association (Algeria), Tinhinane Association (Burkina-Faso), and Tamaynut Association in Morocco. The Human Rights Commission encouraged the United Nations Special Reporter to carry on his work and invited him to present the second report in the 59th session in March 2003. With a view to preparing the second report, the special reporter sent a letter to the governments, international organizations and organizations of indigenous, which letter contains two key points. The first point is related to justice and indigenous while the second point deals with development programs and their effects on the rights of indigenous people.

Tamaynut Association received the aforesaid letter with a number of questions aiming at providing explanations on the justice system and the possibility of access thereto by indigenous peoples and to what extent this system is just towards them, whether the training received by judges and officers in the Ministry of Justice allows them to deal with multiculturalism and enables them to be acquainted with indigenous’ cultures and languages, whether there is a system of justice for indigenous people and how it is related to the national or official regime and is there a discrimination against indigenous people with regard to the system of justice and how is this discrimination if the answer is yes?

What are the measures taken by the State to prevent discrimination and reform the system of justice and how individual and collective rights of indigenous people are protected?

These are the primary answers provided by Tamaynut Association, contributing to the primary remarks presented to the Special Reporter during July 2001 in Geneva together with the International Amazigh Congress, the Amazigh Committee for Development and Human Rights, Tigmi Association in Algeria, and Tinhinane Association in Burkina-Faso.

Let us now present a summary of the system of justice in Morocco before dealing with these answers.

Summary of the system of justice in Morocco

An Amazigh customary legal system has been set up over thousands of years in North Africa covering all aspects of life. In fact, there were customary laws regulating the individual, collective, cultural and political life, and the system of ownership of lands, forests, water and minerals. The Amazigh tribes were organized in confederations according to lands owned jointly, to the geographic space or natural boundaries that allow mutual defense.

Though the Islamic Law coming from the East with the expansion of the Islamic empires dominated mostly in "central cities", it never abolished the customary legal system despite the fact that there were cases in which the religious extremism developed towards the abolishment of this customary law.

The customary legal system of indigenous in North Africa coexisted with the Islamic system of justice continually. The first blow to the Amazigh customary legal system in Morocco was the Protectorate Convention in Morocco in 1912 as the Protectorate authorities and the French colonialism and their allies promulgated French laws during the period from 1912 to 1930. Thus, the Amazigh or Arabic-speaking tribes living either in mountains or in plains were dispossessed of their lands, forests and minerals.

Despite the colonialist laws, the Amazigh customary law survived even after that the colonialist war machine devastated the political, economic and social infrastructures of Amazigh tribes. The Protectorate authorities made an exception of some community lands and enacted a law regulating the trusteeship of the State thereon.

The people struggled for independence to recover their lands, forests and minerals controlled by the customary laws regulating all fields. Unexpectedly, the policy of the independent State considered itself, purely and simply, the successor of the colonialist state without being questioned. Thus, if the colonialist state seized forests, water, rivers and minerals, the independent state neglected the customary laws regulating them and imposed itself (as a an internal colonialism) instead of the foreign colonialism as this is described by the militants of South America.

Answers to the questions of the Special Reporter of the Human Rights Commission

1- indigenous individuals and the official system of justice

In the wake of independence achieved in 1956, the State subjected its policies, in general, to the ideas of the Arab Nationalism theorists. Consequently, most customary laws were abrogated in most fields of life and the Amazigh system of justice was abolished (which led to the Revolution of Addi Oubihi after that the justice officers came from the center cities to put into effect the Central System of Justice instead of the Amazigh Customary System of Justice). The mass Arabization policy was announced, aiming apparently at confronting the French language, but in fact, its deep goal was to annihilate the Amazigh identity and abolish all legal and cultural systems related thereto. Thus, most Amazigh and even Arabic-speaking tribes living in plains were separated from its age-old oral Amazigh legal systems and from its systems of justice that were quashed instead of being developed. Moreover, the teaching of Tamazight language as well as the Moroccan dialect was stopped in schools and universities, and the people were deprived forcibly from fundamental components of their cultural identity.

The achievement of justice has become complicated for many reasons, among of which: the imposition of a foreign legal system on Amazigh tribes, the prevention of people to express the Amazigh culture through disdainful suppression of their language, interdiction of its teaching and the prevention of Tamazight language to be used in administering justice.

2- The current legal system, justice and Amazigh people

The Amazigh system of justice in most tribes was based on the principle of respect of life. Accordingly, this system does not recognize the death penalty. In fact, the utmost penalty was the exile outside the tribe. It was based on the principle of financial instead of physical penalties. In many regions, the Tamazalt Right was adopted in the case of divorce. This right allows the married couple to divide between them the wealth acquired by the husband or by both of them after marriage until the divorce or death occurs. The judges were usually appointed among pious men of the tribe to carry out the duties of judges or wise men (Inflas or Aït Rïin). They were in charge of listening to litigants who explain all events and defend themselves in the Tamazight language then judgements are passed. However, the new official system obliged the litigants, before all, to travel far away to reach the nearest court. Once in this court, they find themselves more than often in front of officers, appointed by the center cities’ authorities, who are not familiar with their language and treat them with rudeness and contempt. The litigants are obliged to explain their case before a judge who does not understand them and, therefore, appoints a translator who is not trained in the field of translation to help him.

In most cases, the person concerned explains to the judge situations that the latter is not familiar with, which leads to judgements that do not take into consideration the rights acquired by virtue of the customary law. This results in more litigation inside the same aboriginal communities, and the court decisions are sometimes rejected collectively.

Today, a number of Amazigh people give to their children Amazigh names, but the registrars refuse to register these names, giving as a pretext that the name chosen is not an Arab or Moroccan name. The court confirms the registrars’ attitudes on similar pretexts giving as an excuse that the Amazigh names were not included in the national list of names drawn up by a former minister of the interior during the most tyrannical era in Morocco.

Although a law stipulating the necessity of providing judicial assistance in criminal and some civil cases, injustice in itself is an issue to be dealt with by the official system of justice today.

3- A unilateral and exclusive training of the officers of the Ministry of Justice that do not take into consideration the culture of the Amazigh people and does not teach the Tamazight language

A judicial institute was founded to train the officers of the Ministry of Justice and judges but there are no institutes for the training of lawyers.

The training programs of this institute do not take into consideration the necessity of identifying the Amazigh culture and do not even, practically, encourage some Amazigh judges trained in this institute to develop their native culture to achieve justice and equity because the entire regime of the State is based on the policy of mass Arabization and Arabization of identity until a Royal Address delivered in October 2001 in Ajdir village recognized officially and collectively the Amazigh culture and announced the foundation of the Royal Institute for Amazigh Culture by virtue of the Royal Decree no.17/10/2001.

Thus, the National Institute for Justice specialized in training the officers of the Ministry of Justice has not provided since the date of its foundation until now even courses in native language to enable judges to deal with the Amazigh people in their own language.

The current system of justice is based on the policy of Arabization and on unilateral culture and is, therefore, far from the citizen who is the main goal of the State’s work.

Though King Mohammed VI created the Royal Institute for Amazigh Culture and entrusted it with the task of drawing up policies to integrate the Amazigh language and culture in the Moroccan Administration, the Ministry of Justice that received a special letter from this institute with regard to the necessity of training the new judges in the Amazigh language and culture which cover the customary laws, has not provided any answer so far.

4- The system of Amazigh justice and the official regime and their relationship

After the independence, the official legal system did not completely abolish the customary legal system as stated previously. In fact, the legal system of communal lands preserved a part of the native system of ownership and maintained some customary laws and procedures to settle disputes. However, not all disputes are submitted directly to the courts of the official system of justice. In fact, they are submitted to a special body set up by the customary law and the judges of the customary justice. A special body created by the trusteeship authority, which is the Moroccan Ministry of the Interior, can be appealed to about their judgements.

This system is characterized first by the fact that the representatives of the communities settle disputes through the Administration especially that this task is entrusted by the central authority that control those representatives. This system becomes complicated because the task of settling disputes is entrusted to people who usually understand the customary law but are subject to the recommendations of the Administration due to their illiteracy.

5- Discrimination against the Amazigh people as regards the official system of justice

• The first discrimination felt by the Amazigh litigant particularly that he does not speak the official language is that he is deprived from the right to defend himself in his mother language and from understanding what is being said in his mother tongue.
• Moreover, as soon as this litigant is inside the court, he finds himself outside the sphere of the customary law by virtue of which he acquired most rights that he may be deprived from once he gets in contact with the official justice.
• The major discrimination suffered by the Amazigh people is the total exclusion of their Amazigh culture from the establishments in charge of training the officers of justice, which make a number of judges understand neither him nor his culture, nor his customary law, nor the aborigine system of justice.
• Many judgements prevent the Amazigh people from choosing Amazigh names for their children.

6- The system of reforming justice and discrimination against the Amazigh people through the exclusion of the principles of the Amazigh system of justice

There are continual attempts to reform the system of justice in Morocco, but none of these attempts took into consideration the Amazigh principles of justice (the customary system of justice) so far, especially those principles related to the adoption of financial instead of physical penalties, the principle of respect of life by abolishing the death penalty and the principle of Tamazalt related to the equality between men and women as regards the acquired wealth in case of divorce.

The measures taken until now are limited in eradicating bribery in the judicial system and did not extend to the respect of the Amazigh linguistic, cultural and legal identity.

7- How can the individual and collective rights of indigenous be protected?

The individual and collective rights of indigenous people can be protected as follows:

1. To recognize the Amazigh identity, culture and language in the Constitution and consider Tamazight an official language to be used together with the languages currently used in the Administration.
2. To rehabilitate the entire customary legal system and political, economic, cultural and social infrastructures of the Moroccan society.
3. To abrogate the colonialist laws by virtue of which customary laws and ownership of lands, forests, water, rivers and minerals were eliminated and replace them with Amazigh customary laws in the framework of respect of individual and collective rights.
4. To train the judicial officers in the field of the Amazigh language and culture and to use the Tamazight language in the Moroccan system of justice.
5. To ensure the right of participation in the political life and respect of the principles of consultation and participation.

Enclosures :

• Copy of the judgement no. 1166 - Case no. 295312/00 passed by the Court of First Instance in Rabat.
• Copy of the judgement no. 617 - Case no. 331/2002 passed by the Administrative Court in Casablanca.

Mr. HASSAN ID BALKASSM
President of Tamaynut Association
11/26/2002