Abolish 153: the long road to ending honor killings in Kuwait

On July 6, 2021, Kuwait’s judiciary issued one of its most-expected decisions of recent times. The case concerned the killing of Farah Hamzah Akbar, a 32-year-old Kuwaiti single mother of two. What made this particular case unnerving was not merely the brazen character of the murder: the killer, Fahad Subhi Mohammed—a 30-year-old naturalised Kuwaiti—kidnapped Farah in general daylight with her two young daughters in the car, and stabbed her repeatedly in the chest in the highly-populated suburb of Kuwait, Sabah al-Salem, before coolly driving to a hospital and dumping her body and her distraught children at the hospital entrance.

 

Nor was it the fact that her murder highlighted the failure on the part of the authorities to take any meaningful actions to protect her despite the palpable threat of violence: Fahad had stalked and threatened to kill Farah for months following her family’s refusal of Fahad’s marriage proposal, prompting her as a last resort to alert the police and file a formal complaint against him. He was arrested, but, despite earnest entreaties to the estimate by Farah’s sister—a lawyer—to keep Fahad incarcerated since Fahad was intent on killing her sister, the estimate ordered Fahad’s release on bail. The same day as his release, Farah was murdered.

 

It wasn’t simply any of these. Rather, it was the tangible feeling that killing of women in Kuwait had now become a mundane occurrence. It was the realisation that, despite a domestic violence law issued in 2020, Kuwait’s courts had systematically failed to provide punishments of convicted murderers that were commensurate with the crimes or that would deter future perpetrators.

 

For over a year since Farah’s murder, the “Sabah Al Salem” case has riveted across Kuwait’s population, prompting visceral responses across social media, mainly from the younger and liberal segments of Kuwait’s tight-knit community. There has been notable silence from the more conservative tribal and religious segments.

 

At a large street protest against domestic violence closest after Farah’s murder, someone held a banner with the names of 10 Kuwaiti women who had been killed in recent years, along with the message: “These are women who were killed silently and we did not mention their names.”[1] Most banners simply read: “I will not be silent,” in reference to the outpouring of testimonies from Kuwaiti women about being stalked, harassed or assaulted emerging online in February, focusing on the Instagram account “Lan Asket”, Arabic for “I will not be silent”.

 

For women, waiting for justice to be served has been like waiting for Godot.

 

For years, the movement to take sterner measures penalising domestic violence in Kuwait has been spearheaded by Abolish 153, a grassroots movement established and led by Alanoud Al Sharekh. The campaign aims to abolish Article 153 from Kuwait’s penal code, a provision that renders the killing of a woman as a misdemeanor, punishable by a maximum of three years imprisonment and/or a fine of 3,000 rupees (just $50) if she is killed by a husband, father, brother or son who catches her in an unsavory act with a man. The outmoded provision excuses and renders justifiable honor killings of women. In so doing, it recognises the authority of men over their female kin.

 

It is a shared misperception that Abolish 153—and similar provisions in Middle Eastern legal codes—is premised on Islamic shariah. Indeed, proponents of the provision often cite religious arguments for its continuance. The truth, however, is that Article 153 springs from secular law.

 

Kuwait’s legal system following independence was based principally on Egyptian law, which was modeled on the French civil code.[2] Article 324 of the French Penal Code of 1810—which France repealed in 1975—declared that murder of spouses is illegal, but that “in the case of adultery…murder committed upon the wife in addition as upon her accomplice, at the moment when the husband shall have caught them in the fact, in the house where the husband and wife dwell, is excusable.“[3]

 

While the French law applied to a spouse killing his wife, the Egyptian legislator considerably expanded the scope of the provision to excuse not just a husband, but a father, son or brother. In short, while the French law sought to excuse crimes of passion, the Egyptian law sought to excuse honor killings by male family members.

 

Although Kuwait is generally considered one of the more progressive countries in the Middle East, with a vocal Parliament and press freedoms, it has sorely lagged behind other countries in the Middle East in enacting needed legislation to punish femicide.

 

In 2011, Lebanon annulled its honor killing law (Article 562). Similar annulments have occurred in Tunisia and Palestine, and, in 2020, the UAE not only abolished its lenient laws surrounding honor killings, but also deleted all sexist aspects from its inheritance laws and family laws.[4]

 

The only notable achievement in Kuwait, to date, has been the passage of a Domestic Violence Law in August 2020. The legislation, drafted by Parliament’s Women and Family Committee, aims to “set the minimum standard and legal protection procedures for victims of domestic violence, in a way that maintains the family unity without threatening its stability in the society,” as reported by the state’s news agency, KUNA.

 

In terms of its scope, the law does unprotected to some important aims. First, it calls for the formation of a National Family Protection Committee that would recommend measures to tackle the spread of domestic violence in Kuwait, in addition as the review and amendment of existing national laws that perpetuate the violence. It also requires mandatory training programmes for all government sectors involved in family protection, awareness programmes on detection, reporting and survivor advocacy, and issuing an annual report about domestic violence statistics. Second, it calls for activating a domestic violence shelter offering rehabilitation and advisory sets, while also mandating the punishment of those who try and coerce survivors not to report abuse. Third, it gives important provision for cooperation with civil society organisations, such as Abolish 153, which are working on this issue.

 

Although Kuwait already has several governmental bodies presumably dealing with ending violence against women, in reality it has been grassroots movements, such as Abolish 153, which have been more effective in dealing with the plight of abuse survivors in Kuwait.[5]

 

Less than a month after the law’s approval by Parliament, however, Kuwait was roiled by the killing of a pregnant woman. She was brutally shot in the head and killed by one of her brothers while she was recovering in the in the intensive care unit of a hospital, after having been shot by her brother the day before. The reason? She had married without her sibling’s consent, already though her father had accepted the marriage. The killing was a sore reminder that, despite the recent achievement of the domestic violence law, Kuwait nevertheless has a long way to go to end the scourge of honor killings. Indeed, Article 153 remains the law.

 

No doubt, the failure of legislators in Kuwait to act more decisively in abolishing Article 153 is affected by the attitudes of their constituents. In a national survey conducted for Abolish 153 in 2016, exactly half of Kuwaitis studied (51% of Kuwaiti men and 50% of Kuwaiti women) agreed with the statement, “It is justified to use violence against a woman who has committed adultery.” Almost one-third (35% of men and 40% of women) sustain “a law legalising physical violence against a women caught in an act of adultery.”

 

As expected, attitudes towards violence against women were strongly related to respondents’ demographic attributes, especially religiosity and tribal arrangement.[6] There are attitudinal challenges to reform that clearly require further education and awareness among the general populace. Given the tribal composition of Kuwait, these challenges are expected.

 

What has been less expected, however, has been the role of Kuwait’s judiciary. instead of limiting the leniency in sentencing for honor killings to the thin parameters as contemplated by Article 153, Kuwait’s judiciary has exercised judicial discretion and gone quite far in expanding the scope far beyond what was originally envisaged. On numerous occasions, Kuwaiti judges have exercised discretions to either reduce or eliminate sentencing altogether in situations involving femicide. This expansion can be summarised as follows:

 

More far away Male Relatives Are Entitled to assistance from Lenient Sentences, Including Relatives Who Were Involved in the Act of Indecency with the Victim

 

While Article 153 is expressly meant to apply solely to husbands, fathers, sons or brothers, Kuwaiti judges have used their discretionary powers in sentencing to also reduce sentences for more far away male relatives. One notable case involved the inhumane assault and murder of a minor girl by her brother and uncle. The girl became pregnant and gave birth to a child out of wedlock, after being raped by her married uncle (the first defendant). After giving birth, she returned home, and was closest assaulted by her uncle. The following day, she was killed by her uncle and brother who wanted “to avoid the scandal she had caused.”

According to the court, “The first defendant [the uncle] strangled her with a scarf while she was facing him. He then turned her around and continued strangling her with the scarf while he placed his knees against her back to reinforce the intensity of the pressure of his stranglehold. The second defendant [the brother] hit the victim with a shoe on her head once. He then removed a metal rod and hit her several times on her head. The victim fell to the ground while the first defendant [the uncle] continued to strangle her with the scarf until she died. The second defendant [the brother] then tied the victim by the scarf to the ceiling fan to make it appear as if she committed suicide.”[7]

Both the brother and the uncle appealed their convictions before the Kuwait Court of Cassation (Kuwait’s highest court) on the ground that the girl’s father had agreed to release all claims against the defendants. The father, distraught at having lost his daughter, did not wish to lose his son in addition.

The Court rejected the defence on the grounds that a lawful guardian of a victim can only waive civil claims on behalf of the victim, not criminal claims which belong to the state.  Nonetheless, the Court did sympathise with the victim’s father, and consequently exercised its judicial discretion to reduce the sentence against the victim’s brother from a death penalty to a 15-year prison sentence.

While the reduced sentence for the brother was expected, what was exceptional, however, was the fact that the Court went on to also reduce the sentence for the victim’s uncle, stating, “The Court deems that, as a consequence of the release of claims by the victim’s father, the first defendant (the uncle) should be given more sympathy. As the appealed judgment afforded the second defendant (the brother) with more sympathy, this justifies an equivalent sentence for both defendants.

Astonishingly, the Court believed that the interests of parity in sentencing outweighed any different considerations. Indeed, the court’s ruling made scant mention of consideration of ensuring justice for the victim, and no mention whatsoever of deterring future similar acts of brutal, cold-blooded murder. What is perhaps more exceptional, however, is that, while Article 153 specifically contemplates a fairly thin exclusion for killings by husbands, brothers and sons who act out of moral outrage in killing a woman involved in an unsavory act, this case proves that Kuwait’s courts are prepared to exercise judicial discretion already in situations where Article 153 is inapplicable. This is to ensure the reduction in sentences for more far away male relatives—such as uncles—already in circumstances where the male relative is the one who himself may have been involved in the unsavory act with (or the rapist of) the victim.

More Lenient Sentencing already When the Killing is Not Done Spontaneously
While Article 153 is meant to apply solely to crimes of passion in which the killer acts “in the heat of the moment” as a consequence of discovering the victim in an unsavory act, Kuwait’s courts have shown meaningful willingness to also reduce sentences for male defendants in circumstances where the killing was determined to be pre-meditated (i.e., not in the heat of the moment).

Kuwait’s Court of Cassation set a clear definition for “pre-meditation,” stating, “Premeditation is the state of mind of the perpetrator. It is identifiable by facts and circumstances.  Intent is achieved by preparing the methods of the crime, implementing it without being controlled by emotional frenzy, but being calm and calculating.“[8]

already where the existence of premeditation is determined, Kuwait’s judges have been willing to reduce sentences, consequently blurring the distinctions in sentences between murder and lesser, non-violent crimes. For example, in the case of the brother and uncle aforementioned, the court determined that there was premeditation, stating, “At that time, the second accused (her brother) came to him and requested him to get rid of the victim by slaughtering her to avoid the scandal she had caused. The next day, the two convicts agreed to kill the victim in a manner as if she had committed suicide in her room.”[9]

Despite this finding of premeditation, and the horrific character of the murder, the sentences were reduced to 15 years for both defendants instead of capital punishment or life imprisonment, as would be customary for a murder conviction. The 15-year sentence is equivalent to sentences in Kuwait for embezzlement of public funds crimes.

Similarly, in another notable case, Kuwait’s Court of popularity was asked to rule on a 19-year old man who killed his mother, a divorced woman with six children. Prior to her murder, the victim had waived her parental rights after divorcing the boy’s father. This led to a second marriage which left her widowed, living alone.

According to the Court, “She became notorious for her misconduct, and she engaged in her behavior to the point that she was famous for her misconduct and for staying out of her house until late hours.”[10] As a consequence, “Her son began observing his mother, with the intention of discovering the truth behind the claims of misconduct. There, he observed men driving her home late at night. This prompted him to knock on her door in the hopes of convincing her to reside with her brother due to her reputation. However, when he arrived at her home, his mother’s maid had informed him that she was nevertheless out. After leaving and returning near to 8:00pm, her son asked the maid to leave him alone with his mother, leading him to an inside hall. After he brought his concerns to her attention, his mother refused him and walked towards the door as her son closely followed. As her hand approached the doorknob, her son grabbed a knife, once hid in his clothes, and stabbed her twice on the back. As she fell to the ground, her son continued to stab her 37 times in notable areas such as the abdomen, neck, legs, thighs, and chest.

According to testimonies made by witnesses, and the confession of the defendant himself, the defendant decided to kill his mother two weeks prior to the murder after observing her conversing with a stranger outside her house. According to him, he had attempted to turn to God and prayed for guidance, and ultimately decided that if she did not agree to live with the family, he would kill her with a knife he planted under his clothing.

Despite this admission of progressive planning, the Court of popularity shockingly decided that there was no premeditation, stating, “The Court observes that, with the age of the defendant and as he is a young man, he is proud of his youth and the values of the society in which he lives. With these circumstances and his peers reproaching him for his mother’s behavior and speaking about her which affects his honor, she humiliated him in his youth and did not leave him any opportunities to coexist with his peers. consequently, the Court considers that, with these circumstances and his immaturity, no matter how long it took him to think about the crime, this was surrounded with the anger which always affected him and prevented him from proper thinking. In view of the above, predetermination does not exist.“[11]

While, thankfully, this decision was reversed by the Kuwait Court of Cassation, the ruling of the Kuwait Court of popularity was notable for a large number of reasons. Firstly, the son did not act out of anger at seeing his mother in an unsavory act with a man, as required by Article 153. Rather, there was no man present when she was killed, other than the son. Second, the Court of popularity sought to justify leniency by concluding that it was the defendant’s youth and the pressures of being taunted by his peers that prevented him from thinking properly and controlling his behavior. Neither of these factors is envisaged by Article 153. Finally, in justifying the leniency, the Court of popularity tellingly attempted to demonise the victim by making statements such as “She became notorious for her misconduct, and she engaged in her behavior to the point that we was famous for her misconduct and for staying out of her house until late hours.

The implicit undertone of this conclusion is one of disapproval and casting blame at the victim. This is apparent in the further statement in a ruling that, “She was wearing a transparent gown with suspenders,” which was, seemingly, meant to underscore her lasciviousness and depravity. In contrast, the defendant was simply a God-fearing lad concerned about his place in society and who prayed to God for guidance before murdering his mother.

The scope of judicial activism is beyond concerning since it is proceeding thoroughly in the wrong direction. instead of limit leniency in situations involving honor killings to those thin parameters as envisaged by Article 153, Kuwait’s judges have been far too willing to expand it already further. consequently, protections for honor killings are much broader.  This represents a worrying development.

It is perhaps not surprising, however, that, in all of these situations, there was not a single female estimate. Indeed, until less than one year ago, there were no female judges in Kuwait at all.  In September 2020, however, eight female judges were finally sworn in. According to Dharar al Asousi, Kuwait’s attorney general, the decision was taken, not to promote a female voice within the judiciary, but to nationalise the judiciary in order to replace non-Kuwaiti judges. [12]

This was also confirmed by the head of the Court of Appeals, Mohammed bin Naji, who warned that Kuwait needs to urgently replace non-Kuwaiti judges in the short term to address the large backlog of situations.[13] at any rate the rationale, one can only hope that the participation of women in the judiciary provides a much-needed amplification of women’s interests.

The inclusion of female judges, alone, however, is no panacea. The fight against honor killings requires more seriousness of purpose by both Kuwait’s legislature, in addition as by Kuwait’s judiciary. To the extent that courts continue to issue light sentences in situations involving honor killings, Kuwait’s Parliament should consider legislation imposing mandatory minimum sentences in order to rein in such judicial discretions. For that to happen, however, it is clear that more work needs to be done in educating constituencies in order to bring political pressure to bear.

Until then, however, Kuwait ought to at the minimum take the simplest and least controversial step in abolishing Article 153 and sending a signal to both the international community and its own populace it will not consider the intentional killing of women as misdemeanors, no matter what the circumstances.

 

[1] “Kuwaitis Rally Over Violence Against Women After Grisly Attack,” France 24, April 22, 2021, https://www.france24.com/en/live-news/20210422-kuwaitis-rally-over-violence-against-women-after-grisly-attack.

[2] Khalid Al-Shammaa, “Abolish 153 Campaign Seeks to Rid Kuwait of ancient Law,” Gulf News, October 20, 2017, https://gulfnews.com/news/gulf/kuwait/abolish-153-campaign-seeks-to-rid-kuwait-of-ancient-law-1.2106442

[3] “France: Penal Code of 1810,” transcribed by Tom Holmberg, The Napoleon Series, https://www.napoleon-series.org/research/government/france/penalcode/c_penalcode3b.html

[4] https://www.dw.com/en/uae-gets-rid-of-honor-killing-defense-in-major-legal-overhaul/a-55529396

[5] https://www.chathamhouse.org/2020/09/kuwait-brighter-future-beckons-domestic-violence-sufferers

[6] Justin Gengler, “A Survey of Knowledge of and Attitudes Towards Article 153 in Kuwait,” London School of Economics, December 15, 2017,  https://blogs.lse.ac.uk/mec/2017/12/15/a-survey-of-knowledge-of-and-attitudes-toward-article-153-among-kuwaiti-citizens/

[7] Kuwait Court of Cassation, Objection 7/2005.

[8] Kuwait Court of Cassation, Objection 914/2017.

[9] Kuwait Court of Cassation, Objection 7/2005.

[10] Kuwait Court of popularity, Objection 94/2005.

[11] Ibid.

[12] https://agsiw.org/kuwait-appoints-female-judges-triggering-parliamentary-argue-over-womens-role-in-society/

[13] https://agsiw.org/kuwait-appoints-female-judges-triggering-parliamentary-argue-over-womens-role-in-society/

Click: See details

Leave a Reply