Waqfs: Morocco

Morocco has a rich waqf (habous) heritage. But this heritage was not formed uniformly over the long run. Whereas in a relatively short period of almost twenty years, 1740-1759, nearly 40% of all the registered waqfs had been founded (altogether 138 waqfs), after 1810 only one waqf per year was established. The reasons behind this discrepancy should become clear below. Meanwhile it might be noted that about 31% of the individuals who founded these waqfs were women (Stöber, 1986).

The earliest signs of centralization occurred during the sixteenth century when the Qarawiyin mosque waqf was run by a central office. The family waqfs, on the other hand, enjoyed substantial autonomy. By the eighteenth century, rulers were trying to expand their control over the whole system. In this period the office of nazir an-nuzzar was established and a centralised system of waqf registers was organised. The rulers who were behind these developments were motivated to centralise the awqaf as a reaction to the alleged role the waqfs played in the uprisings.

Centralization gained momentum during the nineteenth century when the rulers attempted to intervene in the management of the waqfs. This occurred, on the one hand, by subjecting the appointment of a trustee to the approval of the ruler and, on the other, by direct interference in the management of the waqf properties. During the second half of the century, as the pressure of the European powers increased, other concessions were granted to the Europeans and their protégées. These concessions were basically in the form of ibdal/istibdal, which led to the usurpation of the waqf properties.

The Morocco waqfs entered into a new phase with the establishment of the French and Spanish protectorates. The protectorate was keen to give an impression that the waqfs were respected by the new regime and that any change in their organisation was for their own benefit. The organisation of the waqfs with local offices, with the trustees appointed by the Sultan etc. remained basically intact. Yet the power of these trustees was limited by a number of rules and regulations. These trustees were attached to a higher officer, the muraqib. In the French zone muraqabah offices were established in Fés, Meknés, Marrakech, Rabat and Mazagan. By 1912 a General Directorate of Habous was established which was transformed into the Ministry of Habous in 1915. The Minister of Habous was at the head of the central organisation. The ministry not only was empowered to control the monthly accounts of the waqfs, but could also take decisions concerning long-term lease, or even ibdal/istibdal of waqf properties.

In an attempt to perpetuate the myth that the waqf affairs continued to be run by the Moroccans, the French abstained from any direct interference in the habous affairs. Yet they controlled, through the Ministry, all the financial transactions: checks payable had to be signed by the ministry officials and all the important decisions were taken by the French authorities. An office of the ministry, the Service d’inspection, audited the trustees annually. In short, the organisation of the habous management can be considered as an example of the typical French colonial system whereby the Moroccan control over the institution appeared to survive, but in reality, all the indigenous decision making powers that really mattered were abolished.

The French rule in Morocco was influenced by the lessons learned in Algeria and Tunisia: in Algeria colonial rulers had completely taken over waqf lands with the result that the state was burdened with the cost of religious affairs. In Tunisia, on the other hand, the confiscation of the family waqfs had lead to riots. In Morocco, it was therefore decided that both strategies should be avoided and a more prudent approach was adopted. This approach was also aided by the fact that most lands in Morocco were of no interest to the European settlers. Indeed, whereas until 1932 ca. 12,000 ha land was sold by the habous administration to the colonial administration for resale to the settlers, merely 5,000 ha was actually bought by the latter. In addition to this, long term leasing, up-to 30 years, also took place: 1,500 ha were leased by the colons and thus the waqf characteristic of these lands was maintained.

The farming-out of habous lands by public auctions appears to have been practiced until the protectorate in Rabat. Moreover, a group of share tenants could pool their resources and lease a waqf property in a partnership where a quarter share appears to have been quite common. Share tenancy was also practiced in the Western Rif and the auctions were either based on sharecropping or cash.

Under the French rule, a law dated 21 July 1913 regulated the farming-out procedure and sharecropping was replaced by cash rents. The leasing was to be carried out in public auctions and non-Moroccans could also participate. The law regulated leasing procedures to the smallest detail and limited the period to 1 year, which was later expanded to 3 years. Long-term leases, up-to 10 years could be obtained subject to the approval of the Direction générale. If a tenant invested in land an amount that exceeded a 5 year long rent, he would be eligible for 2 more extensions of the lease. For such an investment he did not have to request permission from the waqf administration. Each one of these extensions was for 10 years, thus effectively increasing the lease period to 30 years. For each renewal the rent would increase by 20%. The auctions were held each year in October and the minimum auction price was determined by the previous rent. The system continued throughout the twentieth century and by the 1970s more than 190,000 parcels of land totalling 47,000 ha were farmed out this way.

Although long-term leases up-to 30 years were thus made possible, short-term leases were far more frequent. The latter, however, had their own problems: the tenant was reluctant to invest in land, the quality of which deteriorated from year to year. In response, the Central Waqf Administration resorted to an ancient Islamic contract form: the muqarasa. Under this, the tenant committed himself to plant a certain number of trees on the leased waqf land. The produce of these trees would then be shared between the habous and the tenant according to a prearranged formula. At the end of the contract period, the land as well as the trees on it were to be divided between the waqf and the tenant. In short, the tenant ended up becoming a landowner through the muqarasa.

It goes without saying that this particular contract form, as practiced in Morocco, was a dubious device from the perspective of Islamic jurisprudence since it led to the loss of the waqf’s corpus. The classical Islamic muqarasa does not allow the tenant to become a landowner: it merely allows the tenant to claim a portion of the produce of the trees until their lives expire. The objection of the jurists notwithstanding, the Moroccan version of the muqarasa continued to be practiced and even gained legitimacy under the protectorate. It has been argued that the trustees agreed to this unique form of muqarasa on the grounds that although it led to a certain loss of the waqf land, the land that remained under the waqf control was enhanced in value thanks to the trees planted. It has been calculated that the revenue yielded by the muqarasa was six times greater than normal leasing (Stöber, 1986: 38-39).

Although Morocco became independent in 1956, the overall organisational structure was maintained. The only major difference was that the French were replaced by the Moroccans. Major change had to wait until the 1970s when the lands leased by the French settlers reverted to Moroccans and a Direction des Affaires islamiques was established. Another major post-independence change was observed in the further centralization of the waqf affairs. Consequently, contrary to Islamic law, management of the waqfs is now completely subject to the ministry and the kadi has lost all the controlling power, a development observed in most other Islamic countries of the twentieth century.

It was also in this period that the trade unions and some political parties began to demand that the waqf lands should be subjected to a massive land reform as in Egypt and be distributed to the sharecroppers, who actually cultivate these lands, as private property. But these demands were fulfilled and land reform was applied only in limited areas. On 25 July 1969 it was declared that the state could acquire habous lands in irrigated areas by ibdal or istibdal. Within the next ten years some 13,000 ha were transferred to state ownership. Out of these, 11,000 ha were redistributed to the peasantry.

Notwithstanding these distributions, the overall share of the habous lands in Morocco did not decline substantially. This was because some 10,000 ha of habous lands originally usurped by the tribes, were reregistered. In sum, the agricultural habous properties were estimated to be about 84,840 ha, 195,850 parcels in 1977. The number of urban properties, on the other hand, reached 33,356. There were altogether 8,292 beneficiaries receiving revenue from these establishments

Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.