Salima Fraji raises issues of force majeure and legal prevention after the Safi floods

Oriental Eco

As one of the most dangerous natural phenomena faced by developed and developing countries, floods highlight the magnitude of the challenges associated with the acceleration of climate change and the increase in the frequency of extreme weather events. However, a comparison of different experiences shows that human and material losses are not only related to the intensity or suddenness of precipitation, but are also affected by the readiness of legal and institutional systems and the effectiveness of prevention and proactive planning policies adopted in managing risks.

In this context, the floods in Safi brought back to the forefront a legal and institutional debate on the limits of considering floods as a force majeure, and the extent to which legislation related to water and flood risk prevention has been activated. According to Salima Faraji, a former parliamentarian and lawyer in Wadjda, this debate comes within the framework of a calm and objective analysis of risk management mechanisms, away from the logic of accusation or justification, especially when these phenomena result in serious human losses and material damage.

Legal Framework for Flood Risk Prevention in Moroccan Legislation

Salima Faraji explains that the Moroccan legislator tried, years ago, to establish a preventive legal framework to manage the risk of floods through draft law No. 36.15 on water, which was presented on December 23, 2015 before the Infrastructure, Energy, Minerals and Environment Committee of the House of Representatives by the then Minister Delegate in charge of Water, Ms. Charfat Avelal. This text was presented as a comprehensive revision of the previous legislation, in response to legal and institutional changes and in line with the national strategic orientations in the field of water resources management.

Article 117 of the law prohibits the construction of buildings, installations or barriers within lands that can be flooded, except under strict conditions that take into account public safety and protection requirements.

Article 118 also requires the competent water basin agency to prepare an atlas of flood-prone areas and develop flood risk prevention plans for areas of medium or high risk for a period of up to 20 years, in coordination with departments, public institutions, territorial communities, and provincial and regional water committees, each within its area of competence.

These provisions are in line with the general philosophy of the 2011 constitution, especially with regard to protecting the right to life and physical integrity, ensuring the security of persons and property, and preserving the environment.

The Safi floods as a case study

According to Salima Faraji, the floods in Safi are an example of the complexity of the relationship between natural phenomena on the one hand and the level of institutional and technical preparedness on the other. The heavy rainfall in the region led to flash floods that killed dozens of people, with the number of victims so far reaching 37, and caused serious damage to infrastructure and private and public property.

From a scientific and legal perspective, this incident cannot be reduced to its natural dimension, especially since the city is one of the areas historically exposed to frequent flood risks, making it, in principle, within the scope of long-term preventive planning.

According to Faraji, this situation raises the issue of the gap between the existence of the legal framework and the level of its implementation, especially with regard to the extent of the completion and updating of the atlas of flood-prone areas, the effectiveness of prevention schemes in guiding construction and building, the level of maintenance of drainage channels and water facilities, and mechanisms of interaction with early weather bulletins and warnings.

Force majeure and its limits in light of the Law of Obligations and Contracts

Regarding the categorization of floods within the concept of force majeure, Salima Faraji notes that Article 269 of the Code of Obligations and Contracts defines force majeure as any unforeseeable event, such as natural phenomena such as floods, droughts and storms, that makes it impossible to fulfill the obligation.

However, the same chapter, as well as the settled jurisprudence and case law, exclude force majeure if the incident could have been foreseen, prevented or mitigated, or if the damage resulted from a previous mistake, or from the lack of due diligence required by the logic of caution and prudence.

In this context, Faraji highlights that the development of meteorological systems and the adoption of anticipatory warning bulletins makes it possible, in many cases, to take technical and organizational measures to reduce risks, such as opening and clearing water drainage channels, monitoring and maintaining canals and water installations, organizing traffic movement or preventive evacuation when necessary, in addition to mobilizing the various interveners within the framework of prior coordination.

From a logic of responsibility to a logic of preventive governance

Salima Faraji concludes that dealing with flood risks should not be limited to searching for responsibilities or justifying damages by force majeure, but rather requires a holistic approach based on preventive governance that integrates legal text, territorial planning, technical intervention, and institutional coordination.

Comparative international experiences show that countries that have succeeded in reducing flood losses are not those that avoided the phenomenon, but those that invested in prevention, proactive planning, modernizing infrastructure, and enforcing laws governing risk management.

In light of this analysis, we conclude that the Asfi floods, with their painful losses, highlight the need to deepen the debate on the effectiveness of the flood risk prevention system and the extent to which existing legal requirements are enforced, away from the logic of condemnation or justification. Force majeure remains a valid legal concept, but it does not negate the duty of preparedness, nor does it exempt due diligence to protect lives and property.

Promoting a culture of prevention, establishing coordination between the various stakeholders, and activating pre-planning mechanisms remain the best way to minimize the effects of floods and strike a balance between respecting the law, safety requirements, and the citizen's right to protection