Crypto-currency or crypto-law?

Keep in mind that according to the 2021 survey conducted by the Global Cryptocurrency Adoption Index, Morocco would be ranked as the 24th world user of cryptocurrency.

In terms of the amount of bitcoins exchanged by Moroccans, it would have reached $ 6 million in the same year.
Most Moroccan users correspond to a profile of young people between the ages of 20 and 30 who, in addition to cyber currencies, generally practice Forex trading as amateurs or experienced amateurs.
But what does the law say about this?

Actually nothing, and that’s where the shoe squeezes. But it is still forbidden. Moroccan style I would say. As the authorities, in this case the Foreign Exchange Office, through a press release in 2017 have decreed this ban through a cumbersome legal process, invoking Article 339 of the Criminal Code, which provides: “The manufacture, issuance, distribution, sale or introduction in the territory of the Kingdom of monetary signs , who are to supplement or replace legal means of payment, are punished with imprisonment of one to five years and a fine of 500 to 20,000 dirhams ”.

Well, first question. Although the term “currency” is supported by “crypto” in the case of bitcoin, Ethereum or even Luna, can we from a legal point of view speak of currency?

The answer is complicated. Because normally, any currency denominated by a legal institution within the framework of a political sovereignty is qualified as a currency. In other words, any currency per definition backed by a state for which it is one of the principal tasks and sovereign rights. However, the very concept of cryptocurrency is designed in such a way that it avoids any surveillance and any territorialization. An alleged form of monetary anarchism. Anarchism not in the sense of chaos, but in the political sense of the term, in other words “neither God nor master”.

From this point of view, these cryptocurrencies can be qualified as a universal exchange instrument, but very hardly as money and even less as currency. You might as well ban gold in this case, as its value is universal and does not depend on any political sovereignty.

But the fact is that by invoking Article 339 of the Penal Code to prohibit them, the approach of the authorities is more a matter of “Qiyas” and “Fiqh” than of objective law, which must meet an essential criterion, namely “clarity of law”.

So before we fight cryptocurrencies, let’s already start fighting crypto legislation.

The second issue is the argument for consumer protection.
For since when do we protect people by threatening them, even by putting them in jail?
Similarly, the argument about the very high volatility of “cryptos” and the significant risk of financial loss seems to me difficult to hold on to. Remember that it is natural in the financial markets in general to be volatile. Will we go so far in protecting the names of individuals that we ban them from buying shares in the stock market?

Finally, how can the argument of consumer protection against large losses be justified when a public limited company has been organizing lotteries and sports betting within the legal framework since 1962? For it is not by putting the mention “play responsible” that people will do it. We have probably all seen one day or another in some kiosks, fathers of poor families, putting the few funds they have left, in football bets, instead of putting them in their children’s basket. How many families have been destroyed in Morocco by this legal practice? Maybe more than with cryptocurrencies.

Add to that the fact that in Morocco there is still foreign exchange controls and that the electronic grant in foreign currency, which was long limited to 10,000 DH / year, has recently been raised to 15,000 DH.
In other words, the maximum that a Moroccan living in Morocco can lose in cryptocurrencies is 15,000 DH a year. It may hurt, but no one died.

Third and final question, the argument concerning the financing of illegal activities (drug trafficking, terrorism, etc.).
Here, too, the argument seems flawed. As the more a means of financing is against the law, the more it becomes opaque and difficult to control. It is, for example, the very essence of the “Dark Web” to be opaque and effective in funding illegal activities.
The best way to combat the financing of these activities is to continue legalization and thus transparency. For let us keep in mind that the majority of cryptocurrency holders in Morocco are not mafia, but very often young individuals.

So in the absence of sending thousands, if not tens of thousands of our young people to prison, I can not see how this ban could be credible. Meanwhile, it is arbitrariness and the most total confusion that prevails in the name of the law in a theological spirit of “Qiyas”.

But far from me to glorify, or actually demonize cryptocurrencies, the essence of my speech lies in a desire for transparency, clarity, consistency, and pedagogy.

Treating Moroccan citizens as adults by warning them of risks through a pedagogy that respects their intelligence seems to me infinitely more productive than infantilizing them by systematically waving the threat of imprisonment.
The safety reflex must sooner or later give way to the pedagogical and preventive reflex.

By Rachid Achachicolumnist, CEO of Arkhé Consulting

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