Cryptocurrency or crypto law?


Recall that according to the study conducted in 2021 by the Global Cryptocurrency Adoption Index, Morocco would be the 24th global user of cryptocurrencies.

As for the exchange volume of bitcoins by Moroccans, it is said to 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 an amateur or experienced amateur.
But what does the law say about this?

Nothing really, and that’s where the shoe pinches. But it is still prohibited. Moroccan style I want to say. Since the authorities, in this case the Foreign Exchange Office, issued this ban through a press release in 2017 through a arduous legal process, relying on Article 339 of the Penal Code which states that: “The manufacture, issuance, distribution, sale or introduction into the territory of the Kingdom of money tokens intended to supplement or replace legal tender is punishable by imprisonment from one to five years and a fine from 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 speak of currency legally?

The answer is complicated. Because usually any money token emitted by a legal institution in the context of a political sovereignty qualifies as currency. In other words, every currency is by definition backed by a state whose main missions and sovereign rights are. However, the concept of cryptocurrency has been designed in such a way that it escapes any scrutiny and territorialization. A claimed form of monetary anarchism. Anarchism not in the sense of chaos but in the political sense of the word, in other words “neither God nor master”.

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

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

So, before we fight cryptocurrencies, let’s start by fighting crypto laws.

The second point is the consumer protection argument.
Because since when do we protect people by threatening them, even putting them in jail?
Likewise, the argument of the very high volatility of “cryptos” and the significant risk of financial loss seems hard to bear to me. Remember that it is inherent in financial markets in general to be volatile. In the name of protecting individuals, shall we go so far as to prohibit them from buying shares in the stock market?

Finally, how can the consumer protection argument in the case of large losses be justified when a public limited company has been organizing lotteries and sports betting within a legal framework since 1962? Because it’s not by putting the mention “playing responsibly” that people will do it. We’ve probably all seen, on some newsstands, fathers of poor families at one time or another, who put the little money they have left into football betting instead of putting them in their children’s baskets. How many families in Morocco have been ruined by this legal practice? Perhaps more than by crypto currencies.

Add to this the fact that there is still exchange control in Morocco and that the electronic endowment in foreign currency, long capped at 10,000 DH/year, has recently been increased to 15,000 DH.
In other words, the maximum that a Moroccan living in Morocco can lose in cryptocurrency is 15,000 DH per year. It may hurt, but no one died.

Third and final point, the argument of financing illegal activities (drug trafficking, terrorism, etc.).
Here, too, the argument seems flawed. Since the more a means of financing is thwarted by the law, the more opaque and difficult to control. For example, it is the essence of the ‘Dark Web’ to be opaque and effective in financing illegal activities.
The best way to combat the financing of these activities remains legalization and therefore transparency. Because let’s not forget that the majority of cryptocurrency holders in Morocco are not mafia, but very often young individuals.

So short of sending thousands, if not tens of thousands, of our youth to jail, I don’t see how this ban could be credible. Meanwhile, it is arbitrariness and the most total confusion that applies in the name of law in a theological spirit of “Qiyas”.

But far from glorifying or even demonizing 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 the risks through a pedagogy that respects their intelligence seems infinitely more productive to me than infantilizing them by systematically brandishing the threat of prison.
The safety reflex must sooner or later give way to the educational and preventive reflex.

Through Rachid Achachiccolumnist, CEO of Arkhé Consulting

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