TayoBlog

The regulation of Muslim marriage in the South African legal framework currently under way is not unique. We should consider the matter in the light of developments in other parts of the world, and particularly in other parts of Africa.  
The role of the state and religious authorities have come under intense scrutiny in South African media. The South African constitution very clearly enables the recognition of marriages conducted under diverse cultural traditions, which the state is obliged to facilitate in one way or another. In this particular case, Muslim religious authorities are divided between those who see the new developments as state encroachment on religion matters, and others who see the potential for a constructive partnership.
By examining similar developments in Egypt (2001), Morocco (2005) and Kenya (1998-2010), a fundamental trend seems to emerge. Since the 1990s, more inclusive approaches to politics and law have affected Muslim societies in many parts of the world. In matters of Muslim personal law, women's demand for rights is main driver of the demand for change and which has often been obscured in an ideological conflict between state and religion.
Egypt passed the so-called Khula law in 2000, which basically gave women the right to apply for a no-fault divorce without the consent of her husband. The law was a development on the 1920s when judges were obliged to look beyond one school of Islamic jurisprudence. This 2000 law took the matter one step further by permitting separation (khula) without a husband's permission. Interestingly, the main justification came from an ancient hadith in which the Prophet granted a woman separation from her husband on her request. The 2000 bill was opposed by Islamists for four years before it was finally ratified.
In 2004, Morrocco passed a Reformed Family Code after years of intense public debate. Human rights activists demanded more rights for women in Moroccan marriages, whilst opponents saw the 1956 Family Code as the centre-piece of national tradition. The latter was produced after independence from French colonial rule. At the end of a lengthy national discussion, the Moroccan King Muhammad VI eventually passed the code in 2004 .
A similar public demand for reforms in Kadhis courts was initiated in Kenya as part of a country-wide constitutional review process. Muslims in particular demanded that these Muslim courts set up by the British during the colonial period should be made more accessible, subject to review and willing to deal with new developments such as AIDS. This popular demand was diverted by some Christian groups, arguing that Kadhis courts should not be part of a national secular constitution. Eventually, a new constitution was accepted in a referendum in 2010, albeit without any substantial reforms in the Kadhis courts.
The South Africa situation, as in the other cases cited here, has brought into focus the expected tension between state and religious authorities. In Egypt, the autocratic government of Hosni Mubarak had since 1980 made numerous concessions to the Islamic religious establishment in return for their political support. In Morocco, the king deftly balanced and played off human rights activists and traditionalists. In Kenya, on the other hand, Muslims and Christians saw the Kadhis courts as symbols for their competing political positions.
In each case, ideological groups took centre stage in the public debate over a matter that affected communities and families in more fundamental ways. In each case, the source of pressure to adopt new laws to regulate Muslim marriages was obscured. Individual research has shown in these countries that social and economic conditions had changed the structure of marriages over the last few decades.
Relations within the families were drastically changing, driven mainly by dire economic conditions. Like others, Muslim marriages were increasingly supported by single-parents or  double incomes, pressurised by poverty, unemployment and extensive migration patterns.
Laws that assumed the male as the sole or main breadwinner were no longer reflecting these changes. Laws that had been formulated at independence or in the 1920s (in Egypt) could not longer address the challenges of globalization, low employment and a discourse of equal rights.
Muslim women, feeling the brunt of these pressures, were the catalysts for change. They took their problems to courts, mediation offices and informal adjudication centres run by Islamic legal experts. Driven by a desire for justice, they expected local Islamic institutions to respond to their predicaments. They did not start with the assumption that religion was an obstacle to their predicament. Rather, their conviction was and continues to be a hope and desire for justice.
In public debate, the conflict between different ideological groups tends to obscure this hope. Driven by the familiar antagonism between religion and state, and reformists and traditionalists, actual conditions in which families find themselves are forgotten.
Ideological conflicts cannot explain the similarity of these wide-ranging demands in very different countries. A monarchy, autocratic and authoritarian regimes, and an emerging democracy are too different from each other to align modernists and traditionalists, conservatives and liberals, against other.
It is more fruitful to look further down the social system to see who is pushing change and in which direction. It is, I believe, women who are expected to juggle the impossible between new social conditions, and social mores and laws that do not deliver justice.

The Ministry of Justice in South Africa has tabled the Muslim Marriages Bill for comment until 15 March 2011. Until a few weeks ago, it seemed that those opposed to the Bill had dominated the public debate with dire warnings of fire and brimstone to anyone supporting what they called the Kufr Bill. 

Supporters now seem determined to gather support for the Bill. The United Ulama Council of South Africa has organized a number of public discussions to clarify their support for the Bill, and email petitions are being collected in support. 

I support this bill and have supported this process since it began about 15 years ago. My support was based on some fundamental grounds. Most importantly, non-recognition of Muslim marriages in South Africa had fundamentally disadvantaged women and children.  And it was the obligation of the state to recognize any contract engaged in by its citizens.

A proper format needed to be found for this. The Muslim Marriage Bill is a South African legal instrument towards this process. It is not Islamic Law.

My second ground for supporting the Bill was the obvious fact that Islamic law was open to interpretation on the basis of justice and fairness. As it had been interpreted in the past to empire and culture, it could also respond to basic human rights. This would include the right of a woman to a dignified life even if that may lead to divorce. It also could respond, I thought, to the contribution that women make  to build homes, and contribute to household incomes. 

Rejection of the Bill implies that the South African government does not recognize an agreement signed between a man and a woman when they get married. Rejection means that Islamic Law does not stand up for justice. Rejection means that Islamic law has become a mark of Islamic identity and male privilege. 

 

The place of Muslim marriages in the country’s legal and parliamentary frameworks has once again landed on the rocks. This time, debate among South Africa's Muslim leaders is building up to the Ministry of Justice’s call for comment to the draft Muslim Marriage Bill (MMB) before 15 March 2011.

Positions have hardened, but the challenge remains the same. Can the South African parliament pass a law that recognizes Muslim marriages, as enunciated in the constitution? Without a law, judges are left to interpret the constitution and also Islamic law on the basis of expert witnesses.  The sticky point is how to frame Islamic law on marriage in terms of the general intention of the constitution, particularly the Bill of Rights.

Rejection of any such attempt to pass a law has come to dominate public debate among Muslims. This proposed Bill is refuted with all the religious rhetoric tcan be mustered. At the same time, this goes along with an unexpected support for a secular constitution that separates religion and state. Both are worthy of critical analysis.

Founded in Port Elizabeth around a Newspaper and now a website, the Majlis under the leadership of AS Desai has led the charge against proposed Bill. His articles and writings have spread throughout the country, challenging Muslims and their religious leaders in particular to reject this and any other proposed Bill on offer. 

The highly charged debate on Muslim radio stations, on websites and in mosque platforms, is framed in extreme theological rhetoric. Anyone supporting the bill, even in some modified form, is meddling in heresy (kufr). The Bill itself is called Kufr MMB (Heresy Muslim Marriages Bill), and those who support it are themselves implicated in heresy.

This theological framing of the debate has had its desired effect. Many religious leaders who had previously supported the bill have turned around (and some have turned back to support it too).  New groups of religious leaders are formed, and coups engineered within existing ones. The charge of heresy has had a remarkable effect.

The rhetoric has however obscured the main problem of non-recognition. Muslim women are the most obvious victims of non-recognition, particularly working-class Muslims who do not register their religious ceremonies in a civil court. In the past, when they approached the court for redress, they were turned away because Muslim marriages were “potentially polygamous” or did not conform to Christian ritual form.

The new constitution set out to change these colonial and apartheid responses. And the court record is beginning to build an alternative case history since 1994.

Not surprisingly, the defendants in these disputes have been men. They are the ones who unilaterally repudiate their wives, given them a limited amount of compensation at divorce, or take on second or third wives (often in mid-life crises). In all these cases, women receive meagre consideration or compensation for supporting homes, careers and businesses during the most difficult periods of a couple’s journey in life.

When summoned to court in these cases, men have taken recourse to fact that Muslim marriages are not recognized! The colonial and apartheid regimes harboured deep prejudices for not recognizing Muslim marriages; many Muslim men did not have to be taught how to use such prejudice to their advantage. One may say that these Muslim men have played an equally powerful role in supporting the no-recognition of Muslim marriage.

In post apartheid South Africa, Muslim men in conflict with their spouses want to naturally maintain this status quo. They do not want their wives to seek redress in court, nor in any progressive interpretation of Islamic law. The religious language of a Kufr MMB provides a perfect cover for this status quo.

All the substantive objections to the Bill reveal this male privilege. We are told in no uncertain terms that the rights of men are given by God and the Prophet Muhammad, and may not be tampered with. In some of the objections, women are regarded as emotional, deficient in intellect and wayward. Their demand for rights are framed as feminine weakness or religious infidelity.

Surprisingly, the objections raised to the proposed Bill also make a very explicit constitutional argument. They make an important point about the limits of the state in the definition and practice of religion. Echoing a venerable European tradition of the separation of religion and state, they are arguing that the proposed Muslim Marriages Bill interferes in the freedom of religion. Stressing all the values of a secular state, they want to preserve the so-called purity of Islamic law.

Clearly, the present debate does not revolve around the protection of ‘purely’ religious beliefs and practices like prayer, fasting and the like. And one has to look through the religious rhetoric to appreciate the underlying cause for concern. Not many would agree that the Bill of Rights was drafted to defend all cultural and religious practices. 

The Muslim Marriages Bill debate in South Africa deserves careful attention. On the one hand, it advances the cause of the secular constitution. More importantly, though, it points out how cultural practices can be clothed in religious rhetoric that limit the fundamental goals of the constitution. 

The Centre for Contemporary Islam at UCT organized a highly successful workshop at the Capetonian Hotel in  on May 22, 2010. The purpose of the workshop was to discuss the apparent deadlock on the proposed Bill to recognize Muslim marriage conducted only according to Muslim rites.The meeting invited a number of speakers to address the issue.Here follows my initial recollection and intepretation of the meeting.

Mr. Enver Daniels, the Chief State Law Advisor, opened the meeting with some reminiscences of the challenges that began with the interim constitution in 1994. He had worked with the former Minister of Justic and Constitutional Development, Mr. Dullah Omar, who had predicted that recognizing Muslim marriages was not going to be easy. Mr. Daniels suggested that without a Bill of Rights, many practices associated with cultural and religoius life in South Africa could be accommodated in law. But this was a thought exercise that merely emphasized the impossibility of thinking beyond the Bill of Rights, and beyond culture. Both were non-negiotable features of South African public life.

Ms. Hoodah Abrahams-Fayker from the Women's Legal Centre followed with a paper on the steady stream of women, Muslims included, who knocked on the door of the Centre for relief. Muslim women, it seems, did not find relief at the informal mediation institutions established by Muslims. The support provided by ulama was found to be particularly inadequate. The Women's Legal Centre also shed light on how it challenged the Ministry to stop procrastinating on the issue of the recognition of Muslim marriages. There was no need to have a perfect piece of legislation acceptable to all. Ammendments could emerge later on the basis of specific experiences.

One of the important questions that emerged from this second session was the cause for the long delay in passing legislation according to the Constitution. The delay could not be justified, as other contentious laws were passed since 1994.

Dr. Moosagee's sharp and focussed paper divided Muslims into three camps. Secularists wanted islamic law to conform to the constitution, while "ultra conservatives" rejected any law that would be incorporated in South Africa law. The middle ground was occupied by the majority who were prepared to work with a compromise. However, he warned that this third group opened the door to rampant secularization of Muslim marriages. Values of justice, freedom and equality would completely change Muslim marriage practices as we know them. For Moosagee, such values spelt the death-knell of the Sharian as a divinely ordained legal system.

Dr. Moosagee's paper got to the heart of the matter, but the responses were quick and decisive. Participants pointed out that the practice of the Shariah, it seems, was governed by everything other than justice, freedom and equality. Not many participants could accept that inference.

Rosiedah Shaboddien began with some fear that  everything that needed to be said was said. But her presentation helped in turning attention once again  to the lived experiences of women in society. The Islamic Shariah arrangements in South Africa had failed women. Most clerics selectively took from the tradition, and completely ignored its provisions for the rights of women. For example, South African practice discouraged women to demand that contracts stipulate limitations. Whilst the history of Islam had emphasized the contractual nature of Shariah, pointed out Shabodien, society and clergy now did not want a contract to stand in the way of love. In a contract, for example, a brideroom could accept that he will not take a second wife without the express permission of his bride, or give her the right of divorce. Shaboddien pointed out gender equality was a deep fear stalking the corridors of the Sharia as practiced in South Africa.

The final presentation by Dr. Munir Farid brought the day's discussion into sharp perspective. He homed in on the idea of Tradition in modern society. Dedicated to preserving community, looking back and upholding the values of the past, Tradition ignored the violation of rights on a day to day basis. And yet, whilst advocating preservation, tradition  could not stem the tide of social change. In fact, Farid showed how the Shariah was continually changing. Perhaps one could say that change came from the back door while the front door proclaimed that no change was permited. More directly, Farid seemed to suggest, there was much room for change within tradition.

The workshop was overflowing with ideas and perspectives. In a matter of one morning, it presented the gist of the debate raging within Muslim societies since 1994. It opened up questions that had been raised before. But more importantly, it brought these positions in conversations with each other.

Will a solution be found? It is not clear, but at least, the participants felt that the discussion could not and should not be stopped. This time, moreover, as many voices as possible should be kept in earshot of each other. More importantly, experiences with other religous traditions or of Muslims in other parts of the world should be brought into the debate. 


On May 22, we are organizing a workshop to assess developments in Muslim Family Law in South Africa since 1994. In the democratic Constitution of South Africa, state was expected to facilitate and recognize marriages conducted under religious or customary laws. And this provision included Islamic law. It is ten years since African customary law has been accommodated, but not Islamic law.

I wanted to write this Blog to reflect on talking about this issue, and thinking about it. I was interviewed on a local Muslim radio station about the forthcoming workshop. Have prepared myself to present a broad overview of the goals and questions that were to be raised at the workshop, I very soon myself presenting my personal view on the matter. I partly blame the interviewer for dragging me in this direction, but only partly.

I presented my view on the matter, but failed to give a perspective of the workshop at hand. I  am not using the Blog to present what I really wanted to say. I am using it to reflect on the difference between talking about the issue and thinking about it.

In my interview, I focussed particularly on the gap between society and religous worldview that Muslims grapple with everyday. On the one hand, there is the reality of life which includes double-income families, and even single-parent families where women in particular have to make ends meet. I was also thinking about rights-norms that have become very much part of South African society (even if South AFricans do not always live up to them). The entitlement to rights, if not always to reciprocal duties, was rooted in our everyday practices.

On the other hand, there are the demands of a religous law that seems to assume an older social world. The absolute right of the husband to unilaterally divorce his wife is one of them. It is part of a network of relations that presumes that the husband is a provider, more knowledgable, more rational and has the final say in the household. 

The social reality and the social norms (shariah) are present in Muslim societies throughout the globe. They exist side by side. They bring up all kinds of tensions and conflicts in homes and societies. They generate heated debate over what Islam says. Alternatively, they provide the framework for complaining about the bad times in which people live. They give a semblance that islam has something to say about everythng.

Whatever position a person holds, the reality of these two in some kind of tension cannot be denied. And it is this tension that seems difficult to articulate. Positions are taken and held, but the fundamental conflict between norms and society reality is avoided. And the debate on the Sharia rages on, and the fundamental conflict remains hidden  from most sides.

The Centre for Conntemporary Islam has planned a workshop on May 22 on this important topic. This follows a similar workshop organized in Kenya at Sta Paul's University (Limuru) on March 20, 2010. Both concern the role and place of aspects of the Sharia in modern states and legislation. 

A decade and a half ago, the first democratic Constitution of South Africa enabled government to enact legislation to recognize marriages conducted according to religious and cultural traditions. With respect to Muslim marriages, the 2010 Parliamentary Session might see the enactment of a law translating that provision into South African legislation.

This workshop is organized by the Centre for Contemporary Islam to pose some central questions on this important issue:

1. Why has Parliament taken so long to enact legislation?
2. What process and steps has the Ministry of Justice and Constitutional Development taken to ensure the formulation of an agreeable piece of legislation?
3. How have the courts dealt with Muslim marriages since the signing of theConstitution?
4. How have Muslims resolved disputes within marriages, in and out ofcourts?
5. What positions have various Muslims (individually and organizationally) taken with respect to Muslim Family Law in the proposed legislation?
6. What critical values have emerged among human rights advocates, religious scholars (ulama) and the state on Muslim Marriages and the Constitution in South Africa?
7. How does this process compare with African Customary Marriages?
   

The CCI is bringing together scholars and activists to present short position papers on some of these questions. They will provide the basis for
an intensive discussion. The following have agreed, others may be added:

• Ms. Rosieda Shabodien - Commissioner, Commission for Gender Equality
• Dr. Allie Moosagie - Fatwa Committee of the Muslim Judicial Council
• Dr. Munir Farid - Guest Lecturer in Islamic Law at the University of Cape Town (confirmed)
• Ms. Jennifer Williams and Hoodah Abrahams-Fayker (Women's Legal Centre)

---

After a flurry of activity in the first ten years of democracy in connection with Muslim Personal Law in South Africa, matters seem to have been bogged down. We are told that the draft bill is with the Ministry of Justice, ready to be sent through to Parliament for final tableing. At the same time, a number of rights groups are concerned that the proposed Bill does not go far enough to protect the rights of women. On the other side, I have heard from numerous ulama (religious scholars) that the proposed Bill is not exactly the Shariah that it is supposed to be. It appears that there is an impasse on the process between these two positions.

The caseload of Muslim marriage s seems to be building up, generally with women having to fight for their constitutional and legal rights through courts. Even though a number of cases have come before the courts, and the courts have made judgments that recognize Islamic marriages, there is still no legal framework that facilitates the resolution of differences. Aggrieved parties are forced to turn to the expensive paths of court litigation.

It often comes as a surprise to hear many South African Muslims say that that the South African government has not recognized Islamic marriages. Muslims in a victim mood find it easy to make this claim. After more than a dozen years of democratic, they say, Islam is still not recognized. The truth of the matter, of course, is that Muslims are finding it difficult to come to a consensus as to the terms of the Muslim Personal Law. I doubt that we will come out of this self-imposed corner.

But there is even greater irony in this matter. All the years during which Islamic marriages were not recognized by various governments, there were more than chauvinist colonialists and apartheid ideologues driving the process. In most of these cases, probably all, there were Muslim men using the law (both national and Islamic) to support their personal cases. Before democracy, men as defendants argued that Muslim marriages were not legal in the South African system. Marriages conducted only according to Muslims rites could not be brought before the courts. In effect, it was in their interests that Muslim marriages not be recognized by the apartheid system. Muslim men benefited directly from such non-recognition.

After apartheid, the recognition of Muslim marriages cannot be challenged in courts any more. The Rylands vs. Edross (1997) case set the record straight on this score. Muslim men could no longer use the earlier approach. But men, litigants above everything else, are still using everything in their power to declare the South African rights and democratic instruments off-limits to Muslim marriages. Now they are finding it convenient that Muslim marriage are by definition unique and special. Using this argument, they can avoid dealing with the real consequences within Muslim marriages.

It is my contention that before we see if the provisions of Muslim and secular marriages are compatible or conflicting, we should carefully look at whose interests are served by chosing one or another option. In South Africa, at least, it is not only apartheid that denied recognition to Muslim marriages. Muslim men challenging their wives in court promoted this non-recognition. Now, the idea that Muslim and secular marriages are a different kind of social instruments is serving a similar goal.

Recently, a German Judge was removed from a case because she invoked the Sharia in her argumentation in a divorce case. She turned down the request by a Moroccan-born woman for immediate divorce on the grounds of physical abuse by her husband.
She argued that the woman should have expected this treatment when she got married according to the Sharia. In support of her decision, the honourable judge Christa Datz-Winter cited verse 34 of chapter 4 of the Qur'an.
German public opinion was swift, loud and clear. There was only one law that operated in Germany, some said. Others lamented the deterioration of life in Germany, brought about by those who brought the Sharia with them. Multiculturalism had definitely gone out of hand, was another response.
The reaction reflected the growing wave against multiculturalism in Europe. In the legal meaning of this trend, judges used to extend their analysis to accommodate the norms and values of immigrant cultures. In a spirit of inclusivism, judges went beyond German law in order to arrive at a more just resolution of conflicts.
The application of this principle in this particular case is difficult to understand. Why would a judge acknowledge the presence of an abusive relationship, and then chose to cite a so-called cultural norm to ignore the urgent application? Why cite the verse as argument? It is difficult to see how justice was being extended in a spirit of multiculturalism.
This approach can hardly count as a reflection of a multicultural policy. It spells rather its deliberate death by the judge, and more so by the public outcry that followed. The discussion of the case certainly has put it among many public conflicts and disputes over Islam that regularly appears on the front pages of European newspapers. Aspects of Islamic texts, thought and life are presented for public debate and most often for public rejection and parody.
This particular incident is worthy of deeper reflection, both for its own merit as well as its broader significance for the debate about culture in societies.
The judge clearly thought that a verse cited from the Qur'an was an uncomplicated assessment of Moroccan culture and Islamic law. In her view, there was a direct correlation between a text, or a part thereof, and a complex culture and society. One did not need to understand a person and her social context. One only needed to read a book or its translation. And the citation of the verse was sufficient evidence against the woman's plea.
This clearly Orientalist opinion is hard to believe in the light of almost three decades of cultural criticism since Edward Said wrote Orientalism in 1978. He warned against the tendency to reduce the complexity of a culture simply by looking at its haloed fundamental texts. Such an approach tended to depict the static nature of non-Western cultures through the static nature of their texts.
But Said also alerted us to the political project that lay behind the Orientalist project. The presentation of the Oriental despot, the Oriental female victim and many other tropes was a foil for international power and hegemony. In Europe today, through the last few decades of migration, the enemy has become much too close. And the public debate about Islam has taken up Orientalism's tools to keep the immigrants in their place. In this sense, the usefulness of Orientalism is not surprising.
But the case went beyond the opinion of the judge and the predicament of the case at hand. The advocate representing the applicant chose to make a public comment on the judge's decision. While the aggrieved woman herself protested that the judge's views were quite wrong, and conflicted with her own understanding of the Sharia, the advocate raised the alarm of the possible threat posed by the Sharia to the German constitution. And it was not long before the public debate turned around the horror of Germany under Islamic law! The German constitution was under threat. Germany might even soon be ruled by Sharia law. This was yet another occasion for European public opinion to vent its fears and frustrations on Islam out there, and Islam in their midst.
But this issue raised another aspect that Said's book did not deal with extensively. The judge also seemed to say that Muslim women, even if abused, must live by the culture that they had chosen! The woman of Moroccan origin should have known what Moroccan and Islamic marriages were all about!
The judge's response reminded me of something that has happened repeatedly in South African history. In one such incident, Pamela Scully analyzed a reported rape in George in 1850. The accused was sentenced to death for reportedly raping a respectable white woman. When it later turned out that the victim was not white, but like the alleged rapist, "a Bastard coloured," the sentence was commuted to hard labour. The respectability or otherwise of the victim needed no assessment.
The colonial laws applied only to respectable white women. And the "Bastard coloured" woman could not hope for its protection. Like the racism of the 19th century, the Sharia of Muslims acted as a foil to put women beyond the norms of German laws and ethics. Since the Sharia over-determined the persons living in its wake, its subjects stood outside of German law and norms.
While the public rejected the judge's decision, it also confirmed the place of the Sharia in relation to Germannness and Europeanness. Public opinion confirmed the judge's decision in a way that even she had not intended. She did not reject the grounds for divorce on account of the Qur'an. She had only turned down the request for an immediate divorce. When the matter became public, however, and even extended beyond German borders, Sharia was framed as the antithesis of German law in particular, and Western law in general.
And Muslims could not seek the protection of the latter. In an interview, the woman protested that the judge's understanding of Islam was totally false. German Muslim opinion also quickly came out in her support, and against the judge. But for the German public, it was simply another demonstration that Islam had no place in Europe.
Does this mean that the particular verse of the Qur'an, or Sharia values formulated on its basis, are not subject to scrutiny? Far from it! But one cannot help noticing how culture and public opinion are re-creating a new Orientalism, perhaps even a new racism.