Opinions differ widely on how Muslim law can be brought into line with the new constitution, writes Justin Pearce
When Nelson Mandela visited Cape Town in 1993, he made sure his itinerary included a turn through the Bo-Kaap, that venerable neighbourhood which is home to South Africa’s oldest Muslim community. Here the president- in-waiting assured Muslims that the ANC would redress one of the community’s longest-standing grievances: the lack of legal recognition for marriages conducted under Islamic law.
While a marriage conducted by a Christian priest or Jewish rabbi receives automatic recognition under South African law, the same is not true for a marriage conducted by Muslim clergy.
Consequently, in the eyes of civil law the majority of Muslims are single, and their children illegitimate. The unofficial status of marriages also bars Muslims from inheriting from a spouse who has died without leaving a will.
Now with Mandela in office for the better part of a year, the Muslim Personal Law Board (MPLB) is in the process of drafting legislation designed to secure the desired recognition for Muslim Personal Law. The Board is to meet this month to discuss the drafts, and MPLB secretary general Shuaib Omar is confident that they can readily achieve consensus on the scope and the content of the new legislation.
Other players are less certain, claiming that the conservative clerics who dominate the MPLB do not represent the full range of opinion among South African
One of the central topics of debate is around the apparent mismatch between Islamic personal law as it is generally applied in South Africa, and the Bill of Rights in the South African Constitution. The Muslim law of succession, for example, states that the estate of a deceased parent should be divided in such a way that sons receive twice as much as daughters.
Muslim law allows a marriage to be dissolved unilaterally by the husband, but not by the wife. If these provisions were to become part of South African law, it is almost certain that they would be declared unconstitutional since they contravene the clause in the Bill of Rights that outlaws gender discrimination.
Yet in another sense the Muslims have the constitution on their side — Muslim legal experts invoke the constitutional right to religious freedom as guaranteeing the right of Muslims to be governed by the laws laid down by their faith.
Opinions differ widely on how the right to Muslim law can be brought into line with the other provisions of the constitution.
The most liberal point of view is that expressed by University of Cape Town Religious Studies lecturer Ebrahim Moosa, who suggests that what is needed is a reinterpretation of the provisions of the Qur’an: “If you look at Islamic law in spirit there is no conflict with the Bill of Rights,” he says, suggesting that the potentially discriminatory aspects of Muslim law stem from a particular patriarchal interpretation of religious texts.
Moosa says that such an approach is used in liberal Muslim states such as Tunisia. But it is clearly not popular among the more traditionally-minded clergy — who happen to constitute the majority of the MPLB. When Moosa published an article advocating a reinterpretation of Muslim personal law, the response was, he says, a “witch hunt” in the course of which he was accused of propogating anti-Islamic views.
At the other extreme are those who believe that Muslim personal law should be exempted from the Bill of Rights. Sheikh Abdul Kariem Toffar of the Islamic Unity Convention points out that this ought to be possible since Muslim law is not binding on anyone outside the Muslim community.
Both Toffar and Shuaib Omar of the MPLB point out that the apparent sexism of the succession law must be seen in context — in return for their greater share of the inheritance, male heirs have responsibilities which are not shared by their sisters when it comes to providing maintainance for other family members.
Moosa, on the other hand, believes the most workable solution is not to write Muslim personal law into the law of the land, but rather to make legal provision for anyone who has been married under religious or customary law to register their marriage officially.
This would automatically entitle them to all the legal recognition offered to those married under civil law. The registration would in effect be a way for individuals to declare that they consider themselves married accoring whatever set of beliefs they may identify with.
Omar says that the MPLB “enjoys the overwhelming support of Muslims” — both the Call of Islam and the Islamic Unity Convention have criticised the Board for including only those organisations which are favoured by the dominant group of conservative clerics, and not consulting nearly widely enough with ordinary Muslims.
“The MPLB is trying to push the issue, not in a correct way,” says a Call of Islam source. “There is not enough public debate — this is an issue which the Muslim community needs to talk about.”
Moosa says that Call of Islam has considered pulling out of MPLB since its presence does little more than to legitimise the Board in the eyes of progressive Muslims — but the organisation is concerned that such a move would give the conservatives “free rein” within the
Factionalism also appears to be at work: Omar says that Toffar had resigned from the MPLB and had been asked to reconsider his position — Toffar says he was never invited to be on the MPLB.
The one matter on which there is consensus is that the present situation is fundamentally discriminatory, and that swift action is needed to accord legal status to the majority of Muslim couples who are still officially unmarried. There is also general agreement that whatever legislation comes into play must be retroactive, in order to confer legitimate status on the children born of Muslim marriages.
While the debate goes on, the Department of Justice is receiving complaints from Muslims about the lack of progress, says Enver Daniels, adviser to Minister Dullah Omar. Consequently, the Department is drafting interim legislation which will address the most pressing concerns of Muslims pending consensus on the final legislation.
Toffar is philosophical on the subject of the drawn-out process: “You can’t tackle it all at once. After all, we have been here 300 years and this is the first time we have had any legal recognition.”