analysis
Khadija Magardie
The “a-hoppin’ on my camel versus just cruisin’ in my Daimler” problem has always been a dilemma of sorts in the Muslim world. Understandably so, considering the difficulties of marrying centuries of tradition with being a citizen of the 21st century. But few instances of what Ali Mazrui called “having the wristwatch without the culture of time” (also known as missing the boat) could beat the declaration by a Dubai court earlier this year that a “talaq” or Islamic divorce via SMS, was permissible.
Naturally it wasn’t long before their fellow troglodytes in the Cape of Good Hope followed suit, telling locals it was okay here too. Certain conditions have to be fulfilled. Like confirming the husband was actually the sender of the message, and that he must have been “mentally composed” at the time of sending. This caution supposedly stems from a case where a husband who had newly purchased a mobile phone “in the process of experimenting with its features, accidentally sends an SMS divorce to his wife”. Enough said.
Luckily such obscurantism will not hold sway in our democratic South Africa. The South African Law Commission (SALC) has finally released its long-awaited discussion paper and draft Bill on Islamic marriages. It radically affirms the position of men and women as equal before the law.
Under apartheid Muslim marriages were not recognised before the law, owing to their “potentially polygamous” nature. The position has not changed, the result being that Muslim marriages have no legal status, and children born out of them are regarded as illegitimate.
The potential for problems arising from divorce, child custody and property division meant reform was necessary. The move towards recognition was boosted by the 1999 Amod v Multilateral Motor Vehicle Accidents Fund, in which the Supreme Court of Appeal gave legal recognition to a Muslim marriage for purposes of the duty of support of a widow upon the death of her husband.
The document, which follows years of haggling, is a progressive step towards resolving the apparent mismatch between Muslim personal law and the Bill of Rights in the South African Constitution.
The SALC’s commitment to gender equality is affirmed from the very start. The proposed Act states: “A wife in an Islamic marriage is equal to her husband in human dignity and has, on the basis of equality, full status, capacity and financial independence, including the capacity to own and acquire assets and to dispose of them, to enter into contracts and to litigate.”
Some would say this is what Islam guarantees women anyway. Which would be reassuring were it not for the likes of certain submissions to the SALC that suggest totally exempting Muslim personal law from the Bill of Rights, “since Muslim law is not binding on anyone outside the Muslim community”.
Which is why with Muslim personal law, as with the debate over African customary law, law-drafters made it clear that even though provision is made in the Constitution for the possible recognition and implementation of “a system of religious, personal or family law”, it must be consistent with other provisions of the same Constitution, such as the equality clause.
The right to have Muslim personal law recognised, therefore, is “constitutionalised and subject to certain conditions”, as Muslim personal law experts Ashraf Mohamed and Professor Najma Moosa argued in a 1998 paper. They went on to add that it was clear that Muslim personal law needs to be reformed before it will be officially recognised.
Most of the discussion paper’s contents are mere practicalities, like the setting of a minimum age for marriage. But it has other controversial elements. For one, men may as well forget about resorting to keyboards when they’ve had enough. A dissolution of a marriage by “talaq” has to be confirmed by a court within a specific period; the failure to do so could result in a stiff fine.
It also broadens the grounds under which women may also apply for a divorce, such as if a husband “treats his wife with cruelty in any form, which renders cohabitation intolerable” or “if the marriage has irretrievably broken down, despite reasonable attempts at reconciliation”.
In addition it introduces the appointment of two assessors schooled in Islamic law to decide, together with a judge, on matters of fact and law where Muslim marriages are concerned.
On polygamy, matters are similarly circumscribed. A man wanting to marry again has to appear before a civil court, which will decide whether he can exercise justice between his spouses. The document even suggests he has to declare all his financial assets, to show he can support more than one woman.
The most welcome message conveyed by the document, one for which the SALC should be congratulated, is that it makes it clear that the Constitutional right to gender equality will not be sacrificed on the altar of appeasement. Which is good news for some. Its contents are still likely to have some quarters sighing into their (three fists long) beards.