A Marriage made in Parliament: South Africa’s Muslim Personal Law Bill, Part 1

This is the first of a two-series post on South Africa’s Muslim Personal Law bill. Today’s post will cover the history of the bill.

The issue of Muslim Personal Law (MPL) in South Africa, which has been under scrutiny in the media recently, is a contentious one, with a volatile history that spans over two decades, a revolution, and four government changes. The ongoing debate has sparked controversy in the Muslim and non-Muslim media alike.

The MPL Bill defines its own aims as:

To make provision for the recognition of Islamic marriages; to specify the requirements for a valid Islamic marriage; to regulate the registration of Islamic marriages; to recognise the status and capacity of spouses in Islamic marriages; to regulate the proprietary consequences of Islamic marriages; to regulate the dissolution of Islamic marriages and the consequences thereof; to provide for the making of regulations; and to provide for matters connected therewith.

The MPL bill, as it is currently drafted, will indeed effect changes to the status of Muslim women, if it is passed. Among other clauses, the legal age of 18 must be upheld for Muslim marriages to be recognized and younger marriage ages will have to be approved by the court. All additional marriages can only be enacted with the consent of the first wife/wives and that of the  court. The division of the husband’s estate will also be reviewed by the court, taking into consideration the circumstances of the widowed wife/wives. Parents or guardians who facilitate the marriage are obliged to inform the couple of the bill, and if they don’t, they will be faced with a hefty fine. The bill also stipulates clauses relating to divorce, maintenance and custody of children–matters in which Muslim women are sometimes short-changed.

However, the law is an optional one: there  is a clause that stipulates that Muslim couples must register to have the bill apply to them. Many believe this undermines the law altogether. The late apartheid and gender equality activist Shamima Shaikh, (may Allah give her peace), who was involved in the campaign for a just MPL bill, wrote this about the inclusion of all Muslims in the bill, which gives much food for thought:

Muslim personal law cannot be exempted from the Bill of Rights and be allowed to perpetuate inequalities. To even consider exempting any sector of society from being covered by the Bill of Rights is an injustice and makes a mockery of the Bill.

Naeem Jeenah, director of the Freedom of Expression Movement, and former Muslim Youth Movement president, author, activist, community leader and husband of Shamima Shaikh, wrote,

…for Muslim women, many of whom also viewed the impending  introduction of Muslim family legislation as some kind of panacea that will solve the problem they had experienced, the manner in which the discourse was initially framed was not destined to ease their burden but, rather, to legitimize their oppression. It was this realization that spurred on progressive Muslims and Islamic feminists to throw themselves into the MPL arena.

The battle for Muslim Personal Law legislation has been a long and exhausting one. Over the past decade, it has been a battle between conservative and progressive sections of the Muslim community, attempting to influence the drafting of legislation by the Project Committee of the South African Law Commission. The Commission has finally arrived at a Draft Bill that most sections of the Muslim community have decided to accept. Very few role-players are completely pleased with the document, but most feel that it is a document that they can live with.

In a nutshell, there are three sides to the issue. On one side, a group of the Muslim population in South Africa have been trying to gain recognition of Muslim marriages in South African law, either to gain more authority in their interpretations, or believing that it will regulate and correct many of the injustices facing Muslim women, who currently have no legal rights in marriages not acknowledged by a secular state.

Another side vehemently opposes the passing of any such bill, on the grounds that it is against Shari’ah (Islamic Law). They believe that many of the clauses, which aim to protect and promote the rights of women, challenge orthodox Muslim viewpoints, such as the legal age of marriage, polygamy and inheritance.

The third party comprises the non-Muslim groups, which have become embroiled in the issue, some out of genuine concern, others to “liberate Muslim women from Islam”.

Professor Suleman Dangor wrote about the origins and need for recognition of Muslim Personal Law for IslamOnline in 2006 :

Up to the present day, South African law recognizes only Christian marriages solemnized by the Church. Muslim marriages have been denied recognition specifically because they were considered potentially polygamous. These marriages have had to be validated by being solemnized by a marriage officer. The South African Law Commission’s offer to recognize Muslim Personal Law in 1987 received a mixed response.

Fast forward to 2009. No law has yet been passed, leaving Muslim women vulnerable to the whims of religious institutes, whose interpretations of Shari’ah are often at the expense of women’s rights. The debate continues, more heatedly than ever before, because the aforementioned bill is due to be reviewed soon in parliament, owing to an application made by The Women’s Legal Centre in South Africa. This is what  has ignited the recent uproar. The Women’s Legal Centre, whose aim is to “advance the struggle for equality of women”, believes the MPL bill directly affects the lives and rights of women.

In a press statement that appeared in the Cape Times, the chairperson of the Centre said that

the failure of government left women married under Islamic rites vulnerable because the status and custody of the children born from their marriages, their divorces and maintenance, fall outside South African law.

The Centre certainly raises a valid point, as many Muslim women suffer from either not being able to obtain a divorce, the unjust loss of their children, or no way of supporting themselves after divorce. At the same time, the Centre discredits the sanctity of Muslim marriages unless they comply with secular law, as the urgency of their application makes is seem like all Muslim women are suffering in their marriages and no reference is made to upholding the spirit of Islamic Law in legislation.

The disregard of non-Muslim organizations for Islamic principles and values, coupled with the failure of Muslim organizations in recognizing the shortfalls of their interpretations of MPL (note: not the shortfalls of the Qur’an), is what is overshadowing the most important implication of the bill: marriage rights for Muslim women.

It should be noted that the esteemed Justice Minister, Enver Surty, a prominent member of the Muslim community, has maintained his decision to take the bill to Parliament after several meetings and discussions with religious groups, assuring them that the bill is in the best interests of the community. The Cape Times article pointed this out:

Justice Department spokesperson Zolile Nqayi said on Monday that Justice Minister Enver Surty and Presidency adviser Ebrahim Rasool had met with the Muslim Judicial Commission and United Ulama Council in Cape Town on Thursday “to discuss the recognition of Muslim marriages in South Africa”.

Under all this debate lies the question of whether Muslim women will really benefit from a bill that is not legislated for all Muslims, but only those who register to have it apply to them. The neediest of this legislation may fall short of their rights because the likelihood of both spouses agreeing to have such a bill apply to them, when the marriage is the kind that the law seeks to regulate in the first place, is unlikely.

Several mainstream newspapers across South Africa have been reporting on the matter. How have Muslim women been portrayed in these articles? Find out tomorrow.

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  • Phil

    If Bill of Rights is covered in the PLB, then it creates a problem like the one that exist in Malaysia, which one is superior when it comes to conflicts between the two.

    For example the bill says

    “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. ”

    Ok so if a prog sister want to marry a hindu(which according to some progressives is fine) then the PLB presumably can say no. But on an appeal to a secular court it shouldn’t be too hard to have it overturned on the ground of discrimination based on religion.

    (i concede that i am no legal expert on SA law), but just broadly this is what always comes up when people try to mix secular law and shariah.

  • Safiyyah

    but in this case, the Bill is optional… so if someone wants to marry outside the faith, they are free to do so…and a matter like that would not even be presented to the law in the first place because it applies to married couples…

    I think what can be successful in this Bill, is that it has tried to uphold the spirit of the Shariah… of course different “authorities” have differing interpretations of the Shariah…and this one has been for the most part drafted on the most flexible interpretation… for e.g the clause which states a man must seek consent from the 1st wife to marry again can actually be found in the Hanbali fiqh, contrary to what opposing factions are claiming… that it is against the shariah… again, depends where ur looking from…

  • Muffy

    This is very interesting. South Africa appears to have a much more sophisticated and (and least I would argue, based on I know) inclusive legal system. On one hand, they have a secular legal system that does not discriminate based on gender, religion, race, and even sexual orientation (gay marriage is legal, unlike in most countries). However, it still acknowledges that traditional cultural and religious practices aren’t going away anytime soon, and accommodates for people who wish to live under them. I believe that traditional African tribal marriages are already recognized (even polygamous ones), so recognizing some form of Sharia would hardly be revolutionary for the country.

    I think it’s interesting how Muslim feminists are some of the strongest supporters of such a bill, since they recognized the existence of women who aren’t married under secular law and the need to protect them. By contrast, many conservative Muslims are upset that “un-Islamic” ideas are present in such a bill. This is a huge contrast to discourse in Europe and North America, where any attempt to recognize Sharia is met with hostility from women’s rights advocates. In other words, while the Western feminist approach has been to ignore or even suppress Sharia, the South African approach appears to be to reform it.

  • Phil

    Safiyyah there are several scenarios possible. Having the PLB to be covered by the BoR, with it being mandatory, will cause problems. (as outlined above)

    If its voluntary it reduces its usefulness.(as you pointed out)

    That leaves the option of it being mandatory but not being covered by the bill of rights, or at the least an understanding as to the application of the BoR.

    As for Hanbali fiqh, oh sure that ones of the madhabs, but my question on that is, will you derive all the fiqh from the Hanbali school of thought, or pick and choose?

  • Sonia

    @ Phil

    I see your point, also in Malaysia there are issues of coercion when a Christian woman has married a Muslim man, under sharia law, and then the couple divorces and her children are still bound to sharia law even if she has custody. There are children who are raised non Muslim but are still bound to sharia law because of this. Lots of issues there.

    In a pluralistic society like South Africa a mandatory bill not covered by the bill of rights would create more problems than any of the other options. They would probably determine who was Muslim based on their ethnicity, like in Malaysia, and end up submitting a range of non Muslim people to the law against their will. There needs to be an opt in provision I think, and if the bill gets the balance whereby it respects sharia in a way that facilitates being a Muslim South African it will become the common practice very quickly

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  • Safiyyah

    I do not mean to say that we choose one madhab, but rather that “shariah” is not one fixed, limited set of laws, there are so many interpretations, even besides the four “sunni” ones.. my point is that, the shariah is fluid… constanty adapting to development and change in societies…
    it is indeed a dilemma with the mandatory/voluntary issue… I think what SA muslims really want is recognition…and like i quoted in the bill, the different groups feel they can “live” with the current draft… have a look at it and let me know what u think..also see part 2 of the series

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  • Shaheed Damon

    Can u inform me regarding if a person married in court and a woman did not contrabute to any amount of monies towards fixed properties do she have the right to claim 50% in the event of divorce. Even though according to shariah law she is not intitled to claim.

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