The Fight over South Africa’s Muslim Marriage Bill Rages on

Recently, the South African Justice Ministry opened the latest draft of the Muslim Marriages Bill (MMB) up for public comment and called for submissions on the bill’s contents.

Along with this came the media furor over the Muslim community’s reaction to the idea of the government recognizing Muslim marriages as Muslim marriages and providing legislation for Muslims according to both constitutional gender equality and the dynamism of fiqh. The point of this post is not to assess the Shar’iah compliance of the bill, but to highlight the voices in the media that have spoken out against blatant dismissal of the bill and called for critical engagement, especially since most of the issues deal with gender equality and women’s rights within marriages.

Why, you may be wondering, would some Muslims be averse to a bill which would, if passed, help against the abuse and violation of women’s rights in marriages, with measures such the setting of a minimum marriage age to the requirement of the court’s permission to enter into a polygamous union?

The answer is that some Muslim organizations have been using emotional incitement tactics to stir up the ignorant amongst the Muslim community with campaigns such as “MMB is anti-Shariah” or “Don’t support the Kufr MMB.”

Headlines such as “While women’s-empowerment groups welcome fact that bill will give women access to courts, religious bodies say it will contravene Shar’iah law” loomed large, setting the ideas of women’s empowerment and religion at odds against each other. Other outspoken supporters of the bill, such as Lawyer Waheeda Ameen, Professor Abdul Kader Tayob, and Munira Osman-Hyder, executive member of the Association of Muslim Accountants & Lawyers and secretary of the Coalition of Muslim Women, were prominent in raising the issue of the bill as a tool for gender justice.

Osman-Hyder, in an opinion article, writes

The MMB sets out a legislative framework for the recognition and regulation of Muslim marriages. The said legislation is not intended to be forced upon the community as it gives parties the option to choose to be governed by such a marital regime. Further, it regulates polygyny and the registration of a talaq, all with the purpose of establishing equity between the spouses and to bring relief to the hardships faced.

Amien, one of the key proponents of the Bill, herself a Lawyer and University professor was interviewed in several print, television and radio agencies. Her stance was clear:

Since Muslim marriages do not have legal recognition, aggrieved parties such as vulnerable women cannot seek redress in the secular courts. Enactment of the bill is, therefore, essential to provide much needed protection for women. Although the bill does not afford absolute gender equality between women and men, it will allow women to access rights they have previously been denied. If the bill is not enacted, current injustices against women will continue to be perpetrated.

She argued that opponents of the bill feared the erosion of patriarchal power.

The main reason that this Bill is being proposed is that many men do not honour their obligations under Sharia law…They fail to maintain their wives and children, they abuse their wives, they talaq (divorce) their wives arbitrarily and without notice and they enter into polygamous marriages without being able to treat their wives equally. [sic]

Abdulkader Tayob, a professor at the University of Cape Town, points out that the religious rhetoric used to oppose the bill, voiced mainly by men, has obscured the main problem of non-recognition and the victims of this non-recognition–Muslim women:

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.

Indeed and not surprisingly, commentators against the bill in the media were only men, such as Yousha Tayob, spokesperson for the Muslim Lawyers Association, who vociferously stated that

We don’t want Muslim marriages regulated and determined by non-Muslim people. [They] can never have an understanding of Sharia law. It’s not that we don’t recognise that there are problems, but this Bill will not cure them. [sic]

One of the most nuanced articles which came out of this frenzy was by up-and-coming journalist Khadija Patel, entitled, “Muslim Marriage Bill comes to SA, not a moment too soon,” where she deals with the issue of Muslim identity and integration in South Africa. She notes that

The bill has become yet another trope upon which religious leaders contest power. Women’s rights are a mere circumstance as South Africa’s divisive Muslim theologians fight a tug-of-war over the hearts and minds of the country’s Muslim population.

The current draft bill is open for comment until the end of May. Whichever side of the fence people are standing on, there is still a long road ahead. It remains to be seen if Muslims who oppose anything related to gender equality or Muslims who participate and engage in this exercise of democracy will dominate the media discourse surrounding the MMB. At the core however, are the many Muslim women whose rights are violated within marriages, with no recourse to justice. Whether legislation is passed or not, this problem is one that needs serious redress.

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  • rooksana

    theres no need to have a separate muslim marriage bill. all citizens of the country must be treatd equally ,as is promulgated by the generalconstitution of the country. Islamic law is basically patriarchal and leans towards the male .This puts us at risk of our women are leaving the fold of Islam!

  • Glenda Lenderman

    As Salaam O Alaikum Brothers and Sisters! The reason why there is a need for a separate Muslim Marriage Bill is because many husbands and fathers do not honor their financial obligations under the Sharia Law. These husbands and fathers need accountability. The wives and mothers have no recourse with the courts when they are second-fourth wives when they are not provided for by their husbands and the father of their children. These families need a legal court to be accountable to. This is the bottom line, because of the men’s failure to maintain their Islamic duties to their families, they need to be held accountable to the court. Please, hold these men accountable for their actions.

  • Niaz

    This law makes and doesnt make sense. If it is a voluntary law that men and women can opt in and out, most men will not opt in, so the law doesnt actually help the woman. At the same time, codyfing Islamic Law into the general Non-Islamic Secular Law of South Africa cannot be acceptable as well.

    The best way is to follow the Indian Way. A Muslim Civil Law but one which is supervised by All India Muslim Personal Law Board which is recognized by Indian Government and Courts.

    Such an idea will serve all sides
    1. Conservatives who say Muslims should make and judge are happy.
    2. Women’s rights in Islam which if applied honestly gives woman far superior rights than any secular or christian laws.

  • Dina

    “Women’s rights in Islam which if applied honestly gives woman far superior rights than any secular or christian laws.”

    Christian laws – maybe.
    You are wrong in saying secular laws give women less rights than religious Muslim laws. Divorce laws favour the husband in mainstream Sunni teachings. No secular law institutes different divorce rules for men and women. I have never heard one reasonable argument for men’s facilitated divorce other than favoring men/rendering men freer than women.
    Alimony in Islamic religious laws is very limited. Secular laws oblige the husband to pay for the ex-wife in case she devoted her entire life to childcare and is not able to find employment in the labour market. According to Islamic laws, wives can keep the mahr, and at best can demand her share up to the moment of divorce. She has no right to potential decades of alimony when she cannot sustain herself after childcare (non) career choices. Secular laws thus support the wife who has neglected her employment potential for the sake of the family.
    Child custody – secular laws officially treat the parents equally in their chances to obtain sole custory. In reality, often wives are favored, which is not unreasonable when you look at the numbers of mothers who are stay-at home Moms or part-time workers, hence most mothers shoulder most of the childcare responsibilities, hence should have sole custody after a divorce. Religious Islamic laws unjustly favor the father, leading to the bizarre situation where the father’s female kin will bring up a child, not the biological mother.

  • Dina

    “The reason why there is a need for a separate Muslim Marriage Bill is because many husbands and fathers do not honor their financial obligations under the Sharia Law. These husbands and fathers need accountability. ”

    i agree that these women should be taken care of. yet most states will consider polygyny not in line with their values of the Family Code. this holds for most non muslim countries, but also for muslim nations like turkey. by allowing the wives recourse to muslim courts, the practice is prolonged when in reality it leads to much injustice for wives and children. the practice is best stopped by the application of same laws to everybody. in secular family law, every biological father must provide for his biological or accepted (adopted) children. that should be enough – yes, women married not by state law, but by a nikah only are in a precarious situation. the solution is not to make their status less precarious, but to inform them on the precarity and let the unfavorable situation serve as a deterrent. ultimately, it is fair to have not only enjoy the husband exclusivity to the wife in emotional and physical matters, but to grant the same right to the wife.
    it is a matter of fairness in marriage, nothing more nothing less. polygyny is unjust and unnecessary in times where there are enough men available for marriage in the muslim community.