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

A Marriage made in Parliament: South Africa’s Muslim Personal Law Bill, Part 1 May 5, 2009

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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