Posts Tagged ‘MMB South Africa’

Wow! It has really been a while since I last featured a ‘Say What?’ column. Please accept my sincerest apologies dear readers. Let’s get to it then, shall we?

During the past few weeks, South African muslims have been overwhelmed with information regarding the Muslim Marriages Bill (MMB). Whether the information provided by various individuals, organisations, radio stations etc. has managed to create an in-depth understanding of the bill in the minds of Muslims living in South Africa remains to be proven as there still are many Muslims who are fence-sitting in the hope that some great mind will shed clarity, understanding and a way forward with respect to this hotly debated bill.

Those who are in favour of the bill have come out strongly in support of it as the bill is intended for recognition, enforcement, regulation etc. of Muslim Marriages. This may all sound extremely good in theory and in all fairness, why should we not have a bill which can finally regulate Muslim marriages especially those in which there are instances of spousal abuse, violence, neglect etc.?

I suppose that the aforementioned observations had led a select few to think up the ‘brilliant’ idea that is the Muslim Marriages Bill but which had quite unfortunately resulted in what is arguably the least-qualified project committee with regard to Islamic and Shar’i principles.

The main problem I have with the Muslim Marriages Bill (and this should be quite evident to anybody who has taken the time to actually read the bill) is the definition of a ‘Muslim’. It reads:

“Muslim” means a person who believes in the oneness of Allah and who believes in the
Holy Messenger Muhammad as the final prophet and who has faith in all the essentials of
Islam (Daruriyyat Al-Din)

The definition creates a problem for those who proclaim to be ‘Muslim’ but do not fit the definition of a Muslim contained in this Bill. For instance, if a Muslim man and a Muslim woman get married according to this Bill and the man or woman changes his/her beliefs from that as defined in the Bill but still considers himself/herself to be a Muslim, will the marriage be annulled? Is the Nikaah no longer valid?

The Bill cannot define who is/who is not a Muslim and it cannot judge who is/who is not a Muslim. If we allow such a bill to dictate who is and who is not a Muslim, the consequences will be disastrous. There are sects in Islam who claim to be the Ahlus Sunnah Wal Jama’ah but are in actual fact quite far from it. Who will judge which sect holds the correct view? Do the modernist Muslims hold the correct view? Do the Shia Muslim hold the correct views? Do those who believe that the creation is equal to the Creator hold the correct view? If these groups are not ‘Muslim’ enough for a ‘Muslim’ Marriages Bill, something must surely be amiss.

Those who enjoy singing the same song of ‘living in a secular state’ will understand the fact that it is unfair to declare a certain individual or a certain group of individuals ‘non-Muslim’ on the basis of them not being Muslim enough for a Bill which is meant to represent them. This Bill obviously demonstrates the immense favouritism towards the Sunni-Muslim groups present in South Africa. The fact that the Bill does not adequately cater for the other smaller groups of Muslims and their beliefs is evidence enough to prove that this Bill is quite selfish it its representation of the entire Muslim public of South Africa.

Therein lies the biggest problem for our project committee and the biggest problem for the MMB. It was quite unfortunate of them to have to have chosen sides in a very public matter such as that of the MMB resulting in the Bill heavily favouring (what seems to be) Hanafi Fiqh(jurisprudence). The Bill does not explicitly include the recognition of any of the 4 accepted and recognised schools of Fiqh (jurisprudence) which is in itself questionable since the nature of the issues to arise from marriages would almost always be Fiqhi (juristic) matters.

I tuned in to one of local Radio stations last week(Radio Islam) and had the fortunate experience of listening to the Secretary General of UUCSA (United Ulama Council South Africa) rambling on about why he thought it would be a good idea to ‘engage’ with government instead of outright rejection of the Bill. UUCSA represents seven (wow…SEVEN, I didn’t even know there were that many!) of the countries Ulama bodies. Six out of these seven throw their weight behind UUCSA’s decision of engagement whilst our friends over at Jamiat KZN have adopted the stance of total rejection of the Bill(well done!).

Yes, getting back to UUCSA’s secretary-general (or is it general secretary?), he was explaining the many cases of women’s rights being abused, the cases encountered, the amount encountered etc. and the need for such a Bill to be implemented (not necessarily the current drafted Bill) and the fact that the courts are already ruling in our Muslim marriages whether we subscribe to the Bill or not.

Firstly, no bill which will trample and destroy the Shari’ah will ever be enough to protect the rights of spouses in a marriage. Even if the bill is a hundred percent in full compliance with the Shari’ah, there is no guarantee that the Bill will remain in such a state for the simple reason that in doing so, there are groups of Muslims who will be discriminated against since they will not be classified as ‘Muslim’ under such a Bill; or there will be those who get married as Muslims under the MMB but change their beliefs down the line. These Muslims will not be satisfied with a Bill which does not recognise them or their beliefs because such a Bill would be downright judgmental, discriminatory and completely unfair to those who call themselves Muslim but do not harbour the same beliefs as a Sunni Muslim!

Secondly, if a Muslim woman is unhappy with the ruling of Shari’ah (or finds it unfair), goes to a secular court in search of a more favourable alternative and ultimately receives a favourable outcome totally contrary to Shari’ah, her action has not changed the Shari’ah. Her actions and that of the court have no bearing on the Shari’ah unless she is publicly announcing to the world that the Shari’ah should be changed to allow women more rights, to allow her to divorce her husband, to fine or imprison a man for practising upon a right given to him by Allah Ta’ala etc. Beginning to sound familiar? Ah yes, this is exactly what the MMB will do, isn’t it?

When a bill is called “Muslim Marriages Bill” and its intended purpose is for Muslims, we should be very careful what we put inside that Bill. Many people assume that if certain clauses of the Bill(those UUCSA has issues with) are to be rectified, the Bill will be fully compliant with the Shari’ah. There are clear clauses in the Bill which are in direct conflict with the Qur’aan. There are clear clauses in the Bill which, if accepted by Muslims will most likely take them out of the fold of Islam.’

At this stage, there is no room for partial acceptance or rejection of the Muslim Marriages Bill. There is no room for engagement with government. There is plenty of room to scrap the Bill altogether and start over taking all necessary elements into consideration and being very specific as to which group of Muslims the bill will target.

Polygamy, I suspect, has always and will always be a hotly debated topic especially when it comes to our dear friends and brothers and sisters from the modernist fraternity of Islam. Polygamy has not fared well with them unfortunately with many citing that it has no place in a modern context of the world we find ourselves in blah blah blah. I have had the most unfortunate run-ins with the gender desktop/women’s rights mujaahidaat to know that polygamy has no place in their perfect little worlds of re-interpretation of Qur’aanic texts, gender equality, ponies and flowers(okay that last bit had no bearing on the topic so I apologise, I couldn’t resist!).

You can therefore imagine my lack of surprise when I read that this marvelous Muslim Marriages Bill proposed by the project committee and approved by Cabinet and meant to recognise Muslim marriages in a secular state had the most absurd amount of and utterly ridiculous restrictions on polygamy. A man who wishes to marry a second wife may do so with the permission of the court. If he does without the permission of the courts, he will be ‘guilty of an offence and liable on conviction to a fine not exceeding R 20 000.00.”

How strange that even in Allah Ta’ala’s court a man who takes on a second wife or a third or a fourth wife is not guilty of any offence and already has Allah Ta’ala’s permission to do so. What many pro-MMB supporters have failed to realise is that by subjecting Islam and principles of Fiqh to a system which does not and cannot protect and safeguard this Divine system from Western modification or influence, you allow Islam to be changed and you allow the Shari’ah to be destroyed. The sanctity of Qur’aan is also destroyed together with the Imaan of many Muslims who will opt-in to such a Bill thinking that this Bill is in conformance to Shari’ah.

A man who wishes to take a second wife and does so is well within his rights as a Muslim and he is completely allowed to do this in accordance with the Shari’ah. Those who have a problem with such a right may take it up with Allah Ta’ala. Any women’s rights groups/gender activists who feel that multiple wives is somehow unfair, deeply misogynistic, sexist etc. I suggest that you too take it up with your Creator or alternatively you could think up your own Bill devoid of any association to Islam or Muslims.

As for those 6 out of 7 organisations who have chosen to hide under the umbrella of UUCSA, know this and know this well: Your duties are first and foremost to Islam and the Muslims of South Africa. Your allegiances do not lie with Muslim feminists, with the government of South Africa, Cabinet, the Saudi embassy, any embassy, your own whims and fancies etc. Your allegiances should lie with Allah Ta’ala who has given Muslims enough rights and ample responsibilities. You and your supporters should not attempt to pull the wool over the eyes of the Muslim public in South Africa in an attempt to curry favour through blind following and undying support. Please remember that your aim/s should never be the success of your organisation or the fact that your organisation exists in the first place. The aim should be the preservation of Islam and the Shari’ah.

If you are not doing this, if you are not concerned with such an aim then the Muslims in South Africa would be better off without your organisation!

The Say What? column featured on Muslimality is meant to inspire, teach, engage debate or simply make you laugh. This column revolves around a variety of issues relating to Muslims in South Africa and Muslims around the world.

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Religion and the State, the Case Against the Muslim Personal
Law Bill

Over the past decade, an intense debate has raged within the Muslim community on the
question of legislating Muslim Personal Law (MPL). At its core, the debate implicates can
one reach the “correct” interpretation of religion and who has the legitimacy to render that
interpretation. The rancor has occurred before any law has been passed or any decision
rendered by any court as to what MPL means. The government has now put forward a Bill
for comment.

Our constitution guarantees freedom of religion. It further permits the state to recognise
religious marriages. Under apartheid, Muslims did not enjoy the same degree of legal
acceptance, which resulted in great hardship to Muslims married under Islamic law. Any
attempt to redress this inequity is laudable. There is however a great difference between
redressing this inequity by recognizing Muslim marriages, versus what the MPL Bill
represents namely the state legislating on matters of religious doctrine, with the penalty of
sanctions for departure from the Bill.

The European Court of Human Rights in a number of cases has affirmed that state officials
have a duty to maintain strict neutrality and impartiality vis-à-vis religious communities. For
example, in the Moldova case, it ruled that where there is a difference in belief, the role of
the state is not to choose one belief over another. The state cannot assess the legitimacy
of religious beliefs or the ways in which those beliefs are expressed. The court further ruled
that in democratic societies, state measures favoring particular leadership, beliefs, specific
organs of the divided religious community, or seeking to compel the community, or a part of
the community against its will to fall under a single belief, constitutes an infringement of the
freedom of religion even within the same denomination.

Our Constitutional Court has adopted the above position. In Minister of Home Affairs and
Another v Fourie, Sachs J held that “between and within religions there are vastly different
and at times highly disputed views” and “Judges would be placed in an intolerable situation
if they were called upon to construe religious texts and take sides on issues which have
caused deep schisms within religious bodies.”

In medieval times, serious penalties were imposed upon the clergy if they engaged in
any practice, or subscribed to any Canon in opposition to the Kings assent. Catholics
persecuted Protestants, Protestants persecuted Catholics, and within the sects, one sect
persecuted another sect. Each group tried to impose loyalty to whatever religious group
happened to be on top and in league with the government of the particular time and place.
Those who did not show loyalty were fined, cast in jail, tortured, and killed. A Muslim

can opt out of the Bill. On the other hand, the prospect of penalties for departure from
the provisions of the Bill loom ominously which push towards adherence to the Bill. For
example, the Bill mandates under penalty of sanctions that “Any person who facilitates
the conclusion of a Muslim marriage, irrespective of whether that person is a marriage
officer or not, must inform the prospective spouses that they have a choice whether or not
to be bound by the provisions of this Act.” This means, a Muslim cleric who performs a
marriage but believes the Bill is un-Islamic and fails to adhere to these and other provisions
could be penalised for practising their religion differently from the way the Bill prescribes.
Any person that prevents another from exercising rights under the Bill shall be guilty of
an offence and liable to a fine or imprisonment. A mother, who dissuades her son from
marrying under the Bill because she thinks it is un-Islamic, could face the prospect of one
year in jail.

The Bill takes us back to the medieval period of compulsion and coercion with the state
taking sides on religious doctrine. Under the definition and other sections of the Bill, the
state has chosen definitions of various religious terms on which religious scholars disagree.
If a Muslim practices his/her religion in a way he/she honestly feels obliged to practice it,
and if this practice departs from the provisions and definitions in the Bill, this individual is
treated differently from the one that accepts the state chosen definition of religion.

The English philosopher John Locke wrote in the 16th century that religion pertains to the
inward preservation of the mind and the soul, which couldn’t be prescribed by a judge or a
ruler. These ideas influenced the writings of Thomas Jefferson when the US Constitution
was drawn up giving rise to a core idea in western constitutionalism namely, the idea of
a secular state. Under this understanding, the US Supreme Court in a litany of cases has
declared that the government may not place its prestige, authority, and resources behind a
single religious belief. That conclusion was recognized by Justice Ngcobo (now our Chief
Justice) in Prince I where he stated the courts (and by extension the state) should not be
engaged in deciding what is part of a religion, or what is central to a religion.

The German Constitutional Court has repeatedly affirmed that religious organizations have
the right to organize and administer themselves in an independent manner and in terms off
their own understanding of their religion. To rule otherwise would mean that secular laws
would undermine the constitutionally guaranteed right of self-determination of religious
organizations. The German Constitutional Court has also proclaimed that churches have
the power to make binding rules with regard to the credibility of the church and of its
proclamation of what the Gospel requires, what are the essential principles of dogma and
ethics, and what is to be regarded as a violation.

Those that drew up the MPL Bill ignored this consensus in mainstream democracies.
They disregarded the unqualified achievement of the twentieth century that government
cannot dictate religious doctrines. If the Bill becomes law and per chance it is found to
be constitutional, the judges are unlikely to be the most revered of deities. Religious
doctrines brim with complexities, uncertainties and very different disciplining rules and
procedures, which their interpretive community follows. Judges usually do not have insight
into religions and are not schooled in the books such as Genesis, Leviticus or the Islamic
works of Bukhari or Abu Dawud. In interpreting any statute, our Constitutional Court has
told us repeatedly that all laws must be interpreted against the ethos and values of the
Constitution including equality and human dignity. Developing religious law against the

ethos and values of the Constitution is unlikely to resonate well among the religious group
affected and is bound to inflame sectarian differences as exemplified from the experiences
in India.

The rights under Islamic law given to different genders, for example with respect to
(divorce) must be evaluated against the equality and human dignity provisions in our
Bill of Rights. On its face, if a law gives different rights to males and females, this would
constitute unfair discrimination under the Constitution, which could be counteracted only
by reliance on the limitation clause of the Constitution — a burden that has so far proved
difficult to overcome.

There are failings in Muslim marriages, which need to be addressed. There is a perception
that men, for the benefit of men interpret the religion. Women as a group have been short
changed. Constitutionally, the state has the power to make laws of general application
to advance important social interests, which prevent the oppression of any group in
society. Based on concepts of equality (and not interpretation of Jewish law), a divided
United Kingdom Supreme Court (in a highly controversial decision) ruled Jewish law of
matrilineality violates the country’s anti-discrimination laws. The perception of unequal
treatment of women through the denial of a divorce decree “get” and “talaq” occurs in
Jewish and Muslim societies. Recently, the Canadian Supreme Court sought to address
this problem through contract law in the Bruker case, rather than through interpretation of
Jewish scriptures, which the court recognised as completely inappropriate. We need to be
clear. The MPL Bill is not a neutral law of general application to advance general societal
interests. Nor are we talking about contract law to better protect vulnerable women about
their rights. Instead, the Bill prescribes religious conduct and targets Muslims specifically
under penalty of sanctions.

The notion that through “clever” lawyering, and through a mysterious consensus of certain
lawyers and scholars zeitgeist, one can deduce a preferred interpretation of religious law to
socially engineer a group to conform to the twenty first century fundamentally misconstrues
the essence of freedom of religion. Validation of the Bill does not come from counting
heads as to whether a majority supports the Bill. Religion involves the most personal and
sensitive rights on which the state cannot take sides. The sentiments expressed by Sachs
J for a unanimous Court in the Fourie case where he stated it is one thing “to acknowledge
the important role that religion plays in our public life. It is quite another to use religious
doctrine as a source for interpreting the Constitution. It would be out of order to employ
the religious sentiments of some as a guide to the constitutional rights of others. Between
and within religions there are vastly different and at times highly disputed views on how
to respond…” Hopefully, our lawmakers will be mindful of the words of our Constitutional
Court and not embark on an unprecedented project, not found in the main stream of democratic practice.

Source: Professor Ziyad Motala, Professor of Law Howard University, U.S.A.