South Africa’s Ulema and the Muslim Marriages Bill
Not only comic relief
By: Farwin Fousdeen
“There are few problems with the draft bill, but they are not so great that you [should] scrap it. It’s farcical to think that we can scrap it,” reasoned Khadija Patel, South African journalist and blogger, speaking to “Islam Online”. Earlier this year, the debate over the Muslim Marriages Bill proposed over a decade ago, was reignited when the Ministry of Justice and Constitutional Development opened it for public comment. Lying at the crux of the bill is the legal recognition (and the subsequent recourse to the judicial system) it accords to a Muslim marriage. As the system stands now, a marriage conducted according to Muslim customary rites – although practiced widely in South Africa by virtue of Muslims being the largest religious minority – is neither legally recognized, nor legally enforceable. This non-recognition is attributed to the potentially polygamous nature of Muslim marriages, which according to lawmakers contradicted the then apartheid state’s definition of marriage, as an essentially monogamous union.
Until the Supreme Court of Appeal decision in Amod vs. Multilateral Motor Vehicle Accident Fund (1999), South African courts refused to recognize a Muslim marriage with some judgments going as far as describing it as “recognized concubinage” (Brown vs. Fritz Brown’s Executors and Others). “The decision in Amod recognized a monogamous Islamic marriage for the purposes of support only… The case itself focuses on the urgent need for a comprehensive recognition of aspects of Muslim Personal Law. In the result, the current position is that the legislature has still not redressed the gross inequities and hardships arising from the non-recognition of Islamic marriages,” noted a Discussion Paper published by the South African Law Commission (“Islamic Marriages and Related Issues”). The proposed law – currently being debated by vocal Muslims and the country’s Islamic leadership – is a response to this lacuna in the legal system.
The draft law which has undergone an “immense amount of consultation” has faced “marked antagonism towards [it] in some sectors,” said Patel whose discontent is largely leveled at a “section of the Ulema (scholars) who are absolutely against it.” This “section of the Ulema,” as she later pointed out, is the likes of Jamiatul Ulama Kwazulu Natal (JUKN), one of the seven members who make up the United Ulema Council of South Africa (UUCSA), an umbrella organization which represents major Muslim theological formations in South Africa. The other members of UUCSA on the other hand have adopted the view that “outright rejection of the draft bill is a shortsighted, impulsive response which will only result in the bill subsequently being passed with all its flaws and imperfections.”
Asking why? Not what?
There’s no incoherence in JUKN’s position – the organization is opposed, not to the provisions of the bill, but to its very existence. In an interview with Radio Islam in February, Maulana Imraan Vawda, of the JUKN, laid down the basis for this unmitigated rejection of engagement with the Ministry of Justice and Constitutional Development. Whilst urging listeners to look at “the bigger picture”, he affirmed that engagement with stakeholders would inevitably mean subservience to the “value and ethos of the constitution”, and added that the “religion” of the constitution is “secular humanism” which places “the human being at the centre of everything” and “Allah (S.W.T) is totally out of the picture.” A belief he said, was “the anti-thesis of Islam” which runs contrary to what Muslims signify when they “put [their] heads on the ground daily”.
Stemming from this philosophy is the contention that the bill essentially alters the law of God. A poster published by the JUKN incites that if the bill is enacted “then the shariah will undoubtedly be altered under the banner of Islam, Fiqh (jurisprudence) issues will be subject to the culture and values of the secular [godless] constitution and the shariah will be subsumed, contaminated, and changed, because the constitution is the supreme law of the land.” Similar sentiments are found in the submissions made by the Muslim Lawyers Association (MLA) to the Ministry of Justice and Constitutional Development. “The MLA feels that you cannot have a place for shariah in the secular legal system” said Patel. The Association has vocalized that it’s “fundamentally opposed to the Bill, which in form appears to give effect to Islamic Law, but in substance in fact alters it through impermissible State regulation” and declares in its Submission that the Association has “deep-seated difficulty with subjecting the Quran to Constitutional analysis on the basis that the Constitution is regarded by secular courts as superior to religious texts. This is an impossible compromise that Muslims would be making.” MLA ominously augurs that “State regulation of Fiqh (Islamic Jurisprudence) may cause divisions and conflicts within the community and worse still, between Muslims and the State.”
A “kufr” bill?
JUKN is not alone in its rejection. “One section of the Ulema have used the word kufr (disbelief) to describe the bill” said Patel, referring to the Majlisul Ulama of South Africa. Majlisul Ulama has been ruthless in its condemnation of the bill and its proponents. In an April 20, article titled “Wife bashing is zulm, shariah bashing is kufr,” a writer for the Majlisul Ulama argues, “MMB does not deal with the hardships which women suffer. MMB does not offer any solution to the problem. MMB does not offer even the relief which current secular laws provide for assisting women who may be brutalized by their husbands. There is not a single clause in the kufr bill which can assist women who are subjected to oppression by their husbands.” Majlisul Ulama is unrestrained in its castigation of the proponents and supporters of the bill, accusing them of “ulterior motives and dark monetary agenda”. Earlier this year, Majlis Ulama called on its adherents to join the ‘No to MMB’ campaign carried out by the JUKN and another dissenting Ulama body, Jamiatul Ulama Gauteng.
In her article in The Daily Maverick, Patel notes that the Majlis is “the bogeyman of the Muslim community in South Africa” which has “bullied community media outlets beleived to be advocating for the bill and even bizarrely pontificated that the bill is essentially unconstitutional for implicitly discriminating against Muslims. The Majlis generally provide more comic relief than spiritual guidance to Muslim communities in South Africa.”
“They’ve mobilized discontent in their regions against the bill” said Patel, signifying the reliance of the masses on the Ulema and the likes of MLA to interpret the bill to them. She stressed, “We don’t approve the reliance on the Ulema to interpret the world to us” and added that events surrounding the bill “emphasize the need to have scholars who are in touch with the community and who discharge their duties honorably”. In an article on the Daily Maverick, Patel berated earlier this year, “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….For a segment of the population that accounts for less than two percent of South Africans there are at least four different halaal certification bodies stamping their approval on everything from chips to toothpicks.”
The contest for power and the ensuing disunity, she says, is the real problem since “the existential crisis that face Muslims everywhere else doesn’t apply to South African Muslims” who are “very integrated in the South African society and [whose] place within society is not questioned.” As Patel clearly points out in her article in the Daily maverick, “…it’s long been documented that these deep-seated differences [among the scholars] have inhibited the ability of Muslims to come together to advance the Muslim cause in a way that incorporates Islam into the diversity of experience of South African life.”
These “deep seated differences” are compounded by the apathy of the average South African Muslim. “Generally South African Muslims are apathetic, not only against issues of Islam, but on politics as well” relayed Patel; a contention that is true of much of the Muslim world. This apathy is a result of Muslims representing a “relatively wealthy segment of South African society,” she reasoned, a vast majority of which is “only worried about paying the mortgage, sending children to school and having time off during the weekend.”