The MPL Battle in SA: Gender Equality vs Shariah

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The MPL Battle in SAGender Equality vs
Shariah

• naeem jeenahnaeem_at_shams.za.org

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Under apartheid

• Muslim marriages potentially polygamous
• No recognition
• Children illegitimate
• Hence, no protection for Muslim women
• Divorce marital property
• Death inheritance
• Custody, maintenance
• 1985 proposal for recognition of MPL as means
  of co-option. Thwarted by Muslim anti-apartheid
  activists

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Muslim Personal Law Board

• Prompted by ANC 93, launched Aug 94
• To deal with marriage, divorce, inheritance
• Mixture of conservatives and progressives
• Six ulama organisations organised in UUCSA
• Muslim Youth Movement and Call of Islam
• Acrimonious debates (on off the Board)
• MPLB unilaterally shut down by UUCSA in 1995

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Constitution vs reality

• Progressive constitution
• Despite 3rd generation rights homelessness,
  poverty, water cut-offs, etc
• Despite equality clause African customary law
  and polygyny
• Despite equality clause gay marriages not yet
  legal
• Political considerations, eg, Radio Islam fiasco

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MPL and the Constitution

• Interim constitution (1994), Section 14 of Bill
  of Rights (on Freedom of Religion)
• Nothing in this Chapter shall preclude
  legislation recognizing(a) a system of personal
  and family law adhered to by persons professing a
  particular religion and(b) the validity of
  marriages concluded under a system of religious
  law subject to specified procedures.

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MPL Constitution UUCSA

• UUCSA wanted exclusion from BoR for MPL
• Demanded addition to Section 14
• To avoid a conflict between Muslim Personal Law
  and other fundamental rights, it is recommended
  that the freedom of religion clause in the
  Bill of Rights be qualified to give it
  overriding effect.
• Demanded MPLB members sign declaration
  recognising MPL as supreme over any other law

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MPL, ConstitutionProgressives

• Muslims must be subjected to Bill of Rights
• Felt ownership over Constitution because of role
  in the anti-apartheid struggle
• Bosch, Moosa Review of MPL

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MPL, ConstitutionProgressives

• Shamima Shaikh MPL 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.

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MPL and the Constitution

• Constitution of the Republic of South Africa
  (1996), Section 15 of BoR
• Freedom of religion, belief and opinion(3) (a)
  This section does not prevent legislation
  recognising
• marriages concluded under any tradition or a
  system of religious, personal or family law or
• systems of personal and family law under any
  tradition or adhered to by persons professing a
  particular religion.
• (b) Recognition in terms of paragraph (a) must be
  consistent with this section and the other
  provisions of the Constitution.

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Campaign for a Just MPL

• Campaign for Just MuslimPersonal Law
  launchedby MYM Gender Desk 1994
• Continuation of Gender Jihad
• After MPLB decided to fightin courts
• Rylands vs. Edross
• Education campaign espfor Muslim women
• Debate on minimalism vs.full codification

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Main parties to the debate

• United Ulama Council of South Africa
• Muslim Youth Movement Gender Desk
• Call of Islam (early stages)
• Islamic Unity Convention / Qibla
• NB No womens organisations played prominent
  role in initial stages

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Main issues of Dispute-Initial
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SALC Project Team

• After collapse of MPLB, govt decided to set up
  South African Law Commission project team
• Calls for nominations 1996
• Team appointed 1999 before elections
• MYM GD nominations non-existent
• Team mainly ulama
• Issue paper, Discussion Paper, two Draft Bills
  (marriage and divorce only, not inheritance)
• Major submissions ulama and associated orgs,
  MYM GD, Shura Yabafazi, CGE, WLC, individuals

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Some dispute issues in Draft Bill

• Supremacy of the constitution and the courts
• to madhhab or not to madhhab?
• gender in/equality
• polygyny
• talaq
• marital property regime
• marriage contract
• age of consent
• custody and maintenance

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The Dissenters

• Islamic Unity Convention / Qibla
• Majlis
• Others sometimes in and sometimes out
• Jamiatul Ulama KZN After wide consultation with
  members of the legal fraternity and
  constitutional experts it was established that
  there is no guarantee that the Shariah will be
  preserved in its pure and pristine form by means
  of the MPL.

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Future?

• Muslim Marriages legislation will probably be
  passed in 2005
• Islamic Feminists reserve right to lobby
• Education of especially Muslim women
• Provides long-term agenda for Islamic feminists

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• I often wonder whether we do not rest our hopes
  too much upon constitutions, upon laws and upon
  courts. These are false hopes believe me, these
  are false hopes. Liberty lies in the hearts of
  men and women when it dies there, no
  constitution, no law, no court can save it no
  constitution, no law, no court can even do much
  to help it. J.D. van der Vyver,
  Constitutional Options for Post-Apartheid South
  Africa, Emory Law Journal, 1991, 772