The regulation of Muslim marriage in the South African legal framework currently under way is not unique. We should consider the matter in the light of developments in other parts of the world, and particularly in other parts of Africa.
The role of the state and religious authorities have come under intense scrutiny in South African media. The South African constitution very clearly enables the recognition of marriages conducted under diverse cultural traditions, which the state is obliged to facilitate in one way or another. In this particular case, Muslim religious authorities are divided between those who see the new developments as state encroachment on religion matters, and others who see the potential for a constructive partnership.
By examining similar developments in Egypt (2001), Morocco (2005) and Kenya (1998-2010), a fundamental trend seems to emerge. Since the 1990s, more inclusive approaches to politics and law have affected Muslim societies in many parts of the world. In matters of Muslim personal law, women's demand for rights is main driver of the demand for change and which has often been obscured in an ideological conflict between state and religion.
Egypt passed the so-called Khula law in 2000, which basically gave women the right to apply for a no-fault divorce without the consent of her husband. The law was a development on the 1920s when judges were obliged to look beyond one school of Islamic jurisprudence. This 2000 law took the matter one step further by permitting separation (khula) without a husband's permission. Interestingly, the main justification came from an ancient hadith in which the Prophet granted a woman separation from her husband on her request. The 2000 bill was opposed by Islamists for four years before it was finally ratified.
In 2004, Morrocco passed a Reformed Family Code after years of intense public debate. Human rights activists demanded more rights for women in Moroccan marriages, whilst opponents saw the 1956 Family Code as the centre-piece of national tradition. The latter was produced after independence from French colonial rule. At the end of a lengthy national discussion, the Moroccan King Muhammad VI eventually passed the code in 2004 .
A similar public demand for reforms in Kadhis courts was initiated in Kenya as part of a country-wide constitutional review process. Muslims in particular demanded that these Muslim courts set up by the British during the colonial period should be made more accessible, subject to review and willing to deal with new developments such as AIDS. This popular demand was diverted by some Christian groups, arguing that Kadhis courts should not be part of a national secular constitution. Eventually, a new constitution was accepted in a referendum in 2010, albeit without any substantial reforms in the Kadhis courts.
The South Africa situation, as in the other cases cited here, has brought into focus the expected tension between state and religious authorities. In Egypt, the autocratic government of Hosni Mubarak had since 1980 made numerous concessions to the Islamic religious establishment in return for their political support. In Morocco, the king deftly balanced and played off human rights activists and traditionalists. In Kenya, on the other hand, Muslims and Christians saw the Kadhis courts as symbols for their competing political positions.
In each case, ideological groups took centre stage in the public debate over a matter that affected communities and families in more fundamental ways. In each case, the source of pressure to adopt new laws to regulate Muslim marriages was obscured. Individual research has shown in these countries that social and economic conditions had changed the structure of marriages over the last few decades.
Relations within the families were drastically changing, driven mainly by dire economic conditions. Like others, Muslim marriages were increasingly supported by single-parents or double incomes, pressurised by poverty, unemployment and extensive migration patterns.
Laws that assumed the male as the sole or main breadwinner were no longer reflecting these changes. Laws that had been formulated at independence or in the 1920s (in Egypt) could not longer address the challenges of globalization, low employment and a discourse of equal rights.
Muslim women, feeling the brunt of these pressures, were the catalysts for change. They took their problems to courts, mediation offices and informal adjudication centres run by Islamic legal experts. Driven by a desire for justice, they expected local Islamic institutions to respond to their predicaments. They did not start with the assumption that religion was an obstacle to their predicament. Rather, their conviction was and continues to be a hope and desire for justice.
In public debate, the conflict between different ideological groups tends to obscure this hope. Driven by the familiar antagonism between religion and state, and reformists and traditionalists, actual conditions in which families find themselves are forgotten.
Ideological conflicts cannot explain the similarity of these wide-ranging demands in very different countries. A monarchy, autocratic and authoritarian regimes, and an emerging democracy are too different from each other to align modernists and traditionalists, conservatives and liberals, against other.
It is more fruitful to look further down the social system to see who is pushing change and in which direction. It is, I believe, women who are expected to juggle the impossible between new social conditions, and social mores and laws that do not deliver justice.
The role of the state and religious authorities have come under intense scrutiny in South African media. The South African constitution very clearly enables the recognition of marriages conducted under diverse cultural traditions, which the state is obliged to facilitate in one way or another. In this particular case, Muslim religious authorities are divided between those who see the new developments as state encroachment on religion matters, and others who see the potential for a constructive partnership.
By examining similar developments in Egypt (2001), Morocco (2005) and Kenya (1998-2010), a fundamental trend seems to emerge. Since the 1990s, more inclusive approaches to politics and law have affected Muslim societies in many parts of the world. In matters of Muslim personal law, women's demand for rights is main driver of the demand for change and which has often been obscured in an ideological conflict between state and religion.
Egypt passed the so-called Khula law in 2000, which basically gave women the right to apply for a no-fault divorce without the consent of her husband. The law was a development on the 1920s when judges were obliged to look beyond one school of Islamic jurisprudence. This 2000 law took the matter one step further by permitting separation (khula) without a husband's permission. Interestingly, the main justification came from an ancient hadith in which the Prophet granted a woman separation from her husband on her request. The 2000 bill was opposed by Islamists for four years before it was finally ratified.
In 2004, Morrocco passed a Reformed Family Code after years of intense public debate. Human rights activists demanded more rights for women in Moroccan marriages, whilst opponents saw the 1956 Family Code as the centre-piece of national tradition. The latter was produced after independence from French colonial rule. At the end of a lengthy national discussion, the Moroccan King Muhammad VI eventually passed the code in 2004 .
A similar public demand for reforms in Kadhis courts was initiated in Kenya as part of a country-wide constitutional review process. Muslims in particular demanded that these Muslim courts set up by the British during the colonial period should be made more accessible, subject to review and willing to deal with new developments such as AIDS. This popular demand was diverted by some Christian groups, arguing that Kadhis courts should not be part of a national secular constitution. Eventually, a new constitution was accepted in a referendum in 2010, albeit without any substantial reforms in the Kadhis courts.
The South Africa situation, as in the other cases cited here, has brought into focus the expected tension between state and religious authorities. In Egypt, the autocratic government of Hosni Mubarak had since 1980 made numerous concessions to the Islamic religious establishment in return for their political support. In Morocco, the king deftly balanced and played off human rights activists and traditionalists. In Kenya, on the other hand, Muslims and Christians saw the Kadhis courts as symbols for their competing political positions.
In each case, ideological groups took centre stage in the public debate over a matter that affected communities and families in more fundamental ways. In each case, the source of pressure to adopt new laws to regulate Muslim marriages was obscured. Individual research has shown in these countries that social and economic conditions had changed the structure of marriages over the last few decades.
Relations within the families were drastically changing, driven mainly by dire economic conditions. Like others, Muslim marriages were increasingly supported by single-parents or double incomes, pressurised by poverty, unemployment and extensive migration patterns.
Laws that assumed the male as the sole or main breadwinner were no longer reflecting these changes. Laws that had been formulated at independence or in the 1920s (in Egypt) could not longer address the challenges of globalization, low employment and a discourse of equal rights.
Muslim women, feeling the brunt of these pressures, were the catalysts for change. They took their problems to courts, mediation offices and informal adjudication centres run by Islamic legal experts. Driven by a desire for justice, they expected local Islamic institutions to respond to their predicaments. They did not start with the assumption that religion was an obstacle to their predicament. Rather, their conviction was and continues to be a hope and desire for justice.
In public debate, the conflict between different ideological groups tends to obscure this hope. Driven by the familiar antagonism between religion and state, and reformists and traditionalists, actual conditions in which families find themselves are forgotten.
Ideological conflicts cannot explain the similarity of these wide-ranging demands in very different countries. A monarchy, autocratic and authoritarian regimes, and an emerging democracy are too different from each other to align modernists and traditionalists, conservatives and liberals, against other.
It is more fruitful to look further down the social system to see who is pushing change and in which direction. It is, I believe, women who are expected to juggle the impossible between new social conditions, and social mores and laws that do not deliver justice.
