Overcoming the conflict between the right to freedom of religion and women's rights to equality: A South African case study of Muslim marriages

Human Rights Quarterly

Volumn 28, Issue 3, 2006, Pages 729-754

  Amien, Waheeda ^a,b  

^a UNIVERSITY OF CAPE TOWN   (South Africa)

^b GHENT UNIVERSITY   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; REFORM PROCESS; RELIGION; WOMENS STATUS;

AFRICA; SOUTH AFRICA; SOUTHERN AFRICA; SUB-SAHARAN AFRICA;

EID: 33748689539     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2006.0028     Document Type: Review

References (167)

1. South Africa has a multitude of religious communities. The dominant religion is Christianity, which comprises 78 percent of the total population of 44,819,778. The Christian communities are further subdivided into about 15 denominations. Several minority religions co-exist with the majority Christian religion. They include Islam (1.5 percent); Hinduism (1.2 percent); African traditional belief systems (0.5 percent); Judaism (0.2 percent); and other faiths (0.6 percent). Those without any religious affiliation or who refuse to comment about their religious affiliation comprise 15.1 percent of the total population. Other forms of diversity relate to race, language, ethnicity/ culture, and gender. Statistics South Africa, Primary Tables South Africa: Census 1996 and 2001 Compared 11-12, 27-28 (2004), available at www.statsaa.gov.za/census01/html/RSAPrimary.pdf.
2. Id. at 27-28.
3. Ebrahim Moosa notes that "the religious and political tapestry of the Muslim community in South Africa is rich, diverse and differentiated." Ebrahim Moosa, Prospects for Muslim Law in South Africa: A History and Recent Developments, 3 Y.B. Islamic & Middle Eastern L. 130, 131 (1996).
4. Primary sources of Shari'a comprise Qur'an and Sunnah. Qur'an, a religious text, is the first primary source considered by Muslims to be God's literal voice. Sunnah is the second primary source and refers to the alleged saying and practices of the Prophet Muhammad (p.b.u.h.) reported by generations of followers. Other sources include ijma, qiyas, and ijtihad as the third, fourth, and fifth secondary sources respectively. Imja refers to consensus among Muslim jurists regarding questions of Shari'a. Qiyas refers to analogical deduction. Ijtihad refers to exercising of independent juristic reasoning. Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law: Eqaul Before Allah, Unequal Before Man? 19-23 (2000).
5. Najma Moosa, Muslim Personal Law Affecting Children: Diversity, Practice and Implications for a new Children's Code for South Africa, 115 S. Afr. L.J. 479, 479 (1998).
6. Sunni tradition is represented by four schools of thought, namely Shafi'i, Hanafi, Maliki, and Hanbali, named after eighth century AD Muslim jurists whose conservative, male-centred interpretations and applications of Qur'an and Sunnah inform present mainstream understandings of Shari'a. See id. at 480.
7. Moosa, supra note 3, at 131.
8. Id.
9. Government Communication and Information System, South Africa Yearbook 2003/2004, at 1, 7 (2004).
10. Between the mid-seventeenth and mid-nineteenth centuries, Malay Muslims may have entered the Cape as servants of their Dutch colonial masters. During that period, Southeast Asian Muslims were also brought into South Africa as political prisoners, convicts, and slaves. Thereafter, Muslims from India were brought into the country as indentured labor, and much later they came voluntarily from India. Through conversions to Islam, the Muslim communities also comprise members of indigenous African communities and the white communities. Id.;
11. Soraya Dadoo, South Africa: Many Muslims, One Islam, 30 June 2003, available at www.islamonline.net/English/artculture/2003/06/ article08.shtml#1.
12. The 'ulama bodies include the Muslim Judicial Council (Western Cape), Jamiatul 'Ulama Transvaal (Gauteng), Jamiatul 'Ulama Natal (Kwa-Zulu Natal), Majlisul 'Ulama (Eastern Cape), Majlis Ashura al-Islami, Islamic Council of South Africa, Sunni Jamitul 'Ulama of South African, Sunni 'Ulama Council. Moosa, supra note 3, at 134.
13. This observation was noted by the Commission on Gender Equality (CGE), which conducted about four focus groups with women in Cape Town during 2000. The experiences and concerns that were raised at those focus groups were included in a CGE submission to the South African Law Commission (SALC) Project Committee on its Issue Paper 15 dealing with Islamic Marriages and Related Matters. Commission on Gender Equality, Submission on Issue Paper 15: Islamic Marriages and Related Issues 9 (2000) [hereinafter CGE Submission on Issue 15].
14. The traditional approach to talaq considers it to be the exclusive right of a man to extra-judicially and unilaterally repudiate his wife through three utterances of divorce without having to provide any grounds. Ibn Rushd, The Distinguished Jurist's Primer: Volume II, at 72, 97, 119 (Imran Ahsan Khan Nyazee, trans., 1996).
15. Faskh is traditionally understood as fault-based judicial dissolution of the marriage granted at the discretion of the Islamic law judge upon the application of the wife subject to her forfeiting her mahr or paying some form of compensation to her husband. Grounds include: incompatibility, apostasy, cruelty, prolonged absence or imprisonment of husband, disability, and failure to maintain. Abdur Rahman I. Doi, Shari'ah: The Islamic Law 170-72 (1984);
16. A wife can also exit the marriage after obtaining her husband's and/or the 'ulama's permission through the granting of khula' or tafwid al-talaq. Khula' is traditionally understood as dissolution of the marriage obtained through mutual agreement of the parties, or granted by an Islamic law judge subject to payment by the wife to the husband of an amount that does not exceed her mahr. Through tafwid al-talaq, the husband delegates his right of talaq to his wife to allow her to dissolve the marriage at her instance. Doi, supra note 13, at 192;
17. Women Living Under Muslim Laws, Talaq-i-Tafwid: The Muslim Woman's Contractual Access to Divorce 11, 1996.
18. CGE Submission on Issue 15, supra note 11, at 9.
19. Muslim Youth Movement, Muslim Students' Association, Call of Islam, Shura Yabafazi (Consultation of Women).
20. Kader v. Kader 1972 (3) SA 203 (R.,A.D.) at 207B (S. Afr.).
21. Bronn v. Frits Bronn's Executors and Others 1860 3 Searle 313 at 318, 320, 321, 333 (S. Afr.).
22. Seedat's Executors v. The Master 1917 A.D. at 307-08 (S. Afr.).
23. Ismail v. Ismail 1983 (1) SA 1006 (AD) at 1024E, 1025G (S. Afr.).
24. This "in community of property" regime applies automatically in terms of the Matrimonial Property Act 88 of 1984 when parties' marriages are registered according to the Marriage Act. They share in each other's assets and liabilities accrued before, during, and at dissolution of the marriage. See Marriage Act 25 of 1961.
25. Intestate Succession Act 81 of 1987 recognized a civil law spouse as an heir to the deceased spouse's estate when the latter died without a will. Where the spouse died with a will but disinherited the surviving spouse, the Maintenance of Surviving Spouse's Act 27 of 1990 entitled the disinherited spouse to claim maintenance from the deceased spouse's estate.
26. Multilateral Motor Vehicle Accidents Funds Act 93 of 1989 awarded compensation to the surviving spouse of a civil law marriage when the deceased spouse was unlawfully and negligently killed in a motor vehicle accident by a third party.
27. Amod v. Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA) (S. Afr.);
28. Daniels v. Campbell NO and Others 2004 CCT 40/03, SACLR LEXIS 17 (S. Afr.).
29. Waiting period observed by a woman following dissolution of a marriage. It extends for three months after divorce, or four months and ten days after the spouse's death, or in either case if she is pregnant, until the birth of the child. During this time, her freedom of movement is limited because she is housebound and cannot marry or conduct a perceived romantic relationship. Rushd, supra note 12, at 54, 106, 115-16;
30. Doi, supra note 13, at 198-203;
31. Forms part of the wife's estate exclusively. It consists of anything that the parties agree to at the date of marriage, payable to the wife at the time of contracting the marriage or deferred until later as an accrued debt. Rushd, supra note 12, at 23;
32. Doi, supra note 13, at 158-66;
33. CGE Submission on Issue 15, supra note 11, at 9.
34. Ryland v. Edros, 1997 (1) BCLR 77 (C) (S. Afr.);
35. Amod, supra note 24.
36. Ryland, supra note 28, at 90G, 91I-J, 92B, 94A.
37. Amod, supra note 24, ¶ 20-21, 29.
38. Id.;
39. Ryland, supra note 28.
40. See Amod, supra note 24;
41. see Daniels, supra note 24.
42. Daniels, supra note 24, ¶ 21.
43. Unemployment Insurance Act 63 of 2001.
44. Id. § 30.
45. Amod, supra note 24, ¶ 28.
46. Ryland, supra note 28, at 100G-I.
47. The court accepted as common cause that the Shafi' school of thought is predominant in Malaysia and Indonesia, as well as in the Western Cape. It noted that the importation of Malaysian and Indonesian slaves to the Cape during Dutch colonial rule resulted in the predominance of this school of thought in the Muslim community in the Western Cape. Id. at 81J-82A.
48. Id. at 100B-H.
49. Id. at 92C;
50. Amod, supra note 24, ¶ 24;
51. Daniels, supra note 24, ¶ 37.
52. The Court in Amod, supra note 24, ¶ 28, held: Nor is there any danger that by upholding the appellant's claim the Court might become "entangled" in religiously controversial doctrines. The legal legitimacy of the claim can be assessed purely on the proper application of common law principles of application to the dependant's action without any reference to any religious doctrine or policy.
53. Marriage Act, supra note 21.
54. Id § 3(1).
55. Moosa, supra note 3, at 135.
56. Id at 134-35.
57. Id. at 136-37.
58. Id. at 138.
59. Id. at 139.
60. Id.
61. S. Afr. (Interim) Const. 1993 (emphasis added).
62. Id. § 14(3)(a)-(b) (emphasis added).
63. Moosa, supra note 3, at 139.
64. Id.
65. Id.
66. Id.
67. Id.
68. S. Afr. Const. 1996, § 15(3)(a)-(b).
69. Abdulkader Tayob, The Struggle over Muslim Personal Law in a Rights-Based Constitution: A South African Case Study, 22 Recht Van De Islam 1, 3 (2005).
70. Id. at 6.
71. Id at 6-7.
72. Id. at 6.
73. Id at 3.
74. Id. at 6.
75. S. Afr. Const., supra note 57, § 36.
76. South African Law Reform Commission, Islamic Marriages and Related Matters: Report - Project 106 (2003) [hereinafter SALRC Report].
77. South African Law Reform Commission, Islamic Marriages and Related Matters: Issue Paper 15 - Project 59 (2000).
78. South African Law Reform Commission, Islamic Marriages and Related Matters: Discussion Paper 101 - Project 59 (2001).
79. SALRC Report, supra note 65, at 1-2, n.2.
80. The final composition of the Committee comprised eight members, three of whom were women. The third woman was co-opted a few months before the Report was finalized.
81. Abdullah Yusuf Ali, The Holy Qur'an: Translation and Commentary 4:3 (1946).
82. Id. at 4:129.
83. Abdur Rahman I. Doi, Woman in Shari'ah 50-51 (1989).
84. Code of Personal Status of 1956, art. 18 (Tunis.).
85. Recognition of Customary Marriages Act 120 of 1998, § 2.
86. SALRC Report, supra note 65, § 1 (vi).
87. Id. § 12(2)(a)-(c)(i).
88. Id. § 12(2)(c)(ii).
89. Id. § 12(2)(c)(iii).
90. Id. § 9(7)(b).
91. Id. § 12(5). The Prescription Act 68 of 1969 places a three year prescription on civil claims.
92. Id. § 9(8).
93. Id. § 5(1)(d). The traditional Shari'a understanding of minimum marriageable age is puberty for both sexes. Females are therefore viable for marriage at earlier ages than males.
94. Id. §§ 1(x), 9(4). Defines faskh as stipulated in note 13.
95. Id. §§ 1(xiii), 9(5). Defines khula'as a no-fault judicial mechanism based on an agreement between spouses to dissolve the marriage at the wife's behest. it entails a transfer by the wife of property or anything permissible according to Shari'a. However, the requirement regarding "agreement" is not settled law because countries such as Egypt, Nigeria, Bangladesh, Pakistan, and Philippines do not require the husband's consent.
96. Women Living Under Muslim Laws, Knowing Our Rights: Women, Family, Laws and Customs in the Muslim World 278-79 (2003).
97. SALRC Report, supra note 65, §§ 1(xxiii), 9(3). Defines tafwid al-talaq as conditional or unconditional delegation of talaq at date of marriage or subsequently by the husband to the wife or her representative.
98. Id. §§ 1(xii), 1(xxii), 1(xxiv), 9(3).
99. Id. § 8(6)-(l1). The husband must apply to court to contract a polygynous marriage. The court can grant the order "if it is satisfied that the husband is able to maintain equality between his spouses as is prescribed by the Holy Qur'an." Polygynous marriages without court approval would render husbands liable of a criminal offence subject to the payment of a fine.
100. Id. § 8(1). This involves the parties' estates being kept separate at commencement of the marriage, during marriage, and at dissolution of the marriage.
101. Waheeda Amien, Comments on the South African Law Commission's Discussion Paper No. 101: Islamic Marriages and Related Matters 17 (2002).
102. CGE Submission on Issue 15, supra note 11, at 9.
103. SALRC Report, supra note 65, § 3: "A wife and a husband in a Muslim marriage are equal in human dignity and both have, on the basis of equality, full status, capacity and financial independence, including the capacity to own and acquire assets and to dispose of them, to enter into contracts and to litigate."
104. Ali, supra note 4, at 37-39.
105. SALRC Report, supra note 65, § 5(3).
106. Id. § 8(6).
107. Id. § 1(xvii).
108. Id. § 1(vi), 12(2).
109. Id. § 1(vii).
110. Id. § 11(1).
111. Constitutional obligations include sections 9 (equality) and 15(3)(b) obliging government to ensure that recognition of religious marriages does not violate gender equality. International law obligations include those arising from the Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (1980) (entered into force 3 Sept. 1981), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980), which South Africa ratified in 1995. The draft legislation should have explicitly noted these for interpretive purposes.
112. For an explanation of these terms, see Ali, supra note 4.
113. SALRC Report, supra note 65, §§ 1(x), 9(4) (faskh), 1(xviii) (definition of Muslim marriage), 5(1)(c) (witnesses), 8(7)(a) (polygyny), 9(8) (claims against deceased estates), 11(1)-(3) (custody and access of children).
114. Id. § 8(7)(a).
115. SALRC Report, supra note 65, §§ 1(xv), 5, 6, 15(1)(a)-(b).
116. Fraser v. Children's Court, Pretoria North, and Others 1997 (2) BCLR 153, ¶ 20 (CC) (S. Afr.).
117. S. Afr. Const., supra note 57, § 1(a)-(b) (emphasis added).
118. Id. § 9(1).
119. Id. § 9(3).
120. Id. § 36(1) (emphasis added).
121. Id. § 37(5)(c).
122. Id. § 39(1)(a).
123. Id. § 181(1)(d).
124. Id. § 9(4); ch. 2 § 23(1).
125. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
126. Id. at Pmbl., § 1(ix).
127. id § 2(b)(ii)-(iv), 2(c).
128. Pretoria City Council v. Walker 1998 (2) SA 363 (CC), ¶ 43 (S. Afr.).
129. Brink v. Kitshoff 1996 (4) SA 197 (CC) at ¶¶ 33, 40 (S. Afr.).
130. Id. ¶ 44.
131. National Coalition for Gay and Lesbian Equality & Another v. Minister of Justice and Others 1998 (12) BCLR 1517 (CC), ¶¶ 22, 112, 132 (S.Afr.).
132. S. Afr. Const., supra note 57, § 15(1).
133. Id. § 18.
134. S v. Solberg 1997 (10) BCLR 1348 (CC) at ¶ 142 (S. Afr.).
135. S. Afr. Const., supra note 57, § 6(5)(b)(ii).
136. Id. § 181()1(c).
137. Id. § 15(2).
138. Id. § 9(3).
139. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, § 1 (xxii)(a).
140. Nicholas Smith, Freedom of Religion Under The Final Constitution, 114 S. African L.J. 217, 224-25 (1997).
141. S. Afr. Const., supra note 57, § 31(1)(a).
142. Id. § 15(3)(a)(i) - (ii).
143. Christian Education South Africa v. Minister of Education 2000 (4) SA 757 (CC) at ¶ 24 (S. Afr.).
144. Solberg, supra note 122, ¶ 148 (emphasis added).
145. S. Afr. Const., supra note 57, § 15(3)(b), 31(2). This relates to legislation recognizing religious marriages and the collective right to practice a religion respectively. religious marriages and the collective right to practice a religion respectively.
146. Christian Education South Africa, supra note 131, ¶ 26.
147. Promotion of Equality and Prevention of Unfair Discrimination Act, supra note 127, § 8(d).
148. Prince v. President, Cape Law Society and Others 2000 (2) BCLR 133 (CC), ¶ 26 (S. Afr.).
149. Christian Education South Africa, supra note 131, ¶ 35.
150. Id. ¶ ¶ 51, 76.
151. Christian Education South Africa, supra note 131, ¶ 35.
152. Prince v. President, Cape Law Society and Others 2002 (2) SA 794 (CC), ¶ ¶ 42, 75 (S. Afr.).
153. Amod, supra note 24.
154. Christian Education South Africa, supra note 131, ¶ 76 (emphasis added).
155. Id. ¶ 179.
156. Eva Brems, Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention on Human Rights and Fundamental Freedoms, 27 Hum. Rts. Q. 294, 302-03 (2005).
157. Ali, supra note 4, at 40. Ali contends that an interpretation of Shari'a compatible with human rights norms is possible.
158. Brems, supra note 144. She refers to the method called "practical concordance."
159. Id.
160. Id.;
161. Donna J. Sullivan, Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution, 24 N.Y.U. J. Int'l L. & Pol. 795 (1992).
162. Id. at 811-13.
163. Id. at 821-23.
164. Id. at 823, 855.
165. Ali, supra note 4, at 38-40, 42-43.
166. Najma Moosa, The Interim Constitution and Muslim Personal Law 33 (1994), available at www.wluml.org/english/pubs/pdf/dossierl6/D16/pdf.
167. Although Shari'a is capable of evolving through ijtihad to meet the needs of communities as they develop over time, early Muslim jurists declared the "doors of ijtihad to be closed forever," thus stunting its dynamic nature, resulting in rigid interpretations that were not responsive to changing circumstances. Through progressive interpretations and applications of Shari'a and/or MPL, it may be possible for the process to be re-engaged. Ali, supra note 4, at 23-24.