Document Sample
FACULTY OF LAW Powered By Docstoc
					 Children’s rights and law reform in
Islamic Jurisdictions (with a focus on
      Prof Julia Sloth- Nielsen

• 1.Identification of key children‟s rights
  principles under Islam
• 2.Identification of areas of potential
  „disjuncture‟ between Islamic principles and
  international and regional children‟s rights
• 3.Best practice in law reform in Islamic
  Jurisdictions in Africa
• 4. Conclusions for South Africa
       Sources of information

• Children in Islam: Their Care, Upbringing and
  Protection (UNICEF/ Al-Azhar University) 2005
• Dejo Olowu “Children‟s Rights, international
  human rights and the promise of Islamic legal
  theory “ 2008: 2 Law Democracy and
  Development, UWC
• Nigeria Country report to the African Committee
  of Experts on the Rights and Welfare of the
  Child (November 2008)
      Sources of information

• Egypt Country Report to the African
  Committee of Experts on the Rights and
  Welfare of the Child (November 2008)
• „Making Children‟s Rights Work in North
  Africa: country profiles on Algeria, Egypt,
  Libya, Morocco and Tunisia‟ (International
  Bureau for Children‟s Rights, 2007)
   1.Children‟s rights principles in
• Overall context is that childhood constitutes one
  of the major objectives in Islamic legislation
• „Bountiful‟ and „precise‟ laws unparalleled in any
  other religious or social system
• Islamic law regulates numerous aspect of
  childhood from pre-birth (unlike CRC) to puberty
  and beyond
• Wide-ranging scope of protection and provision
  for children in family life, society and amongst
   1. Children‟s Rights in Islam

• Holy Q’uran considers all children to be
  vulnerable and in need of protection
• Further, fundamental value in Islamic
  juristic thought is the protection and
  preservation of the life of the child: „[d]o
  not kill a soul which Allah has made
  sacred except through due process of law‟
  [said to be the third commandment in
     1.Children‟s rights in Islam
• Holy Q’uran’s pronouncement that „[a]nd in their wealth
  there is acknowledged right for the needy and destitute‟
  has been interpreted to be an injunction to render
  assistance to every needy person, including children,
  who lack the basic necessities of life (right to social
• Islamic jurisprudence expressly recognises
  geographical, social and cultural differences/nuances: it
  has never been applied as a uniform code
• Olowu makes the important point that from the start,
  Islam codifies protection of children in legal rules: not
  merely social or religious commitment; relates to
     1.1 Rights within the family
• Right to be brought up, cared for, educated and
  protected is a primary responsibility of the family –
  elaborated in many legal texts
• Includes child‟s right to a legal link with natural and
  legitimate father and mother: binding, cannot be
  disclaimed by natural parents, and gives rise to mutual
  legal rights and obligations (eg inheritance,
  guardianship, maintenance)
• Parentage van be established by marriage,
  acknowledgement or evidence (NB: concordant with the
  provisions of s 21 of the Children‟s Act, 2005)
    1.1 Rights within the Family

• Islam requires that child maintains his true
  identity, as keep it‟s legal link with its mother and
  father (cf: CRC provision in articles 5, 9; 18)
• Elaborate rights to proper upbringing in early
  childhood contained in Quran: eg duties related
  to nursing
• Child‟s right to be provided with knowledge by
  his or her parents, and their duty to provide this
  the moment child sets foot on the road to
   1.2 Basic health and welfare

• Quite a few provisions found here, eg aimed at
  protecting health of unborn child; immunizing
  children against diseases is a duty in Islam (Al-
  Alzar, 2005)
• The prophet (Peace be upon him), said: „the
  whole of the Muslim is forbidden to another
  Muslim; his blood, his property, and his honour‟
  (Al-Azhar, p 55 – has been interpreted as a
  comprehensive general prohibition on any attack
  on the human body, including sexual violence
  and corporal punishment
        1. 3 Non-discrimination
• Strong message in Islam: that all children should be
  welcomed upon their birth without discrimination
  between males and females – the Q’uran condemns
  those who celebrate the birth of males but express
  sadness and dismay when females are born
• Non-discrimination also highlighted with respect to
  sponsors of orphans and treatment of foundlings
• Right to education also to be provided on the basis of
  equal opportunities, according to the Sharia (Al Azhar,
• “Seeking knowledge is obligatory upon every Muslim,
  male or female”...
        1.4 Protection Rights

• Numerous important messages on child
  protection, including protection within the
  family: eg „he is not one of us who shows
  no mercy to our young‟
• Islam calls for shunning violence –
  parents, teachers and others should set
  good examples for children in what they
  do and say (Al Azhar,p107)
           1.4 Protection rights
• Q’uran contains indirect reference to exploitative child
  labour – because the Sharia charges fathers with
  responsibility of maintaining children so they don‟t have
  to work
• „Allah burdens not a person beyond his scope‟
• Link between child work and education – here wealthy
  families and various civil society institutions have the
  responsibility under Islam to lend a helping hand
• Some texts and narratives allude to other forms of
  exploitation („a Muslim does not oppress another Muslim
  not should he hand him over to an oppressor‟ – oblique
  reference to trafficking?)
         1.5 Duties of the Child
• Article 31 of the ACRWC; section 16 of Children‟s Act
• In Islamic law, framework set is for reciprocal concept of
  rights and duties, especially within the family
• Not confined to material rights – eg duty of parents to
  educate and raise children reciprocated by children‟s
  duty of ihsan to them „kindness, deference, reverence
  and obedience‟
• but ihsan must be understood within limits of the law: not
  blind obedience or total submission, because primary
  duty is obedience to Allah
          1.6 Specific issues

• Orphans: regarded as being in need of special
  protection in the Holy Q’uran: ‘ merciful to
  the orphan. Touch his head, and feed him from
  your food...‟
• Early marriage: the standard set in Sharia law
  relates to development of „sound judgment‟ – eg
  ability to make the right decisions
• Female genital cutting – according to sources,
  nothing in the Q’uran refers to this
• Nothing therefore sanctions harmful cultural
               1.6 Specific issues
• Adoption: totally rejected in Islam because of tenuous link to
  adoptive family, and disruption of pattern of family relationships
• Preference is support to child within own family, or placement with
  parents as closely related as possible to natural family; even the
  they do not replace/displace parents
• Kafalah is permitted – roots in the law of obligations (contractual
  basis, or provision of undertakings); allows one person to raise the
  child of another, can even be a duty to do this; care must be
  equivalent of the care and support given to own children;
• Kafalah allegedly widely practiced in transboundary adoptions
  (Olowu citing Sfeir)
• Note references to kafalah in the CRC (article 20)
 2. Is there a potential „disjuncture‟ between
Islamic jurisprudence and international law?
• First issue is notion of „children‟s rights‟, „best interests‟,
  „autonomy‟ and „participation rights‟
• Yet it is argued that these are not antithetical to Islam
  (eg „let there be no compulsion in religion‟ verse from the
  Holy Q’uran) especially aimed at a Muslim father who
  wanted to force his children to adopt his own religion);
• Second, children legislation is increasingly attempting to
  balance children‟s rights with responsibilities (eg SA,
  Nigeria, Lesotho, Southern Sudan)
• Third, „best interests‟ principle is not „anti-parent‟ in any
  way – not in contradiction with Islam
2. Is there a potential „disjuncture‟ between Islamic
        jurisprudence and international law?

• Fourth, adoption: neither CRC nor Hague Convention
  require adoption... Reference is to legal systems which
• Has been recommended that child law provide
  legislatively for Kafalah, also because regulating
  adoption is preferable to ignoring and creating gaps and
• Fifth, illegitimacy: Nigeria and Egypt experiences show
  that impact in terms of Islamic Law principles can be
  substantially mitigated in sensitive legal provisions: often
  social stigma worse than legal disadvantage
   3. 1 Best practice in law reform in
 Islamic jurisdictions in Africa: Nigeria
• 2003 Act adopted a federal level;
  Children‟s Act (very comprehensive); now
  22 states have passed
• Wide opportunity for consultation,
  including with children, specific sectors (eg
  disability, children in conflict with the law,
  women‟s groups)
• Very comprehensive and child rights
  3. 1 Best practice in law reform in Islamic
       jurisdictions in Africa: Nigeria....
• Article 7: child‟s right to freedom of thought, conscience
  and religion, but sub(2) recognises parents/legal
  guardians right to provide guidance and direction in the
  exercise of this right, which duty of parents must be
  respected by all persons bodies, institutions and
• Sub(4) specifically says that whenever fostering,
  custody, guardianship and adoption at issue, the right of
  the child to be brought up in and to practice his religion
  shall be a paramount consideration
 3. 1 Best practice in law reform in Islamic
      jurisdictions in Africa: Nigeria...

• Concerns in Nigerian Sharia states:
  adoption, and more specifically inheritance
  issues (but under Islam, ‘adoptive‟ parent
  can make a will during lifetime to give
  estate to adopted child)
• Age of marriage is formidable point of
  debate, ACRWC sets at 18 (also ratified
  by RSA)
  3. 2 Best practice in law reform in Islamic
               countries: Egypt
• Law reform initiative in response to CRC Committee
  Concluding Observations of 2001
• 1996 saw comprehensive children‟s law; thereafter 5
  year process of consensus building to significantly
  upgrade the existing law; passed to international acclaim
  on 15 June 2008
• Media, Parliamentarians, religious scholars part and
  parcel of the law reform drive;
• NGO‟s integral to process and many policy docs
  simplified and made accessible to children
   3. Best practice in law reform in Islamic
               countries: Egypt
• Significant co-ordination of process by the MCCM
  (National Council for Childhood and Motherhood); strong
  chair Mme Mouttara Khoutab (currently Vice chair of the
  UN CRC Committee)
• Major successes: FGM outlawed, in practice prevalence
  dropping measurably in the lead up to the new law
• Age of criminal responsibility raised, entirely new juvenile
  justice system established based on restorative justice
• Nationality of children born of Egyptian mothers/foreign
  fathers addressed
• Specific legal and policy actions concerning street
  children adopted
 3. 2 Best Practice in law reform in Islamic
              countries: Egypt
• Age of marriage and early marriage addressed
  (age of 18 set)
• Protection of children via technology featured
• Right to education strengthened, right to
  education to be accorded custodian and to be
  exercised in the best interests of the child
  (replacing aspect of Islamic practice that saw
  custodian parent bound by wishes of non
  custodian, usually father)
 4.Conclusions for South Africa

• Children’s rights well established in Islamic sources, and
  nothing in Islam prevents/prohibits or pulls against child
  law reform
• Significant comparable examples exist in Africa on which
  to build a solid children’s rights legal framework which
  does not clash with Islamic precepts
• However, Islamic texts are quite limited in detailing who,
  what, when etc – set general standards rather.
  Therefore, role of children’s law is to provide flesh (eg
• IN principle, SA Children’s act does not contravene
  Islamic principles, except does not expressly refer to
 4.Conclusions for South Africa

• Must be aware of potentially contradictory legal
            Major successes: FGM outlawed, in
  processes which may undermine the
            practice prevalence dropping measurably
            in the so far: notably
  achievementslead up to the new law enactment of
            Age of criminal responsibility raised,
  Muslim Personal Law justice system
            entirely new juvenile
• Must be alert to transborder implications as well
            established based on restorative justice
            Nationality of children born of Egyptian
  as challenges of migration (eg Somali
            mothers/foreign fathers addressed
            Specific legal and policy actions
            concerning street children adopted