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The MPL Battle in South Africa

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					   The MPL Battle in SA:
Gender Equality vs “Shari’ah”

          na’eem jeenah

        naeem@shams.za.org
                  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
        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
          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
      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.”
    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
MPL, Constitution–Progressives
   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
MPL, Constitution–Progressives
   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.”
         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
             (i) marriages concluded under any tradition or
                  a system of religious, personal or family
                  law; or
             (ii) 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.
        “Campaign for a Just MPL”
   „Campaign for Just Muslim
    Personal Law‟ launched
    by MYM Gender Desk – 1994
   Continuation of „Gender Jihad‟
   After MPLB – decided to fight
    in courts
       Rylands vs. Edross
   Education campaign – esp
    for Muslim women
   Debate on minimalism vs.
    full codification
       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 women‟s organisations played
    prominent role in initial stages
   Main issues of Dispute-Initial
         UUCSA                        MYM / Call

Shari‟ah Courts – staffed by   Adjudicated by civil courts
„ulama
All Muslims must be            Individual Muslims must
subject to MPL                 have a choice: MPL / civil
Marriage officers will be      Marriage officers can be
„ulama                         male or female
Role of Constitution must      Constitution – esp BoR –
be minimised                   must be supreme
By madhhab                     Madhhab irrelevant
             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
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
               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.‟
                     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
„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

				
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posted:4/12/2011
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