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Muslim Marriage Bill comes to SA, not a moment too soon


Khadija Patel pushes words on street corners. She is passionate about the protection and enhancement of global media as a public good and is the head of programmes at the International Fund for Public Interest Media. She is the former editor-in-chief of the Mail & Guardian in South Africa, a co-founder of the youth-driven, award-winning digital news startup The Daily Vox and a vice-chairperson of the Vienna-based International Press Institute. As a journalist she has produced work for Sky News, Al Jazeera, The Guardian, Quartz, City Press and Daily Maverick, among others. She is also a research associate at WISER (Wits Institute for Social and Economic Research at the University of Witwatersrand). 

While most of South Africans tolerate what might appear to them habits peculiar to Islam, the current debate around the proposed Muslim Marriage Bill is bringing an important social debate – and long-overdue insights into “Muslim-ness” and the diverse forces at work within Muslim communities – into the wider public arena.

In  the shade of gilded minarets, on the backs of women sashaying down jacaranda-lined streets in Swarovski-encrusted abayas (or burqahs, as most people might know them) and at the behest of renegade theologians armed with keyboards, a brouhaha has erupted over the release of the Muslim Marriage Bill for public comment. The bill is a set of legislative proposals to govern the framework around Muslim marriages in South Africa. Because Muslim marriage is not recognised by the country’s judicial system, aggrieved Muslims cannot access the reparation offered by the courts as can people in other “recognised” forms of marriage.

That is set to change should the bill become law. You’d think the news would be met with the kind of fireworks that signal celebration, not the kind that signal an ungainly “war”.

The outcry over the bill has largely been painted as a battle of wills between the religious establishment and women’s rights advocacy groups. It isn’t. The bill has become yet another trope upon which religious leaders contest power. Women’s rights are a mere circumstance as South Africa’s divisive Muslim theologians fight a tug-of-war over the hearts and minds of the country’s Muslim population. 

Even within range of that curious parallel universe known as “the Muslim world”, we sometimes fail to realise that Islam is not homogenous. There exist remarkably varying expressions of Islam, some more palatable than others, some more politically correct than others, but all united in their adherents calling themselves “Muslim”. This is particularly true of Muslims in South Africa.

A Muslim identity in South Africa, implying one unifying identity straddling race, ethnicity and class, is not easily achieved. Muslims historically immigrated to South Africa at distinctly different periods, and from diverse backgrounds and origins that led to a diverse Muslim population. The diversity these waves of immigration produced was maintained by the apartheid policies of racial and ethnic segregation and still exists 16 years into a free South Africa. Any attempt to represent the Muslim community in its totality is fraught with difficulty, as opposing views clash over exactly who is mandated to represent all Muslims in South Africa.

This is exemplified by the number of halaal certification bodies clamouring to be the voice that distinguishes what Muslims can and cannot eat. For a segment of the population that accounts for less than two percent of South Africans, there are at least four different halaal certification bodies stamping their approval on everything from chips to toothpicks. And while the lay Fatima writhes in confusion over whether her meal of Rainbow chicken is indeed halaal, despite the stamp on the packet, it’s long been documented that these deep-seated differences have inhibited the ability of Muslims to come together to advance the Muslim cause in a way that incorporates Islam into the diversity of experience of South African life.

And yet it has happened. Last year, in response to Zapiro’s “Draw Muhammad Day” cartoon in the Mail and Guardian, seven bodies of Muslim theologians came together under the banner of The United Ulema Council of South Africa to meet with Nic Dawes and Jonathan Shapiro to express in one voice their disapproval. To my memory at least, it was an unprecedented display of unity among the country’s Muslim clerics and it’s proved not to be the first time varying interpretations of “Muslim-ness” in South Africa have been able to agree with each other.

The Muslim Marriage Bill has proved to be another occasion for the UUCSA to try to quell differences in the name of the greater good. The UUCSA, together with women’s rights activists and members of the legal fraternity,  submitted what they believed should be enshrined in the proposed bill. The department of justice and constitutional development in turn, mulled over these submissions and then released their ruminations for public comment. In response, one branch of the seven-pronged UUCSA has withheld its support of the bill, rejecting it in its entirety as being fundamentally at odds with  Islamic ethos.

But while the Jamiatul Ulema in KwaZulu-Natal has been circumspect in its rejection of the bill, the bogeyman of the Muslim community in South Africa, The Majlis, a murky organisation with a reported foothold in Port Elizabeth and a fortress in De Deur, south of Johannesburg, has labelled the bill “The Kufr Muslim Marriages Bill” (where kufr in Islamic jurisprudence denotes disbelief in the core principles of monotheism and the “prophethood” of Muhammad). The Majlis, supported by attorney Zehir Omar, have bullied community media outlets believed to be advocating for the bill and even bizarrely pontificated that the bill is essentially unconstitutional for implicitly discriminating against Muslims. The Majlis generally provide more comic relief than spiritual guidance to Muslim communities in South Africa. When mosques ceased distributing their monthly newspapers, they embraced technology and began shooting off electronic newsletters instead. The medium may have changed, but the message remains the same regressive, asinine rhetoric that does not reflect the views of the majority of Muslims in this country. The Majlis has built its brand as a detractor of established opinion. You get the feeling that, had the UUCSA been opposed to the bill, the Majlis might have been its most vehement supporter.  They have leveraged the power of print and electronic media to build a very powerful voice. When they kicked up a storm around the “halaality” of Rainbow chickens they forced a rethink on how exactly food is determined “halaal”. For the first time question was asked of the handling of chickens before they made it to supermarket shelves, the conditions of mass production and the consequences of mass consumption were unravelled for a people searching for a halaal stamp on their poultry. But it ultimately degenerated into a squabble over chickens in a coop and the public lost interest, fast food outlets eyed their Rainbow branded stock and heaved a sigh of relief and The Majlis, well. they just moved on to their next cause. Their views though are usually met with the kind of shock and awe reserved for B-grade Hollywood thrillers. Nobody knows for sure who The Majlis is, or who its supporters are, but they remain a minority of South African Muslims. Muslims in South Africa have established roots in the country that far outstretch the length of The Majlis mailing list.

South African Muslims seek to remain an integrated part of the South African consciousness, but the opposition the marriage bill has received seriously questions the understanding of what a formal integration really means.

In their marked antagonism towards the bill, it is fascinating to note that some Muslims believe they could well live in South Africa, brandishing South African passports, and yet be above the rule of law. The Constitution, its core principles of democracy, freedom and equality remain sacrosanct and the Muslim Marriage Bill, should it survive to be enacted, will be just one facet of the law of the country. The UUCSA has rightly cautioned, “Our choice is to either have a regulated system which will be governed by the Muslim Marriage Bill setting out the relevant Islamic law or to have an unregulated system which will allow courts to develop law pertaining to Muslim marriages on a haphazard basis with far-reaching consequences for the whole community.”

The Muslim Marriage Bill inherently recognises the place of Muslims in South Africa and makes provision for a Muslim experience within a broader South African one. In the US, Republican Peter King, chairman of the house homeland security committee, has effectively put Islam on trial in a hearing on the “Radicalisation of American Muslims”. And while Nick Kristof lambasted Islamic law for the failings of the Muslim world, in South Africa that Islamic law is being incorporated into the Constitution. While an existential crisis has accompanied Muslims everywhere, South Africa could, with this bill, prove that the Muslim world is not an other-worldly place . It will prove that the idiosyncrasies of the Muslim experience can be incorporated into broader society. By seeking to secure the rights of a minority, South Africa exemplifies the true sense of democracy.

Thinking of democracy in its true sense may sound wonderfully prosaic, utopian, a grand idea that can never stand the harsh light of day, but we need only train our eyes to North Africa to realise that people are putting their lives on the line for a taste of this grand idea.  Yes, even the UUCSA has objections to the bill in its current form, but to reject the Muslim Marriage Bill would be to churlishly slap the face of the integration of Muslims into South African society. DM


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