Introduction
Senior Ulama and elders of this country have identified the need for recognition of Muslim Marriages many years ago and had begun a process of seeking legal recognition since the 1970’s. Things have changed considerably since then. A total paradigm shift has taken place in the constitutional, legal and judicial realms. Thus, courts can now rule on our niches even though they are not registered and legally recognised. The Constitutional Court has in a limited manner recognised a monogamous Muslim marriage, without implying a general recognition of the consequences of Muslim Marriages. For example it has recognised a Muslim marriage for the purposes of inheritance or for claims against Motor Vehicle Accident fund (MVA). Such limited recognition does not address issues pertaining to divorce, maintenance, custody, polygamy, etc. In the absence of the Muslim Marriages Act (MMA), couples will have to go to the Constitutional Court each time to secure what they perceive to be their constitutional rights. Not only is this beyond the financial capacity of the ordinary lay person, it is also a long, arduous and difficult process. A good example for the need of the MMA is the case of Daniels. On the 11th March 2004, the Constitutional Court of South Africa effectively recognised a monogamous Muslim marriage for the purposes of succession. However, in the absence of a Bill, the ruling meant that a wife would inherit according to the law of the country and not according to Islamic Law. Only proper statutory recognition of Muslim Marriages and their consequences based on defined parameters of the Shariah compliant bill can protect the Shariah from unconstrained judicial intervention and eventually from being subsumed by the dominant legal system.
With the Chair of UUCSA, Shaykh Abdul Hamied Gabier situated at the offices of the Muslim Judicial Council, the two organisations decided to combine their efforts and embark on public programs of informing and consulting the general Muslim public on the Muslim Marriages Bill.
After some consultation, a working committee was formed from the members of the two institutions and comprised of members who are specialist in the field of Shariah and constitutional Law. In order to facilitate the aims and objectives of the taskteam headed by Sheikh A.H Gabier, a day-to-day office was established to assist in the co-ordination of all matters related to the Muslim Marriages Bill. The following modus operandi ensued since the inception of the office on 15 February 2011:
- Weekly meetings for the committee in order to facilitate intensive studies of the bill and to formulate relevant proposals for its reform
- A vociferous media campaign headed by Sh.I.Taliep and Ml.Tauha Karaan to proliferate the perspective of the Ulama bodies on the MMB. The committee featured on several talk shows and debates on various radio stations, television programmes and their expert opinion was sought by various newspapers
- National meetings were co-ordinated and were held in different provinces in order to lend proficiency in all matters related to the bill, to solicit the expert opinion within the various provinces and to unify the stance of the Ulama
- Consultation with other stakeholders ensured that the Ulama remained abreast with perspectives of other organizations. The input of various stakeholders such as the Muslim Assembly and The Recognition of Muslim Marriages forum etc provided the platform for the necessary interaction between the various stakeholders encouraging respectful discourse and the exchange of knowledge with regards to the MMB
- An active public awareness campaign- In this regard, the aim of the committee was to devise and execute an information and consultation plan to bring the Bill to the general public. The platforms to be employed were as follow:
- To invite all the Ulama and Imams to the MJC offices and discuss the Bill with them as well as answer any questions which they may have. The purpose of this exercise was so that these Ulama and Imams would be able to go back to their mosques and to inform their communities of the salient features of the Bill and ultimately to separate fact from fiction.
- Public meetings ahead of the deadline for submission were conducted over a period of time at several public forums. Various areas were tackled including Northern suburbs, Southern Suburbs, Mitchell’s Plain, Bo-Kaap and Boland areas and formed part of the areas designated for Khutbah drives and Public meetings. The public awareness campaign indeed was the highlight of our efforts and proved to be exhaustive but fruitful. It saw the Ulama consulting and coaching the public in various areas such as Elsie’s Rivier, Parkwood Estate and Delft area over several months before the finalisation of submissions to the Ministry of Justice.
- Formulation of Submission to the Minister of Justice- In addition to all the activities co-ordinated by the taskteam and facilitated by its administrative office the most arduous task was the formulation of submissions containing relevant proposals for the reform of the Cabinets Muslim Marriages Bill that was published in the Government Gazette on 21 January 2011. As the United Ulama Council of South Africa is the umbrella body of all recognised Ulama bodies in South Africa, it was decided that the UUCSA submission would act as the anchor submission of the UUCSA constituency. In preparation of its final draft much emphasis was placed on the maintenance of the integrity of the Shariah within the bill. The valuable input of our legal team assisted by experts such as Judge Moosa, Sheikh Shouket Allie, Judge Mohamed Moolla, Sh.Ighsaan Taliep; Ml.Yusuf Patel provided the necessary components for a solid and sound legal document.
Conclusion
In conclusion, after the successful handover of submissions to the Ministry of Justice on the 31st of May 2011, our engagement on the MMB will be ongoing and will extend until such time that the Muslim Marriages Act becomes legislation. We foresee that our work will continue until mid year 2012 after of Parliamentary hearings insha ’Allaah. Thus, we will continue to engage the public, government and all relevant parties to ensure the enactment of a meritorious Muslim Marriages Act. Also we are focused to ensure that the necessary infra- structure would be put in place to facilitate the training of practitioners who would ultimately facilitate the process once enactment is secured. Finally, we are confident that our continuous involvement as an Ulama Body would provide the necessary desired Shariah compliant outcomes insha’ Allaah.
Compiled on behalf of UUCSA
Sister Nawaal Manie
Date: August 2011