The MMB is a bill that recognizes Muslim marriages, and deals with related issues such as divorce, annulment, custody, and maintenance. The MMB is a bill, not law. Cabinet has proposed a draft and is inviting submissions. Any citizen may offer his or her legitimate input.
The United ‘Ulama Council of South Africa (UUCSA) will be submitting its views. They have accepted some of the government’s proposals, and rejected and amended others. The government’s response remains to be seen. As the Bill is currently the subject of negotiation, it is in flux. Thus, those in favour are not in favour of the Bill but the process.
The primary objective of the MMB is legal enforceability of rights. Currently, there is no force of law to the rulings of Islamic bodies. Parties can’t be compelled to appear; recalcitrant husbands can renege on their duty of maintenance; and annulled marriages can’t be upheld. Giving rulings legal force ensures the rights of the most vulnerable: women and children. The MMB will also allow all a speedy, less costly, more efficient resolution of disputes than the courts.
Opponents of the MMB argue that the ideal option are Shari’ah courts; that it is a ‘kufr bill’; that it proscribes what the Shari’ah permits; that it trumps Shari’ah; and that it will be unconstitutional.
Some Muslims fault the MMB and wax utopic about full-fledged Shari’ah courts. Politics, however, is the art of the possible. Such talk, while good political posturing, does nothing to address real social problems. While we wait nostalgically for unattainable goals, the second wife and her children remain dirty little secrets, without rights or recourse. Real Islamic activism is pragmatic activism
It is easy for those who wish to vilify and scaremonger. Opponents attack the MMB as a ‘kufr bill.’ Those who support it should ‘check their iman.’ And Muslims should be prepared ‘take a bullet for the Shari’ah.’ The fault lines are drawn. The message could not be clearer: Either you are with us or against us.
In the midst of all of this irresponsible emoting, it is forgotten, perhaps entirely unrecognized, that the MMB advocated by the ‘ulama bodies is more comprehensive and Islamic in character than the law of most majority Muslim countries such as Egypt, Libya, Tunisia, and Bangladesh. Most of the provisions simply give expression to the fiqh of marriage and divorce; others are administrative in nature.
Opponents also point to certain regulations and penalties (still the subject of negotiation) – such as a minimum age of marriage, or certain regulations concerning polygamy – as instances of compromising the Shari'ah. However, Islamic jurisprudence has always permitted the regulation of certain mubah or permissible laws – al-siyasah al-shar'iyyah – for the purpose of addressing social harms and abuse. When is the last time one cared to ‘take a bullet’ for traffic lights, sanitary regulations for take-aways, or one's I.D. book?
It bears repeating that the vast majority of representative, mainstream 'ulama organizations have studied the Bill and are supportive of the process. Only a threadbare minority of ‘ulama oppose a Bill that, if enacted, would offer Muslims the choice to register or not. No one will be forced to register. Is it unreasonable to expect the minority to respect the same freedom of choice?
South African Muslims live under both the shade and spectre of the constitution. They live among the vicissitudes of pluralism and majority-rule. In practice, tensions of allegiance and instances of legal dualism are few and far between. South African Muslims must strive to live a life fully informed by their values. But that life is lived on these shores, within the framework of the country's constitution.
Indeed, we’ve lived our daily life, without fanfare or fireworks, under the constitution since democracy. We’ve always been subject to its invisible hand. As it stands now, in the absence of the MMB, either husband or wife has full recourse to civil courts, where judges have applied secular law to Muslim marriages. Many cases in the Constitutional Court, such as Du Toit vs. Seria, where secular law was applied to Muslim marriages, make it clear that our perceived isolation is a pipedream.
The MMB aims to curb judicial discretion. Judges will be bound by the Act’s interpretative convention. UUCSA is currently asking for a Muslim judge with two assessors to sit on all adjudicative disputes. They have further demanded that the Bill include a provision allowing Muslims to deregister their marriage in the event that the MMB is radically altered or changed in the future. Muslims will not be wedded to the Act until death do them part.
Is a constitutional challenge to the Bill likely? It is possible. There have been challenges to the Recognition of Customary Marriage Act of the African community. However, the Constitutional Court has not displayed such aggressive activism. For example, when the constitutionality of the Marriages Act was challenged, the Constitutional Court upheld the charge of unconstitutionality. Relief, however, was provided not by striking down the Marriages Act, but through the introduction of parallel legislation in the Civil Unions Act. The MMB, as one element of an already expansive marital legal regime, might, in all likelihood, be treated with even more restraint than the Marriages Act.
Our Creator, however, has not tasked us to see into the future. Constructive and responsible engagement – and disengagement if fundamental demands are not met – is a much better expression of the spirit and letter of the Shari’ah than cynicism that refuses from the outset to see anything but failure. The famous legal maxim states: One who cannot attain everything, should not leave everything.
In Islam’s by-gone days, secular and sacred were fused. The ruling authority administered the law. Citizens obeyed the law. And unity flowed from the law. In South Africa’s rainbow nation, in a Muslim diaspora such as ours, and in the face of a unique and historic opportunity to recognize Islamic matrimonial law, we’ll have to rely on something infinitely more challenging, a responsibility ever more weighty, to work out our differences: maturity with responsible citizenship.
Moulana R.S. Saloojee is a lawyer and a consults with the UUCSA Taskteam