Unlike Europe and North America, the discussions in South Africa relating to religious freedom do not center on the extent to which religion can be excluded from the public domain but rather the extent to which it can be accommodated. It is not surprising that South Africa has chosen to respond to the issue of religious freedom in a more tolerant manner given its discriminatory-laden history under colonialism and apartheid. While race-based discrimination was the most obvious, religion was a further invidious form of discrimination. Christianity was the dominant religion and was often used by the apartheid government to justify its oppressive laws. For instance, marriages that did not conform to Christian values such as monogamy and opposite-sex unions were regarded as uncivilized relationships that were not worthy of legal recognition. Thus, potentially polygynous marriages such as African customary marriages as well as Muslim, Hindu, Jewish, and same-sex marriages did not enjoy the legal protection that Christian marriages enjoyed.
It was not until the introduction of democracy in 1994 and the adoption of South Africa’s Constitution that a commitment was made to foster a society that is tolerant of diversity and does not posit one religion above another. This is evident in sections 15 and 31 of the 1996 Constitution: s15(1) protects every individual’s right to freedom of religion; s15(2) allows religious observances to be conducted at state or state-aided institutions; s31(1) protects the collective right of religious communities to practice their religion and to establish and maintain religious associations; s15(3)(a) permits the enactment of legislation to recognize religious marriages or religious personal or family law systems. In fact, s15(2)-(3) enables the establishment of a semi-secular, legally pluralistic society that involves an intersection between religion and the state where government is encouraged to support religion. Yet, in an attempt to ensure that discriminatory religious rules and practices do not permeate the legal framework of South African family laws, an internal limitation was added to s15(3), which provides that any legislation that purports to recognize religious marriages or religious personal or family law systems must be consistent with other constitutional provisions including gender equality. While none of the rights in the Bill of Rights are absolute, the internal limitation on religious freedom appears to subordinate the regulation of religious marriages or religious personal or family law systems to gender equality.
It was within the paradigm of s15(3)(a) that the South African government enacted the 1998 Recognition of Customary Marriages Act to provide full legal recognition to customary marriages. Subsequently, same-sex marriages were also afforded recognition through the 2006 Civil Union Act. The SA government further initiated a process as early as 1994 to ensure legal recognition for Muslim marriages. Given the spatial constraints of this paper, I consider only some of the implications of the process to recognize Muslim marriages in this essay.
After extensive consultations with the South African Muslim community and broader civil society that spanned several years, the South African Law Reform Commission, which was tasked with drafting legislation to recognize Muslim marriages, submitted a Muslim Marriages Bill (MMB) to the Minister of Justice and Constitutional Development in 2003. Seven years later, the Department of Justice and Constitutional Development (DoJ) effected some amendments to the MMB and submitted an amended MMB to Cabinet, which was approved by the latter at the end of 2010. The public were invited to make submissions on the 2010 MMB by 31 May 2011. To date, the DoJ has not yet finalized the processing of those submissions.
Several interesting observations have emerged from the process relating to the recognition of Muslim marriages. For the purposes of this paper, I shall focus on two namely: a) the reasons for the delay in recognizing Muslim marriages; and b) the different responses to the MMB.
To date, no official reason has been given by the DoJ to explain why after 18 years since the advent of democracy, Muslim marriages have not been afforded legal recognition; especially since customary marriages and same-sex marriages have been recognized.
One can only speculate as to why the process for the legal recognition of Muslim marriages appears to be going nowhere slowly. In the first instance, the political imperative to recognize customary marriages was overwhelming since the majority of the South African population comprises black Africans. The same political imperative does not appear to exist for minority religious communities, the largest of which—namely the Muslim community—comprises 1.5% of the population. Secondly, the position of Minister of Justice and Constitutional Development has been occupied by several different politicians since 2003 and the progress or stagnation of the process perhaps depended on their own political inclinations about whether or not the state ought to regulate minority religious marriages. Thirdly, consensus about the MMB is lacking within the Muslim community and broader civil society, and perhaps the Ministry of Justice and Constitutional Development is hesitant to move forward with draft legislation that is perceived as contentious. Yet, if the latter reason is the real justification for delaying the process of recognition then it is disingenuous because the national government has enacted several contentious pieces of legislation since it assumed power in 1994, including the 1996 Choice on Termination of Pregnancy Act.
The only other reason that makes sense for the delay in enacting legislation to recognize Muslim marriages is that government lacks the political will to do so. This clearly means that an entrenchment of fundamental rights in a Bill of Rights does not guarantee their automatic implementation. Instead, a strong and un-apathetic civil society is required to hold government accountable to its constitutional obligations. Therefore, those within the Muslim community and broader civil society who support the enactment of legislation to recognize and regulate Muslim marriages need to provide the political incentive for such enactment to take place. For instance, the Muslim community needs to take the lead in mobilizing and launching a strong and sustainable campaign for the recognition of Muslim marriages, which to date they have not done. Furthermore, civil society should use the courts and launch a civil action against government to encourage enactment. In 2009, the Women’s Legal Centre (WLC), which is a NGO that litigates gender-based precedent setting cases, did just that but launched its action in the Constitutional Court (CC) instead of the High Court (HC). The CC decided that there was no basis for the WLC to have direct access to the CC and directed them to re-launch their action in the appropriate HC. Although no order was made in favor of the WLC, the positive consequence of that action was that it motivated government to apply their minds to the 2003 MMB, which resulted in the submission of the 2010 MMB to Cabinet and its subsequent approval by the latter. Consequently, the WLC saw no need to re-launch its action in the HC. However, that was three years ago. Perhaps it is time for another launch of the action.
The second observation about the process for the recognition of Muslim marriages relates to the different opinions that were formulated in response to the MMB over the past several years. Indeed, there are those who support the MMB and those who oppose it. Yet, the matter is far more complex given that the support for and opposition against the MMB is multi-layered and has exposed interesting bedfellows.
In the camp opposing the MMB, several components are identifiable. The most obvious are the Muslim extremists; some of who oppose any type of state regulation of Muslim family law by a non-Islamic state and prefer that the status quo be maintained, namely, that the ulamā (Muslim clergy) should continue to regulate Muslim family law within the community. Others advocate for the establishment of a separate sharia court that they argue should operate alongside the secular court system and should be presided over by members of the ulamā. There are also those Muslims who feel that their Islamic schools of thought are not catered for in the MMB. The most prominent of the latter dissident voices follow the Shia tradition but comprise a small minority within the South African Muslim community. Within the same opposition camp, secular extremists ironically find themselves locking arms with the Muslim extremists because they too favour a strict separation between religion and state. The final component within the opposition camp is the gender advocates who expect the MMB to be absolutely gender consistent before they will consider bestowing their blessings upon it.
On the other hand, there are those gender activists who, along with progressive Muslims, support the enactment of the MMB. These two groups acknowledge that the MMB is challengeable on the grounds of gender equality, but also realize that if enacted, the MMB promises to provide more protection for women than they currently have. The driving force behind their support is the achievement of substantive equality as opposed to formal equality. They also recognize that there will be opportunities after the MMB is enacted to institute constitutional challenges against the gender-problematic provisions.
A third component, namely moderate members of the ulamā, is further discernible within the camp supporting the enactment of the MMB. This group understands that South African Muslims are a minority operating within a constitutional framework and that any recognition of Muslim family law will need to happen within that framework. They therefore seek to have the Islamic principles governing marriage incorporated into the MMB in a way that produces a balance between constitutional expectations and Islamic prerogatives. For these reasons, the moderate members of the ulamā supported the 2003 MMB because it constituted a reasonable compromise. However, they have expressed dissatisfaction with the 2010 MMB because for their purposes, it departs from the 2003 MMB in two significant ways. Firstly, the 2003 MMB enabled adjudication of disputes arising from the MMB to be presided over by Muslim judges from within the secular judiciary sitting with Islamic law experts as assessors. In contrast, the requirements that the judge must be Muslim and must adjudicate with Islamic law experts have been removed from the 2010 MMB. Secondly, the 2003 MMB required binding arbitration to precede the dispute going to court whereas the 2010 MMB proposes voluntary mediation to enable the parties to settle their dispute prior to adjudication. The latter change is problematic for the ulamā because they envisaged the arbitration process as the medium through which they would play a significant role in the management of disputes relating to Muslim marriages and divorces.
Interestingly, although the aforementioned changes appear to have secularized the 2010 MMB more so than the 2003 MMB, the 2010 MMB has also been Islamized to a greater extent. For instance, a definition for Islamic law is included in the 2010 MMB, which limits the types of Islamic law sources that a judge can rely on to only a few traditional ones. This may constrain the extent to which reform of Muslim family law may be affected through the MMB. Hence, the increased Islamization of the MMB has caused some consternation among Muslim progressives who supported the 2003 MMB. Yet, Muslim progressives and moderate members of the ulamā who supported the 2003 MMB do not reject the 2010 MMB and are willing to negotiate with the DoJ to revisit the problematic provisions of the MMB.
It is unfortunate that the DoJ decided to effect changes to the MMB without consulting with the relevant stakeholders within the Muslim community and broader civil society since there had been a general consensus in favour of the 2003 MMB, which had emanated from a widespread process of consultations. Although not perfect, the 2003 MMB had contained innovative mechanisms for the regulation of minority Muslim marriages within a secular legal framework. Given the disagreement over the 2010 MMB, it may mean that parties will have to retreat to the drawing board, which means more time wasted while the rights of Muslim women continue to be negated.