The Struggle over Muslim Personal Law in a Rights- Based Constitution. A South African Case Study

The recognition of religious law in a democracy provides a good study of the impact of the constitution on the practice of religion in a multicultural society. This paper discusses the debate over the nature and form of Muslim Personal Law and a rights-based constitution in South Africa. It reviews the debate between competing interpretations within Muslim society. Secondly, it also places the debate in the context of a changing legal culture with respect to the practice of religion within a rights culture. Post-apartheid South Africa: Islam and Democracy The South African constitution is unequivocal about freedom of religion, and the recognition of religious communities in the society. Even though some form of religious freedom was granted to minority religions, daily South African life was characterized by suspicion towards non-Christian religions. Numerous obstacles were placed in their way, and Christian National Education was the philosophy of its educational institutions. The new constitution removed the privileged status of Christianity, and granted equal recognition to all religions. The Bill of Rights in the constitution declared that 'everyone has the right to freedom of conscience, religion, thought, belief and opinion' (Article 15.1) and 'persons belonging to a cultural, religious, or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their languages' (Article 31.1). Through these provisions the new South African Constitution reversed more than 300 years of the institutional privilege of Christianity. Since 1994, Muslims have begun to enjoy tangible benefits of this recognition and acceptance. Muslim leaders have been recognised by the state, and often invited to open important state functions like the inauguration of International Institute for the Study ofisIam in the Modern World. state presidents. The relationship between the state and religious leadership has improved steadily. National television has provided proportional time for Muslim programming. When radio transmissions were made available for community radio stations, a number of communities in South Africa applied for, and received licenses to broadcast Islamic programs. Muslim community radio stations in Cape Town, Johannesburg, and Durban, have become extremely popular. Two such stations share a frequency in Cape Town, where Radio 786 (www.radio'Zxo.co.za) represents the views of Achmat Cassiem, the Islamic Unity Convention, and its supporters, and the Voice of the Cape that of the Moslem Judicial Council. The Voice in Johannesburg represents the Muslim Youth Movement, the most progressive Islamic voice in South African radio (www.786.co.za). In contrast, The Islamic Voice from the outskirts of Johannesburg presented the most traditional face of Islam. In 1998, a small group of Muslims complained that this particular radio station was violating its license agreement for refusing to allow women announcers.' Also from the same township, Channel Islam (www.channelislam.com) broadcasts an Islamic message via satellite to a large part of Africa and Asia. Radio al Ansaar in Durban continues the tradition of guarded modernism and political conservatism of its predecessors in Durban. The recognition of Islam by the constitution has translated into unexpected outcomes for the Muslim community. While freedom of religion has ensured the place of Islam in open society, freedom of expression, and particularly religious expression, has provided a space for debate and argument among Muslims that could not have been imagined before. In Islamic debate earlier, apartheid was condemned while compromises were made with officials. Moreover, debate about Islam was significantly curtailed in the authoritative structures of religious bodies. But the divergent discourses that were born under the struggle against apartheid were given freedom in democratic South Africa. The radio stations provide a strong indicator of this freedom in a most general sense. One particular site for illustrating and evaluating the fruit of the freedom of expression has been the debate over Muslim Personal Law. It illustrates the implications of this freedom for the ways in which Muslims read the constitution, thought about the state, and extended the limits of how they related to a democratic dispensation, The legislative proposals on the recognition of Muslim marriages impacted deeply in the Muslim community, and is worth a substantial reflection. The most dramatic provision for Islam in the Constitution has been the recognition of Muslim marriages or a complete system of Muslim Personal Law. Paragraph 15 (3) of Freedom of Religion, Belief and Opinion includes such a provision: (a) 'J.'his sect!on does not prevent legislation recognising (I) marnages concluded under any tradition, or a system of relig.. IOUS, personal or family law; or [my emphasis] (u) systems J~y emphasis] of personal law and family law under an~ ?"adltIon, 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. In 1994, the government appointed a Muslim Personal Law Board to propose a system of Islamic law as provided by the above-mentioned clause (15(3) (~)(ii». The body.consisted of members from both the religious leadership and representatives from the youth organizations that were active against apartheid. The Board col1apsed by April 1995 when its members could not reach agreement.' Recognising the importance of the issue the South African Law Commission appointed a project committee under the chair of Mr Justice M.S. Navsa of the Surpreme Court of Appeal. At th~ end of 2001, after numerous consultations and workshops, this commltt~e produced a pr?posed bill for recognizing Muslim marriages for pubh~ discussion, which appears to be enjoying greater success than the Mus~un Personal La,; Board. The process leading to this proposed bill provides an OPPOrtunity for understanding how Muslims have responded not only to legal reform, but also to religious freedom, freedom of expression and the democratic state. The Muslim Person~l Law Board set about to discuss the system 'of personal law and family law' allowed by the Constitution. The members reached agreement on the desirability of the state's recognition ofIslamic 2 F. Haffajee, 'Gender war becomes a radio jihad', in: Weekly Mail and Guardian 1998. . 2 3 E. M~o~~ 'Prospects of Muslim law in South Africa: a history and recent developments, In. E. Cotran & C. Mallat (Eds) Yearbook ofIslamic and Middle Eastern Law Volume 3, Kluwer Law International London 1996, p. 139. .