Your newspaper has reported on the Muslim Marriages Bill and your readers may be worried that the Muslim community is estranging itself from the rest of the country. This is not so. Since the adoption of the Bill of Rights we have been engaging government on matters that has disenfranchised our community for over 300 years. Limited state resources, a judiciary in limbo and the quest for a single court system is the reason for the delay in giving legal consequences to Muslim marriages.
I would like to call on my fellow South Africans to be accommodating in our quest for a shariah court to strengthen the struggle for legal consequences for Muslim marriages in the spirit of the Constitution enshrining “reasonable accommodation” when statutes seem to be in conflict with the Constitution when religious communities want to give effect to their religious beliefs and lead a good family life in line with the tenets of their religion.
“ The ideal method of legally enforcing Islamic marriages is through the establishment of separate courts presided over by competent Qadis(judges) who are expert jurists in Islamic law but not now possible because of limited state resources”. LAW COMMISSION REPORT( Chapter 5 clause 5.1: The rationale behind and the principles underlying the draft bill on Islamic Marriages.)
The late Honourable Minister of Justice Dullah Omar took the lead to establish a single court system which will be one of the first Bills to be voted on in Parliament in 2011 after a decade of debate. He was not in favour of a separate court like a shariah court fearing the court will have an inferior status like the present Labour Court for example and be inconsistent with the Constitution requirement that there be one court system. He warned a delegation which I was part of not to push for legislation until a single court system is in place. He did not even want to introduce interim arrangements which would have been a single line in three Acts stating that “a marriage includes a Muslim marriage” not being in favour of a piecemeal approach.
Under the watch of Sheikh Dr Abdul Toffar the Islamic Unity Convention and its over 200 constituent N.G.O’s membership adopted a position that the administration and adjudication of disputes relating to Muslim marriages must remain in Muslim hands consistent with the position of the Law Commission and wide Muslim opinion and fatwa’s doing the rounds all over the country. The AL JAMA-AH Political Party years later adopted this position embraced in a Muslim Bench in its manifesto to contest the national and regional elections of 2009 and for the first time in the over 300 year history of Muslims in South Africa thousands of voters went to the ballot box and voted on a Muslim issue. The Party thus obtained a mandate to take this position further.
The first action the Party took was to respond to an invitation to comment on the Superior Courts Bill 2010 and asked the government to include a 5th division in the Special Courts Division of the High Court providing for a “Special matters Court on Muslim Personal law(MPL)”. Legal opinion obtained from Advocate AB Mohamed S.C. was that this had constitutional muster and a briefing given to the leadership of the Muslim Judicial Council led to a letter of support for such a division. As lawmakers will vote on this matter the AL JAMA-AH Political Party lobbied other political parties for support as many Muslims also voted for them. These parties will now be given a briefing on the Party’s position in respond to the cabinet’s invitation for comment on the Muslim Marriages Bill which will include references to the 5th specialist division it want to include in the Superior Courts Bill 2010 which will be voted on in parliament soon. I hope other political parties will give their support to a shariah court.
The Party’s first round thinking is that one can find some way to have in place legislation that will strengthen the struggle to get full legal consequences for Muslim marriages but that legislation should not dabble in ecclesiastical(shariah) jurisprudence so that consequences including legal consequences for wronged litigants and especially oppressed women is largely found in existing structures in the Muslim community and in existing laws. The Muslim Marriages Act should be more like enabling legislation like providing for the one liners referred to earlier amending laws hampering legal consequences and have sound administrative procedures provided in the present Bill to register and dissolve marriages. This Act should not only be for Muslims but any person whose imagination has been captured by this system of family law. This will be consistent with the Party’s position that we should “share the shariah with lawmakers and fellow South Africans”. Just like true christian values will benefit citizens so we believe the shariah can benefit them as well.
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