South Africa: Proceedings of women's workshop: “Know your rights, accept your responsibilities”

1) Muslim women begin to question their current situation and reflect on what they want/need in order to be dignified individuals, and treated with dignity as well.
2) Muslim women know and claim their rights by using Islamic and South African Law.
3) Muslim women become pro-active and challenge oppressive structures within their homes and society.

I think from the onset it is important to mention that the gender complement was predominantly female, with the active participation and contribution of three males.

The above-mentioned points were contextualised by the following speakers, who allowed for maximum debate and in-depth discussion throughout their presentations. This was a laudible effort given the time constraints.

Point one was presented by Nurjahan Kahn, advocate of the High Court and author of the book “Law and I”. Nurjahan Kahn made some salient remarks to pertinent marital issues and challenges, commenting that “women contribute to the problem and buy into the exploitation because they are overwhelmed by the outside appearance of things, the image, thus making them more susceptible to buying into the wrong advice and remaining ignorant of their rights”.

She further pointed out that women tend to “put their lives in a box and in so doing put their lives on hold”. She concluded that if women equipped themselves with the right amount of knowledge, understood their rights in the broader framework of South African Law, “many remedies” would come about to cure their marital ills. Nurjahaan also provided a list of legal avenues and agencies that women in dire marital situations could exhaust to procure protection and ensure justice for themselves.

Point two was presented by Waheeda Amien (attorney of the High Court and Lecturer in Law at UCT). Waheeda Amien’s presentation focused primarily around the rights of Muslim women within Islamic Law and South African Law. She defined Muslim Personal Law as Islamic-based family law, and spoke of polygyny and not polygamy within Islam. Waheeda argued the point that “legal recognition of South African Muslim marriages will ensure the protection of women’s rights”.

Point three was presented by Ashraf Mohammed (South African Human Rights Commission). Ashraf Mohammed brought an interesting take to the whole discussion, by revealing how “the notion of human rights hold different meanings and purpose for each and every human being”. No person holds the same interpretation to understanding what human rights are or mean to them. He cited the Cape Town case where a secondary school refused an expectant learner to return to her studies at the school. The challenge that the South African Human Rights Commission and other mediators faced was that both conflicting parties had rights, but who and what would determine whose rights should be afforded, and whose not. On the one hand was the right of education to this learner as opposed to the rights of her fellow classmates and the rest of the school body, and importantly, the sentiments of the community as a whole.

Upon personal self-introspection and reflection, I uncovered three things of note through participation in this workshop:

1) Muslims in general, irrespective of gender, have no real understanding or knowledge of the conditions, responsibilities and rights relating to Nikah [contraction of marriage, ed.]. Thus we are faced with increasing power imbalances, gender discrimination and prejudice within our marital relationships, homes and broader Muslim society. The Islamic judicial structures that exist to ensure the implementation, protection and observance of such rights, are weak and flawed in deliverance.

According to Waheeda, drawing excerpts from her case study featured in the John Hopkins Human Rights Quarterly 2006 publication entitled “Overcoming the conflict between the Right to Freedom of Religion and Women’s Rights to Equality: A South African Case Study of Muslim Marriages, she writes “The ‘ulama (Muslim quasi-judicial bodies) preside over matters affecting the Muslim communities that range from marriage, divorce, custody, and access of children, to what foods are permissible or impermissible. Although their decisions do not have any legal weight or enforceability, they carry substantial moral weight with members of the communities, many of whom willingly abide by them. They are headed by conservative male clergy whose decisions reflect a traditional, male-centered understanding of Shari`a, which results in discriminatory treatment that negatively impacts on women”.

2) Muslims have very little, if any knowledge on the history of our South African "Bill of Rights", and the varied mediums available to approach when faced with a human rights violation or issue etc. Here Nurjahan’s recently published book aptly entitled “Law and I”, is an excellent empowerment tool as it provides practical steps, legal guidance and suggested institutions of recourse for women faced with marital upheavals and discord.

Ashraf also cited the South African Human Rights Commission as another medium to approach if issues of human rights violations and infringements arose , but on a cautionary note, informed the workshop that the SAHRC was not an enforcement agency, thus had no judicial or legislative will and authority over matters that came before them. Its mission statement clarifies this point further, “The South African Human Rights Commission is the national institution established to entrench constitutional democracy. It is committed to protecting respect for, observance of and protection of human rights for everyone without fear or favour”.

3) That basic human rights framed within our constitution allows us the opportunity to 'claim' our rights if we feel they have been infringed and/or violated, but at the same time, limitation clauses do exist, that ultimately does not guarantee that those rights will be duly afforded. They are and will always be "subject to" a "higher" universal right within a multi-faceted democratic dispensation.

Clearly the next question begs, is there any feasible way forward?

I have offered my two cents in this regard and suggest the following:

1) Muslims need to start educating themselves on their Islamic rights and obligations, especially young couples on the brink of marriage. Within a South African context, whilst our marriages are not legally recognised, protection at present rests best with contracting to a civil union and drawing up a marriage contract.

Now some would argue that this is "unIslamic", but how does the Muslim woman and/or man, legally protect her or himself, if currently "Islamic Law" within the definition of Muslim Personal Law, is not legally binding or recognised as yet by the state?

2)We need to introduce Civic Law into our school curriculums. Our children need to understand the basic laws that govern and regulate South African civil society, including what “human rights” means and why it serves the needs of EVERY human being, how it affects and influences their daily lives, and what it means for their future. Only in this way, can we foster a better understanding, mutual respect and tolerance of these laws and rights, among the diverse cultures and creeds that we celebrate under our South African democracy. In so doing, we produce a future alive with possibility.

3) We need to muster our political will and continue lobbying towards the legislative recognition of our Muslim marriages. There will be varied opinions and contestations on many issues that arise out of an Islamic marriage among many Muslim judicial and civil quarters, but these debates need to resurface and the pressure needs to be applied more consistently and collectively towards legal recognition of our South African Muslim marriages.

In closing, I think the workshop achieved its objectives, in getting the women present to start “questioning their current situations and reflecting on what they want or need in order to ensure a dignified existence.” The empowerment tools offered in the form of Nurjahan Kahn’s book, Waheeda Amien’s educational, descriptive and informative presentation on current traditional Islamic Law and South African Law, as well as Ashraf Mohammed’s exercise on attempting to define human rights within the confines of traditional Muslim thought and secular democractic ideals, in so doing, generating an understanding that in order to attain and be afforded these rights, mutual tolerance and respect is core to its success.

I walked away empowered, uplifted, motivated and eager to share what I had uncovered.

By: Mymoena Arnold

With thanks to The Gender Desk- Muslim Youth Movement of South Africa (MYMSA)