Berkley Center

One of the most fundamental principles upon which South Africa'’s current judicial system rests is the notion that all people are considered equal under the law. The debate over the incorporation of Muslim personal law (MPL) into the secular legal system thus presents an exception to this tenet by applying different standards to citizens of different religious beliefs. Many Muslim scholars argue that non-recognition of their laws is detrimental to all citizens by denying legitimacy to important institutions that theologically they cannot reconcile with the secular equivalents. Not only are there several practical and ideological obstacles to implementing an alternative legal tradition into South Africa’s secular system, but also, the concept of the law as the supreme institution that treats all people as equal would be compromised.

Although Muslims comprise only two percent of the South African population, they have always occupied a strong public presence in the culture and politics of the nation. In 1805, informal judicial tribunals began to operate in the Muslim community to deal with cases of mosque leadership and property disputes, and family matters of divorce, custody, and succession. At this time, the secular colonial law did not officially recognize any form of Muslim law. The Muslim clergy, the ulama, organized themselves to better handle legal religious disputes and teach Muslim law in their communities. These courts proved quite successful and only when a settlement could not be reached were the secular courts involved.

In 1987, the ulama asked the South African Law Commission (SALC) to recognize MPL. The SALC denied this request claiming that it would cause confusion in the current legal system and because the secular laws did not interfere with a Muslim's ability to live according to Islamic law. The SALC's attitude toward MPL changed however, and in 1987 it distributed a survey to Muslim organizations asking for information regarding the implementation of MPL. Responses to the survey varied, with the conservative clergy supporting recognition and the progressive faction of the Muslim community remaining extremely skeptical of the SALC's initiative. The issue was overpowered by the liberation struggle, but recognition of MPL was granted in the interim constitution. In 1994, however, the Muslim community was so divided, with no strong leadership, that it was unable to present a unified design of their preferred way to incorporate their traditional laws into the new constitution. The ANC, therefore, did not specifically provide for MPL in the new constitution, although its freedom of religion clause leaves the opportunity open for incorporation in the future (Moosa, 130-139).

Most Muslims agree on the universal benefits of incorporating MPL into the secular legal system in South Africa. Moosa explains the centrality of law in Islam. In fact, Islamic law is the most important element in the religion, and is foundation for current debates surrounding the religion (Moosa, 1988: 1). The sharia is the source of Islamic law and is argued to be a flexible and adaptable doctrine. This, it is argued, allows Islamic law to change as social conditions evolve through new legislation (Moosa, 1988: 8, 37). Non-recognition's disadvantages for the Muslim community are mainly seen in practical matters. For example, the state does not recognize Muslim marriages that are not government sanctioned. Any children conceived in the relationship are thus considered illegitimate (Mohammad, 1994: 17). In a tradition where all inheritance is issued through the patrilineal line, this has dire consequences for Muslim children. Finally, Islam represents a strong source of identity for Muslims and they thus lobby for representation in, and recognition from, the South African government. A sense of belonging is derived from the state's official endorsement of one's most sacred values and beliefs. In the 1998 case of Fraser v. Children's Court, Pretoria and Others, Mr. Fraser lost custody of his daughter when he divorced her mother because their marriage was never sanctioned by the state (African Law, 1998: 236). Because Muslim marriages are not considered legitimate, the wife's new husband was able to adopt the daughter under South African law without Fraser's consent or knowledge. The law here made Fraser an alien in the land of his birth, with no rights under the current legal dispensation (Muhammad, 1994: 17). Incorporating MPL would eliminate the isolation of Muslims from the political community that refuses to see the importance of these customs in the daily lives of Muslims.

The problems that would occur in implementing MPL, however, are also plentiful. Practical concerns include the lack of administrators qualified to adjudicate in Muslim courts and enforce the new laws. Also, South Africa has no institutionalized training for such a position. In a non-Islamic state where Muslims are a small minority, human resources are severely limited for such an endeavor (Moosa, 1988: 66, 67).

In addition, as social conditions change, the law must be able to adapt and allow for new participants with different needs. MPL retains an increasingly outdated vision of women's role in society. It expects women to remain in the domestic realm, subservient to their husbands, with few marital rights. Although some believe the sharia is capable of change, there are many opponents of this theory who argue that MPL must be adapted to the South African context to be smoothly and effectively implemented. Areas of tension include the talaq system where husbands are able to indiscriminately terminate a marriage, polygamy, gender inequality, inheritance laws, and custody rights (Moosa, 1988: 67). These outdated principles hinder Muslim women as they gain more independence. Finally, MPL relies on the kinship system that is much less widely in place today (Moosa, 1988: 73). Modernization and urbanization have effectively rendered these concepts useless to the Muslim community.

One attempt at reform of MPL is through the theory of legal eclecticism. This permits jurists to choose aspects and interpretations of MPL from the dominant legal schools that better serve the changing needs of society (Moosa, 1988: 68). The problem here, however, is that there is no basic line of minimum human rights requirements. Secular law is also open to various interpretations, but its foundation is strong enough to handle different reforms and meanings while preserving the fundamental rights that society has come to depend on. MPL does not have the same sense of what constitutes minimum human rights obligations, and it is therefore much less open to experimentation.

The relationship between the ulama (orthodox clergy) and the South African state presents another challenge to the implementation of MPL. The ulama are considered by conservative Muslims to be the sole authority on Islamic law and the sharia. Therefore they alone may interpret Islamic literature and law. As a conservative group, the ulama present an unchanging and inflexible approach to Islamic law and texts and thus also prevent the adaptability of MPL to changing social conditions (Moosa, 1988: 42, 43).

Moreover, the state tends to favor the conservative faction of the Muslim community. This means that the ulama would work closely with state officials in incorporating MPL into South African society. As such, implementation could be used as a political tool to preserve the orthodox elements of MPL and stifle the progressive factions (Moosa, 1988: 77).

The example of MPL recognition in Algeria provides an insightful example of this concept. As the Algerian liberation movement began to gain momentum, the French colonial government allowed the establishment of Muslim family courts. This move clearly demonstrated an attempt to appease the local resistance to colonialism and calm the brewing political instability (Moosa, 1988: 79). The 1987 SALC initiative in South Africa provides a similar instance of compromising with Muslim leadership to quell political resistance.

Yet this legal pluralism actually threatens MPL by making it vulnerable to encapsulation by the ruling legal system. Incorporation was ultimately based on the inequality of two legal systems. In this context of Algeria and South Africa, MPL was to be incorporated to appease discontented internal factions in order to strengthen the nation-state. When the state attempts to reform MPL to reconcile it with the secular law, Muslims are outraged at this perceived defilement of their religion. Consequently, MPL becomes a static entity with mainly symbolic power (Moosa, 1988: 61,62). In this form, it is increasingly difficult for MPL to satisfy the needs of its constituents, and Muslims thus come to rely on the dominant legal system despite their struggle to establish MPL (Moosa, 1988: 66).

In a non-Islamic state, incorporation of MPL cannot be anything but inferior to secular law and extremely limited in its jurisdiction (Moosa, 1988: 81). Unless the Muslim community is prepared to accept such a status, it should not lobby the government for implementation.

Another practical obstacle to MPL implementation is simply the variety of interpretations regarding the nature of certain clauses, as well as overall meaning. Moosa explains the different theories regarding gender roles in his 2001 essay: "[S]ome trends in Muslim jurisprudence still hold that women do not acquire legal and moral majority in certain transactions ... According to some legal schools, women lack the capacity to contract marriages ... Some schools argue that the requirement of two females' evidence only apply to financial and commercial transactions ... "(204). 

This exhibits the ambivalence of MPL and thus demonstrates the difficulty in finding a uniform interpretation for implementation. Moosa admits that there is no standardized interpretation of the sharia, and emphasized the potential threat this absence causes. The Universal Declaration of Islamic Human Rights states that no one shall be deprived of the rights assured to him by the law except by its authority and the extent permitted by it. MPL is not codified, and thus the authority defining its limits if often arbitrary and unevenly applied (Moosa, 2001; 197).

Implementation then requires reform of MPL. Without reform, incorporating MPL into society will plague the gender equality battle. This is likely due to the conservative hold on the state and their anticipated collaboration on implementation. Women, in turn, will return to the jurisdiction of secular law, and implementation will have been meaningless save to expose the corruption and hypocrisies of the system (Moosa, 1988: 76).

Recognition of MPL was considered in the writing of the new constitution, but the Muslim community's inability to organize efficiently and present a unified response to the demands of the constitutional assembly delayed a final policy on MPL recognition. The future of this matter is now in the hands of the ANC (Moosa: 139).

South Africa has agreed on certain principles as developed in the constitution, including not giving preference to one religion over any other. Also, fundamental human rights issues have been addressed and consented to by the people, such as gender equality. Recognition of MPL would first show a favoring of a religion by the state. If MPL were to be incorporated, all forms of alternative legal systems would lobby for recognition. Also, it would permit certain citizens to be governed by and held to standards different from those of their fellow citizens. Essentially, these citizens would be above the common law. Moreover, the question then arises of who is considered a Muslim. The state would be obliged to create some arbitrary definition of a Muslim, a task it is not qualified to undertake, nor is it permitted to define religion.

Likewise, the South African constitution bestows on all citizens certain basic rights simply by virtue of membership in the human race (Moosa, 2001: 198). MPL, as noted before, has a different concept of what constitutes inalienable rights. By allowing an external organization to define these crucial rights for its members, the state loses a degree of its legitimacy and establishes a dangerous precedent for endorsing the degradation of human rights.

Thus, the recognition of MPL does not depend on the state making a judgment call, which is outside its proper role, on which system is better or more morally permissible. Even if the practical challenges to incorporating MPL could be surmounted, and the law itself reformed to reflect changing social conditions of modern society, implementation would still be dangerous. The authority of the legal system is South Africa rests on its objective nature. The law is above race, class, and religious conflict, and treats different members of each group exactly the same. If the law allowed exceptions for any sub-group in society it would lose its legitimacy and people would be less inclined to adhere to its policies. The implementation of MPL, or any alternative legal system, thus presents a danger to South African civil society.