Don’t touch the patriarchs
Parliament has left one thing at least to the courts to decide, over and over again, when legislation could fix it once and for all
When the ANC celebrated the party’s founding day this year, President Jacob Zuma boasted of its record: since 1994 all forms of legislative and institutionalised discrimination on the basis of race, gender, religion, culture and sexual orientation had been removed, he said.
But he was wrong. Maybe he has forgotten; maybe he never knew. But the law and his government continue to discriminate against a particularly vulnerable group, and, more than 20 years after democracy, parliament has still done nothing to fix the situation.
I’m talking about women married under Muslim law. And I’m talking about their children.
These are women who married in good faith, believing they were deserving of the same constitutional protections as their married sisters of other faiths and that the interests of their children would be paramount, as is the case with other children, regardless of their parents’ religious or cultural beliefs.
When a woman married under Muslim law wants a divorce, however, she finds she has been duped: parliament has neglected its constitutional duty to ensure her protection and has failed to pass legislation that will keep her and her children safe.
Not so long ago marriages under African customary law were not recognised by the state either. At that time the SA definition of marriage referred to the union of one man and one woman, and since marriages under Muslim law and under customary law were potentially polygamous, such unions could not be sanctioned by the state.
After 1994 and the new constitution it took just four years for government to recognise African customary law marriages incorporating the idea that a man could marry more than one wife. But despite repeated promises that “new drafts” were about to be put to parliament, or that proposed legislation was on the slate for that session, the legislature has done nothing to incorporate Muslim marriage law into SA’s constitutional dispensation.
Instead politicians seem happy enough, at least on this issue, to leave matters to the courts. And so one case after another is successfully litigated to ameliorate the hardships caused by parliament’s ineffectiveness, negligence — or maybe even cowardice.
The only step government has taken is to register a number of imams as marriage officers, something that might well have been aimed at avoiding decisions about a new law and confronting the deeply patriarchal elements of Muslim society.
But getting these imams on board has changed nothing. Advice they hand out is often flawed, and the Muslim Judicial Council has made it clear that the status of Muslim marriages under SA law is unaffected by the imams’ registration.
Among the legal organisations and individual lawyers who have to deal with the fallout is the Women’s Legal Centre in Cape Town. Its many clients embody the problems caused by the failure of parliament to change the law and the centre has brought a number of challenges on their behalf against the hardships caused by the ambivalent position of women married under Muslim rites only.
After so many individual cases that just pick away at the edge, however, they are now poised for the big one: a case in which they will ask the high court to declare that Zuma, as head of the national executive, with his cabinet and the national assembly, have all failed in their duty to prepare draft legislation that recognises Muslim marriages as valid. They want the court to order that a new law be ready within 12 months and for a way to be found in the interim to bring their clients under the protection of existing laws on marriage and divorce.
Scheduled for hearing in a few months’ time, the case should be a rallying point for everyone alarmed at the grave injustice that government allows to continue — despite the pleadings of so many women and the findings of so many courts.