Dossier 27: Why bring Islamic personal laws into the public space? Episodes from Tanzania
Publication Author:Salma Maoulidi
number of pages:93
Invariably, the two spaces are contested and more so in a context of pluralism and integration. In recent times, such tension is witnessed in global and national structures where specific groups seek to limit the reach of the universal by asserting their individuality on the basis of religious, lingual or ethnic affiliation. Among them are Muslims who demonstrate an exceptional ability to claim either domain, as the political occasion warrants. Muslim nations and communities have consistently taken exception to a number of international human rights instruments claiming cultural relativity. Ironically, they refuse to recognize the same claim with regards to non-Muslims within their borders; or involving Muslims who live in non-Muslim contexts.
There is an increased trend towards asserting an Islamic identity represented symbolically by the adoption of ‘Islamic schools’, ‘Islamic dress’ or ‘Islamic food’. The preoccupation with an ‘Islamic identity’ amplifies the contest between the public and private space. It is a claim not only for individuality but also for space to express the same, free from state interference or public control. Essentially, it seeks to privatize the discourse on being. Whereas some may explain such intransigent attitude as a response to the feeling of vulnerability among Muslims amid globalization, and more recently to the war on terror, it is in effect a political ruse to guard the particular and private from external interference.
Indeed, at different historic moments the Islamic community has made sundry claims to the public and private space. In the earlier part of their history Muslims emphasized less the private sphere as they tried to build a sense of community, the umma, which emphasized the collective. Colonial domination invoked in local communities patriotic expression in nationhood. To maintain a sense of self, a separate identity, colonized Islamic communities claimed sanctity over the private space, mainly the area of family relations. Perhaps, the private space is the ultimate expression of individuality in human relationships in a global, plural community.
The application of a disparate standard is at the heart of women’s legal and social inequality. Certainly, in legitimizing a group’s claim to the private sphere, the assumption is that the demand is unanimous; and that the outcome for the group is similar. While there is merit to claims of cultural relativism, activists must not lose sight of the implications a blind, and often universal, application has on different groups and classes claiming a right to distinct treatment. The tension between the public and the private is so very central to women, as other than affecting their overall status, it, in effect, sets the foundation for their (in)ability to set any claims whether based on the divine or the universal.
This paper presents concrete scenarios showing the dilemma faced by women in plural contexts when Shari’a is invoked and applied to women. It begins by putting into perspective the discussion on reforms of personal laws on mainland Tanzania and goes on to present three case studies that underscore the contradictions arising from the application of dual legal systems as well as standards of realizing justice. Whereas women and human rights activists have argued for gender equality on the basis of human rights this paper builds on the notion of citizenship to demonstrate the incidence of institutional violations of women’s citizenship rights. Notably, it shows how women’s shifting identities affects their citizenship status as wives, and therefore members of a sovereign household; as members of their religious or cultural communities; or as nationals of a sovereign nation.
Considering the Shari’a and reforms
Why consider the question of Shari’a?
The application of Shari’a has raised fundamental human rights challenges in many parts of the Muslim world and in Muslim communities where it is adopted or invoked. Whereas many men and women claim the Shari’a as the primary reference point out of religious conviction, it is increasingly becoming clear that the choice for Shari’a is equally, if not more, political. Indeed, the adultery cases involving poor women in Nigeria Northern states; the denial of educational and professional opportunities to Afghan women; the banning of the headscarves in Turkey and France; the harassment of women groups, women activists and writers in different parts of the Muslim world; and the use of Islam by different groups and government to claim legitimacy and political influence attest to this.
The politicization of the Shari’a confounds human reason and the notions of justice. Whereas Muslims, be they conservative, extremists or progressive’s attempt to justify the theoretical ‘soundness’ of Shari’a its viability in practice, particularly on issues affecting women, raises great concerns such that Shari’a and its application is contested between different groups be they Muslims and non-Muslims, Islamists or moderates, religious or secularists and the like and not so much for what it can potentially offer but more so for what it evokes. As Muslim public opinion contends with the viability and desirability of an Islamic state or the adoption of Islamic laws few are concerned with its practicability and its consequences to women. In fact, the dominant discourse has not evaluated the extent to which existing regimes have mustered the ‘Islamic’ ideal of justice both in terms of rights and duties to groups who find themselves on the margins.
I will illustrate what Shari’a is, and means, to actual realities building on cases from Tanzania to problematize key human rights and moral questions its application presents to women. Tanzania has a dual legal system where religious law and customary law is used parallel with statutory law. Mainland Tanzania, the object of this paper, recognizes Islamic law in personal law matters. Unlike Zanzibar, which has an institutional framework within the legal and administrative system to apply Islamic Law, on mainland Tanzania it is applied through the normal courts, a fact that attracts wide criticism from women activists as well as Islamists. The Law of Marriage Act (LMA) governs matrimonial issues and recognizes three forms of marriages: civil, religious and customary. The LMA does not provide for the dissolution of marriage in the event of death. In this latter instance, the Law of Succession applies. Many have decried the suitability of the Law of Succession on account of its discriminatory provision. In many cases, wives do not inherit and as a rule daughters inherit less than their brothers.
Certainly, the motivation influencing proponents for reform are varied but they all believe that the reform of the legal system will guarantee women more rights. Women activists want a uniform legal system while Islamists want the introduction of Islamic courts. The debate on reforms of personal law gained momentum following the Vienna Conference on Human Rights in 1993 but has since stalled on account of state inaction. This is, on the one hand, motivated by political expediency concerned with retaining the Muslim votes, and on the other hand, by an unwillingness to address difficult issues that emanate from the reform process.
State regulation is at the heart of women subordinate status as citizens. Decidedly the law fails to recognize women’s independent status as autonomous citizens with grave consequences. Foremost it condemns women to a life of dependency and inequality, which contributes to the increased incidence of poverty among women and perpetrates violence against women on many fronts. The state legitimizes institutions operating under its aegis to dictate women’s lives unhindered but offers women no similar guarantees or protection. The application of a disparate standard is at the heart of women’s legal and social inequality that contravenes the Tanzanian Constitution on gender equality as well as the ethical and moral foundation of Islam, which stresses justice and equality.
However, as will be appreciated below, these notions are in dispute when they relate to the rights of women in the private space. The violations go unchecked mainly because the debates on reforms have not moved past cultural relativism to emphasize moral and ethical considerations, which may justify reforms on the basis of public interest. Doing so will allow the state to fulfill its obligations to women not only under international and national instruments but more importantly, as citizens deserving of respect and protection from violation.
A dual legal system presents a situation where women have multiple citizenships, a situation that presents particular dilemmas as will be appreciated in the case of an Asian woman I call Mama A, a widow. She and her husband married late in life and are childless. The husband’s only living blood relative was a brother with whom he shared a family house. The brothers had a strained relationship. On various occasions the younger brother tried to ruin Mama A’s husband financially. Mama A’s husband ran a small provisions shop specializing in traditional herbs and medicines. When her husband was alive Mama A stayed at home and left the running of the business to her husband as is typically the case with women from Asian Muslim background.
The shop is in the middle of Moshi Town. Mama A and her husband resided at the back of the shop. The brother occupied the adjoining part of the house where he ran a shop-cum-restaurant. Following her husband’s death, Mama A finds herself in debt. The shop had lost money. Seeing her vulnerable status the brother tries to dispossess Mama A of the property inherited from her husband deploying elements in the police and religious establishment to do so.
While still observing iddat the brother begins to harass Mama A. He wants the shop so that he can expand his business to accommodate the needs of his growing and expanding family. He attempts to evict her from the premise initially by treachery but later using outright threats. But because both Mama A and her husband had good relations with the local African community, they soon become aware of her brother-in-law’s antics. Angry about the public humiliation, he subjects Mama A to including bribing policemen to arrest and detain her, they contact a local women’s human rights organization which invokes the legal machinery to secure Mama A her rights.
Mama A belongs to the Shi’a Ithnasheri sect. It is a closed community with their own leadership structure and systems for resolving disputes among adherents. Mama A would have preferred the matter to be solved in her community but she is extremely discouraged by their lack of interest in her welfare. The cleric who tries to mediate clearly favoured the brother-in-law . The cleric persuades Mama A to relent to the brother-in-law’s wishes in the interest of the family. Because the brother is a well-to-do businessman who regularly contributes to the mosque, they cannot offend him. Mama A on the other hand is a poor woman with no relations in Moshi. She was therefore expendable and instead of her vulnerability becoming her strength, as per religious logic, it becomes her vice. The silence and hostility she faces in her community persuades her to seek redress somewhere else.
All the while Mama A realizes her dilemma. It is likely that she will not marry again at her age, nor is she too keen to. There is therefore no question of a man looking after her. But since Mama A she is advancing in years and has no relations in Moshi she wants assurance for her future. Mama A is from the isles but moved to Moshi because of her marriage. Her family fled Zanzibar and moved to Dar es Salaam because of the fragile political situation. Mama A thus finds herself in an impossible situation - she cannot go back to her birth place nor could she move in with her brothers in their new homes as they have their own families. Her only salvation is to remain in Moshi and revive the shop to ascertain her livelihood. The brother-in-law tries to move her from the premise claiming he wants to rehabilitate the house in accordance with municipal standards. He makes provision to house her in a room in a low class quarter, but she becomes suspicious when she finds he has no plans to move his family.
Legal Aid takes the case and the court rules in Mama A’s favour. By this time, the business has recovered allowing her to pay off most of the debts left by her husband. Her madhab, however, refuses to recognize the ruling claiming it is un-Islamic being from a secular organ. Mama A faces another dilemma: while she has the full support of the African community, which largely is not Muslim, she can’t afford to ostracize her own. The Asian community is organized by sects, each sect having a social network not only locally but also nationally and globally. She depends on this network to solemnize religious and social rites, a real concern as she ages. Moreover, she knows that her defiance will not cost only her in Moshi, but may also affect her and her family beyond Moshi, a risk she is not prepared to take.
A case of unjust enrichment
The complexity and at times undesirability of applying Islamic law to local realities can best be appreciated in the case of Marijala v Marijala. It is a clear example of how relatives use the pretext of an Islamic identity to enrich themselves unjustly while denying deserving heirs of property rights. It is also an example of how the legal system is an accomplice to the systematic dispossession of family and matrimonial property against womenfolk, Muslim or otherwise.
The case involves Marijala who is now deceased. Marijala was a Muslim, but he did not live according to Islamic ideals. Marijala was employed by a parastatal as an engineer and at different times was posted in various parts of the country. At these places he struck up sexual and romantic relationships and many times co-habited with his love interest. Accordingly, he had a number of wives, or women, some of whom were known, while others not, to the family. All his children were, in legal speak, from irregular or illegitimate unions. Yet, upon his death his relatives wanted the property administered according to Islamic law, something that would allow Marijala’s mother and siblings to inherit the lion’s share of his wealth while his children, and the women he actually lived and acquired the property with, went without.
Two of Marijala’s partners challenged this on the grounds that they were married to Marijala or had co-habited with him for more than two years. In this case the presumption of marriage under the LMA would apply. One of the women was Christian and while the other was Muslim but both had no legal status to claim an inheritance share since the court relying on Shari’a found that the Christian woman could not inherit from a Muslim, even if it were her husband. It also failed to consider the Muslim woman’s argument because although they were both Muslim, they married under customary law not Islamic Law. This is in spite of the fact that the LMA recognizes customary law marriages.
Instead the court felt bound to accept the argument of the family and ruled that the property be divided between his siblings. The older brother was tasked with the responsibility to administer the property. Although Marijala’s children also did not inherit any property, the older brother undertook to ‘care’ for four of the deceased’s children whom the deceased had introduced to the family. Additional claims by two other women and their children were rejected because the deceased had not introduced them to the family. Ironically, the practice where a man introduces his partner to the family is a customary practice yet, the family invoked it before the courts when it suited their purpose but rejected the customary practice of paying bride wealth, which is common and was advanced by the women. In fact, it was customary practice that mandated them to look after the children they recognized as having being sired by the deceased.
The tragedy unfolded by the court is far reaching. In such matters the court is commonly guided by two tests to determine how property should be administered, one being the mode of life test. Ironically, the mode of life of the deceased was far from Islamic, yet escaped scrutiny. Instead only the women’s relationship with the deceased is the object of scrutiny leading the court to rule in a predictable manner. The life of the deceased hardly came under scrutiny, as was the motivation of the family to inherit and manage the property. By ruling in favour of the relatives of the deceased, the court upsets an otherwise stable and economically sound household denying it their means of livelihood.
Reducing poverty is a priority under the Poverty Reduction Plan and Tanzania Development Vision. In particular women who form the majority of the poor are targeted. Yet the legal framework causes women to become impoverished by allowing others to benefit from matrimonial property solely by virtue of their blood ties and shared faith with the male deceased. Such position is in opposition to the LMA, which does not consider such facts as legalizing a relationship. Moreover, it seeks to ignore, with legal sanction, the choice made by the couple over a private matter in which intrusion has consequences that are of public interest.
Absence of agency and loci
The cases reviewed thus far indicate that in both law and practice women have no locus. The egalitarian notion under the constitution and the LMA is therefore thwarted. This lack of locus is more prominent in religious bodies as evidenced by the case of an HIV/AIDS victim, I will call K, raising real concerns about whether religious bodies offer women a better deal.
K was married to H for almost 20 years. When they met, she had a good paying job. He convinced her stop working and stay at home. He promised to provide for her and to open a small business for her. From the outset, the marriage was far from happy. H was physically and verbally abusive. He was also unfaithful and contrary to his promise did not provide regular maintenance. As a result of his affairs he infected K with the HIV virus. Upon discovering his status he sought treatment for himself but embarked on a campaign to soil the reputation of K including announcing her HIV status.
Believing she is now useless to him, he invoked the religious establishment to issue K with a divorce or talaq. The religious establishment discussed the issue between men, and proceeds to legitimize the talaq without hearing K. They only summoned her to inform her of her divorced status. To expedite her departure, the Islamic body authorizes about $400 for her fare home and to help her settle. No consideration was made to the time K spent in the marriage or to the contributions she made to the family wealth as specified in the LMA. In fact, in legitimizing the talaq, the religious body exceeded its powers. Under the LMA, the only body legally empowered to issue a divorce or any orders related to the divorce is the court. The task of the religious body is to reconcile the parties and ascertain whether the marriage has broken down irreparably.
More problematic is the flagrant violation of both fiqh rules and principles in solving or dissolving matrimonial disputes. In K’s case, no attempt was made to reconcile the parties. At no time were K or her relatives called in to resolve or partake in the negotiations. K’s contributions to the marriage were not taken into consideration, the assumption being since she stayed at home her husband took care of her. No mention was made of the fact she was a trained professional who was forced by her husband to quit her job on the understanding he would provide for her. Lastly and more gravely, no consideration was made in relation to the harm K suffered in her marriage on account of her husband’s physical and emotional violence, as well as knowingly infecting her with a deadly virus.
Instead she is doubly punished. Her husband relies on the religious establishment to justify his authority and male prerogative to give a unilateral divorce. K’s attempt to challenge the action falls on deaf ears, as she has no access to the religious body. Instead she sought legal aid to take the case to the court. Again, and contrary to the law, the lower court finds that a divorce has been issued according to Islamic rites. They also find that the iddat period has expired and K is no longer entitled to any rights as a wife. The court, lacking expertise in Islamic matters and law relies on the opinion of Islamic bodies to arrive at a finding. K’s lawyer appeals to a higher court to reverse a ruling that contravenes the statutes.
Meanwhile the husband remarries and continues his destructive lifestyle unperturbed. In effect the legal and religious machinery solemnizing marriages become willing accomplices to the injustice against K and most certainly other women. While K is the victim, her life remains on hold awaiting the appeal. Thus while K’s legal team is hopeful that they will have their day in court on matters of procedure, the substance of the law that denies women locus remains unchallenged. The political and legal culture that perpetrates inequalities and injustice remains entrenched defying the Islamic spirit of justice and constitutional guarantees. Likewise K’s status as a citizen, entitled to rights and protections on the basis of equality as other citizens, is systematically violated without their being a valid legal reason to revoke her citizen status.
All three cases demonstrate how under the present legal system women’s lives are dependent on the whims of the men in their lives. Also their futures remain suspended as a result of the action, or inaction, of men and the state. The resulting scenarios are not only unjust per human rights standards but defy the Islamic notion of upholding justice.
In each case, Islamic law has been invoked to curtail or deny women their rights, a law that is confined to the private sphere and, in so doing, dictates in fundamental ways, women’s predicament in other spheres, be it social, economic or political. Clearly, the effect of this goes beyond their identities as Muslims but also in view of the fact that they are individuals and citizens entitled to legal and constitutional protections. It may be that under the Shari’a the man is obligated to look after women, and therefore provide for them, an edict that was rational at the time of the verse’s revelation. But each of the presented cases not only shows that men fail dismally in their duties but that there is very little interest for them to comply. Moreover, it is clear that social relations, particularly with regards to mobility and practices, have changed so much to warrant a new interpretation and application that is relevant and responds to present realities. Arguing for the sanctity of the private sphere rejects such developments as relevant.
Development, equality and justice form a universal vision that women and men are entitled to on the basis of their global citizenship. National constitutions represent a local equivalent of citizenship rights intended for universal application to all persons in a given country. Therefore claims to particularity in treatment are undemocratic and unjust as they are intended to benefit the individual and not to preserve the greater good, which contravenes the intention of both religious and secular laws. Ultimately, they afford little chance for democratic principles to evolve in negotiating a matrimonial relationship.
It is clear from these cases that in the absence of an egalitarian legal framework and standard, Muslim women in Tanzania and in contexts like Tanzania, will fail to claim and realize their rights as citizens of a sovereign nation. Even where progressive and egalitarian laws are in place, gender equity in a matrimonial relationship cannot be realized when there is an absence of institutional mechanisms to facilitate it.
This paper is reprinted with permission from the author.
1) I refer here to the ability of governments to include a reservation clause with regard to the application of international instruments and qualification clauses in national legislation.
2) Countries applying versions of Shari’a law show a reluctance to recognize other religions and the needs of adherents of those religions on the basis of being an Islamic state, while Muslims living in minority and secular contexts readily claim their right to retain Islamic law and practices unhindered.
3) Mainly the Kadhi’s Court and the Wakf Trust.
4) Act No.5 of 1971
5) The Indian Succession Act 1865
6) ‘Mama’ is a respectful term in Kiswahili equivalent to the American ‘Ma’am’ or French ‘Madame’.
7) We witness domination and deference to business figures in religious spaces mainly because of their financial power and sponsorship.
8) She did not have documentary proof of the marriage, the late Marijala having only satisfied the necessary customary rites with her father.
9) Sex based discrimination is prohibited under Art 13(5) of the Constitution.