The Collusion of the Patriarchs

Abstract

This chapter critically examines the role of legal pluralism as a political instrument in South Africa, particularly its impact on the representation of Muslim interests and the limitations it imposes on the rights of married Muslim women under Muslim Personal Law. The analysis navigates through legislative authorities during apartheid and democratic South Africa, contextualising these periods as manifestations of a ‘fraternal contract’. The collusion between Muslim patriarchal organisations and diverse political regimes is highlighted. The focus then delves into the complexities of divorces adjudicated by Muslim organisations, drawing narratives from women’s experiences. The research underscores the challenges faced by Muslim women in seeking divorce. Outdated fiqh, rooted in centuries-old Islamic jurisprudence, shapes the policies of Muslim organisations, necessitating a revised fiqh aligned with the twenty-first-century realities. The research uncovers the relationship between the state’s institutional framework and religious doctrines in the divorce-seeking process, emphasising how these structural determinants significantly constrain women’s agency. The chapter offers a comprehensive analysis of government and Muslim organisations’ responses to the non-recognition of Muslim marriages, with a spotlight on the Muslim Judicial Council (MJC). The argument for implementing the Muslim Marriages Bill (MMB) is dissected, revealing a lack of political will and potential collusion with conservative Muslim factions. Drawing parallels with the Recognition of Customary Marriages Act (RCMA), the chapter exposes the political use of legal pluralism to create a stratified citizenship, perpetuating the subaltern status of Muslim women.