2.2 Sexuality and Social Control
2.2.2 The Ulama in South Africa
Three themes emerge in the study of gender and ulama in South Africa; tensions between traditional norms and contemporary realities, the hierarchical authority of the ulama and, lastly, their gendered ontological assumptions of women, which entrench male privilege. Tensions between traditional norms and contemporary realities become evident when ulama formulate religious legal prescriptions using classical legal doctrine, while government proposes legislation for the recognition and regulation of Muslim marriages informed by contemporary human rights approaches to sexual reproductive health rights (Amien 2010; Department of Health 2011).
Studies indicate that the epistemological privilege and the authority of the ulama play a significant role in women’s health decisions and choices. The microbicidal study cited earlier also noted that women believe that an ulama sanction of microbicidals would encourage its uptake (Hoel, et al, 2011: 101). In addition, women’s experiences of the ulama during divorce proceedings confirms that ulama locate themselves at the apex of a hierarchy of religious authority, and their gendered ontological assumptions
46 Adding to Mahmood’s (2011) theory on the agency of the pious female subject outside of the liberal humanist framework, Bucar (2010: 666) investigates religious women’s agency in a way that comprehends women’s intentional or even unintentional “creative ruptures in obedience to tradition”, thus making space for women’s “innovative” and “ambiguous” “enactment of religious traditions”.
She demonstrates how the neologism dianomy, diverges from autonomy, theonomy and heteronomy and is a viable approach which “recognises that both an individual and her community are important;
that agency is shaped within specific conditions and yet can also point beyond them, and that there is a possibility of creative compliance that is not necessarily intentional resistance”. See Bucar 2010 for a full overview of the notion of “creative compliance”.
entrench male privilege and impact sexual reproductive health choices (Hoel 2011:
129). Women were expected to accept unjust and potentially dangerous marital relationships in the “spirit of reconciliation” even in instances of abuse and infidelity, were unable to get assistance in exiting marriages, and abusive husbands were ignored by some ulama. This lack of agency in terms of divorce, directly affects women’s ability to make healthy sexual choices in the context of abuse in marriage which when combined with the reality of HIV and AIDS in instances of infidelity, becomes a key determinant of their sexual reproductive health rights.
This raises two concomitant and interrelated areas of concern in South Africa. Firstly the negotiation between the ulama groups and government (with regard to the MPL process) mirrors the “social and political” measures in place to control women’s agency as problematized by Ilkkarrakan (2001: 1). Secondly, the on-going disagreements over the contentious Muslim Personal Law (MPL) process has retarded law-making and leaves ambiguous the legal nature of women’s autonomy with regard to decision making in marriage and divorce.
The role of the ulama in health rights and decision-making is significant because the fatwas that form the focus of this research are generated by a member of the South African Deoband Hanafi ulama who participates in mufti councils and ulamā structures that bear an influence on MPL debates. When combined with Ali’s (2003, 2006) and Mir-Hosseini’s (2009) more radical contentions that a classical system which is not conducive to mutuality underlies contemporary Muslim marriage and sexual legal discourses, it becomes important to understand the place of religious authority in the MPL legislative process in South Africa.
As already mentioned in chapter one, ulama bodies have been active participants in the legislative processes involving the current Muslim Marriages Bill (2010). The bill has been criticized for lack of adequate regulation and flawed procedures (Shura Yabafazi, Legal Aid Clinic, Nadel 2006). Ulama bodies have made submissions to the Bill that place more emphasis on controls by religious leaders, going so far as to argue for a state-backed religious arbitration process and an independent judicial bench for
Muslim marriages47 (UUCSA 2011). This relates Mir-Hosseini’s (2009) argument that through the codifying of Muslim family law through procedural rules, governments introduced reforms, although the substance of classical laws remained unchanged. “This gives the classical fiqh construction of gender rights a new life and unprecedented power. It could now be imposed through the machinery of the modern nation-state” (2009: 27).
The remediatory approach to the dissonance between the legal construct of marriage and the ethos of the sharī‘a, offered by Ali (2006: 13) and Mir Hosseini (2009: 3), is to allow for Muslim social practices and experiences within contemporary contexts to mould a new fiqh, shifting the normative hierarchical gender paradigm to a reformist one. The implications of this for MPL in minority contexts like South Africa is that this may open the possibility of the enactment of Muslim marriage laws which may be more in line with both South African constitutional imperatives and what reformists argue are Quranic sharī‘a imperatives of equality, justice and fairness.
According to Masud, Messick and Powers, “the sharī‘a developed by means of human juristic efforts into a comprehensive and detailed corpus of law that was continuously adjusted to changing circumstances” (1996: 4). They argue that the more practical aspects of sharī‘a, are embodied in fatwas, indicating the importance of analysing them as well as the individual mufti’s discursive styles within different contexts and changing circumstances. Through an analysis of my primary sources, the online fatwas of South African mufti Ebrahim Desai, I explore to what extent contemporary experiences and practices of sexual agency have the potential to mould the fiqh arguments of the ulama in line with this suggestion.
To summarise, this section details the religious and political controls of sexual reproductive health rights of Muslim women in South Africa and elsewhere, and to what extent these rely on normative interpretations of foundational textual sources.
An overview of the tensions between these controls and modern Muslim experiences
47 UNITED ULAMA COUNCIL OF SOUTH AFRICA. 2011. Letter to Minister of Justice and Constitutional Development Available from:
<http://www.uucsa.org.za/index.php?option=com_content&view=article&id=6:letter-to-minister-of- justice-and-constitutional-development&catid=2:muslim-marriages-bill&Itemid=5 > [29 November 2015].
and understandings of mutuality and rights within the sexual arena, particularly in Desai’s geographical context, South Africa, was provided. This section also alluded to proposed remediatory options arising out of mechanisms found within the legal interpretive space to resolve these tensions. These proposed mechanisms rely on an account of Islam as a discursive tradition. With this in mind, the next section surveys existing literature on Islam, the Internet and Muslim women, noting both the online potential for new usages and practices particularly in activism and decision-making, and the limited scholarly work on contemporary Muslim women’s online sexual health concerns.