In this article, Marywam Uwais, barrister and human rights advocate, argues that Islam and women’s rights are compatible. Using a framework of Islamic law, as well as the newly ratified Protocol on the Rights of Women in Africa and the Cairo Declaration on Human Rights in Islam, Uwais takes an in depth look at a number of factors affecting African Muslim women. With her background in law, Uwais has provided an extremely important tool for women’s rights advocates in Muslim Africa, linking issues facing women to concrete support for their rights within both the Quran and Islamic law.

Introduction

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa was adopted in July 2003 during the 2nd Ordinary Session of the African Heads of States in Maputo, Mozambique. It was considered by women all over the world, as a decisive step towards securing a legal framework for the protection and advancement of women’s rights in Africa. Its swift ratification enabled it to come into force in November, 2005 and underscored the importance and the concern Member States attach to the injustices suffered daily by African women. These injustices take the form of physical and mental violence, social, economic and cultural rights abuses, exploitation of vulnerabilities, and the discrimination and disadvantages arising as a consequence thereof.

This paper attempts to draw comparisons between the contents of the Protocol and the rights of women within the Islamic legal framework, with a view to highlighting areas of common concern, and especially those Islamic concepts and legal principles that lend credence to the provisions adopted by the African Union, for the protection of Muslim African women, in particular.

One of the major concerns is the harsh, dogmatic and rigid interpretations of the Qur’an and the Hadith, adopted and conveyed by many scholars and in territories where the Shari’ah prevails (Shari’ah jurisdictions). These interpretations provide cover for many injustices, which cannot be justified under a religion that professes universal and substantive justice for all, and especially the vulnerable within the society. Close study demonstrates, however, that many of these interpretations/beliefs arise from ignorance of the true precepts of the faith, deriving from patriarchal cultures and traditions, rather than benevolent interpretations of the primary sources of the Shari’ah, in line with the spirit of the Qur’an and the traditions of Prophet Muhammad (SAW).

This article will thus consider several of the issues important to Muslim women in Africa, including access to justice, polygamy, economic rights and the right to political participation. An attempt will be made to connect these issues to the Muslim context, international rights treaties and potential solutions to each topic.

Access to Justice

Islam, being a faith that commands the doing of substantive justice to all, also stresses equality of all before the law, irrespective of social standing, gender, religious inclination and other similar considerations. One of the chief mandates for human rights within the Muslim context comes from the Cairo Declaration on Human Rights in Islam, pronounced by the Organisation of Islamic Conference (OIC). Thus, Article 19 of the OIC Declaration provides that:

(a) All Individuals are equal before the law, without distinction between ruler and the ruled; and
(b) The right to resort to justice is guaranteed to everyone.

Moreover, Article 8 of same states;

Every human being has the right to enjoy his legal capacity in terms of both obligation and commitment, should this capacity be lost or impaired, he shall be represented by a guardian.

Much, however, needs to be done by Member States to overcome barriers to securing the protections afforded to women under the law, as many of such structures and mechanisms are not in place, and the overwhelming circumstances of poverty and ignorance serve as formidable obstacles to the realization of women’s rights. While comprehensive codification is advocated for in many areas (especially in the vast and interrelated field of family law) care should be taken to ensure that the laws under contemplation, though seemingly positive, do not have an adverse effect on women in practical terms. For instance, experience has shown that in some cases, efforts at enforcing strict regulation have merely had the effect of rendering such negative practices ‘invisible’. Regulation should, therefore, not be so strict as to further aggravate the circumstances unfortunate women find themselves in, nor remove all avenues for the ability to exercise just and compassionate discretion.

In addition, law reform and regulation must be accompanied by wider efforts at social change, such as the empowerment of men and women with the essential knowledge of the rights available to women under the Shari’ah, (including the necessary financial wherewithal), as many of the positive, beneficial decisions taken (even under the common law) can hardly be enforced due to the fact that too many violations go unnoticed and undocumented (and are thus considered the norm) and that the circumstances of poverty, ignorance and illiteracy are all-pervasive, especially in the rural areas.

Polygamy

Muslim scholars argue that polygamy is permitted as a remedy for certain social diseases, under certain strict conditions. Without delving into the arguments on the justification for polygamy in today’s context (especially since the practice is deeply entrenched and accepted as the norm, even by women, in many African jurisdictions), it would only suffice to point out that the ability to treat co-wives justly is a strict precondition to the practice, following the verses in the Qur’an;

‘…marry women of your choice, two, three or four; but if you feel you may not be able to deal justly (with them), then only one . . .That is nearer to prevent you from doing injustice.’

' . . . you will never be able to do perfect justice between wives even if it is your ardent desire . . .'

Obviously, these verses do not convey an unrestrained license to men, for the multiplication of wives and monogamy seems to be the preferred option. Unfortunately, polygamy has attained the status of an abiding culture in our own jurisdictions, without regard to the underlying necessity for fairness and justice between wives, being the normative values embedded intrinsically therein.

Since Muslims accept that cohesion of the family unit is the objective of the Shari’ah, surely where blatant abuse of a permission granted in good faith has become the norm (to the extent that disarray has become the consequence of a practice that typifies the letter, but not the essence of the Shari’ah) time has come for the Courts, and the Shari’ah jurisdictions to intervene for the purposes of protecting the vulnerable. The Shari’ah jurisdictions are under a duty to protect all, including women, so it would be appropriate for a regulatory law to be passed that reinforces controls and checks the abuse of the Qur’anic verses.

Thus, Courts should be empowered to enquire into the circumstances of all men who wish to marry subsequent wives, in respect of issues such as capacity and the discharge of their basic obligations as they exist or are stipulated in the marriage contract, as is happening in several Shari’ah jurisdictions across the world. Justification and proof should be demanded from, and given by, men for contemplated subsequent wives, on issues such as whether they can afford to maintain them, accommodate them with some measure of privacy (privacy being a major right under the Shari’ah), whether the existing wife consents to such addition (in emulation of the conduct of the Prophet when Ali, his daughter’s husband, sought for advice for a subsequent marriage), otherwise the woman would be compensated on agreeable terms. The State must step in, as the Authority responsible for protecting the weak in their respective spheres of authority.

Moreover, it is clear that Islam permitted polygamy as a social remedy under certain strict conditions (without which the plurality of wives is prohibited). Some Muslim countries have accordingly advocated for an outright prohibition, or introduced legislation that empowers the judiciary to refuse permission for the taking of a subsequent wife, because the man is found not to be in a position to sustain both wives, satisfactorily (in terms of maintenance, etc). While this approach has been criticized as restrictive (in that it takes away the man’s discretion and certain perceived rights), it could serve as the procedural means of ensuring that the ability to do justice is not subjective, and authorizes the intervention of an impartial third party, thereby ensuring justice in the true spirit of the Qur’an. This is especially because the condition of doing justice between co-wives is seldom given any consideration by men where polygamy is practiced.

Economic Rights

In Islamic law, women are entitled to hold property of their own, in their name and within and after marriage, as the case may be. This includes the right to earn, acquire, access and dispose of her property. Although the law provides that she may not be forcefully dispossessed of the same, these rights appear to exist more in theory. Muslim women in Africa remain largely economically dependent on their male counterparts, especially since the control of her property, if any, is invariably in the hands of male relations.

Access to credit, bank loans, mortgages and the like is still heavily skewed in favour of men and many socio-cultural and economic barriers militate against women enjoying financial independence. Indeed, although there are no categorical religious injunctions against women owning property, even the policies of Member States fail to acknowledge the current statistics that disclose that women are increasingly becoming the breadwinners of their households. Age-long prejudices, attitudes and behaviour need also to alter, to effectively take into account the peculiar problems women face in trying to assert their rights.

The Right to Political Participation

With respect to political leadership, Shari’ah places utmost emphasis on good governance, founded on justice, equity and responsibility. The Qur’an states clearly that sovereignty of the heavens and the earth belong to God, it also provides that God has made human beings His agents and representatives, without distinction as to gender. Arising from these verses and the traditions of the Prophet in support thereof, there is a consensus that every Muslim has the right and opportunity to participate directly or indirectly in the country’s public affairs and electoral processes, and the prerequisites of leadership are regarded as the capacity to exercise righteousness and to uphold justice for all.

Nowhere in the Qur’an or the Hadith is there any prohibition of participation of a woman in her country’s affairs. The Hadith that is often utilized as authority to deny such participation (where the Prophet was reported to have said that a Nation that leaves its affairs in the hands of a woman would not prosper) is said to be of doubtful authenticity by several Scholars. The historical context of that tradition is said to have been the event when the Prophet received news that Khusro’s daughter, who was widely perceived as authoritarian, had succeeded the throne. The comment was considered to be in specific relation to her person. Indeed, in contrast to this position, verses 32-34 of the Chapter on Ants (Naml) in the Qur’an extol Bilqis, the Queen of Sheba, as a ruler enjoying great wealth, dignity and the full confidence of her subjects. If it were an aberration to have a female ruler, Sheba would not have been worthy of such honour, as to be mentioned so commendably by God. Moreover, women as a group are known to have participated in the initial pledge of allegiance (bay’a) extended to the Prophet, by Muslims, which is a significant pointer to the fact that even in those days, women were considered an integral part of the Muslim community, participating in the political activities of their society. It is also reported that Aisha, the widow of the Prophet, led and commanded the Battle of the Camel, with many of the companions of the Prophet in her army, and none of them disclaimed her authority to lead.

Conclusion

Today’s realities make it imperative that mechanisms and in-built structures within Islamic Law (such as doctrines for the development of the Shari’ah) must be activated by our own Scholars and Jurists. This is for the benefit of the female gender, if only to enable constructive, contextual interpretations of the primary sources of the Shari’ah, as was done many centuries ago by Islamic jurists and scholars of repute in their own times within the Islamic world. As has been shown, there is ample room within Islamic law for Muslim States to remedy the problems and seeming contradictions between the position of women in Shari’ah and the provisions of the Protocol, utilising an open mind that views the issues as complementary, rather than incongruous. Good faith, backed by political and humanitarian will, are capable of ensuring the flexibility required to resolve the apparent ‘conflicts’ between Islamic Law and the contents of the African Protocol, thereby creating the understanding that would lead to the harmonisation and realisation of common standards of universalism, irrespective of gender and other similar considerations, in Africa and the world, at large. A positive attitude for managing variations through the synergising of rights norms (as replete in the Protocol) with Islamic legal principles is necessary and imperative, for formidable and comprehensive protections to be afforded women in developing countries, of which African Muslim women form a significant portion.

* This article is comprised of extracts from a longer paper by Maryam Uwais, who is Principal Barrister at Wali-Uwais & Co. in Nigeria. She is also involved in the National Human Rights Commission.

*Please send comments to