words & expressions (2011) at 94. Ijtihad or informed reasoning, is reasoning carried out by a Muslim based on his knowledge of the Qur'an and teachings of the Prophet (PBUH), in a manner not specified by either. 3 Kamali MH "Ijtihād, or personal reasoning" Principles of Islamic Jurisprudence (1991) at 366. See, in particular, Codd A "A critical analysis of the role of Ijtihad in legal reforms in the Muslim world" (1999) 14 (2) Arab Law Quarterly 112 at 115.
Morocco has maintained its identity and adherence to the Islamic faith since before colonialism and after. As a result of such identity the Moroccan monarchy over the years developed the Code of Personal Status (referred to as the mudawana) which affected only the Muslim population. This type of family law was drawn mostly from Islamic doctrines with little or no participation of women. The mudawana has been criticised by many as being one-side and feminist groups have made numerous calls for a reformed mudawana that addressed the plight of women and to improve their status within the wider community. In 2004, the monarchy decided to reform the mudawana as a result of women’s groups pressuring the monarchy to do so. The 2004 reforms has the possibility of enhancing the rights of Moroccan women, for example, a wife is no longer legally obliged to obey her husband, contrary to a widely-held custom which regards obedience as an absolute duty of a Muslim wife, the minimum age for marriage for both parties eighteen years of age, including free and full consent. Polygyny has also been addressed. Although the 2004 version kept the concept of polygyny, there are severe restrictions to curtail this practice, for example, judicial authorisation is required as well as informing the current wife of the prospect. There are certain obstacles that seem to be hampering the full implementation of 2004 reforms which are discussed in this contribution.
The practice of forced and/or arranged marriages are reported to be taking place globally. These types of marriages have become gender neutral and can no longer be described only as an issue relating to women. However, what is portrayed is that women normally suffer as reported cases are evidence of that. First world countries where there is a large immigrant community, frown on the practice of forced marriages and arranged marriages. This is a complex issue, because on the one hand, one’s religious, cultural diversity is attacked and on the other hand forced and arranged marriages may violate various provisions of international, regional national human rights instruments. From an international law perspective, one could argue that there is a clear violation of international law. On the other hand, and argument relating to one’s cultural and religious beliefs could also be advanced. Concepts such as culture, religion and gender are deeply embedded in most known religions and communities, therefore, the practice of forced and arranged marriages may not be perceived as violation of any law/s whether international or national. Furthermore, forced and arranged marriages are at times so interrelated that it may be difficult to draw a clear distinction between the two. How do we protect women’s rights while at the same time respecting the cultural diversity of society? This article attempts to add to the existing debate surrounding the social and legal complexities of forced and arranged marriages.
From the time when women's rights were not placed high on the agenda of any state to the time when women's rights are given top priority, Tunisia's gender-friendly legislation requires a fresher look. One would be forgiven for thinking that Tunisia's reforms started after they gained independence from France in the 1950's. In fact, it was during the French Protectorate that reformers started rumours of reform, arguing amongst other issues for affording women more rights than those they were granted under sharia law, which governed family law in Tunisia. After gaining its independence, Tunisia promulgated the Code of Personal Status, which was considered a radical departure from the sharia. It is considered to be the first women-friendly legislation promulgated in the country. It could be argued that Tunisian family law underwent, four waves of reform. The first wave started during the French Protectorate. The second wave started in the 1950's with the codification of Tunisia's family law, which introduced women-friendly legislation. The third wave started in the 1990's with changes to the Code of Personal Status, and the latest wave commenced in 2010. In this article, I analyse the initial, pioneering phases of the reforms resulting from the actions of a newly formed national state interested in building a free society at the end of colonial rule, as well as reforms that have taken place in the modern state since the Arab uprising in Tunisia. As a result of the various waves of reforms, I argue that Tunisia should be seen as the vanguard of women-friendly legislation in the Arab world.
Historically, Morocco experienced widespread political repression during the 1970s through to the early 1990s. Through its exploitations, the monarchy regime repressed any claims aimed at challenging its authoritarian form of public space and debate. Encouraged by the uprisings in Tunisia and Egypt, and the Arab Spring, young Moroccans began to organise extensive demonstrations across the country demanding that a more substantive democracy, social justice and an anti-corruption mechanism be put in place. The 20 February movement, named after the first demonstration held on that date in 2011, is a worthy illustration of one of the latest social movements characterised by a concentrated use of technology and their disseminated membership. King Mohammed VI, Commander of the Faithful and the highest authority in Morocco, promised in a televised speech to introduce radical and genuine constitutional reforms that would democratise the country. This article describes the historical trajectory of the monarchy, the emergence and structuring of the 20 February movement and the neutralization strategy pursued by the monarchy in bringing about a constitutional change.
Over the last few decades, a piece of fabric has become a powerful and divisive symbol worldwide. Since the tragic events of 9/11, this piece of fabric has become a topic of great debate, at local, national, regional and international level. The veil as worn by some Muslim women has assumed iconic proportions around the globe. To some it symbolizes piety to others, oppression. To some it is a rejection of Western morality to others, a rejection of modernity. To some, it is a religious statement supporting Islam as a way of living; to others, a political statement supporting violent Islamists. These disparate attributions exemplify the power of nonverbal communication and support the maxim that words and objects contain no inherent meaning; only people assigned meaning. This article discusses the status of religious rights and freedoms under the South African Constitution. One aspect of this change is the change that has affected the various religions, cultures, and customs in South Africa. It is therefore, viewed by many as a constitution for the people of South Africa which includes a Bill of Rights. Historically speaking, for the very first time since colonialism, all religions were guaranteed the of religion. Furthermore, religions, cultures and languages are deep-rooted in the various constitutional provisions, namely, sections 9(3), 15(1) to (3), 30, 31, 185 and 234 respectively. These constitutional provisions are solidified by section 7 which obliges the state to respect, protect, promote and fulfil the provisions set forth in the Bill of Rights. The article concludes with an argument for the recognition of plurality of religions and religious legal systems in South Africa.
Islam and codification of its family law in countries such as Morocco and Tunisia have taken on a somewhat of a different character depending on the specific setting in which it took place. Even though Islamic thought and in general Islamic law contains core principles observed throughout the Islamic world. Most aspects of Islamic law relating to the family originate in the divine text, while others may be found in customs of certain communities situated in different parts of the Muslim world. Some of the early reforms enacted by states such as Morocco and Tunisia have been hailed as victories for the rights of women especially where Islam is the dominant religion in those countries. A historical and comparative analysis relating to the rights of women reveal that this was not always the case. It may be argued that women rights were ancillary to the main agenda of those respective countries. Issues such as modernity, breaking the shackles of kinsman, classism and political alliances were deemed to be
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