i What We Owe to Women: How the Governance of Muslim Marriage in South Africa Impacts Muslim Women A Dissertation Submitted in Full Fulfilment of the Requirements for a Master of Arts by Research in Development Studies By Cassandra Dorasamy Supervised by Professor Srila Roy ii Declaration I declare that this research is my own work and that all use of the work of others has been referenced. This research is submitted for the Degree of Master of Arts by Research in Development Studies at the University of the Witwatersrand. It has not been submitted for any other degree at any other university. 25th April 2021 iii Acknowledgements This research would not be possible without the support of a number of people, some of whom I’d like to mention here. To my parents, thank you for caring for my well-being and supporting me during this research. To my brother Yeogan, thank for your support and your willingness to help wherever needed. Thank you to Noor Ahmad and Elishua Ngoma for being my companions on this journey. To Faatimah Essack, thank you for sharing your passion and insights into the topic of recognition with me. The legal fraternity is lucky to have you. To Waris, thank you for both shouldering my anxieties and pushing me to think deeper and write better. Thank you to Professor Srila Roy for opening the door for me to complete this degree. You have been incredibly patient and supportive during this project, for which I am thankful. I am grateful for the support of the Governing Intimacies Project and the Wits Postgraduate Merit Award. I dedicate this work to my late grandmother, Saroj Rajah, and to my Uva, Muthamah Margaret Chetty. iv Abstract State recognition of Muslim marriages in South Africa is an issue that has been debated extensively for many years. Whilst the debate continues, this research documents the experiences of Muslim women who are engaged in legal disputes concerning Muslim Personal Law (MPL) and the experiences of practitioners who work on such matters. The research unpacks three topics emanating from their narratives: representation and power in the public participation process for the Muslim Marriages Bill, the innovative and sometimes blended strategies of practitioners working on MPL related matters, and the individual experiences of Muslim women personally engaged in MPL disputes. The research shows how Muslim women in unrecognised marriages have fallen between two systems of law- the religious and the civil- resulting in them being unable to access their Islamic rights and their constitutionally based rights. Within the context of gender inequality, socio-economic inequality, and limited state capacity to support access to justice and enforce the law, this research raises questions about the efficacy of the law to ensure justice for Muslim women through state recognition. It points to the need for organising beyond the law to ensure gender justice in the civil legal system and gender-just applications of Islamic law in the religious system. v Table of Contents 1. Introduction 1 1.1 Background and Context 2 1.2 Research Questions 5 1.3 Local Historical Context 6 1.4 Methodology 14 1.4.1 Data Collection 15 1.4.2 Data Analysis 19 1.5 Overview of Chapters 20 2. Literature Review 21 2.1 The Paradox of Multiculturalism 21 2.2 Gender and Law Reform 27 2.3 Legal Pluralism and Muslim Marriages in South Africa 32 2.4 Muslim Women in South Africa 36 3. Law Reform 42 3.1 Everyday Expectations of the State- Frustration and Uncertainty 42 3.2 The Duties of the State vs The Will of the Community 47 3.3 “Who is this Public?” 51 4. Law(s) in Practice 60 4.1 Strategic Litigation 61 4.2 The law as a tool; the law as ammunition 64 4.3 Merging two systems of Law 71 4.4 Planning Tools 77 4.4.1 Estate Planning Tools 77 4.4.2 The Marriage Contract 78 5. Living Between Laws 82 5.1 Women’s Stories 83 5.2 Engaging with Religious Leaders- The Tale of Two Maulanas 96 5.3 Experiences with Legal Proceedings 100 6. Conclusion 106 7. References 110 vi List of Acronyms ANC African National Congress CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CGE Commission for Gender Equality DHA Department of Home Affairs DOJ Department of Justice GBV Gender Based Violence MJC Muslim Judicial Council MMB Muslim Marriages Bill MPL Muslim Personal Law MPLB Muslim Personal Law Board MPLN Muslim Personal Law Network MYM Muslim Youth Movement RCMA Recognition of Customary Marriages Act SALRC South African Law Reform Commission SCA Supreme Court of Appeal UUCSA United Ulama Council of South Africa WLC Women’s Legal Centre WNC Women’s National Coalition vii Glossary Faskh A judicial dissolution of a Muslim marriage made by application of a husband or wife. Fatwa The formal ruling or legal opinion of a religious scholar on a point of Islamic law. Fiqh Islamic jurisprudence Iddah The waiting period observed by women upon divorce or death of a spouse during which she may not remarry. In instances of divorce, the wife is entitled to maintenance during this period. Ijtihad Independent reasoning used to apply Shariah to modern contexts. Mahr Dower Mata’a Gift Nafaqah Maintenance Nikah Islamic marriage or marriage ceremony Sabr Patience Shariah Islamic law Talaq Divorce initiated by the husband Talaq al-tafwid Right of divorce that can be delegated to wives Ulama Learned religious scholars 1 Chapter 1: Introduction “The starting point of feminist work must be found in the lives of women and not in legal definitions” – T.S Dahl (1986) The legal recognition of Muslim marriage in South Africa is a topic that has been extensively debated for many years. At the heart of the debate are contested meanings and approaches to the practice of Islamic law. The debate has raised many questions about the relationship of minority groups to the state – should communities be left to govern their own personal laws, or should the state regulate their practices? If Muslim marriage is to be recognised, what should the legislation look like? Should the responsibilities of governing Muslim marriage be shared between the state and religious judicial councils? In an ideologically diverse religious community, who gets to decide on these matters? The issue of legal recognition was recently brought back into public debate through the Women’s Legal Centre Trust v The President of the Republic of South Africa judgement in August 2018. The Western Cape High Court found that by not enacting legislation recognising Muslim marriages, the state had failed in its obligations to respect, protect, promote and fulfil the following constitutional rights: the right to equality (s9); human dignity (s10), freedom of religion, belief and opinion (s15); children’s rights (s28); the rights of cultural, religious and linguistic communities (s31); and the right to access to courts (s34). Such conduct on the part of the state was found to be invalid. The court instructed government to pass legislation giving recognition to Muslim marriage within 24 months. The Supreme Court of Appeal confirmed this obligation on the state in a judgement handed down in December 2020. The matter is expected to be heard by the Constitutional Court during 2021. The cost of the nonrecognition of Muslim marriage has widely been reported to negatively impact Muslim women and children. This research is concerned with experiences of nonrecognition, specifically those of South African Muslim women affected by issues relating to Muslim Personal Law (MPL), and of legal practitioners working in the family law sector. It looks at their experiences of navigating both religious and secular legal systems in pursuit of just outcomes, specific to their situations. Whilst relaying the experiences of 2 individual women, and that of practitioners who represent individuals like them, I will inevitably touch on some of the broader issues that were raised in the questions above, namely those concerned with contested representation and power in the legislative process which has not led to recognition thus far. I will also advance new socio-legal research on the topic, exploring the legal and extralegal options available to protect the social and financial interests of Muslim women in unregistered Islamic marriages. Lastly, I will explore the impact of nonrecognition through the narratives of Muslim women with the aim of building new conversations around legal recognition and the role of state law in regulating intimate relationships in South Africa. 1.1 Background and Context Section 15 of the South African constitution recognises the right to freedom of religion, Subsection 3 states that the provisions do not prevent the enactment of legislation recognising marriages and personal laws of any religion or tradition provided that the legislation is consistent with other rights in the constitution. Currently, to be recognised and regulated by South African law, marriages must be registered by a marriage officer under the Marriage Act, the Civil Union Act, or the Recognition of Customary Marriages Act (RCMA). Muslim couples can register their marriage under the Marriage Act or the Civil Union Act. There are various reasons as to why a Muslim couple may decide not to register their marriage. Amien (2019) attributes this to an “anti-civil marriage culture”, fuelled by messages from the ulama that civil marriages are haram (forbidden) (2019, p.95). Other potential reasons include the preclusion of polygamy from the Civil Union Act and the Marriage Act, preventing polygamous marriages from being registered. The consequences of nonrecognition are that Muslim spouses are not afforded the same rights provided to couples married under the Marriage Act, Civil Union Act, or the RCMA. Without state recognition, unregistered Muslim marriages fall under the jurisdiction of Muslim judicial bodies that apply Sharia as an “unofficial community code parallel to state law” (Abdullah, 2012, p.318). Although Islam does not provide for an official clergy in its practice, South Africa has a “socially recognised class of religious leaders called Ulama” that, together with community leaders (imams) make up the judicial bodies (Domingo, 2015, p.181). The judicial bodies preside over Muslim family life, offering counselling, conducting marriages, and overseeing divorces. They have played this role since the 17th century when Muslims arrived in what is now known as South Africa. The bodies are mostly made up of 3 men and are affiliated with different theological schools, as will be discussed in the next section. The exclusive jurisdiction of religious bodies poses challenges to their own practice, with consequences for those seeking assistance from them. This is succinctly summed up by Domingo (2015, p.182): The decisions of these judicial bodies have no legal enforcement and are merely binding on the conscience of Muslims. Their decisions do have social and religious authority among Muslims, however some may argue that they are gender biased in favour of husbands. Many Muslim women have expressed their dissatisfaction with the way in which their cases are handled by the judicial bodies. They encounter unnecessary delays, they pay more for a request to have their marriage dissolved than men do and they are told to have patience, even where they have a legitimate grievance. The lack of support and women’s lack of knowledge of their Islamic rights place women in a very vulnerable position. (Domingo, 2015, p.182). Speaking at a workshop on Muslim marriages in South Africa, Commissioner for Gender Equality, Rosieda Shabodien (2010) observes that in most instances of divorce amongst heterosexual couples, it is men who decide on how “the spoils of the marriage” will be shared, often leaving women with the short end of the stick. This situation is exacerbated for women in unregistered Muslim marriages and, indeed, women in unregistered Hindu marriages and domestic partnerships. In as much as claims for legal recognition are usually based on the politics of identity and belonging, they carry with them significant redistributive potential, which is evident in the case of Muslim marriage. As currently practiced, Muslim marriages are generally concluded out of community of property, without the accrual system. This means that the assets of either spouse are kept separately, and neither is entitled to the others estate. Technically, wives are not obligated to contribute to the maintenance of the household. Keeping a separate estate was originally intended to protect women’s property interests. Based on this principle, there is no division of assets should there be a divorce. Furthermore, the general practice of MPL in South Africa allows women to claim maintenance for the duration of the three-month iddah or waiting period before a divorce is finalised, and nothing beyond that (Kabarnee and Moosa, 2004). These practices do not reflect the reality that women do contribute to the maintenance of households through financial contributions and household labour (Hoel et al, 2011; Lesch and Parker, 2018). Another more affective issue associated with nonrecognition (that has also been highlighted during the COVID-19 pandemic) is the marital status of Muslim couples recorded on death 4 certificates. Due to the government not having a record of unregistered Muslim marriages, the death certificates of spouses married only under Islamic rites reflect their marital status as “single”. As leader of the Al Jamah-ah party, Ganief Hendricks explains: Women cannot have a final view of their husbands after a Covid-19 death and all they have is a death certificate which states, “never married”. How insensitive and cruel after many years of marriage. (Al Jama-ah, 2020). The fact that nonrecognition results in social harms for the Muslim community and for Muslim women in particular is widely acknowledged in the debate for recognition. It is with these harms in mind that requests for state recognition of Muslim marriages have been made by both Muslim judicial bodies and progressive political groupings. However, as will be shown throughout this dissertation, the content of legislation giving recognition is highly contested by the various stakeholders. The status quo remains harmful for Muslim women in unregistered marriages who have trouble accessing their Islamic rights and their South African legal rights. The multiple tensions undergirding the recognition of Muslim marriages is depicted in the picture below. The picture is of Muslim women protesting outside the Western Cape High Court in 2018, during proceedings on the Women’s Legal Centre v The President of the Republic of South Africa case. During the case, the Women’s Legal Centre (WLC) argued that the state had failed in its Constitutional duties to “respect, protect and promote” the rights of Muslim spouses. The women are holding signs saying, “Muslim Women Matter”, “I have a right to my home”, “Women need better access to SA’s Justice System”, “Men don’t speak for me”, and “Are Muslims in South Africa not considered South African because we don’t have protection like other SA women” (Gonstana and Postman, 2017) 5 Image 1 Muslim women protesting outside the Western Cape High Court. Photo by Zoe Postman (“Muslim Marriages Under Court Scrutiny”, GroundUp, 2017). Many Muslim women who do not find relief through the religious judicial system pursue civil legal avenues to find a desirable outcome for their situation. However, without a statutory framework, the work of lawyers in these cases is difficult. This has led to a series of litigation aimed at developing the common law to clearly define the rights of Muslim spouses in unregistered marriages. This research will look at the experiences of women who have taken this route. Whilst it was my intention to focus solely on their experiences with civil law, their experiences of the religious judicial system were a core part of their narrative, making it impossible to separate the two. The same can be said for my interviews with Muslim legal practitioners, for whom the two legal practices overlapped on MPL cases. 1.2 Research Questions This project endeavours to answer the following question: - What is the impact of the “nonrecognition” of Muslim marriage on Muslim women? This question prompts the following questions: - What are Muslim women’s experiences of resolving issues of personal law in the absence of legal recognition? - How do legal practitioners provide assistance on MPL related matters in the absence of a regulatory framework? 6 - What responsibility does the state have to respond to the consequences of nonrecognition? 1.3 The Local and Historical Context The status of Muslim marriages in South Africa has shifted under various political regimes. The colonial administration, for example, was more willing to recognise the validity of Muslim marriages than the apartheid government, which took a strong stance against potentially polygamous marriages (Jones-Pauly and Tuqan, 2011). Given that the history of Muslim marriage in South Africa1 is long and complex, this section will begin with a brief overview of Muslims in South Africa and will thereafter focus on developments in the recognition debate from the apartheid era onwards. The first recorded Muslims in South Africa arrived in the Cape soon after the arrival of the Dutch East India Company (VOC). They were brought as soldiers from the West Indies, enlisted to support the VOC against the Khoisan resistance to their presence in 1658 (Baderoon, 2014; Mahida, 1993). Having no source of labour in the settlement and a policy against enslaving indigenous populations, the VOC imported slaves from the Indian Ocean region (East Africa, the African islands of the Indian Ocean, South and South-East Asia). The colony was used to exile political prisoners from South East Asia (E. Moosa, 1996). It was within this population of slaves that the majority of Muslims arrived in the region. Islam offered “a degree of independent slave culture” (Worden, 1985 in Baderoon, 2014), so much so that the term “Malay”, “which refers to the lingua franca Bahasa Melayu spoken by enslaved people at the Cape…became the word for Muslim in the Cape” (Baderoon, 2014, p.9). In Natal, many Muslims arrived as indentured labourers or traders (also known as “passenger Indians”) during the 1860 system of indenture. Both Muslim and Hindu customs fell under the category “Indian”. As such, Vahed (2000) argues that Muslims in Natal have been studied as part of the oppressed Indian community, with scant attention given to the internal 1 See Allie (2019). “A legal and historical excursus of Muslim personal law in the colonial Cape, South Africa, from the eighteenth to the twentieth century”, for a detailed account of the regulation of MPL in the Cape. See also Dhupelia-Mesthrie. U. (2014). “Split Households: Indian Wives, Cape Town Husbands and Immigration Laws, 1900s to 1940s”; Sheik, N.E. (2018) “Making the Personal Civil: The Protector’s Office and the Administration of Indian Personal Law in Colonial Natal, 1872-1907”; and Hiralal, K. (2018) “’What is the meaning of the word “wife”?’ The Impact of the immigration laws on the wives of resident Indians in South Africa 1897-1930”. The latter list of work focuses on how colonial administrative interventions into personal law were aimed at controlling the movement of Indian women- both from India to South Africa and within the colony. In Natal, Hindu and Muslim personal laws fell under the administration of “Indian personal law”. 7 differences within the community in this region. The histories and experiences of Muslims in Natal and the Cape are, naturally, quite different. One example of such differences is that Cape Ulama were generally trained in Saudi Arabia or Egypt and Indian Ulama in Natal and the Transvaal were trained in seminaries in Pakistan and India (E. Moosa, 1996). Whilst the majority of Muslims in South Africa fall within the Indian or Coloured racial groupings, there is also a growing population of Black South African Muslims. Some have attributed this to the presence of Muslim immigrants in formerly demarcated Black townships, saying that immigrants from Central and West Africa have brought a more “Africanised Islam” to South Africa (Bell, 2004). Black Muslims have at times been marginalised by both the Black community and the Indian Muslim community because of the characterisation of Islam as an Indian religion (Jeppe and Vahed, 2005; Ebrahim, 2018). Contrary to this association of Islam with Indianness, Gabauer (2019) documents the unique development of Black Muslim identity in formerly demarcated Black townships. Gabauer writes that Black Muslim identity has been used to defy colonial notions of “orderly African indigeneity” and to inspire hope and a reconfiguration of the self in post-apartheid South Africa. Apart from regional and racial differences, there are also different madhabs or versions of Islamic law (N. Moosa and Dangor, 2019). Najma Moosa (2011) describes Islam as a tree that has two main roots – the Quran and the Sunna. These are the primary sources which form the basis of Sharia. Referring to Islamic law or jurisprudence, “Sharia” is “the interpretation and application of the primary sources” by early Muslim jurists, forming the four different Islamic schools of thought in the Sunni tradition, namely the Maliki, Hanafi, Shafi’i, and Hanbali schools. Most Muslims in South Africa follow the Hanafi or Shafi’i Sunni schools of Islamic law. There are also some who follow the Maliki school, and others who follow the Ja’fari school in the Shi’a tradition. In 1975, the Director of the Institute of Shari’a Islamic Studies in Cape Town requested that elements of MPL be recognised by the apartheid government. The South African Law Commission responded by saying that it was unwilling to launch an investigation because recognising aspects of Islamic law “could lead to confusion in South African law” and that “the existing rules of South African law do not prohibit a Muslim from living in accordance with the relevant directions of Islamic law” (SALC, 1975, in E.Moosa, p.135). It therefore came as a surprise when the Law Commission decided to investigate the recognition of MPL in 1985, inviting comments from the Muslim community. The investigation was perceived to be part of the apartheid governments strategy of consolidating power and was met with 8 suspicion by anti-apartheid groups who resisted the offer, refusing to align itself with an oppressive government (Amien and Leatt, 2014; Jeenah, 2006; Dangor and Moosa, 2019). This position was not taken lightly, given the relief that recognition would provide to Muslims, a concern shared by both the comrades and the religious bodies (E. Moosa, 1996). Thus, when South Africa transitioned into the democratic era, many Muslims saw this as an opportunity to finally have their personal laws officially recognised. During the transitional negotiations to democracy, the Muslim Judicial Council (MJC) made a “special appeal” to the new democratic government to recognise MPL. It was the shared goal of having MPL recognised that brought Muslim judicial bodies together in 1994, resulting in the formation of the United Ulama Council of South Africa (UUCSA) (Dangor and Moosa, 2019). The African National Congress (ANC) made an electoral pledge to recognise MPL if it came into power (E. Moosa, 1996; Cassim and Dadoo, 2019). The ANC took steps toward honouring this pledge in August 1994 when a Muslim Personal Law Board (hereafter referred to as “The Board”) was formed with the mandate of recognising MPL (Abrahams- Fayker, 2019; Dangor and Moosa, 2019). A taskforce convened by two members of the ANC - Ismail Vadi and Ahmed Kathrada - invited the Jamiatul Ulama, the Muslim Youth Movement, the Call of Islam, and the Islamic Council of South Africa for an initial consultative meeting in April 1994. By the time The Board officially formed in August 1994, many other organisations and stakeholders were brought into consultation. The Board consisted of eighty people from the various organisations (Dangor and Moosa, 2019). During this time, a ‘Campaign for a Just Muslim Personal Law’ was led by the Gender Desk of the Muslim Youth Movement (MYM). The MYM was represented by the Gender Desk on The Board. The position of the MYM Gender Desk and the Call of Islam was clear- that any recognition of MPL should be subject to the equality clause of the constitution. The United Ulama Council, on the other hand, argued that MPL should be exempted from the Bill of Rights (Bux, 2004). At a constitutional assembly hearing, a representative of the Jamiat ul Ulama KZN suggested that the freedom of religion clause should override other clauses of the Bill of Rights to avoid conflict between MPL and the Bill of Rights (Bux, 2004, p.98). This position echoed that of African traditional leaders who firmly opposed the inclusion of the equality clause in the constitution (Shabodien, 1995). The struggle for a gender just MPL falls within the broader context of the struggle for gender equality in South Africa, playing itself out in both the constitutional negotiations and in MPL 9 Board discussions. Where conservatives argued that the equality clause of the constitution should not be applied to MPL, the MYM defended it, arguing that the equality clause is consistent with the ethos of Islam2. The MYM organised Muslim women to attend the meetings of the board and challenged the conservatism of The Board’s president, eventually staging a walk out for not being allowed to speak in meetings and being forced to wear headscarves (Amien, 2014; Jeenah, 2006). The Board quickly collapsed due to the ideological differences between progressive and conservative voices, but the period was marked by heightened Islamic feminist activism. 3 The Recognition of Muslim Marriages Forum (RMMF) summarises the reason for the collapse of the board like so: The Main contributing factor for the collapse was the diametrically opposing views on the status of women in Islam. Simply put: there were those who believe that Islam promotes gender parity and equality and those who were of the conviction that gender equality is anathema to Islam (RMMF Comments to the Minister of Justice, 2011, p.5) Farid Esack and Ebrahim Moosa provide a deep socio-historical analysis to flesh out the differences between “progressives” and “conservatives” and their “diametrically opposing views” during this period. In doing so, they bring much needed critique to the configuration of power between religious bodies and the state in the early 1990s at the expense of progressive Islamic thought. Prior to the formation of the Muslim Personal Law Board, Esack (1992) warned that: It is not the Call or the MYM that will deliver the masses on polling day. The politically and theologically conservative MJC or their reactionary counterparts in Natal and the Transvaal may do so. Much as the ANC may value the sophisticated and liberated interpretations of Islam and the Call and the MYM may offer, it is also increasingly a political party rather than a liberation organisation. Their political objectives on the one hand and the dexterity and power of the conservative clerics on the other make the latter far more likely allies for the ANC. 2 At the same time, similar conversations were occurring between traditional leaders and the National Women’s Coalition at CODESA. The inclusion of the equality clause in the constitution was ultimately a product of South African women’s organised struggle. See Albertyn, C. (1994). “Women and the Transition to Democracy in South Africa”; and Hassim, S. (2002). ““A Conspiracy of Women”: The Women’s Movement in South Africa’s Transition to Democracy”. 3 Islamic feminism can be defined as a practice rooted in an Islamic framework that gives women rights and informs the commitment to equality and social justice (Hoel, 2013; Jeenah, 2006; Patel, 2018) 10 The concern of progressive Muslims, whom Ebrahim Moosa refers to as “nouveaux ulema”, was the joining of hands between religious bodies and the new ruling government that would cement a traditionalist approach to Islam- one that follows “doctrinal formulations of their respective legal schools” (E. Moosa, 1996, p.140). The nouveaux ulema, on the other hand, take a reformist approach that views Shariah as flexible and responsive to the social context. They are “South Africans who were trained in traditional Muslim seminaries abroad. They differ from their general ulama counterparts in so far as their juristic-theology is also informed by the social sciences and they critically engage with tradition” (Ibdi, p.138). This progressive re-interpretative Islamic thought “runs concomitantly with progressive political thought” in South Africa (Esack, 1992, p.174). Muslim social and political movements in the 1980’s, namely the Muslim Youth Movement, the Call of Islam, The Muslim Students Association, and Qibla, had a rich theological and ideological configuration geared at providing theological impetus for anti-apartheid activities. Their concerns went beyond the immediate threat of apartheid and included issues of gender and the environmental crisis. Moosa refers to their brand of thought as “the Muslim version of liberation theology” (p.138) that most of the religious bodies found difficult to digest. Reconciling these approaches to Shariah proved to be nearly impossible in the early years of South African democracy. After the collapse of The Board and the establishment of the South African Constitution, the next attempt at resolving the issue of nonrecognition came through the South African Law Reform Commission (SALRC) in 1999. SALRC established a Project Committee to investigate “Islamic Marriage and Related Matters”. There was a significant shift in the language used to describe the project. The committee was tasked with providing draft legislation for the recognition of Muslim marriages as opposed to the system of MPL. During the initial stages of this process, the committee consulted mostly with the ulama. This was opposed by women’s rights activists who insisted that “the ulama does not necessarily speak for all Muslims and that the voices of Muslim women should also be heard” (Amein, 2019, p.108). Many advocacy groups were formed to ensure that Muslim women’s voices were heard and that proposed legislation responded to the needs of all parties (Amien, 2019). The 11 groups included Shura Yabafazi (‘Consultation of Women’)4, The Recognition of Muslim Marriages Forum5, and the Coalition of Muslim Women. This period also marked the beginning of litigation that would advance the rights of Muslim spouses (discussed further in chapter 4). Between 1994 and 1999, the Cape High Court was called on to “consider the consequences” of a Muslim marriage in Ryland v Edros [1997]6. The court enforced the contract resulting from Muslim marital rites, without having to consider the legal status of the marriage itself. Thus, began a series of partial advancements in the rights of Muslim spouses, won through the courts. However, on the arm of the legislature, the progress of the Project Committee was relatively slower. After extensive public engagement, the Project Committee submitted a draft of the Muslim Marriages Bill (MMB) to the Minister of Justice in 2003. Many concerns were raised about the rights of Muslim women in the bill, including the differences in the grounds for a faskh and for a talaq, the iddah period only being applicable to women, the default matrimonial regime being out of community of property, and the proposal for mediation and arbitration which was argued to be against women’s best interest (Navsa, 2019). In response to these concerns, the South African Commission for Gender Equality (CGE)7 drafted their own bill, the Recognition of Religious Marriages Bill, in 2005. The bill was not pursued outside the gender commission. The delay between the submission of the MMB and any concrete action to enact it promted the Women’s Legal Centre to apply for direct access to the Constitutional Court in 2009 to argue that the state had failed in its constitutional obligation to recognise Muslim marriages. The Women’s Legal Centre (WLC) is as an African feminist organisation that seeks to “defend and protect the rights of vulnerable and marginalised women, in particular black women, and to promote their access to justice and equitable resources”, as well as to “advance women’s freedom from violence, substantive equality, and agency in all aspects of 4 Shura Yabafazi is a community-based organisation concerned with women’s issues and Muslim family laws. 5 The Recognition of Muslim Marriages Forum was established in 2008 and is facilitated by the Commission for Gender Equality. It is comprised of a number of scholars, concerned individuals who are fighting for the recognition of Muslim marriages “in a way that will protect Muslim women” (RMMF, Comments to the Department of Home Affairs, 2009, p.1) 6 Thoerayah Ryland was represented by Soraya Bosch, the “legal mind” behind the Campaign for a Just Muslim Personal Law. The campaign opted to pursue recognition of Muslim marriages through the courts after the collapse of the Muslim Personal Law Board. (Jeenah, 2006) 7 The Commission for Gender Equality (CGE) is an entity established in terms of section 119 of the Constitution. The commission is mandated to promote gender equality and to advise Parliament on laws that may “affect gender equality and the status of women” (Preamble of the Commission on Gender Equality Act 29 of 1996). 12 their lives - at home, at work, in the community, and within society at large.” (Women’s Legal Centre, n.d). Their application was unsuccessful8 but the government was spurred into action. The Department of Justice submitted an amended version of the MMB to cabinet in 2010. Although cabinet approved the draft bill, it was not presented in parliament. The WLC claims that the MMB has been removed from parliamentary review (Dangor and Moosa, 2019). The WLC initiated its second case in 2014, resulting in the historic High Court judgement in 2018. Both the Department of Justice (DOJ) and the WLC appealed the 2018 High Court judgement. On the issue of legislation, the DOJ appealed the restrictive time frame placed on them to enact legislation. The DOJ, at the time, was engaged in researching an omnibus legislation that would deal with the recognition and dissolution of all religious marriages which they wish to see through. The DOJ was also concerned that the judgment allows other religious communities to pursue similar litigation (Department of Justice and Constitutional Development, 2018). The WLC’s appeal was due to the judgement not providing interim relief to women who currently need their marriages to be recognised “so that their rights to housing, land and property are protected until legislation is enacted” (Women’s Legal Centre, 2019). The WLC took issue with four other findings of the court, including the court’s finding that Muslim marriages are currently out of community of property and the court’s failure to compel the Minister of Justice to put in place measures to ensure that Muslim women have access to the rights already granted to them through the courts. In addition to confirming the responsibility of the state to enact legislation recognising Muslim marriage, the Supreme Court of Appeal provided interim relief to Muslim women in the December 2020 judgement. It allows for women in existing Muslim marriages or who have been divorced religiously but have already launched claims in court, to approach the court for a divorce under the Divorce Act (1979). This may allow women to claim for post-divorce maintenance and a division of assets in terms of section 7 of the Divorce Act. It is unclear whether the MMB will ever be passed. Currently, the Department of Home Affairs rather than the Department of Justice appears to be taking the lead on developing South African marriage policy. The Department of Home Affairs has 8 The Constitutional Court was of the opinion that the case would benefit form a multi-stage litigation process which “has the advantage of isolating and clarifying issues as well as bringing to the fore the evidence that is most pertinent to them”. (Women’s Legal Centre Trust v President of the Republic of South Africa and Others, 2009, par28.) This meant that the WLC would have to start the case at the High Court and work its way up to the Constitutional Court, which is the court of final appeal. 13 initiated an investigation by SALRC into the creation of a Single Marriage Act. The purpose of the Act is to harmonise the multiple systems of law governing South African marriages whilst balancing the need to retain their distinctiveness. Minister Naledi Pandor notes that the state has “few vested interests as it pertains to the institution of marriage” which relate to “the acquisition of citizenship, the establishment of consent and the marital age” and state “protection” over polygamous marriages (Issue Paper 35, 2019, p. 2). The Department of Home Affairs also has the responsibility to ensure an accurate population registry. Beyond this, “the state should have no interest in who one marries, how the religious or cultural rituals are conducted and should therefore have no interest in giving legal legitimacy to one or other practice in relation to the conclusion of a marriage” (Ibid.) As such, the Department of Home Affairs has proposed that the legislation can take one of two forms: either a single act with universal requirements for South African marriages, or an omnibus/umbrella legislation laying out detailed requirements for religious and cultural groups. In the latter arrangement, it is possible that an amended version of the MMB could be included in the act. The Department of Home Affairs is committed to submitting a bill to cabinet for approval by the end of March 2022 (Department of Home Affairs, 2019). At this early stage, the content and form that the legislation will take is unclear, although the paper highlights that “academic consensus”, presumably from the academic advisors on the project committee, favours a single set of universal requirements over an omnibus act. Writing on the contextual shifts that have occurred since the start of the recognition debate, Seedat notes that the state’s strategy has moved from one of legislative reform through the Ministry of Justice to one of “regularising the population register through the Ministry of Home Affairs” (2019, p.186). This has resulted in a shift away from the tasks of community consultation and consensus building to the “administrative task” of registering more Muslim religious leaders as marriage officers. Another shift is that Muslim marriages are not “wholly ignored”. The courts have offered “tacit” recognition to Muslim marriages. However, the lack of legislation continues to create problems such as legal uncertainty, an uneven application of Muslim personal law, and an expensive court system. The third shift is that “Muslim judicial bodies have gradually moved to the centre of state politics”, positioning themselves as representatives of the Muslim community. Seedat highlights that although these groups are formed privately, with no democratic consultation with the Muslim community, the state 14 prioritises these groups in its relationship with the Muslim community. The bodies are “exclusive in terms of gender and race”. Seedat offers the following insights on the consequences of this relationship (2019, p.188): The form and functioning of the judicial bodies bring to the fore the ways in which Muslim religious authority is co-opted and reproduced by the South African state, so that ethnically African, female and queer Muslims are excluded from religious authority…Their move to the centre of Muslim-state relations suggests that future state responses to the discriminatory effects of the non-recognition of Muslim marriage are not likely to include the perspectives of ethnically African, female, or queer Muslims generally. The fourth shift that Seedat observes is the appearance of an emerging South African Muslim legal custom. This is illustrated by a shift in local practice, where, for example, more women negotiate a delegated talaq, an increased interest in marriage contracts, claims to maintenance and marital property, and women educating themselves online on their Islamic rights. Seedat notes that there is insufficient research to determine the nature of this shift. By documenting the experiences of Muslim women and practitioners traversing the religious and civil legal landscapes, this research contributes to research in this area, albeit in a limited way. 1.4 Methodology The research took on a qualitative research design, guided by the following feminist research principles outlined by Kumar (2019): The experiences and perspectives of women will be the focus, the researcher will be reflexive and aware of power relations, and the research will highlight women’s issues and promote equality. The aim of the research is to understand Muslim women’s experiences of navigating issues of MPL in the absence of state recognition and regulation. It aims to explore the everyday workings of nonrecognition through individual narratives. Where narratives have once been criticised for being “an imprecise way of representing the world”, narrative research in socio- legal studies is now as much celebrated for its “particularity, ambiguity and imprecision” as it has been criticised (Ewick and Silbey, 1995, p.198). As Kathy Abrams claims: “complex narratives are, first and foremost, a promising vehicle for introducing legal decision-makers to a more complex, ambiguous legal subject” (Abrams, 1993, in Ewick and Silbey, 1995, 15 p.198). Narrative is used as a method in this research to do precisely this- to introduce more complex, ambiguous legal subjects to the recognition debate. The research will bring into focus the social consequences of nonrecognition, invoking narratives “as a mode of observation, a vantage from which the world can be seen or heard” (Ewick and Silbey, 1995, p.203). As pointed out by Domingo (2005), to try and speak of Muslim women’s experiences of MPL is an enormous task. Muslim women’s experiences will vary depending on where they are located, their race, class, social support, and a host of other variables. There is no unified experience, as will be shown in the chapters that follow. The research therefore focuses on ‘depth’ rather than ‘breadth’, looking at individual experiences and how they connect with the broader social context. In doing so, it confirms Domingo’s remark, raising further questions for the governance of Muslim marriage. The choice to focus on “depth” is informed by the nature of the questions proposed and is made in consideration of methodologies used in other in-depth qualitative studies with the similar aim of understanding lived experiences (Abrahams, 2011; Davids, 2004, Hassem, 2008). In-depth, semi-structured interviews were adopted as the primary means of data collection. There were two groups of people that needed to be interviewed. The first being Muslim women seeking legal help on MPL related matters, and the second being the practitioners who provide assistance on such matters. The aim of both sets of interviews was to acquire rich narratives, told on the terms of the participants, in order to answer the research questions and offer a contribution to the ongoing debate on Muslim marriage that is rooted in the complexity of the women’s experiences. Researchers who use narrative cannot avoid “tensions, contradictions or power imbalances” but can be “good enough” researchers by describing their decision- making process and being honest about what is lost and what is gained in these decisions (Luttrell, 2005, p.243). What follows is a guide through the data collection and data analysis phases of the research and the obstacles that challenged the neat roll out of the research design. 1.4.1 Data Collection - Pre-research meetings My background knowledge on the topic of recognition stemmed from an ‘Introduction to Law’ module that I took in my first year of undergraduate studies and from my own reading 16 on the Women’s Legal Centre Trust v The President case. My understanding was, therefore, primarily framed by the language of rights, legislation, and case law. To understand the social elements of the issue, I reached out to friends and members of the Wits and UKZN communities whom I knew had an interest in the topic. The most frequent questions posed to me were “have you spoken to the Women’s Legal Centre”, followed by “do you know about the Muslim Personal Law Network”. These recommendations were clear indicators of which stakeholders held weight in the debate. I am extremely grateful for the generous input and offerings of assistance from friends and scholars who demonstrated the fact that the success of research is hinged on the kindness of people who are willing to share their time and labour in support of a project. - Finding Participants: As mentioned above, there were two different groups of participants that were interviewed. In my data collection process, I first reached out to practitioners. The “practitioners” are a combination of lawyers, legal advisors, social workers, and activists. Due to their very public engagement on the topic of recognition, the first organisation that I met with was the Women’s Legal Centre, followed by the Legal Café and the Wits Law Clinic. The objective of these interviews was to get a sense of the types of legal issues (pertaining to Muslim marriage) that they encounter, what obstacles they face in resolving these matters, their experiences of working with Muslim women in need of legal recourse, and their perspectives on the Muslim marriage debate. Anecdotes from different cases that they had encountered were particularly useful for the characterisation of cases in both personal, everyday language and technical legal jargon. Following the leads from my pre-research meetings, I met with members of the Muslim Personal Law Network. The women that I spoke to from the network were either lawyers or academics. Some of the practitioners interviewed are themselves “Muslim women” who’s perspectives were not only informed by their legal practice but from their personal and political involvement in the recognition of Muslim marriages. Some also had affiliations with more than one organisation. The information of the practitioners is listed in the table below Those who requested to remain anonymous are listed as such. Pseudonyms have been assigned to some of these participants whose interviews were heavily relied on. 17 Name Occupation Organisation/s Ighsaan Higgins Attorney Legal Café Charlene May Attorney Women’s Legal Centre Anonymous Legal Practitioner Women’s Legal Centre Rumana Goolam Mahomed Attorney Rumana Mahomed Attorneys Muslim Personal Law Network Anonymous Fourth year law student Wits Law Clinic Stephen Tuson Attorney and Professor Wits Law Clinic Philippa Kruger Attorney and Professor Wits Law Clinic Yasmeen (pseudonym) Attorney Two public interest firms in Johannesburg. Anonymous Lecturer Muslim Personal Law Network Sabera Timol Social Worker Kennilworth Respite Centre Jamila (pseudonym) Advocate Government Department Table 1 Details of Practitioners The second group of participants were Muslim women who have turned to the law to resolve MPL matters. It was difficult to find women who wanted to share their experiences. I had hoped that some of the women in this group would be identified through the initial meetings with practitioners. Most attorneys interviewed were willing to speak to or share information 18 of the research with their clients. This method yielded one participant who was willing to share her experience with me. Concurrently, I shared a short summary of the research with my personal network. The summary explained the objectives of the research, outlined the respondents sought after, and invited people who were interested to contact me. The message was shared on WhatsApp groups and a Facebook group. This resulted in three participants- who are all referred to by their pseudonyms here: Advocate Jamila, whose daughter heard about my research and put me in contact with her; Ruweida, who was in the middle of a divorce, and Ayesha who wanted to share her story of being married and divorced twice. Lastly, I created a shorter, bite size image explaining the research and inviting participants. This was shared on Twitter and WhatsApp groups and generated a lot more attention. I received calls from people who were interested in the topic and had suggestions of who to speak to. Significantly, this method put me in touch with two community activists. The first is based in Thembelihle, south of Johannesburg, and through his network I found my final two participants. The second is based in Cape Town and has a long history of activism on the topic of recognition. When we first spoke, he sounded confident that there would be women to speak to within his community. Afterall, this was a common issue that he frequently encountered. He called me a week later to inform me that all the women he had approached did not want to speak about their personal experiences. Women did not want to speak about the trauma that they have experienced, especially when there is no justice in sight. This sentiment was echoed by the attorneys who reached out to their clientele. The delicacy of the topic was something that I had been aware of and something that I tried to mitigate through the language that I used in the research invitations. In both my personalised messages to individuals identified as possible participants and passive invites on social media, I was careful to use non-intrusive language that invited participants to respond, “if they are willing”. On two occasions, I received positive indicators of outright willingness to participate, and on both occasions, it was from women who had achieved closure or who had a confident plan of how to bring their situation to a close. One woman expressed gratitude for being given the opportunity to share her story, which she thought she would never get to do in her lifetime. The other woman repeated throughout the interview that I could write a book on her life, much like Luttrell and other researchers experienced when conducting research on women’s life stories (Luttrell, 2005). Whilst the other three women indicated their 19 willingness by responding to my invite and, on one occasion, inviting me into their personal space, the emotion with which they spoke was a strong reminder that this was no easy subject matter. At the end of this process, I had five interviewees in the second category of participants. All interviewees are referred to by pseudonyms throughout the research. Some of their personal details are deliberately vague to protect their identities. The class positions of the participants can be described as lower to upper middle class. However, four of the five participants, the exception being Ayesha, were financially dependent on their husband with no significant assets of their own. This meant that when someone like Ruweida divorced her husband, she went from living lavishly to struggling to survive financially. Both Ruweida and Zakirah experienced severe and long-lasting financial insecurity because of their legal dispute. The details of the participants are as follows: Name Age Race Location Occupation Education Ruweida 56 Indian Johannesburg Administrator Grade 9 Zakirah 46 Coloured - Educator Tertiary Education Ayesha 35 Indian Johannesburg Madressah teacher Tertiary Education Fatima 33 Indian Lenasia Unemployed Grade 11 Femida 27 Black Thembelihle Unemployed Grade 11 Table 2 Demographic Details of Participants Where we had a choice of location, the interviews were conducted at a place of the women’s choosing. The intention was for the location to be an environment in which the women felt most comfortable as a means to encourage women to speak freely and partly guide the interview process (Davids, 2003). However, due to COVID-19 lockdown restrictions, I only got to meet two of the participants in person. The other three participants were interviewed over phone calls. All follow-up interviews were also telephonic. I supplemented my interviews with news articles and case law that make mention of Muslim women’s legal battles with MPL related matters. 1.4.2 Data Analysis: 20 My approach to data analysis was informed by the workshops of Professor Suzan van Zyl as part of the Wits Humanities Graduate Seminar Series in 2019 and 2020. My first step was to transcribe the interviews. I transcribed some of the interviews by myself and some through a transcription service. For those that I had transcribed through a transcription service, I reviewed to ensure the accuracy of the transcripts. I listened and relistened to bits of audio to capture the tone of participants, especially where there was ambiguity around their comments. After transcribing and reviewing transcripts, I made summaries of each interview whilst simultaneously identifying key themes for each interview. This occurred for both sets of data. For the second set of data, the interviews with women, I additionally organised the interviews into a coherent narrative across a timeline. This method of “restorying” is a means of analysing narratives and developing a coherent framework within which to understand an individual’s story (Creswell and Poth, 2018, p.131). Afterwards, I did a lateral comparison of the interviews of each data set to identify recurring themes throughout. I then organised them according to which would best answer my research questions, and which are new or emerging ideas that I did not anticipate for in my proposal. 1.5 Overview of Chapters From the data analysis process, three empirical chapters emerged. The first focuses on views and perceptions of the state from both groups of participants. The second relays the experiences of practitioners and the strategies that they have adopted to mitigate the harms associated with nonrecognition. The last chapter looks at the individual women’s experiences of seeking recourse through the religious and legal systems. It details their unique legal issues, their specific circumstances, and the action that they took to seek just outcomes in their situations. 21 Chapter 2: Literature Review Introduction The literature review provides a framework for understanding this research in the context of broader conceptual issues, namely multicultural feminism and the dilemmas of feminist legal strategies. It also maps the research that has been done on the recognition of Muslim marriages and on the lived experiences of South African Muslim women. The literature review is framed around four themes: The Paradox of Multiculturalism; Gender and Law Reform; Legal Pluralism and Muslim Marriage in South Africa; and Muslim Women in South Africa. The first section looks at how attempts by the state to accommodate the practices of cultural and religious groups sometimes increases the scope for rights violations against persons within the group, particularly women. The section outlines key feminist perspectives, with a particular focus on those seeking to “dislodge the binary” between group rights and human rights. The second section will look at the potential and limitations of law reform to ensure gender equality in women’s lived experiences. “Gender and Law Reform” builds on some of the main ideas expressed in the first section, demonstrating how differences within communities’ manifest in family law reform. Following this, “Legal Pluralism in South Africa” will discuss the pluralistic nature of the South African legal system and will review the contributions made by scholars on how Muslim marriage can be recognised within such a system. The last section will review studies that have been conducted on the lived experiences of Muslim women in South Africa, positioning this project as a contribution to empirical research on Muslim women’s experiences of religious and civil law. 2.1. The Paradox of Multiculturalism In multicultural societies, governments will inevitably have to ask themselves if cultural or religious laws and systems of governance should be incorporated into the state’s administration, and if so, how? States will need to decide on whether to simply extend citizenship rights, as is, to all individuals or to accommodate the cultural and religious practices of distinct groups into the state’s system of governance (Gouws and Stasiulis, 2014). Multicultural policies seek to include different cultural or religious groups into systems of governance without erasing their distinct identities and practices. These measures 22 are a means of addressing inequality between groups. In South Africa, resolving inter-group inequality was a key objective of the liberation struggle against apartheid. As Cachalia (2019) writes, the liberation struggle “has at the same time been a struggle for the consolidation of a single South African nation embracing a diversity of linguistic, cultural and religious communities” (p. 69). South Africa is a prime example of how a multicultural ethos symbolises a break away from old hegemonic regimes of power that used the law to produce racialised inequality. A problem remains, however, when multicultural policies aimed at reducing inequality between groups end up furthering inequality within groups. Shachar (2000) calls this phenomenon the paradox of multicultural vulnerability. The paradox only arises where the group in question holds practices that put individual rights at risk and where such practices are accommodated by the state. In this situation, ‘at-risk group members’ within the group: are being asked to shoulder a disproportionate share of the costs of multiculturalism. Under such conditions, well-meaning accommodations by the state may leave certain group members vulnerable to maltreatment within the group, and may, in effect, work to reinforce some of the most hierarchical elements of a culture. (Shachar, 2000, p.65) Although recognition through accommodation may hold benefits for the group, multiculturalists must ask “who, however, gets to define what the group’s ‘established traditions’ are?” and “which voices from within an identity group should be recognised by the state as representative of the ‘integrity of a group’s culture’” (Shachar, 2000, p.73). Accommodation into the state, “is never just an act of recognition” (Shachar, 2000, p.73). It is a process by which the state legitimises certain interpretations and practices within a group. It is generally the leaders of the group who determine the “authentic” practices and laws for the group and define the group’s traditions, without much dialogue with the group. This leaves those suggesting new interpretations, especially women, open to ostracization and accusations of “cultural betrayal” (Shachar, 2000, p.73). Whatever differences that exist within the group are hidden behind the representation of the group made by its leaders. Shachar further explains that because family laws are often markers of cultural group’s distinctness, states are likely to accommodate group practices in this area of governance, either through legislative intervention or through non-intervention, which gives the group full autonomy over their practices. Because women play a fundamental role in reproducing group identity, norms and practices through the family unit, family laws that uphold gender biases 23 may place women in a position where their group rights conflict with their individual rights. The tension between group rights and women’s rights in accommodationist policies has inspired feminist critiques of multicultural policies. Susan Moller Okin (1999), for example argues that the rights of minority groups should not be protected when they conflict with gender equality, and then proceeds to cite personal laws, polygamy and clitoridectomy as examples of the dangers of protecting group rights. Okin’s analysis has been criticized for making sweeping claims about religions and cultures, women in these religions and cultures, and the presumed “progressiveness” of western states (Al-hibri, 1999; Hong, 1999). Okin’s analysis points to a broader problem that occurs when discussing women’s rights and group rights. The binary framing of women’s rights- as ostensibly western and progressive- and group rights- ostensibly discriminatory and backward- produces a form of “othering” where non-western religion and culture is painted as unequivocally antagonistic to gender equality (Gouws and Stasiulis, 2014). This furthers an a-historical and narrow view of religion and culture as intransient- a view that does not take into account the multiple factors informing the composition of group laws and practices. Homi. K. Bhabha aptly summed up the critique of Okin’s analysis when he said: “Put patriarchy in the dock by all means but put it in a relevant context” (1999, p.81). In putting patriarchal practices in its relevant social context, Gouws and Stasiulis suggest in their book “Gender and Multiculturalism- North-South Perspectives” (2016), that we can begin to dislodge the oppositional structure of the human rights and group rights debate. To make this case, Du Toit (2016) deconstructs the “universality” of human rights, and claims to culture that act like universals in local contexts. Drawing on a range of feminist theorists and Aristotle’s notion of phronesis, Du Toit proposes an understanding of universals, including universal human rights, as contested and contextual in nature as opposed to “timeless and abstract” knowledge that is “straightforwardly applicable in every new situation” (p.27). Du Toit then turns to look at religious and cultural claims that act as universals, specifically those that “resist women’s equality” and brandish claims for equality as “necessarily alien, external” and “imperialist” (p.28). Culture, like human rights, is internally contested. As such, claims to a “pure culture” must be searched for the possible ideological function of the claim. Du Toit suggests that claims to a “pure culture” often seek to stabilise group identity in the face of external threat, such as minority group traditions in multicultural contexts. Women are once again at the centre of attempts to control and protect group identity. 24 Women’s sexuality, for example, is generally understood as “a marker of collective identity” (Du Toit, 2014, p.18). Their experiences, however, may not align with claims being made on behalf of the culture, as will be shown in the case below. Therefore, Du Toit argues that claims to culture should be informed “by the singular and the unique, and in particular by women’s voices and concerns” (p.18) and should be kept open to debate, allowing the culture to be “informed and reformed” by the material ways in which it is invoked. Du Toit uses the example of the Zuma rape trial9 to show precisely how claims to an intransient culture are at odds with the embodied experience of members of that culture. Du Toit summarises the universal and the “singular and particular” in the following comment: If Kwesi (sic) had been allowed to explain her interpretation of what being Zulu means to her in contemporary South Africa, how it touches on and informs her womanhood, as well as her sexual autonomy and freedom. If she was allowed to show what Africanness and Zuluness as cultural universals mean for her as a concrete individual and self- proclaimed lesbian, she would probably have opted for a broadening of the concept of Zuluness to embrace, to be made congruent with the material realities of her life as a female, gay Zulu of the new South Africa nation… If the court had allowed Kwesi’s interpretation of her Zulu identity to inform everyone better what it may mean to be a Zulu in present-day South Africa, I suspect that Zuma’s definition (drawing on all the widely disseminated, well established stereotypes of Zulu virility) would have been revealed as too narrow, untenable, not universal enough to include very many actual Zulus. The Zuma rape trial is one example of the contested nature of culture and the role of the court in legitimising certain interpretations of custom in South Africa. Writing on South African law reform, Albertyn (2013), like Du Toit, notes that there is a gap between ‘those who ‘speak for’ culture or religion and those who ‘live’ it”, and that the latter group may hold less essentialist understandings of their group identity and practices (p. 393). Furthermore, there are intra-cultural claims being made by women within cultural groups in South Africa that 9 Former President Jacob Zuma was tired and acquitted of rape charges in 2007. He went on to become president in 2009. Zuma’s defence relied heavily on claims about sex and sexuality in Zulu culture. ‘Khwezi’ is the pseudonym given to Fezekile Ntsukela Kuzwayo- the woman who accused Zuma of rape- to protect her identity during the trial. The trial subjected Kuzwayo to attacks from supporters of Zuma, including the ANC Women’s League. For a reflection on the shifting discourse around Zuma and the rape trial, see Hassim, S. “Why, a decade on, a new book on Zuma’s rape trial has finally hit home”. The Conversation. 5th October, 2017. Available at: https://theconversation.com/why-a-decade-on-a-new-book-on-zumas-rape-trial-has- finally-hit-home-85262 25 seek to redefine certain cultural norms or patriarchal interpretations of religious texts. Albertyn cautions that in any family law reform process, there is the potential to place the burden of cultural misrecognition on women “by failing to see the gender dimensions of both misrecognition and maldistribution” (2013, p.390). However, engaging with differences within groups – in both interpretations of texts or lived experiences - the law reform process may be able to produce a greater balance between women’s rights and group rights. Albertyn explains: It is in the notion that values are contingent and overlapping, that open debate about values is possible and desirable, and that cultural and religious precepts and practices can survive – and respond to - constitutional scrutiny, that the possibilities of law reform that respects sameness and difference are found (Albertyn, 2013, p.394) There is much to be drawn from debates on family law reform in India, where Muslims are also a minority community. When it comes to the recognition of personal laws in India, Flavia Agnes’ (2012) study of the intersection of gender and identity in Muslim women’s experiences shows how a binary debate between women’s rights and group rights can be harmful for women within minority groups. This is typified in the reaction to the Shah Bano judgement which dealt with a post-divorce maintenance claim for a Muslim marriage. In 1985, after a ten-year legal battle against her husband for maintenance, Shah Bano won her case at the highest court in India. The judgement (and the ruling Congress party that was seen to be in support of the judgement) received backlash from the Muslim community. The Congress party revoked its earlier support of the judgement and adhering to the calls from some Muslim leaders, supported a separate legislation based on Islamic jurisprudence for Muslim women getting divorced. This sparked two responses – from the Hindu right who saw the government’s move as pandering to minority interests, and from feminists who saw this as a contravention of the principle of gender equality (Mankekar, 1995; Pathak and Rajan, 1989). The position of the Indian women’s movement on Muslim women and the Uniform Civil Code10 had to evolve past a stringent understanding of “equality” when they realised that their position fell into the anti-Muslim sentiments of the Hindu right wing (Agnes, 2012; Rajan, 2000; Sezgin, 2016). Agnes shows that a binary debate between group rights and women’s rights does not benefit women who fall within the 10 Currently, India has different systems of personal law for different religious groupings. The constitution provides for a uniform code in keeping with the secular trajectory of the post-colonial state. See Rajan (2008). 26 margins, ultimately demonstrated in Shah Bano feeling compelled to choose between being a devout Muslim and her entitlement to her claim for maintenance. She eventually renounced her claim for maintenance. Feminists like Amanda Gouws, Louise Du Toit, and Ayelet Shachar seek solutions that do not force women like Shah Bano into choosing between their allegiance to their religion or culture and their individual rights. Shachar, for example, proposes an approach that sees women as “rights bearers” and “cultural bearers” and regards women’s rights as encompassing of both human rights and group rights (Shachar 2000, Shachar, 2009). From this perspective, Shachar (2009) proposes an interactive system of governance that moves between the secular-religious divide and that is sensitive to context. She asks “…what is owed to those women whose legal dilemmas … often arise from the fact that their lives are already affected by the interplay between overlapping systems of identification, authority, and belief.” (2009, p. 144). Shachar’s model of “transformative accommodation” seeks to reconcile individual and group rights and is based on three rules:1. The state and the minority group will share jurisdiction through the division of issues into ‘sub-matters’ over which each has an allocated jurisdiction; 2. Neither the state nor the minority group may have sole authority over an issue; 3. An individual can choose between state or group authority at any point. The “competition” created between the state and religious or community leaders is said to encourage intra- communal dialogue (Domingo, 2019). The model has been criticised for not taking into account the factors that may hinder women’s ability to choose between jurisdictions and has been expanded by suggestions to capacitate women to make such choices (Bond, 2008 and Mitnick, 2003 in Domingo, 2019). Whilst recognising the limitations of Shachar’s model, Domingo finds in it a foundation for thinking “in a more creative and pluralistic manner” for a model within which “a Muslim woman can enjoy her rights under Islamic law and her rights as a citizen of South Africa” (2019, p.328). The debates around multiculturalism lays a foundation for understanding the difficulties of law reform, where much of the tensions discussed in this section play out. The next section will discuss South African feminist perspectives on the use of the law to improve the position of women in South Africa, especially in the area of family law. 27 2.2. Gender and Law Reform Feminist legal scholars have long deliberated on the efficacy of using legal processes to advance women’s interests (Artz and Smythe, 2007). On the one hand, the law regulates access to resources and benefits, provided only through recognition from the law. On the other hand, the law sets boundaries of inclusion and exclusion that may subvert broader goals for gender equality and further entrench traditional gender roles or institutions like marriage. South African feminist literature seems to agree on a set of fundamental ideas about the law: 1. That it is a fundamentally patriarchal institution, likely to reproduce sexist ideas, 2. that its impact is limited by a number of socio-economic factors that prevent women from accessing the law as well as by the constraints of the state to enforce the law; and 3. that the law is only one site of what should be a multipronged struggle for gender justice. Legal strategies should be supplemented by broader social and political strategies (Artz and Smythe, 2007; Albertyn 2011) Many laws have been produced since 1994 to address women’s status and subordination in the private sphere. A strong alliance between the Women’s National Coalition (WNC), the ANC and a vigorous civil society provided a useful moment for feminist law making in the early days of democracy. During this period, the Recognition of Customary Marriages Act (1998), the Domestic Violence Act (1998), and the Choice of Termination of Pregnancy Act (1996) were passed into law. However, from 1999-2004, the political process of law making began to slow down. SALRC investigations into African customary inheritance, Islamic marriage, sex work, and cohabitation and domestic partnerships, did not result in legislation (Albertyn, 2005). As a result, litigators such as the WLC turned to the courts to defend and promote the right to equality resulting in some victories11 for women’s rights. There is, however, a gap between the right to equality and material realities. Using the work of Nancy Fraser, Albertyn (2011) asks whether the law has been able to reduce social and economic equality between men and women in both status (through recognition) and redistribution of wealth. Broadly, Albertyn argues that the law plays an important normative role that provides strategic opportunities for women to access justice, but that it is limited in its ability to change women’s material realities. Before detailing Albertyn’s work, it is useful 11 For example, the Bhe and Others v Magistrate and Others (2005) challenged the customary laws of inheritance that prevented daughters from inheriting and won at the Constitutional Court. The Bwanya v Master of the High Court (2020) case addressed the inability of persons in domestic partnerships to inherit under the Intestate Succession Act (ISA). 28 to look at Fraser’s framing of the tension between recognition and redistributive claims that seek validation from the law. According to Fraser, social justice claims in recent times appear to be divided into claims for redistribution and claims for recognition, with claims for recognition becoming more prominent since the 1990’s (Fraser, 2003; Fraser, 2007). Redistributive claims call for a just distribution of resources and wealth. Movements calling for redistributive policies were primarily organised around class and were criticised for ignoring other differences such as race and gender. Undergirding calls for recognition, on the other hand, are identity claims or the recognition of these differences. The goal of “recognition politics” is to build a “difference friendly world, where assimilation to majority or dominant cultural norms is no longer the price for equal respect” (Fraser, 2003, p.7). There are two interrelated ways in which the law may prevent or produce/reproduce inequality. The first is found in the way the law defines those who have access to its benefits, creating boundaries of inclusion and exclusion (Albertyn, 2005). The second is in the application of the law within the judicial system and how it is enforced through social institutions. Albertyn (2011) notes that the laws passed during the transition and early democratic years of South Africa improved the status of women in the private sphere, extending the ambit of the law from the public to the private. Through these recognition- based policies, women have gained access to resources through marriage, have laws that secure reproductive rights and have progressive legislation dealing with gender-based violence (GBV). However, the actual impact of these laws has been limited by poor implementation or by the limited parameters set by the law. For example, some provisions of the Domestic Violence Act (DMVA) are unavailable to spouses in unrecognised marriages (Bonthuys, 2014). Under legislation, domestic violence is considered as a factor in the distribution of the joint estate in divorces or in claims for spousal maintenance. Women in “unrecognised” relationships are not entitled to these redistributive mechanisms, leaving them vulnerable to abuse and making it difficult for some to leave abusive relationships. Furthermore, the courts have shown an unwillingness to consider domestic violence as a factor in most divorce cases except in exceptional circumstances. The violence experienced by women is often trivialised and seen as separate from the marital discord (Bonthuys, 2014). Another concern is whether the content and application of the law transforms or relies on – and thereby strengthens - traditional gender roles. Albertyn argues that the transformatory potential of law to change gender roles has been contradictory. This is seen in laws and court judgements that shift “between arguments and concepts that reinforce traditional gender roles 29 and those that undermine them” (p. 151). In legal processes, arguments are sometimes made on the basis of women’s traditional gender roles or on narratives of victimhood and dependency. For example, access to abortion was argued for on the basis of socio-economic conditions and health needs instead of on the right to reproductive autonomy and choice. For litigators, these arguments are expedient and built on the need to meet women’s immediate needs (Albertyn, 2011; Artz and Smythe, 2007). However, they uphold gendered norms and institutions like family, marriage and community, that are often built on unequal gender relations. Albertyn describes these instances as accommodation through inclusion rather than transformation. An inclusionary approach extends the reach of recognition and redistribution through the law but does not transform the “structural conditions” creating systemic inequality. A transformative approach addresses such systemic inequalities by “restructuring the underlying generative framework” (Fraser, 1997, p.23 in Albertyn, 2011, p.144). Despite the potential for mixed outcomes, Albertyn argues that strategies of inclusion should not be dismissed: Strategies of inclusion are neither “wrong” nor insignificant, nor do they necessarily exist in isolation from more transformative approaches. Women have been granted a powerful array of rights and benefits by parliament and the courts in South Africa. Meeting women’s practical needs enables more strategic objectives. (p.152) Artz and Smythe (2007) also support a pragmatic relationship between feminist aims and the law- one that accepts that the law is limited in both its enforceability and its transformative potential. Writing on the contributions of feminists to the Sexual Offences bill over a ten-year process, Artz and Smythe (2007) highlight how feminist concerns for legislation that supports vulnerable victims gradually moved to the periphery. Nevertheless, they argue that for as long as women choose to make use of the criminal justice system, feminist activists have no choice but to engage with the law, accepting that the law is a site of struggle where a variety of interests compete for primacy. Many of the critiques expressed by South African feminists are echoed by feminists in the Global South. I have benefitted from those stemming from India, where reforms to marriage laws have been in constant debate. Menon (2004) provides a comprehensive overview of the critiques of the law, which I summarise as follows: 1.Legal campaigns do not address the ‘political and social basis for gender injustice’ and, therefore, are not enough to transform a patriarchal society; 2. New legislation furthers the control of the state in the lives of women 30 and; 3. Changing the law is a time consuming strategy that does not affect real change; what is needed, instead, is a “mass-based militant politics” (Menon, 2004, p.6) Srimati Basu’s ethnography of family courts in India further highlights the insufficiency of the law to ensure gender justice. Basu (2015) demonstrates how the law can be used as a tool to advance and protect women’s interests whilst reinforcing gendered norms. Instead of asking whether laws are ‘good’ or ‘bad’, Basu finds it more useful to “follow the ways they are utilised as new cultural horizons: to stretch the entitlements of marriage, calibrate the meanings of violence, or construct kinship” (2015, p. 4). This sentiment is expressed by some of the practitioners that were interviewed for this research. Nandita Haksar argues that the propensity to turn to the law is due to it being easier than “building a movement for an alternative vision” and suggests that law should only be used as a strategy when “the movement is strong enough to carry the law reform forward” (cited in Menon, 2004, p.6). One example of the potential and limitations of the law that lends itself to the Muslim marriage debate is the Recognition of Customary Marriages Act (RCMA). The RCMA was a welcomed legislative intervention to remedy the status subordination of women in customary marriages. Black women were denied protection from both state and customary law during the colonial and apartheid systems, placing them outside of the law (Button, Himonga and Moore, 2016). They were given minority status in customary marriages during this period. The RCMA recognised women’s equal status to men in customary marriages, with the same rights to children, decision making and property (Albertyn, 2011). It aimed to ameliorate the hardships that women faced at divorce by giving full legal recognition to customary marriages, setting the default marital property regime as in community of property, and shifting the authority to dissolve marriages to state courts which would be responsible for distributing the marital estate. However, the implementation of the RCMA is hindered by structural issues, as Button, Himonga and Moore (2016, p.300) write: …it has been argued that the RCMA is a mere ‘paper tiger’, owing to high litigation costs in state courts, the lack of awareness about the Act in rural areas, and the unequal power relations between spouses, which prevent women from negotiating for the application of the RCMA to the dissolution of their customary marriages. In their research, Button, Himonga and Moore (2016) found that women believed state courts would provide more protection against inequitable outcomes of divorce. Despite this view, only 3 out of the 17 marriages in the research were dissolved in state courts. The rest 31 informally separated from their husbands without the benefit of a redistribution of the marital estate. Black South African women in customary marriages occupy “an exclusive and highly vulnerable socio-economic position” (p.105) and their experiences of divorce are shaped by gender, race, location and class (Himonga and Moore, 2017). In addition to the abovementioned structural barriers, Himonga and Moore found that the deep-seated belief amongst divorcees that marital property belongs to the husband or the husband’s family prevents women from accessing their rights under the RCMA. The case of the RCMA illustrates how new laws that are built on the principle of gender equality and aimed at providing social and financial security to women struggle to take root in the practices of groups (Nhlapo, 2017). Unlike Shachar’s paradox of multicultural vulnerability, discussed above, where state laws entrench hierarchical elements of cultures to the detriment of women, the RCMA presents a case where progressive legislation is not always used by the women it aims to protect. There are many social and structural reasons as to why women may choose not to lay claim to their legal rights, but of concern in this section is instances where legislation either reifies western, constitutional provisions or uncontested representations of culture. There are examples of women’s movements across the world that seek law reform on the basis of their interpretations of religious texts. The following examples look specifically at Muslim women’s organising around personal laws in Egypt, India and Israel. Singerman (2005, p.163) observes the trend for women’s movements across the Muslim world to seek a shift in the balance of power in the private realm through law reform in order for them to access other freedoms fought for by the international feminist movement. Zaki (2017) uses the case of the Egyptian women’s movement as an example of feminists innovatively drawing on an array of cultural, religious and political ideas to reform MPL. For many years, the Egyptian women’s movement campaigned to increase women’s access to divorce. Zaki writes that Egypt’s pluralistic family law system contributed to the success of the campaign, allowing for activists to fight the battle of language and interpretation. Their struggle was both against the state and the religious establishment. A unique form of resistance to the reform of personal laws is found in contexts where the laws in question belong to a minority group. Sezgin (2012) writes about the efforts of women to reform Muslim marriage and divorce laws in Israel and India – both countries in which Muslims form a minority group and have difficult relationships with the state. In Israel, 32 Palestinian women sought to increase the amount of maintenance awarded to Muslim women upon divorce by giving women the option of having their divorces adjudicated by civilian courts, as opposed to sharia courts. In India, Sezgin looks at how the women’s movement has had to grapple with the complicated issue of triple talaq and the Universal Civil Code in light of anti-Muslim sentiment.12 Women’s strategies included strategic litigation (in the case of India), lobbying for legal reform (in the case of Israel), building alliances across communities and “forming hermeneutic communities that offer women friendly interpretations of Islam” in both cases (Sezgin, 2012, p.116). Sezgin (2010) suggests that when it comes to aligning personal laws with universal human rights, hermeneutic communities, or communities that engage in interpreting religious texts, hold the most potential for change, referring to their work as a “revolution in personal status systems”. In India and Israel, legal reform, religious reform and intercommunity alliances formed a matrix of resistance targeting different seats of power. 2.3 Legal Pluralism and Muslim Marriage in South Africa South Africa’s legal system is also pluralistic, offering its own strategic opportunities to recognise and reform personal laws. Before looking at these opportunities, it is necessary to unpack what is meant by legal pluralism and why South Africa’s legal system is considered as such. Legal pluralism refers to the co-existence of multiple legal systems (Opperman, 2006). It is a common feature of postcolonial states and remains an increasingly important issue of governance due to migration, transnationalism, and international human rights conventions (Bonthuys, 2016). It is estimated that roughly 80% of the developing world use non-state, religious or customary legal systems (Sezgin, 2010). In recent times, the role of non-state religious or customary legal systems has largely been truncated to the governance of personal status or family law matters (ibid). Legal pluralism does not require state recognition of different legal systems but should be taken as a fact of multicultural societies in which many legal systems are followed (van Niekerk, 2010). This describes a form deep legal pluralism in which non-state law operates without the regulation of the government. State or formal legal pluralism, on the other hand, involves the formal recognition and incorporation of traditional or religious legal systems into state regulation. 12 See also Flavia Agnes (1999) “Law and Gender Inequality”; (2017) “Triple Talaq-Gender Concerns and Minority Safeguards within a Communalised Polity: Can Conditional Nikahnama Offer a Solution”; and Rajeswari Sunder Rajan (2000) “Women between community and state: some implications of the Uniform Civil Code debates in India”. 33 As a fact of multicultural societies (van Niekerk, 2010), legal pluralism shares many of the concerns discussed in the first section of this literature review. Pluralistic legal systems are perceived to be harmful to the individuals under its jurisdiction and the systems are subject to much critique for their failure to align with human rights. This is often due to personal status systems entrenching patriarchal structures and gender inequalities, with severe consequences for “women, children, religious dissidents, secular individuals, and people who do not belong to a ‘recognised’ community (Sezgin, 2010, p. 21). Thus, when a personal status system is formally recognised by the state without undergoing reform, the discriminatory patterns within it are sanctioned and backed by the state. As illustrated in the historical context, this was a concern for Muslim progressives in South Africa who argued that any recognition of MPL in South Africa should be subject to the equality clause to ensure that gender discrimination is not enshrined in law. The South African legal system can be described as a mixed or dual legal system (Rautenbach, 2010). The two systems comprising state law is the common law, which applies to all South Africans, and African customary law, which is applied in certain circumstances but is equal in status to the common law (ibid, Opperman, 2006). It is estimated that over 16 million Black South Africans live under customary law (Himonga and Moore, 2018). Non- state law, such as Muslim personal law continues to thrive between these systems. This not only occurs with religious and cultural family laws, but also in criminal matters where “people’s courts” have dealt with criminality through their own methods due to the inaccessibility of the courts (Rautenbach, 2010). Legal pluralism raises many questions about whether and how religious and cultural laws should be included into state laws. The literature that I next consider looks at these questions in relation to the recognition of Muslim marriages in South Africa. It suggests three different measures that can be adopted to address the issue of non-recognition in South Africa: The codification of MPL, the recognition of Muslim marriages through legislation, and the recognition of Muslim marriages through the development of common law. Furthermore, the literature also shows how the debate around the recognition of Muslim marriages has progressed over time. In anticipation of the legal recognition of Muslim marriages, Najma Moosa (1995) evaluated the conflicts between Islamic and South African laws of inheritance and succession, showing areas of compatibility and incompatibility. Moosa concluded that the best way to integrate MPL into the South African legal system is through separate legislation that would apply to all Muslims. This would resolve the contradictions between the two sets of law and mitigate 34 the harms attached to the non-recognition of Muslim marriages. The harms that Moosa discusses include the illegitimate status of children born of unregistered Muslim marriages and the legal consequences that follow, women’s vulnerability in instances of divorce or death of a spouse, and the navigation of two conflicting legal systems that sometimes leads believers to disobey Islamic law. Moosa later wrote that the codification of MPL should be subject to the Bill of Rights, arguing that the spirit of equality in the Bill of Rights is consistent with that of Islam, thus safeguarding against patriarchal interpretations of Islam found in Islamic law (Moosa, 1998). The need for Muslim Personal Laws to be subject to the Bill of Rights is echoed by many other legal scholars (Rautenbach (1999); Manjoo (2007); Amien (2010); Albertyn (2013)). Through an analysis of what is deemed “law” in the South African and Indian constitutions, Rautenbach additionally (1999) argues that the bill of rights also applies currently to unrecognised MPL. Rautenbach writes that the shift in language used to define law in the South African constitution- from “law in force” in the 1993 interim constitution to “all law” in the final constitution- suggests that the drafters of the constitution envisaged that there would be laws that would not be recognised as “laws in force” but that would still need to be “scrutinised in terms of the bill of rights” (1999, p.4). In other words, the constitution may have anticipated the needs of “deep legal pluralism” and so extended constitutional regulation to non-state/unrecognised systems of law. Additionally, unlike the Indian constitution that grants autonomy to systems of personal law, the constitution of South Africa would require formal (legislated) MPL to comply with the Bill of Rights. Manjoo (2019) opposes the codification of MPL in the MMB and suggests that there are other ways to recognise the status of Muslim marriages. In her study of the implications of MPL for women’s rights, Manjoo found that process of codification preferences one school of thought over another. This was one of the issues raised with the MMB which prioritised the interpretation of the dominant schools of Islam in South Africa- the Shafi and Hanafi. People interviewed in Manjoo’s research felt that in choosing one school of interpretation over another, the state was “mandating what religious practices should be” (Manjoo, 2019, p.279). On the gender equality front, Manjoo found that the MMB contains provisions that could disadvantage women, such as the limited time frame which maintenance is provided during the iddah period and the default property regime being out of community of property without accrual. Instead of codification through the MMB, Manjoo advocates for legislation that recognises all marriages without attempting to codify any religious tenants. This is the 35 approach used by the Commission for Gender Equality (CGE) in the Recognition of Religious Marriages Bill (RRMB) and is an option being considered in the newly proposed Single Marriages Bill. As previously mentioned, the RRMB was drafted in response to concerns that the MMB posed a challenge to women’s right to equality. The CGE handed over the RRMB to the South African Law Reform Commission but no public consultations were held on the bill. According to Amien (2010), the RRMB was drafted with little consultation with the Muslim community. Furthermore, Amien argues that the RRMB and other approaches that seek to unify MPL with existing laws, conceals discriminatory practices by leaving the regulation of marriages to the private sphere. Amien finds both the RRMB and the Muslim Marriages Bill lacking in its approach to gender equality. She suggests that new legislation should adopt a Gender-Nuanced Integration (GNI) approach. The GNI approach applies in contexts where there is a constitution in place that enshrines gender equality and forms the highest law in the land. The GNI requires legislation to prioritise the right to equality over freedom of religion where there is constitutional protection of both. Key features of this approach include the need for regulation (as opposed to recognition alone) of Muslim marriages, and the role of the judiciary in employing gender sensitive interpretations of Muslim family law (Amien, 2010). An alternative to recognising Muslim marriages through legislation is to give recognition by developing the common law through the courts (Rautenbach, 2004). The development of the common law is a duty on the courts mandated by the constitution. The courts have extended rights to Muslim spouses through the common law but have fallen short in recognising Muslim marriages as legal unions. Furthermore, Amien (2016) shows how the judiciary has extended recognition to elements of the Muslim personal law stemming from the marriage contract, namely, nafaqah (maintenance), and mata’a (compensatory gifts) in the Ryland v Edros case and mahr (dowry) in Arendse v Arendse. Rautenbach argues that the judiciary’s “accommodation of religious and cultural diversity is acknowledging end even endorsing the existence of deep legal pluralism in South Africa” (2010, p. 147). This approach is attributed to new ways of interpreting legislation in democratic South Africa which pays attention to the “spirit” of the law guided by constitutional values rather than literal interpretations and the increased diversity within the judiciary post-1994. This new approach, Ra