By Phathizwe Zulu
The state of Swaziland continues to deny the wishes of its minority Muslim community to recognize marriages solemnized under the Islamic law, throwing couples of the faith in a legal quagmire.
Apart from the Swazi Muslim couples, their innocent children too are suffering since they are viewed as illegitimate by their society due to failure of the state to recognize the union of their parents.
Swazi Muslims like Zainab Muhamad urge the state to give their unions the same status as civil marriages since she pointed out that such rites were being held under the Islamic law, which too were legally-binding contracts for believers.
Muhamad also said there was a need for “Qazis”, or experts on Islamic law and jurisprudence, to decide on court cases concerning marriages between Muslim couples.
“It would be unfair for Swazi courts using state laws to make judgment on our marriages…Our [Islamic] law is based on the teachings of the Quran and the Prophet, and it cannot and should not be interpreted by anyone except individuals that have studied it,” she said.
Members of the Muslim community face the most trying times when divorce cases go to the courts, where matters pertaining to properties and children are contested.
However, before issues about child custody or grounds for divorce can be dissected, the court begins to ask whether the state could even recognize such unions as marriages.
Last month, a senior Magistrate Phathaphatha Mdluli’s decision regarding the case of a Muslim couple had raised serious concerns about the legality of Islamic marriages in the tiny Southern African kingdom, where evangelical Christianity is predominant.
The case involved Kattissa Carrimo and Sultan Abdul Carrimo, who got married in 1996 in Mbabane, Swaziland’s administrative capital, under the Islamic law.
According to court papers, the wife said she wanted the state to recognize her divorce, which took place under the Islamic law when she found out her husband had committed adultery.
She said she left her marital home on February 2016 and told her husband that she was terminating their marriage under terms of the Islamic marriage contract. The husband, according to the papers, had also repeated the words “I divorce you” three times, which is considered enough in Islamic law to annul the marriage.
The wife also sought an order to take custody of the minor child.
However, the magistrate halted the divorce, raising the question whether the court could entertain such matters at all since the marriage between the parties had been solemnized under the Islamic law.
Muslims, just 2 percent
According to the U.S. Department of State’s International Religious Freedom Report 2011, 90 percent of Swaziland's estimated 1.2 million population is Christian, while about 2 percent is Muslim and the remaining follow other religions.
The report noted there was distrust by Swazis towards other non-Christian religions.
“Members of society often viewed non-Christian religious groups with suspicion, especially in rural areas… In general, however, there was broad societal respect for religious freedom,” it said.
The Swazi Muslim community, according to the report, is divided into two sections: the local Swazi Muslim community, and the refugees and immigrants originating from Asia and other African countries such as Somalia, Sudan and Nigeria.
Also, the report highlighted the continued growth of Islam in Swaziland through Islamic banking, Muslim and Arab investments, Muslim immigrants and mosques built in some parts of rural communities in the north.
“As a result, the Swazi Muslim community has been growing and might continue to do so in the face of discrimination and suspicion,” it said.
Swazi law on marriages
According to Imam Luqman Asooka at the Zulwini Islamic Centre, Swazi common law recognizes Muslim marriages.
He said the law empowers religious leaders to solemnize marriage according to the Swazi law and custom or any other law and custom except civil rites. “And, Islam and Christian marriages fall in ‘under any other law and custom’ type of marriages’,” Asooka said.
“Swaziland’s constitution guarantees freedom of worship and recognizes existence of other religions in the country and Islam is one of them,” he added.
However, Dumisani Dlamini, a legal officer with the nongovernmental organization, Women and Law in Southern Africa, disputed Asooka’s interpretation of the law.
Dlamini said currently Muslim marriages were not part of Swazi laws, which meant they were not recognized as part of the Marriage Act of 1964.
“For Muslim couples to enjoy the legal rights and protection similar to couples married in civil rites, they need to conduct a separate civil ceremony. Such a separate civil ceremony or marriage should be solemnized by a marriage officer who is duly gazetted [authorized] by the government.
“That is the position now for Swazis who are Muslims and, I think, that's the basis of the magistrate’s judgment on this case [concerning the Carrimo case mentioned earlier],” Dlamini said.
He explained that since the Marriage Act 25 of 1964 did not recognize marriages solemnized under the Islamic law, Muslim spouses and their children end up being viewed as illegitimate by the state and the society, and suffered from discrimination.
Moreover, Dlamini said Muslim women end up being denied spousal benefits to claim maintenance in terms of the Maintenance of Surviving Spouse Act 27 of 1990, and could not inherit from a fair distribution of properties after dissolution of marriages.
The only recourse left to such couples is then to approach the High Court, where most people cannot afford the expensive litigation process and the verdict is not guaranteed to be in their favor.
South Africa model
Experts point to the example of neighboring South Africa as a model country to follow.
According to Asooka, South Africa engages imams not only on religious matters but also for settling disputes involving property and custody of children of Muslims.
“The South African government has trained religious leaders, including imams to perform civil marriages, it can be a learning curve even for our government to involve religious leaders in the empowerment of its own people,” he said.
Dlamini agreed South Africa was indeed miles ahead than Swaziland. He said a classic example of this was the official appointment of over 100 Muslim clerics as marriage officers in that country.
“Their accreditation in terms of the marriage act enabled Muslim marriages to be legally recognized, enabling imams to officiate over marriage unions,” he said.
But while most people agree South Africa was indeed miles ahead, it remains unclear if the voices of the Muslim community is reaching the top echelons of power in Swaziland.
Esther Dlamini, deputy speaker in the House of Assembly and chairwoman of the Justice and Constitutional Affairs Portfolio Committee, said: "Presently, we are not sure how compatible our laws are to Muslim marriages. The issue raised by the magistrate [in the Carrimo case] requires critical consideration because there are lot of religions which might also want to be accommodated by our laws.
“Presently, the issue of Muslim marriages is an isolated issue raised by [the magistrate] Mdluli. But if it can be a frequent issue, that could mean we would have to make a motion in parliament and order the Ministry of Justice and Constitutional Affairs to make a bill to be debated in parliament.”
But how many cases like the Carrimo one would have to surface before lawmakers like Dlamini would think it is "frequent" enough to merit a reform of the marriage act? Only time will tell.