The rightful place of gender equality within Islam

An animated discussion is taking place about the relationship between Islam and equality and justice in the context of women’s human rights. How will the democratic uprisings sweeping across the Arab world affect this conversation?

‘Women in the 57 Organisation of Islamic Conference (OIC) member states should be respected, developed, empowered, considered full active participants in social, political, cultural and economic spheres’ says the OIC’s Plan of Action for the Advancement of Women, adopted in 2008. More recently, in its 2010 statement before the 65th session of the UN General Assembly, the organisation reiterated "its genuine desire to and hope that advancement of women is carried out consistently and properly, and that gender equality becomes a universally accepted norm in both Muslim and non-Muslim countries.”

What do the 57 member states themselves have to say with respect to their obligation to respect and protect women’s rights within the family? The answer is as diverse as the differences between them.

Some countries claim to be complying, or in the process of complying, with international human rights norms and standards of equality and non-discrimination with respect to women’s rights. Gabon, Guinea Bissau, Lebanon, and Tajikistan, for example, state that their countries enjoy full equality between men and women under the law. Indonesia reports that it is in the process of reforming its laws related to ‘the age of marriage, polygamy, and marriage’ and Nigeria says the same of its Nigerian Family Law - in order to align them with international human rights.

Other OIC countries, on the other hand, defend their discriminatory family laws, vehemently asserting their allegiance to the Shari’ah as their sole guidepost. Both Bahrain and the United Arab Emirates, for example, have stated that Islam is the official religion of the land with Islamic Shari’ah as the principal source of their legislation. Saudi Arabia, meanwhile, affirms that no law would remain on the books were it found to be inconsistent with Islamic Shari’ah.

Other countries still deploy such non-religious justifications as culture, tradition, political unrest and respect for minority rights as the explanation for their refusal to amend discriminatory provisions against women. Benin claimed these discriminatory traditions have been passed down since ‘bygones times’ while Pakistan discovered that ‘society’s attitudes, preferences, biases and prejudices….are the product of a complex mix of culture, history, custom and religion’. Algeria stated that ‘only when the underlying conflict had been dealt with could a reservation be withdrawn’, and Singapore, a minority Muslim country, declared that discriminatory provisions relating to Muslim women within the family ‘were essential in order to preserve the harmony of Singapore’s multi-racial, multi-religious and multi-cultural society’.

What has been the response from the international community to such a range of disparate approaches?

Within the wider context of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), we see that that the Committee has consistently denounced State parties’ reservations, in particular to Article 16 on marriage and family matters, on the grounds that this goes against ‘the object and purpose’ of the CEDAW Convention. Where they exist, it has also regularly questioned countries on their dual legal systems, and recommended that countries harmonize their laws with international human rights law.

The CEDAW Committee has frequently expressed its concern over the persistence of polygamy, stating unequivocally, as it has in its general recommendation no. 21, that polygamous marriages ‘contravene a women’s right to equality with men, and…. ought to be discouraged and prohibited.’ It has denounced other practices outright, such as child and forced marriage, as well as marital rape. The Committee is currently preparing a general observation on the economic consequences of divorce, which is sure to touch on some of these issues as well.

Since its inception, the Committee has made escalating calls for States to modify the socio-cultural and religious, customary and traditional practices that discriminate against women. State parties are encouraged to engage not only with religious and traditional leaders in setting about making these changes, but also to engage with men and boys in areas such as elimination of polygamy, child marriage and marital rape.

In recognition of the insufficient amount of time afforded to marriage and family matters, CEDAW has recently begun to prioritise its discussions on Article 16 in its constructive dialogue with States. A good example is the recent interchange with the State of Israel at the 48th CEDAW sessions which took place in Geneva in January 2011. This was welcomed by many in civil society as good practice, but there is no evidence as yet of it being standardized or formally adopted.

However, NGOs and civil society are stepping forward to fill this disconnect between the arguments proffered by some of the OIC member countries and the recommendations offered by the CEDAW Committee. Musawah’s Framework for Action offers a holistic approach responding to arguments from some states regarding the role of women within Islam. It does this by integrating Islamic legal teachings, universal human rights norms, and national level guarantees, with the lived realities of women and men.

For example, in response to the argument that Shari’ah is the principal source of law defining the rights and duties of men and women, the Musawah Framework replies that there is no monolithic interpretation of Islam. Whereas Shari’ah is revealed law, fiqh is human, man-made, interpretation of the Shari’ah, which evolves, changes and adapts over time and has in fact led to the development of diverse schools of law within Islam. Hence it is more accurate to refer to a rich and diverse ‘Islamic legal tradition’ rather than one static ‘Shari’ah law’.

When it is argued that women’s lesser share of inheritance is offset by man’s added financial burden towards his family, the Framework exposes the fallacy behind such justifications, by pointing to the increased number of households led by women in many societies today. They might add that in these cases, nobody requires women’s increased financial burden to be offset by larger inheritance shares (nor are men’s lesser financial burdens reflected in smaller ones).

In response to those who defend child marriage in the name of Islam, the Musawah Framework states that in fact the Qur’an does not provide any specific age for marriage. On this matter, Surah an-Nisa’ 4:6 says only that orphans must reach the age of maturity and be found to be of sound judgment before they marry. The Framework further highlights numerous universal human rights declarations and conventions which prohibit this practice including, but not limited to, the Convention on the Rights of the Child. Finally it lists the myriad of sexual and health related consequences that can arise from child marriage, such as the increased risk of pregnancy- related complications sometimes with fatal consequences.

These are only a few examples of the many responses offered by the Musawah Framework to some of the arguments put forth by States on the rightful place of gender equality within Islam. Nor is this the first time this type of approach has been used successfully. An integrated approach incorporating doctrinal and sociological arguments within a human rights framework was employed by Moroccan human rights advocates to lobby for a New Muslim Family Law (Moudawana).

Such a comprehensive approach is welcomed with enthusiasm in many quarters. Positive feedback has been received from UN officials, global experts, as well as government representatives. All have underscored the timeliness, and importance of the work being done by women’s groups such as Musawah. One top government representative said ‘you are doing and saying what we ourselves believe but are unable to say’ in providing a counter to the conservative voices purporting to be the sole representatives of Islam.

Human rights and equality is something that exists within each of our cultures and religions, and not above or beyond them. The 2010 OIC statement clearly reminds us that gender equality should be an aspiration for all Muslim countries, and that member states, intergovernmental bodies, global experts, and civil society alike are responsible for ensuring that gender equality becomes a reality for all women everywhere; not a casualty of cultural relativism and political expediency.

Now there is a new question: how is the sea of change that is sweeping across the Middle East and North Africa going to affect this conversation on the role of women within Islam? There can be no question that women have been an integral part of this revolution, standing and dying alongside men in the streets. Nor can there be much remaining doubt amongst observers of these historic events that equality and representation is a value intrinsic and endemic to the Muslim people, as exemplified in the slogan of the Egyptian uprising “Freedom, Democracy, and Social Justice”. How this will ultimately be reflected in the newly established governments that emerge, however, remains an open question, one that will serve as a litmus test for how true these governments remain to the democratic intentions that created them.

About the author

 Janine Moussa is a human rights lawyer and director of the Due Diligence Project on state obligation to towards ending violence against women, based in Northeastern School of Law. She is an international human rights consultant, specializing in women’s rights, equality and non-discrimination within the CEDAW and international human rights framework, and is chief researcher and co-writer of the CEDAW and Muslim Family Laws (Musawah, 2011) report.  She has extensive experience working with intergovernmental organizations, civil society and academia,