oa Comparative and International Law Journal of Southern Africa - The Draft Bill on the Recognition of Muslim Marriages; an unwise, improvident and questionable constitutional exercise

Volume 37, Issue 3
  • ISSN : 0010-4051



This article focuses on the South African Law Reform Commission's proposed legislation on the recognition of Muslim marriages. Whilst applauding the recognition of Muslim and other forms of traditional marriages as an unqualified good, this article asserts that state involvement in religion should never extend to the state telling a community what their religion is or how their religion should be practised. Moreover, the state should not be taking sides by legislating a particular understanding of religion. Where the state prescribes a particular understanding of religion and imposes this view on the group affected under penalties of sanction, this constitutes coercion. Such action constitutes a violation of freedom of religion under international law and also constitutes a violation of the Bill of Rights. This article critiques the South African Law Reform Commission's proposals as an exercise of the state choosing sides in doctrinal disputes and using the power of the state to impose a particular view on the community affected. This is improper religious involvement by the state. This article further asserts that the freedom of religion clauses under the Bill of Rights should be understood as provisions that empower religious groups and further their autonomy to practice their religion as defined by their religious leaders and institutions. Where the state acts in the realm of religion to curtail religions practices, state involvement must be limited to laws of general application to advance important social interests. Where the state seeks to instruct a community on their religion as the proposals do, this denigrates the community and invites unnecessary conflict.

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