Children’s rights and law reform in Islamic Jurisdictions (with a focus on Africa) Prof Julia Sloth- Nielsen

Children’s rights and law reform in Islamic Jurisdictions (with a focus on Africa)Prof Julia Sloth- Nielsen

1.Identification of key children’s rights principles under Islam 2.Identification of areas of potential ‘disjuncture’ between Islamic principles and international and regional children’s rights treaties 3.Best practice in law reform in Islamic Jurisdictions in Africa 4. Conclusions for South Africa Structure

Sources of information • Children in Islam: Their Care, Upbringing and Protection (UNICEF/ Al-Azhar University) 2005 • Dejo Olowu “Children’s Rights, international human rights and the promise of Islamic legal theory “ 2008: 2 Law Democracy and Development, UWC • Nigeria Country report to the African Committee of Experts on the Rights and Welfare of the Child (November 2008)

Sources of information • Egypt Country Report to the African Committee of Experts on the Rights and Welfare of the Child (November 2008) • ‘Making Children’s Rights Work in North Africa: country profiles on Algeria, Egypt, Libya, Morocco and Tunisia’ (International Bureau for Children’s Rights, 2007)

1.Children’s rights principles in Islam • Overall context is that childhood constitutes one of the major objectives in Islamic legislation • ‘Bountiful’ and ‘precise’ laws unparalleled in any other religious or social system • Islamic law regulates numerous aspect of childhood from pre-birth (unlike CRC) to puberty and beyond • Wide-ranging scope of protection and provision for children in family life, society and amongst playmates

1. Children’s Rights in Islam • Holy Q’uran considers all children to be vulnerable and in need of protection • Further, fundamental value in Islamic juristic thought is the protection and preservation of the life of the child: ‘[d]o not kill a soul which Allah has made sacred except through due process of law’ [said to be the third commandment in Islam]

1.Children’s rights in Islam • Holy Q’uran’s pronouncement that ‘[a]nd in their wealth there is acknowledged right for the needy and destitute’ has been interpreted to be an injunction to render assistance to every needy person, including children, who lack the basic necessities of life (right to social security) • Islamic jurisprudence expressly recognises geographical, social and cultural differences/nuances: it has never been applied as a uniform code • Olowu makes the important point that from the start, Islam codifies protection of children in legal rules: not merely social or religious commitment; relates to enforceability

1.1 Rights within the family • Right to be brought up, cared for, educated and protected is a primary responsibility of the family – elaborated in many legal texts • Includes child’s right to a legal link with natural and legitimate father and mother: binding, cannot be disclaimed by natural parents, and gives rise to mutual legal rights and obligations (eg inheritance, guardianship, maintenance) • Parentage van be established by marriage, acknowledgement or evidence (NB: concordant with the provisions of s 21 of the Children’s Act, 2005)

1.1 Rights within the Family • Islam requires that child maintains his true identity, as keep it’s legal link with its mother and father (cf: CRC provision in articles 5, 9; 18) • Elaborate rights to proper upbringing in early childhood contained in Quran: eg duties related to nursing • Child’s right to be provided with knowledge by his or her parents, and their duty to provide this the moment child sets foot on the road to learning

1.2 Basic health and welfare • Quite a few provisions found here, eg aimed at protecting health of unborn child; immunizing children against diseases is a duty in Islam (Al-Alzar, 2005) • The prophet (Peace be upon him), said: ‘the whole of the Muslim is forbidden to another Muslim; his blood, his property, and his honour’ (Al-Azhar, p 55 – has been interpreted as a comprehensive general prohibition on any attack on the human body, including sexual violence and corporal punishment

1. 3 Non-discrimination • Strong message in Islam: that all children should be welcomed upon their birth without discrimination between males and females – the Q’uran condemns those who celebrate the birth of males but express sadness and dismay when females are born • Non-discrimination also highlighted with respect to sponsors of orphans and treatment of foundlings • Right to education also to be provided on the basis of equal opportunities, according to the Sharia (Al Azhar, p100) • “Seeking knowledge is obligatory upon every Muslim, male or female”...

1.4 Protection Rights • Numerous important messages on child protection, including protection within the family: eg ‘he is not one of us who shows no mercy to our young’ • Islam calls for shunning violence – parents, teachers and others should set good examples for children in what they do and say (Al Azhar,p107)

1.4 Protection rights • Q’uran contains indirect reference to exploitative child labour – because the Sharia charges fathers with responsibility of maintaining children so they don’t have to work • ‘Allah burdens not a person beyond his scope’ • Link between child work and education – here wealthy families and various civil society institutions have the responsibility under Islam to lend a helping hand • Some texts and narratives allude to other forms of exploitation (‘a Muslim does not oppress another Muslim not should he hand him over to an oppressor’ – oblique reference to trafficking?)

1.5 Duties of the Child • Article 31 of the ACRWC; section 16 of Children’s Act 2005 • In Islamic law, framework set is for reciprocal concept of rights and duties, especially within the family • Not confined to material rights – eg duty of parents to educate and raise children reciprocated by children’s duty of ihsan to them ‘kindness, deference, reverence and obedience’ • but ihsan must be understood within limits of the law: not blind obedience or total submission, because primary duty is obedience to Allah

1.6 Specific issues • Orphans: regarded as being in need of special protection in the Holy Q’uran: ‘...be merciful to the orphan. Touch his head, and feed him from your food...’ • Early marriage: the standard set in Sharia law relates to development of ‘sound judgment’ – eg ability to make the right decisions • Female genital cutting – according to sources, nothing in the Q’uran refers to this • Nothing therefore sanctions harmful cultural practices

1.6 Specific issues • Adoption: totally rejected in Islam because of tenuous link to adoptive family, and disruption of pattern of family relationships • Preference is support to child within own family, or placement with parents as closely related as possible to natural family; even the they do not replace/displace parents • Kafalah is permitted – roots in the law of obligations (contractual basis, or provision of undertakings); allows one person to raise the child of another, can even be a duty to do this; care must be equivalent of the care and support given to own children; • Kafalah allegedly widely practiced in transboundary adoptions (Olowu citing Sfeir) • Note references to kafalah in the CRC (article 20)

2. Is there a potential ‘disjuncture’ between Islamic jurisprudence and international law? • First issue is notion of ‘children’s rights’, ‘best interests’, ‘autonomy’ and ‘participation rights’ • Yet it is argued that these are not antithetical to Islam (eg ‘let there be no compulsion in religion’ verse from the Holy Q’uran) especially aimed at a Muslim father who wanted to force his children to adopt his own religion); • Second, children legislation is increasingly attempting to balance children’s rights with responsibilities (eg SA, Nigeria, Lesotho, Southern Sudan) • Third, ‘best interests’ principle is not ‘anti-parent’ in any way – not in contradiction with Islam

2. Is there a potential ‘disjuncture’ between Islamic jurisprudence and international law? • Fourth, adoption: neither CRC nor Hague Convention require adoption... Reference is to legal systems which ‘permit’... • Has been recommended that child law provide legislatively for Kafalah, also because regulating adoption is preferable to ignoring and creating gaps and loopholes • Fifth, illegitimacy: Nigeria and Egypt experiences show that impact in terms of Islamic Law principles can be substantially mitigated in sensitive legal provisions: often social stigma worse than legal disadvantage

3. 1 Best practice in law reform in Islamic jurisdictions in Africa: Nigeria • 2003 Act adopted a federal level; Children’s Act (very comprehensive); now 22 states have passed • Wide opportunity for consultation, including with children, specific sectors (eg disability, children in conflict with the law, women’s groups) • Very comprehensive and child rights based

3. 1 Best practice in law reform in Islamic jurisdictions in Africa: Nigeria.... • Article 7: child’s right to freedom of thought, conscience and religion, but sub(2) recognises parents/legal guardians right to provide guidance and direction in the exercise of this right, which duty of parents must be respected by all persons bodies, institutions and authorities • Sub(4) specifically says that whenever fostering, custody, guardianship and adoption at issue, the right of the child to be brought up in and to practice his religion shall be a paramount consideration

3. 1 Best practice in law reform in Islamic jurisdictions in Africa: Nigeria... • Concerns in Nigerian Sharia states: adoption, and more specifically inheritance issues (but under Islam, ‘adoptive’ parent can make a will during lifetime to give estate to adopted child) • Age of marriage is formidable point of debate, ACRWC sets at 18 (also ratified by RSA)

3. 2 Best practice in law reform in Islamic countries: Egypt • Law reform initiative in response to CRC Committee Concluding Observations of 2001 • 1996 saw comprehensive children’s law; thereafter 5 year process of consensus building to significantly upgrade the existing law; passed to international acclaim on 15 June 2008 • Media, Parliamentarians, religious scholars part and parcel of the law reform drive; • NGO’s integral to process and many policy docs simplified and made accessible to children

3. Best practice in law reform in Islamic countries: Egypt • Significant co-ordination of process by the MCCM (National Council for Childhood and Motherhood); strong chair Mme Mouttara Khoutab (currently Vice chair of the UN CRC Committee) • Major successes: FGM outlawed, in practice prevalence dropping measurably in the lead up to the new law • Age of criminal responsibility raised, entirely new juvenile justice system established based on restorative justice • Nationality of children born of Egyptian mothers/foreign fathers addressed • Specific legal and policy actions concerning street children adopted

3. 2 Best Practice in law reform in Islamic countries: Egypt • Age of marriage and early marriage addressed (age of 18 set) • Protection of children via technology featured (modernization) • Right to education strengthened, right to education to be accorded custodian and to be exercised in the best interests of the child (replacing aspect of Islamic practice that saw custodian parent bound by wishes of non custodian, usually father)

4.Conclusions for South Africa • Children’s rights well established in Islamic sources, and nothing in Islam prevents/prohibits or pulls against child law reform • Significant comparable examples exist in Africa on which to build a solid children’s rights legal framework which does not clash with Islamic precepts • However, Islamic texts are quite limited in detailing who, what, when etc – set general standards rather. Therefore, role of children’s law is to provide flesh (eg Nigeria) • IN principle, SA Children’s act does not contravene Islamic principles, except does not expressly refer to Kafalah

4.Conclusions for South Africa • Must be aware of potentially contradictory legal processes which may undermine the achievements so far: notably enactment of Muslim Personal Law • Must be alert to transborder implications as well as challenges of migration (eg Somali migration)! Major successes: FGM outlawed, in practice prevalence dropping measurably in the lead up to the new law Age of criminal responsibility raised, entirely new juvenile justice system established based on restorative justice Nationality of children born of Egyptian mothers/foreign fathers addressed Specific legal and policy actions concerning street children adopted

Children’s rights and law reform in Islamic Jurisdictions (with a focus on Africa) Prof Julia Sloth- Nielsen