‘‘The husband
takes the wife to bed [sic] he cannot, therefore be inferior to her in belief.
The Muslim woman believes in things in which the non-Muslim believes (alkitabi)
as well as in things that the non-Muslim does not believe in. She recognises
Lord Mahomet, whereas he only recognises the messiah he follows. God has said:
‘‘Do not marry your daughters to polytheists before they believe’’ (2:221) God’s
envoy [Mahomet] has said: ‘‘Islam dominates and will not be dominated’’. From
this Muslim doctrine has unanimously deduced that the Muslim woman is illicit
for the infidel (kafir). Thus husband and wife must be separated; the non-Muslim
is to be punished if he has penetrated [sic] her while the [Muslim] woman will
be excused. If he converts after his marriage this cannot validate the marriage
for the original marriage was null and void from the start’’(Hanifa 1958:
89–90).
In 1974 the
Appeal Court of Alexandria was called upon to rule on the validity of the
marriage of an Egyptian woman who converted to Christianity so she could marry
the man of her choice. The Public Prosecutor decreed the marriage null and void
because it was in breach of public order. The decision adopted was the
following: in virtue of article 6, section 2 of law 462 of 1955, marriages
should in principle be in conformity with Christian legislation. However, the
principle of public order established by Islamic law must be respected. In
accordance with this principle, an apostate forfeits his civil rights and
therefore cannot marry. Article 46 of the constitution which guarantees freedom
of religion does not apply in cases where there is opposition with article 2
[Islam is the state religion] (Peters 1996:
201).
Badran
Abu-Al-Aynayn, professor of law at the
In the Hamid
Nasr Aboud Zaid affair, the learned professor was openly critical of certain
religious discourses, and said that fatwas were not always innocent. This was
his downfall. A certain Dr Chahine, who believed himself deeply offended,
arraigned him before a civil court on charges of apostasy, basing his accusation
on a system of moral rules known as the hisba (a concept drawn from the Shari’a
or Islamic law). This attack on the historian was the beginning of a new
judicial inquisition on the part of the fundamentalists. The court finally ruled
in favour of Dr Chahine. Aboud Zaid was now an apostate and in June 1995 was
ordered to divorce his wife, since, by virtue of a provision in the Shari’a, a
Muslim woman cannot be married to an apostate or infidel. But juridical divorce
was not the only thing they had to fear. As the imams began to call for his
death from the pulpit, Aboud Zaid and his wife were forced to leave
In the third
case, the Egyptian feminist writer and psychologist, Nawal El Saadawi was sued
by an Islamist attorney for apostasy. Attorney Nabih El Wahch asked the court
dealing with affairs involving personal status for her ‘‘legal separation’’ from
her husband, Cherif Hetata, quoting the hisba, by which it is the duty of every
Muslim to ‘‘order that which is proper and to forbid that which is
reprehensible’’. The affair began on 6 March 2001, when the weekly El Midan
published an interview with Ms El Saadawi in which she explained her views on
women’s rights and social justice. Saadawi had been one of the first to denounce
excision (in Women and Sex) and been fired because of her feminist views. She
had also served a term of imprisonment in 1981 because of her political
commitment to the left. The journalist who interviewed her had promised to
mention the fact that a number of her books had been banned from the Cairo
International Book Fair. Instead he completely misrepresented her, claiming that
she was opposed to the wearing of the veil as well as the rules of the Islamic
tradition. As a result the Grand Mufti published a communique´ that declared her
‘‘outside of the teachings of Islam’’. Now, she too stood accused of apostasy.
When the UN
General Assembly passed the Universal Declaration of Human Rights,
The various
articles of the family laws take for granted that all women of Moroccan,
Algerian, and Egyptian nationality are Muslim. As Pruvost asks, ‘‘How could they
be expected to belong to any other religion, whether by birth or through
conversion? And how could one assert that she has become an atheist or an
agnostic and given up all religious observance or affiliation, when this sort of
behaviour can lead to one becoming the victim of intolerance? Women are thus
prisoners of their religious status. Men, however, escape categorisation
irrespective of their degree of religious sincerity’’ (Amsatou 1991: 181,
Pruvost 2002: 249).
It should be
obvious by now that all the legal texts mentioned, whether their source is a
civil or religious authority, confirm this strict prohibition, which is
applicable to women only. We must add that the above-mentioned Muslim norms are
in contradiction with the principles of absence of discrimination on grounds of
religion, of free choice in marriage and of gender equality. In this respect
they are in conflict with international norms e.g., article 16 of the Universal
Declaration of Human Rights. We are, therefore, forced to conclude that gender
equality in marriage remains purely theoretical in legal systems based on Muslim
law.
- the
Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW), entered into force September 3, 1981 and ratified by Egypt on September
18, 1981. However Egypt made a reservation to article 2 that stipulates that the
goverments “agree to pursue by all appropriate means and without delay a policy
of eliminating discrimination against women” stating that it is “willing to
comply with the content of this article, provided that such compliance does not
run counter to the Islamic Shari’a,”
- The
International Covenant on Civil and Political Rights (ICCPR), entered into force
March 23, 1976 and ratified by Egypt on January 14, 1982; The Egyptian
government entered a general reservation upon ratification of the ICCPR noting
that “taking into consideration the provisions of the Islamic Shari’a and the
fact that they do not conflict with the text annexed to the instrument, we
accept, support and ratify it ...”
- The
International Covenant on Economic, Social and Cultural Rights entered into
force January 3, 1976 and ratified by