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I believe that the MJC aims to send a message to the Muslim LGBTQIA+ community that the Muslim cleric community in South Africa refuses to yield to its irreligious and unconstitutional coercion, writes MOULANA MTHOKOZISI IBRAHIM MASEKO.
SEVERAL weeks ago, I had an interview on SAfm about Islam and the LGBTQIA+ community. Questions revolved around the religious standing of their access to places of worship in connection to the South African Constitution. I was joined by two co-guests: a Christian priest who is also a member of the LGBTQIA+ community, and a Jewish rabbi.
My views centred around the role of ḥudud (sing. ḥad, i.e., penalties in Islamic criminal law) in Islam based on its application by Prophet Muhammad (SAW) in Madinah, and Caliph Umar. I also highlighted the Islamic principle of ‘all children of Adam as sinners, the best of them are those who turn to God in repentance’. I elaborated that it considered all sins as acts of immorality without distinguishing between, for example, a killer and a liar, and since masjids are the most suitable places of turning to God in repentance, then all sinners, including the LGBTQIA+ community, are welcome to enter them and mend their ways, and turn back to God in repentance. There was no need to dwell on the constitutional position of these views as there is no apparent tension between it, the role of ḥudud in Islamic criminal law and Islam’s position on the question of the LGBTQIA+ community’s access to masjids.
These views are informed by my outlook of ijtihaad (i.e., Islamic analytical method of producing new laws and rulings) as an analytical framework mainly anchored by two disciplines among the Islamic sciences, namely, aqeedah (Islamic theology) and fiqh (Islamic law).
Theological ijtihaadi issues primarily revolve around Islamic metaphysical questions such as the Islamic ontology and epistemology of God and Godliness, belief and disbelief, revelation, the message and Prophethood of Muhammad (SAW), the nature and significance of the Quran to Muslims, Muslims’ spiritual relationship with God and adherence to the message of Prophet Muhammad (SAW) and so forth.
Legal ijtihaadi issues are mainly fixated on rulings of halaal and haraam (permissible and forbidden acts or practices in Islam) such as diet as well as the nature, framework, meaning and application of Islamic morality. It also covers questions on Islamic ethics and boundaries of marital, communal, social and international code of conduct among Muslims vis-a-vis people of other ideologies, cultures and faiths. The former (i.e., theological ijtihaadi issues) often results in rulings around belief and disbelief, such as ex-communication (i.e., takfιr), and functions as an Islamic empirical tool for examining cultures, ideologies and faiths outside Islam vis-a-vis Islam. Its investigations cover the nature of polytheism, atheism and agnosticism vis-a-vis Islam.
It also explores un-Islamic ideological baggage of political and scientific philosophies and the consistency – or lack thereof – between the Islamic theology and theology of Christianity and Judaism. Its main objective is to determine Islamic or Muslim co-existential attitudes towards the ‘other’ (I do not use this term pejoratively in this opinion piece) based on similarities and differences. Furthermore, it outlines categories of misguided or deviant ideologies within the Islamic tradition. The latter (i.e., legal ijtihaadi issues) mainly examines the purpose as well as regulates the idea of Islamic righteousness through the principle of rights of God and humanity (and creation at large). Moreover, it prescribes categories of major to minor sins, without necessarily casting those responsible for them out of the fold of Islam, including the Muslim LGBTQIA+ community.
The MJC fatwa
It is this outlook that informs my reading of the fatwa (pl. fataawa i.e., edicts or Islamic rulings) passed by the MJC (Muslim Judicial Council est. 1945) on July 4, 2022, which categorised approaches toward same-sex marriage in Islam into three, those who challenge explicit Islamic texts in this regard falling under the category of ex-communicated Muslims. This fatwa is also endorsed by Jami’atul Ulama South Africa (est. 1923) along with several major Muslim cleric bodies (henceforth Muslim cleric community). Muslim members of the LGBTQIA+ community responded with an open letter – partially published in the Daily Maverick – filled with a fierce critique against the MJC and Jami’at and a call for signitorial support of their petition against this fatwa.
My reading of this fatwa is split into a literal and metaphorical understanding. While the primary purpose of this opinion piece is to dwell on the latter, it is only fair to explain my literal understanding as well.
I do not think that the MJC literally means that the Muslim LGBTQIA+ community is out of the fold of Islam, despite listing them under the ex-communication category. This is mainly because the buck of issues on belief and disbelief only stops and rests with God, who has full knowledge of true believers, disbelievers and hypocrites, as also described by several Quranic verses and ahadith. Additionally, the Ahlul Sunnah wal Jama’ah (alternatively Sunnis i.e., major Islamic sect, the other being the Shi’as) has also historically observed extreme caution from rendering a person as a disbeliever until s/he expressly says, ‘I do not believe in God.’ This statement is considered by Muslims as a definite act of self-ejection from Islam and the other two Abrahamic faiths (i.e., Christianity and Judaism), justifying being considered a disbeliever in God i.e., kaafir.
While I do not take the MJC’s fatwa literally, I believe it is pregnant with a much bigger message that can only be deciphered through a metaphorical reading. That message is ‘Someone needs to call the Muslim LGBTQIA+ community to order’ in light of its bullying tactics, unconstitutional coercion, ideological imposition on religious traditions and cultural communities, and the MJC raises its hand in doing just that. I believe that the MJC aims to send a message to the Muslim LGBTQIA+ community that the Muslim cleric community in South Africa refuses to yield to its irreligious and unconstitutional coercion. I also believe that its harsh tone intends to match the Muslim LGBTQIA+ community’s aggressive attitude of ideological imposition, indicating its (i.e., MJC) unwavering loyalty to God and Islamic text, and preparedness to take this fight to the South African Constitutional Court – the battle lines are drawn.
The MJC’s radical posture against the Muslim LGBTQIA+ community occurs against the backdrop of a long, silent battle between the latter on the one hand and the cultural and religious communities in South Africa on the other since the early days of the democratic dispensation. This battle has been largely one-sided, dominated by the LGBTQIA+ community with calls for a ban on religious and cultural views that oppose same-sex marriage and sexual orientations outside religious and cultural morality norms.
This call mainly leans on Section 9 of the South African Bill of Rights as well as the ruling party’s gender policies and commitment to anti-sexism and discrimination, through which the LGBTQIA+ community demands an unapologetic acceptance by religious and cultural communities. The symbolic gesture of this acceptance lies in the cultural community accepting the former’s convictions on gender and sexual orientations as normative. It also lies in churches, masjids and synagogues permitting as well as conducting same-sex marriages.
At the same time, it anticipates the cleric community to either adopt creative means of interpreting religious texts that oppose same-sex marriage or abandon them as archaic and outdated with no place in modern democracy. This campaign has garnered massive support for the LGBTQIA+ community from many civil society, rights and lobby groups, including media outlets and the government in pressuring the cultural and cleric community. This support resulted in several cultural communities and churches giving in to the above demands, while others explore alternative interpretations of Biblical texts considered archaic and offensive by the LGBTQIA+ community.
In this protracted, silent battle, the voice of the Muslim cleric community has been largely behind the scenes, anchored in the Muslim Marriage Bill – a piece of legislation contested within the Muslim community by various groups, including the Muslim LGBTQIA+ faction. This piece of legislation is often instrumentalised by opposing factions within the Muslim community in expressing strong views around sexuality, religious authority and the role of constitutional democracy in Islam, including marriage and the interpretation of Islamic text; with the Muslim cleric and LGBTQIA+ communities holding the strongest opposing views in this regard.
There is plenty that I can say about a glaring misunderstanding between the Muslim cleric and LGBTQIA+ communities, which results in both holding extreme views about the other. One such issue is what appears to me as a misunderstanding on the side of the Muslim cleric community regarding what the Muslim LGBTQIA+ community means by their arguments of gender and sexual orientation. They appear to mainly focus on the former’s views on same-sex marriage, identifying them solely through it via the medium of fataawa without engaging them on other issues that it identifies itself with beyond same-sex marriage in a nuanced and contextual manner that demonstrates an Islamic perspective that suggests solutions.
This dismissive approach continuously hinders them from noticing that the Muslim LGBTQIA+ community does not necessarily claim to disbelieve in or reject Islamic texts on homosexuality per se. Instead, they mainly employ different interpretations of these texts through hermeneutics or lenses that emphasise the notion of lived experiences (known in feminist thought and sociology as positionality) and ‘Islamic progressiveness’ (a very loaded term whose meaning is ideological contestable). This approach toward the Islamic text results in the difficulty of considering them disbelievers, and I hope God enables me to write an opinion piece about this issue one day. The Muslim cleric community’s continuous non-engagement with the Muslim LGBTQIA+ community – particularly in this regard – plays into the hands of the latter’s rhetoric of ‘threatening our right to life’, which they argue is in violation of Section 9 of the Bill of Rights.
Similarly, I also feel that the Muslim LGBTQIA+ community misunderstands the notion and outcome of ex-communication within the Sunni tradition, assuming that once considered a kaafir extermination and death is Islamically justified upon them, despite this not being the case in the 350-plus years’ history of Islam in South Africa.
Interestingly, there are several cases in South African Islamic history wherein segments of the Muslim community held strong opposing views similar to the one at hand without crossing boundaries of inflicting death, even after ex-communication. Some such examples are the 1970s case of a Muslim group led by Mirza Gulam Ahmad Qadiyani (1835-1908), which has a branch in Cape Town, and the Shi’a-Sunni schism that often results in reciprocal fataawa of ex-communication.
Their erroneous conclusion around ex-communication as justification of death in Islam has drawn them to another extreme of instrumentalising the constitution in attempts to wield their influence against the Muslim cleric community through government, lobby groups and media outlets. This conduct unduly translates into coercion and infringement on the former’s constitutional right of religious self- determination, violating the same Section 9 they claim to uphold.
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Their relentless effort to impose themselves upon the Muslim cleric community while discrediting their authority through the constitution is appalling to say the least. This conduct suggests an insincere shielding by the constitution while aiming to unconstitutionally eliminate the Muslim cleric community’s authority, secretly hell-bent at achieving this objective at all costs. Their criticism against the MJC as ‘self-appointed’, ‘undemocratic’ and ‘un-elected’ is clear evidence of this intent, which does not only disregard the former’s constituency but also poses as a legitimate voice that speaks on behalf of this constituency.
Their claim that the MJC exists outside democratic parameters suggests that they (i.e., Muslim LGBTQIA+ community) are the ultimate decider of what constitutes a democratic institution or not, not the South African legal system (which already recognises the democratic legitimacy of the MJC). Their criticism that the MJC mainly comprises men who preside over religious rulings also reveals that they have an agenda against heterosexual males. This agenda alludes that the MJC and Jami’at’s fataawa are the result of their sexual orientation, not understanding of Islam and its legal demands. This observation assumes that if these clerics were females, their ruling would be different, suggesting that the Muslim LGBTQIA+ community will only seriously consider fataawa passed by female clerics on issues of same-sex marriage, not heterosexual male clerics. All this Indicates that heterosexual masculinity is the bigger problem to them, and the MJC’s fatwa is a by-product of this problem.
It is important to note that the South African Constitution seeks to protect the rights of all citizens and encourages self-determination within the boundaries of the law. These rights are being continuously undermined by the Muslim LGBTQIA+ community through its infringement on the Muslim cleric community’s right to religious expression and self-determination, despite the latter continuously insisting that it does not advocate harm in any shape or form against any person, including members of the Muslim LGBTQIA+ community.
They dismiss these commitments as ‘hollow’ because they desire to impose their will on the Muslim cleric community by compelling them to support their views on sexuality and Islam, and the latter’s commitment to non-violence does not yield these results. Furthermore, to them, the fact that there has not been a single case filed against members of the Muslim cleric community in which they were tried and found guilty of threatening the lives of the Muslim LGBTQIA+ community is not enough to signify their innocence. Instead, the Muslim LGBTQIA+ community perceives its own views on gender and sexual orientation as a supreme law under which government, the South African Constitution and all citizens of the Republic should abide by, and will continue crying foul until everyone agrees with them because disagreeing with them is a crime. These bullying tactics and exploitation of the constitution are uncalled for and undemocratic.
In closing, the Muslim LGBTQIA+ community’s demand of being recognised as equal human beings to all citizens is not propelled by conclusions of them being lesser human beings nor actions that threaten their right to life committed by members of the Muslim cleric community. Instead, it is underpinned by constitutionally exploitative tactics through which they seek to be afforded a status above other human beings in the Republic. Indeed, they seek a better treatment in comparison to other citizens since nobody considers it constitutionally justifiable to impose themselves on others and engage in coercive means of subjecting them under their will.
Nobody sees it constitutionally reasonable to target the other in a manner that seeks to strip him/her the rights of self-determination as the Muslim LGBTQIA+ community conducts itself vis-a-vis the MJC. Nobody sees it reasonable to condemn the other in the manner that purports him/her as a criminal that violates the law without court verdicts.
It remains noteworthy that nobody threatens the lives of the Muslim LGBTQIA+ community except criminals who are a threat to the whole of society at large and who should be brought to book, be they Muslims or otherwise. In extending the Muslim cleric community’s non-violent commitment I described earlier, nobody has the right to quote Islamic texts, instrumentalising them as slogans against the LGBTQIA+ community (not that I know of such cases presented before South African courts). This is mainly because of demands of the sophisticated nature of Islamic law regarding hudud in a non-Muslim majority country. Instrumentalising Islamic texts as slogans against the LGBTQIA+ community is unconstitutional and results in an extremely simplistic deployment based on a hurried and superficial understanding of these texts, downplaying the sophisticated nature of Islamic law, translating into similar vigilantism seen a few years ago at the hands of ISIS in the Levant.
It is despite this reality (i.e., my above-paraphrased commitment of the Muslim cleric community in distancing themselves from activities that seek to harm the Muslim LGBTQIA+ community and segments of the cultural community giving in to their demands) that the Muslim LGBTQIA+ community has been and continues to unjustly target the cultural and religious communities, and the MJC fatwa characterises a radical reaction towards this unabated act of injustice. Therefore, all religious and cultural communities should stand behind the MJC for democracy to prevail and demand the Constitutional Court of South Africa protect their cultural and religious self-determination rights in fulfilling the constitutional mandate of the South African masses. South Africa equally belongs to all born and naturalised in it, and no segment of its society should be afforded a special treatment at the expense of the rights of others. Allahu akbar, Allahu akbar, Allahu akbar kabeera (God is the greatest, God is the greatest, God is the greatest at all times).
- Moulana Mthokozisi Maseko is a social activist, and former full-time imam of Lotus Gardens Masjid, Tshwane; Rockville Masjid, Soweto and former part-time imam of Langaville Masjid, Brakpan. He is currently a Masters student at the University of Johannesburg.
