Marriages of Minor Girls: a Pre-emptive Escalation to Counter the Codification of Women and Children's Rights

The activities and events devoted to opposing the argument in favor of updating legislations setting a marriageable age have recently increased. Religious clerics severely criticize the amendment bill of the Personal Law which is, on the basis of surveys, intended to set up a minimum age for marriages of minor girls, a tradition which has been prevailing in Yemen at an alarming rate. The strongest opposing voice has emanated this time from Al-Iman University run by Sheikh Abdulmajeed al-Zindani, who has asserted that if the Yemeni Parliament passes the amendment bill he would stage a march by millions of Yemeni citizens to protest against this bill.
by Dr. Abdul Kareem Sallam

Sheikh al-Zindani's position towards the bill was preceded and accompanied by other similar positions which were underscored by Yemen's religious scholars when they met with President Ali Abdullah Salih at Al-Salih Mosque at the end of last April; this clearly shows that opposition to the amendment bill is given a top priority by Yemen's religious scholars. In this context, there is a remarkable consistency in the preaches and views of the religious clerics who squarely oppose the bill intended to determine the marriageable age; preachers and exhorters in many mosques appear to have a congruous stance rejecting the proposal of setting the marriage age at 17 and 18. An unbiased observer would notice that Friday sermons and religious sessions aim at launching an extensive mobilization campaign. Furthermore, this campaign is not confined to preaching and exhorting people in mosques but it has also gone far to include the distribution of fliers that urge parents and guardians to refuse the amendment bill, maintaining that if this bill is passed parents would have no control over their daughters and that the reason behind the bill is to follow the West in its moral degradation and degeneration. Religious preachers and exhorters have been trying to convince people that such bill is intended to contradict with Islamic Shari'ah, even though the issue of determining the marriage age is controversial among the Islamic scholars and jurists, and all countries tend to be in favor of those who advocate the notion of having a definite marriage age.
The controversy over this issue has now come up to the surface. Religious clerics inside and outside Yemen have differing opinions, and some of them hold that it is necessary to set up a date for the marriageable age, providing different interpretations corresponding to the requirements of the religion and exigencies of the present time. However, the escalation being triggered by the hard-line religious clerics in the form of mobilizing the public and abetting the parents and guardians is no more than a prelude to a prolonged, and maybe fierce, battle to be waged by Yemen's scholars against the trends and arrangements aimed at developing the Yemeni legislations and laws concerning human rights in general and women's social, economic and political rights in particular. One of the requirements of these trends and arrangements is to accommodate the legislations and laws to the exigencies of the international conventions and treaties (ratified by Yemen) that are related to ensuring respect for human rights and creating gender equality; and these conventions and treaties cannot be materialized on the ground unless they receive legal and judicial protection enshrined in national legislations.
As the voices opposing the notion of setting a marriage age become louder, more steps are taken to provide legal and judicial guarantees aimed at imposing reverence for international conventions and pacts ratified by Yemen. Lately, a symposium entitled "The Role of the Judicial Authority in Enhancing Compliance with International Instruments: Theory and Practice" was organized by the offshoot of the Yemeni Lawyers' Syndicate in Sana'a and the Yemen office of Friedrich Ebert Foundation. In this symposium Minister of Human Rights Huda Alban delivered a speech and affirmed that the Ministry had recently inaugurated a project to accommodate the national legislations with International Human Rights instruments and conventions ratified by Yemen; according to the Minister, there are 56 international conventions and treaties; and she underscored the fact that endorsing international conventions would not be enough to assert respect for the rights enshrined in these conventions but rather translating them into practice on the real ground, indicating that the Judicial Authority has a key role in enhancing adherence to any international conventions concerning human rights.
In fact, the character and contents of the international conventions and treaties of human rights which the Minister mentioned are closely related to issues that are likely to engender religious, political and social controversy in Yemen, and objecting to setting up a marriage age  is just the tip of the iceberg. The opposition led by the religious clerics against the amendment bill of the Personal Law, particularly the codification of the marriage age, is no more than an early preparation for a fierce battle between the pros and cons of accommodating Yemen's legislations and laws to international conventions and treaties, which calls for getting prepared as of this moment through trying to reach compromises in  order to avoid the impacts of the potential confrontations between the pros and cons of the legislation amendment and accommodation.
The necessities and sciences of the present era have undoubtedly proven the inability of minor girls to perform all household chores and conjugal duties, not to mention the responsibility of motherhood. Aisha's marriage to Prophet Mohammed, although Aisha's age is a controversial issue between the old and modern Islamic scholars, is a special case and should not be considered a yardstick for marriages in general. Furthermore, no one can claim that he has the same characteristics of the Prophet (pbuh). That is, the Prophet's marriage to Aisha is one of the worldly matters about which the Prophet said, "If I do something concerning your religious matters, follow it; but if I do something concerning your worldly affairs, you are more aware of your worldly affairs". Another narration is recounted like this: "If I do something concerning your religious matters, take it; but if I order you on the basis of my own opinion, I'm just a human being". Thus, what is determined by science, particularly in the field of physiological and psychological analysis, can be subsumed under only worldly matters on the basis of which most countries tend to define a legal marriage age, including Muslim countries, not to mention the majority of Muslim societies in favor of defining a marriageable age. For instance, according to some public opinion polls, 70% of the Saudis and 67% of the Yemenis are in favor of determining a marriage age.
In Yemen, there are some important figures and agencies and organizations supporting the opinion of determining a marriage age. For example, Showqi al-Qadhi, the MP, provided a discretionary vision upholding the codification of the marriage age in the light of the exigencies of the present time. Women organizations in Yemen are struggling to defend children's rights, protect underage girls against the need for money, and save children from the whims of the old. In addition, there are many competent Islamic scholars, like Sheikh Qardhawi and Ibn Othaimin, who advocate the notion of setting a marriageable age. Sheikh Abdulmohsin al-Abikan, an adviser of the Loyal Divan and a member of the Council of Supreme Scholars in Saudi Arabia, said that the Prophet's marriage to Aisha should not be a yardstick for other marriages in general, especially in view of the fact that her father was Abu Bakre al-Sedeeq (the Prophet's companion) and her husband was Prophet Mohammed (pbuh), which means evil acts were impossible to be committed by the Prophet. By contrast, the present time, said al-Abikan, is an age beset with evil acts to the extent that we see a father addicted to drugs may marry off his daughter in return for money and his self-interest at the daughter's expense.
The current trend is progressing toward the attitude in favor of defining a marriage age. According to Sheikh Mohammed al-Duhaim, a former judge and the president of the Center for Cultural Revival, the marriages of minor girls which are taking place these days are unjustifiable, and the judicial system is still following the same old interpretations; and a Saudi court in Buraidah province has recently ruled, under a 12-year-old girl's insistent petition, that the girl be divorced from her very old husband (80 year old). Also, the Saudi Advisory Council is considering the enactment of a legislation in this respect. In Jordan, the Council of Muslim Scholars has announced its support for setting the marriage age at 18 (for males and females); and in its statement issued early this May, the Council considered a step in favor of women's legitimate rights, indicating that "the approval of an opinion based on evidence is religiously acceptable in view of the changes and developments taking place in our societies nowadays".
In Yemen, the escalation of disputes over the issue of setting a marriageable age is nothing but a pre-emptive attempt meant to stand up to the notion of developing the national legislations and laws and accommodating them to international conventions and treaties which are prerequisites for promoting women's rights and preventing injustice and marginalization exercised against women.
The issues to be codified by the amendment bill and subsumed under the accommodation of the national legislations to international conventions are those issues concerning children's rights, the Personal Law, the eradication of all forms of discrimination against women, the prohibition of all forms of violence against women, and the incorporation of these issues within the laws and clauses declared under the world announcement to combat violence against women and promote women's economic rights. The amendment bill will also include other controversial issues such as: polygamy and putting it under strict conditions in order to ensure the religiously required equality between co-wives, which is impossible, according to the Quranic verse "and you will never be able to do perfect justice (between your co-wives)."; the right of the first wife to know about the second marriage, or the second wife's right to know about the first marriage; the wife's right to ask for divorce and break the shackles of the bond of marriage which some husbands use as a means to humiliate their wives and force them to stay at the matrimonial home (and which the current judicial system is still following); the wife's right to benefit from the matrimonial home in case she is divorced in order to raise children and preserve the divorced wife's dignity; the wife's right to benefit from her ex-husband's income and riches which was formed during the marriage. Such matters have always been a controversial question between the proponents and opponents, which means it is necessary to find common denominators between the two parties through dialogues and debates, especially there is an international trend binding the countries which have ratified the international conventions to incorporate such conventions into their national legislations. Therefore, there should be concerted efforts to come up with functional means for accommodating the international conventions to the privacy of Islam. Morocco, for instance, has managed to reach a compromise between the pros and cons of women empowerment. There is no need for mobilizing and inciting the public, for this would only result in tense situations and disturb the public life which cannot bear more political, religious, social and economic maneuvers on other fronts. We have to realize that there is a strong current moving toward the release of the bondage imposed by those religious jurists who neither open their minds and eyes to the "situation-based" jurisprudence nor bear in mind the changes and developments of time.
 

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^* The Head of Media Division, the Sheba Center for Strategic Studies