Introduction

Muslim women’s marital and citizenship rights have been established by the Ghanaian state’s framework of legal pluralism. However, because of some inherent differences that exist in different legal regimes—Islamic customary law and state secular laws—which are exacerbated by various conflict mediation and resolution mechanisms recognized by the state, Muslim women’s marital and citizenship rights face some challenges.1A. Josiah-Aryeh, An Outline of Islamic Customary Law in Ghana (Accra: Icon Publishing Limited, 2015); William E. Offei, Family Law in Ghana (fifth edition) (Accra, 2018); William E. Offei and Aziz Bamba, “Accommodating Muslim Family Law,” in Ghana Law Since Independence: History, Development and Prospects, eds. Henrietta Mensa-Bonsu et al (2007), 467-498; Fulera Issaka-Toure, Islamic Construction of Gender in Accra: The Role of Islamic Religious Authorities in Mediating Marital Conflicts, (Bayreuth: University of Bayreuth, 2018); Ulrich Wanitzek, “Bulsa Marriage Law and Practice: Women as Social Actors in a Patriarchal Society,” in Sovereignty, Legitimacy and Power in West African Societies: Perspectives from Legal Anthropology, eds, E. Adriaan B. van Rouveroy van Nieuwaal and Werner Zips, (Hamburg, lit Verlag, 1998), 119–171. The Muslim population in Ghana is a little under 20 percent of the country’s population. Irrespective of citizens’ religious faith or ethnic identity, all Ghanaian citizens are governed by a body of laws known as the British Common Law. British Common Law is applied simultaneously with customary laws. In this regard, the state-community legal relationship emanates from the kinds of personal laws individuals subscribe to as long as such laws do not infringe on certain fundamental human rights. Individual citizens have the option to decide which law—customary or secular state—to apply in their personal relationships or engagements such as marriage, divorce, and inheritance. During the colonial era, the British did not interfere with customary laws but allowed them to co-exist with British Common Law in its secular framework.2Victor Essien, “Sources of Law in Ghana,” Journal of Black Studies 3, (1994): 246 262; Kwame Opoku, The Law of Marriage in Ghana: A Study in Legal Pluralism (Hamburg, Alfred Metzner Verlag, 1976); A. N. Allott, “Marriage and Internal Conflict of Laws in Ghana,” Journal of African Law, 2, no. 3 (1958): 164–184. Therefore, every ethnic group in the country is guided by customary laws. Islamic family law assumed such status and continues to do so after independence in 1957. Ghana has two personal law regimes on marriage: customary marriages, including Muslim customs, and ordinance marriages, governed by the Marriages Act (CAP 127). While the latter is a law enacted by the state and can be repealed by the state, customary laws are vested in various groups in terms of their constitution and repeal.

Islamic Customary law, State Secular Laws, and the Question of Muslim Women’s Marital and Citizenship Rights

The question of women’s rights in Ghana is not limited to Muslim women only but all women in the country as Ghana is a signatory to international conventions like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Women’s rights groups abound in the country, both secular and faith-based. However, the issue of Muslim women’s marital rights and its interconnection to citizenship rights occupies a unique space because of Muslims’ strong attachment to the Islamic legal system emanating from their belief system. As a result, Muslim women have the option of choosing between Islamic customary marriage and state-sanctioned marriage encoded in CAP 127. While the former provides for polygamous unions, the latter is strictly monogamous. Marriage under CAP 127, which is secular and often referred to as ordinance marriage, has its consequences for marital discord or divorce in the following ways: the husband’s right to polygyny is prohibited and child custody is decided by the court based on evidence and circumstances of the case. There can be no unilateral divorce from either a man or a woman and, upon divorce, assets are divided in the interest of both parties. Islamic customary marriage privileges the rights of the husband; he has the right to polygyny, child custody, unilateral repudiation, and sole prerogative on a farewell monetary gift in case of divorce.3K. Glover, “Polygyny Among the Middleclass in Ghana: An Anthropological Study of Urban Family Life. Unpublished PhD Thesis” (Bayreuth University, 2014); Fulera Issaka-Toure, “Marriage Practices: Ghana.” Encyclopaedia of Women and Islamic Cultures (BRILL), Supplement 17, (2018):1-13; Dan-Bright S. Dzorgbo and Sylvia E. Gyan, “Exploratory Study of the Current Status of the Rights and Welfare of Ghanaian Women: Taking Stock and Mapping Gaps for New Actions,” African Journal of Reproductive Health / La Revue Africaine de la Santé Reproductive 20, no. 3 (2016): 136:148; Rabiatu Ammah, “Ghanaian Muslim Women Negotiating Leadership Space for Self-Actualization,” in Unpacking the Sense of the Sacred A Reader in the Study of Religions (Abamfo Atiemo, Ben-Willie Golo Lawrence Boakye, 2014): 104-115.

Consequently, the question of Muslim women’s marital and citizenship rights is complex. Whichever form of marriage Muslim women choose has its own pros and cons, especially when conflicts arise. This situation of Muslim women’s marital and citizenship rights is compounded by the state’s recognition of alternative dispute resolution mechanisms whereby citizens decide where and how to resolve their personal conflicts. Therefore, not only do Muslim women have several options to choose from regarding marriage, such as deciding between a monogamous or polygamous marriage, but they also have agency on where to resolve their marital conflicts—either through the work of Islamic religious authorities as mediators or through the state secular system. Research has suggested that cases of marital discord mediated by Islamic religious authorities—only men in its formal practice—tend to limit Muslim women’s marital rights as compared to when cases are subjected to secular state jurisdiction. The Islamic religious authorities rely solely on the inherited patriarchal interpretation of Islam which limits a Muslim woman’s marital and citizenship rights. This can be avoided if a Muslim woman decides to resolve marital conflicts under secular state jurisdiction irrespective of whether a marriage was conducted under Islamic customary marriage or marriage under the ordinance of CAP 127. As it stands, there is ample evidence both from Ghana and elsewhere in Africa to suggest that women’s rights are not guaranteed by the Islamic customary/legal system of adjudicating marital discords.4Annelien Bouland, “‘Please Give Me My Voice’: Women’s Out-of-Court Divorce in a Secondary City in Senegal,” Islamic Africa 11, (2020): 163-183; Fulera Issaka-Toure, “Application of Muslim Family Law as a Form of Customary Law in Accra, Ghana,” Islamic Africa 11, (2020): 132-151; Susan F. Hirsch, Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court, (Chicago: The University of Chicago Press, 1998); Salma Maoulidi, “Why Bring Islamic Law into the Public Space?” WLUML 27, (2005): 1-8.

In conclusion, the ways of confronting such legal challenges depend on how Muslim women negotiate their rights either solely or in conjunction with some Islamic religious authorities.  Thus, Muslim women’s marital and citizenship rights are safely guaranteed by the state but could be minimized or even eroded depending on women’s choices.5Fulera Issaka-Toure, “Marriage Practices: Ghana.” Encyclopaedia of Women and Islamic Cultures (BRILL), Supplement 17, (2018):1-13; Fulera Issaka-Toure, “Application of Muslim Family Law as a Form of Customary Law in Accra, Ghana,” Islamic Africa 11, (2020): 132-151

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