Taming the 'Uncivilized'?: Constitutional and Other Complexities of Banning the Burkini and Other Muslim Dress in Africa

Autor:Danwood Chirwa - Fatima Osman
Páginas:143-170
 
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Danwood M. Chirwa

University of Cape Town

Fatima Osman

University of Cape Town

Introduction1

Government efforts in Europe, especially in France, to ban Muslim women from wearing the burkini in public have received worldwide attention.2 This is a topic that has sharply divided opinion, even among human rights activists and lawyers, between those who think that such a policy is inconsistent with human rights and those who hold that the ban is necessary to protect the human rights of the women who wear this dress from patriarchal coercion and possible self-harm and the general public from acts of terrorism.3 For France, in particular, its penchant for regulating Muslim dress in recent years stands at odds with its long policy of tolerance for Islam dating back to the nineteenth century when France molded itself as a “Muslim power” and managed to bring under its colonial control much of North and West Africa through forging alliances with African Muslim leaders and communities and actively supporting the Islamic faith and its practices.4

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Invented in 2003 by Aheda Zanetti in Australia,5 the burkini6 is yet to claim wide usage in Africa, although in some countries such as South Africa7 and the North African countries of Algeria, Morocco and Tunisia it has begun to pick up some clientele.8 Apart from it being a new, imported, form of dress, the burkini is yet to gain a foothold in Africa due, arguably in part, to its association with social status and luxury.

Yet for those who are able to acquire it and see it as serving an important religious function in their lives, the burkini has quickly attracted the attention of some authorities. For example, the burkini made media news in January 2017, at the height of the hot summer in South Africa, when a Muslim woman was barred from entering a local swimming pool in Cape Town because she was a wearing the garment.9 In a quick response, a city official explained that the bathing rules in terms of which the woman was barred were promulgated to ensure the safety of swimmers. However, mindful of the needs of different cultural groups, including Muslim women, with regard to acceptable forms of attire, the city promptly apologised for the incident and undertook to ensure that its staff undergo sensitivity training where needed.10

The incident in Cape Town hardly compares with the legally binding bans of the burkini imposed in various European cities. However, as the focus on state control of Islamic dress has continued to be on the West, relatively little attention has been given to similar efforts in Africa to ban various forms of dress associated with Islam (Islamic dress),11 which in some cases can be interpreted to apply to the burkini. In June 2015, Chad banned the wearing of the burqa and authorized the security forces to “seize all burqas on sale and burn them”.12 Soon thereafter,

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Cameroon announced a more extensive ban, of the wearing of both the burqa and other face-covering veils in general.13 Initially, the ban was restricted to the northern part of the country but later, it was extended to other parts of the country.14

Following Chad and Cameroon, Congo Brazzaville and Niger also banned the wearing of the burqa, the former imposing a general ban and the latter restricting it to the southern region of the country until further notice,15 while Senegal merely announced that it was considering banning it.16 Like Senegal, Nigeria warned that it would ban the hijab due to an increase in terrorist bombings involving young girls wearing the dress.17 Like the burkini, the hijab covers the head and body of the women but it leaves the face open. Banning the hijab would therefore have implications for the burkini.

These are only recent examples of state control of Islamic dress. In Nigeria, the hijab has been banned before by some states and local municipalities with respect to public schools. In 1989, a female student in Egypt was prevented from entering a university campus because of wearing a niqab.18 A similar ban has been imposed several other times including in the 1990s and 2000s, and in 2015.19 More recently, the Egyptian government drafted a bill to ban the niqab and burqa in all public places and government institutions.20 A headscarf has, on more than one occasion,

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been banned in schools in Kenya.21 In South Africa, the headscarf has been prohibited by some employers at the workplace.22

In this article, we trace the history of the regulation and control of dress in Africa and how the relationship between dress, religion, culture, politics and the state is manifesting itself today. This inquiry will provide the contextual backdrop to the evaluation of the constitutionality and legality of any effort to ban the burkini at public beaches or pools in Africa. The article will also consider the existing case law produced by domestic courts in Africa on the regulation of dress associated with certain religions. The analysis of such case law will help predict how a possible ban of the burkini might be regarded by African domestic courts.

Brief history of the interplay between religion, culture, politics, the state and dress in an african context

The relationship between the state and dress in Africa is much more complex than is often portrayed in the literature, especially in the West, and the interplay between Islamic dress and the state is no less complex. To understand this complexity one has to debunk a number of misconceptions. Firstly, African dress has been viewed in binary terms in comparison with European dress. Viewed as “costume”, African dress has generally been regarded as static, sterile, indigenous, local, and group-oriented, in contrast with European “fashion”, which is regarded as civilized, dynamic, mundane, international and accentuating individuality.23

Secondly, African dress and Islamic dress are either seen as distinct or conflated. Thirdly, Islamic dress, as is often the case with African dress in general, is viewed largely in religious or cultural terms. Fourthly, some assume that Islamic dress requirements of modesty and piety are made for women only.

The history of dress, especially of Islamic dress, in Africa hardly fits binary categorizations. As this article will demonstrate, there is a much more complex relationship between African and Islamic dress, and between African dress (whether cultural, religious or both) and the state. Furthermore, dress has played many roles on the continent than is commonly supposed.24 As argued by E.P. Renne, “an examination of veiling in Africa today reveals many meanings of veil

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ing there, which have been contested – between Muslims and non-Muslims, as well as within the Muslim community itself, by both men and women – and which have changed over time”.25 As to the gender dimension of Islamic dress, Rasmussen has shown, with specific reference to the Touregs of Niger, Mali, Algeria, Libya and Burkina Faso, that the requirements of respect, shame and modesty embodied by the term takarakit is “partly expressed in the dress of both sexes and that its meanings pertain, in part, to local interpretations of Islamic modesty and piety”.26

The burkini is perhaps an excellent example of the complexities involving Islamic dress in Africa. Designed recently in a western country and consumed so far largely by relatively affluent Muslims living in the West, the burkini fits the description of “fashion”, is not static, traditional or group-oriented, but is yet to gain wide usage in Sub-Saharan Africa. Yet the burkini’s raison d’être fits well with common standards of appropriateness in dress, not just those standards associated with any particular religion or culture, in Africa. In this sense, too, the burkini defies the common assumption that Islamic dress is, unproblematically, uniformly adopted by Muslim populations around the world.

Africa had long interacted with other regions of the world before the onset of the two monotheist religions Christianity and Islam. The former, being the older, had already spread to the northern and other parts of Africa by the time the Islamic expansion began in Egypt in the seventh century and later spread to the rest of North Africa and beyond.27 At the time these monotheist religions made incursions into Africa, African societies practiced what are now called “African traditional religions” which, despite their diversity, tended to venerate ancestors and believe in a supernatural being, but generally did not have any specific cannons of belief or established clerical institutions.28 Although these religions tended to emphasize communal belonging, wellbeing and responsibilities, they were generally plural-istic and did not impose any forms of dress. Since their initial incursion, Christianity and Islam have had to compete for the African soul, and this history has had an enormous impact on the ways of life of Africans, including their dress.

The manner in, and the means by, which both religions spread across Africa help to understand the politics of the regulation of Islamic dress that are occurring now. As noted earlier, the Islamic expansion to Africa began in Egypt in the sev

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enth century and later spread to the rest of North Africa.29 Its spread to subSaharan Africa, especially to West Africa, Sudan, Ethiopia and much of East Africa, took place much later, especially from the eleventh century.30 This initial incursion to Egypt and other parts of North Africa and Eastern Sudan was largely by conquest under the auspices of the Islamic Caliphate.31 Where conversion was not by force, especially in...

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