The Prospects and Problems of the Marrakesh Declaration on the Rights of Religious Minorities in Muslim Majority Communities

Abstract

The aim of the Marrakesh Declaration is to tackle discriminatory practices against religious minorities living under Muslim majority rule through the promotion of religious pluralism. Nevertheless, the realization of this aim continues to generate debate among scholars. This paper raises and analyzes the following questions. Who are the religious minorities in Muslim majority states? What is the cause of their persecution? What theories explain the problem? How unique is this approach to human right norms, and how different is the Marrakesh Declaration compared to similar initiatives like the Cairo Declaration on Human Rights 1990? The paper finds that the Marrakesh Declaration focuses on one aspect of religious pluralism to the exclusion of others. The paper argues that human rights norms viewed through the framework of Islam and presented as tools for negotiation instead of norms that are universal, and by extension higher than sharia norms, in Muslim majority societies are more appropriate than the Medina Charter as framework for the achievement of the objectives of the Marrakesh Declaration.

Keywords:

• Marrakesh Declaration
• Islam
• freedom of religion
• pluralism
• diversity

Notes

1 This report documented disturbing accounts of the armed group's use of terror to subjugate Syrians living in its areas of control, as well as the use of extreme violence against both civilians and captured fighters.

2 In this report, it is stated that “the fact is that ISIS kills Christians because they are Christians; Yazidis because they are Yazidis; Shi’a because they are Shi’a. In addition to Shi’a, they also kill Kurds, Shabaks, and Sufis and so-called apostates, denouncing them as Kuffar.” The report further states, “Although ISIS typically calls for attacks on non-Muslims outside the Levant, the majority of the group's victims are Muslims living in or near the so- called Islamic State.”

3 Guy Birchall. 2017. “Middle East Battle, What is the Yemen War about who is fighting who, why is Saudi Arabia involved and how many dead,” The Sun, 13 June.

4 The Medina Charter is a document that Muslim popularly called the Medina Constitution. The story is that Prophet Muhammad [SAW] prepared it in 622 A.D to serve as a covenant between Muslims in Medina and non-Muslim tribes including Jews. There is no dispute among Muslims on the authenticity of the event and the existences of a covenant. However, what is under dispute today is whether the document in circulation in its present form was actually the document that the prophet of Islam prepared with sections, articles and sub-sections like a modern Constitution.

5 Shia Islam differs from Sunni Islam mainly in the legitimacy given to Ali’s succession, Mohammed’s nephew, over any other possible successor. The origin of Shiism lies in the martyrdom of Ali’s son Husayn, who was killed by Umayyad troops in the Battle of Kerbala in the Islamic month of Muharram in the year AD 680. Several branches of Shiism recognise a different number of Imams (successors) of Ali. The majority of Shia people recognize 12 Imams.

6 Article 12 of the Constitution of the Islamic Republic of Iran provides,

The official religion of Iran is Islam and the Twelver Ja’afari School [in usul al-Din and fiqh ], and this principle will remain eternally immutable. Other Islamic schools, including the Hanafi. Shafi’I, Maliki, Hanbali, and Zaydi, are to be accorded full respect and their followers are free to act in accordance with their own jurisprudence in performing their religious rites. These schools enjoy official status in matters pertaining to religious education, affairs of personal status (marriage, divorce, inheritance, and wills) and related litigation in courts of law. In regions of the country where Muslims following any one of these schools of fiqh constitute the majority, local regulations, within the bounds of the jurisdiction of local councils, are to be in accordance with the respective school of fiqh, without infringing upon the rights of the followers of other schools.

7 See the same Article 12 of the Iranian Constitution already quoted in note 6.

8 This information is from an interview published by state-run Iranian Students News Agency, ISNA, on Saturday, November 11. An Iran based radio station called Radio Farda reported it on November 12, 2017. It is available online at: https://en.radiofarda.com/a/iran-sunni-leader-complains-of-discrimination/28849230.html. Also, see descriptions of the content of previous letters in Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014; Fatema Aman, “Iran's Uneasy Relationship with Its Sunni Minority,” Middle East Institute, 21 March 2016; “Iran: Lift Restrictions on Sunni Worship,” Human Rights Watch, 9 November 2013.

9 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

10 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

11 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

12 Farshad Mohammadi, “Iranian Sunnis Complain of Discrimination,” Al-Jazeera, 9 March 2014.

13 Constitution of the Republic of Iran 1979 with 1989 amendment.

14 Article 88 of the Penal Code of Iran states, “The penance for adultery of n unmarried woman or an unmarried man is one hundred lashes.” Article 82 of the penal Code however states,

In the following circumstance the penance for adultery is execution and there is no difference between young and old or between married or unmarried woman […] (c) adultery of a non-Muslim man with a Muslim woman. The adulterer will be executed.

15 Article 121 of the Penal Code states, “The Penance for toreplay of two men without consummation is one hundred lashes for each one.” However, if the active party is a non-Muslim and the passive party is a Muslim, the penance for the active party is execution.

16 Article 207 of the Penal Code staes: “If a Muslim is murdered, the murderer will be retaliated and the accessory to the murder will be sentenced to between three to fifteen years imprisonment.” In addition, Article 209 of the Penal Code states: “If a Muslim man premeditatedly murders a Muslim woman, he will be sentenced to retaliation, but prior to retaliation the heir of the slain woman should pay half the mulct [blood money] of the man to him.”

17 The inal sermon of Prophet Muhammad (SAW) in the year 10 A.H. delivered during the pilgrimage of the year 632 C.E., the ninth day of Dhul Hijjah, the 12^th month of the lunar year, at Mount Arafat, available at: https://hadithoftheday.com/the-last-sermon

18 Sahih al-Bukhari, ch 26, vol 4, no. 392 at 57; ch 28, vol 4, 4.395, at 260; ch 33, vol 4, no 4.399 at 264; ch 39-A vol 4, no 4.408 at 271; ch 31, vol 9, no 9.50, at 34; ch 32, vol 9, no 9.51, at 34).

19 Holy Qur’an (Al-An’am), ch 6:12 and 54.

20 Let me use this opportunity to thank the sponsors of the Commonwealth Initiative for Freedom of Religion and Belief (CIFoRB) project at the University of Birmingham for their support in every way. My participation in the project gave me opportunity to learn from experts and the experience has enriched this paper. Secondly, I also thank the International Center for Law and Religion Studies (ICLRS) at Brigham Young University, Utah, United States of America for hosting me and 14 others from different countries at Oxford in the summer of 2018 for advanced training on religion and rule of law. The knowledge I have gained in the program helped me to clarify my thoughts in this paper. Indeed, these two opportunities are wonderful and very encouraging.

Additional information

Notes on contributors

Ahmed Salisu Garba

Ahmed Salisu Garba is a member of the Faculty of Law of the Bauchi State University, Gadau, and is the Deputy Dean/Head of the Department of Private & Business Law. In addition, he is a final year doctoral student at the Faculty of Law of the Bayero University Kano, waiting for his viva defence on the regulation of religious preaching in some states of Northern Nigeria. He was a Visiting Scholar at the University of Iowa College of Law from August 2013 to December 2013. He has also presented and written many papers at different international conferences in the UK, USA, and African countries on religious freedom and pluralism.