On April 7, 2016, KARAMAH Founder Dr. Azizah al-Hibri spoke at The Kenan Institute for Ethics at Duke University panel on “Shari’ah and the Promotion of Nationality Rights and Gender Equity in the Middle East and North Africa (“MENA”) Region.” Mr. Amit Sen, UNHCR’s regional protection officer on statelessness for the Middle East and North Africa, joined Dr. al-Hibri on the panel.
The panelists examined the issue of statelessness emanating from the current refugee crisis in the MENA focusing on the nationality laws of the region. Nationality laws in the MENA are hybrid legal systems drawing norms from both secular and religious traditions. Therefore, the panelists argued that the issue of statelessness in the MENA should also take into account shari’ah as an important element shaping access to nationality in the region. Laws on interfaith marriage, adultery, polygamy, and adoption, for example, are all impacted by shari’ah and can accordingly impact the ability or inability of individuals to acquire a nationality.
Dr. al-Hibri noted that both the interpretation of shari’ah and legal instruments are affected by patriarchal and authoritarian cultures. For example, nationality laws in most of the MENA countries define nationality in terms of the nationality of the father, and mothers cannot pass down citizenship to their children. During violent conflict, families flee suddenly and often do not bring along documents proving their citizenship such as birth certificates or marriage certificates. When the father is not known because of death, chaos or rape, children in these circumstances become stateless. Without a nationality affiliation, these children suffer extensively as they grow older in various ways, including loss of education, health care and jobs.
Dr. al-Hibri and Mr. Sen highlighted regional human rights instruments that provide for nationality rights and protections based on shari’ah such as the “Covenant on the Rights of the Child in Islam” and “the Cairo Declaration on Human Rights in Islam.” They also identified positive traditions within shari’ah that uphold the right to a nationality such as:
– The right to asylum “aman”
– The recognition of familial relationship through the mother, and not only through the father.
– The ability of the mother to bring a baby into the family by nursing him/ her, even if the baby has completely different biological parents.
Drawing from these examples, Dr. al-Hibri argued for the articulation of a new jurisprudence that enables children to acquire citizenship through both parents. She also spoke to the need to develop a jurisprudential rule of necessity to help stateless children acquire nationality through the mother or some other means, if they have lost the identity of both their parents. Considering current circumstances, Dr. al-Hibri said that it is necessary to develop a modern Islamic jurisprudence that is steeped in tradition, yet is gender equitable with shuratic (democratic) structures of governance – a jurisprudence, which is based on a maqasidi (public interest) approach and takes into account the current circumstances in the world.”
KARAMAH’s jurist network is comprised of jurists and scholars who are producing such scholarship (Link to research). Moreover, through our research and educational programs, we provide women with theoretical and practical skills in order to go back to their countries and affect change in their constituencies and local laws within the context of their religion.
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