Hi, welcome to my Poliseries: an exploration of the vision each parliamentary party has for South Africa’s future. The topic I explore in this regard is land reform. In this article, I discuss the Al Jamah-ah Muslim political party; one whose vision for South Africa is founded on sharia law. Founded in 07, this political party’s main objective is to promote Muslim interests centred around encouraging non-Muslims to convert; this, by establishing religious Muslim bodies in every town and village across the country in its vision to have Sharia law’s principles guide its government in implementing religious persecution.
The party does not have much on its website around its policies on land but, considering the Sharia laws upon which its objectives are based, I decided to look at those laws with specific reference to land reform. My understanding of Siti Mariam Malinumbay and S. Salasal’s paper regarding the Islamic faith’s perspective on Land ownership is that Sharia law is in favour of upholding property rights; however, its take on this support differs from that of Capitalism. You see, Capitalism is an economic system in which one’s ownership of any given thing is considered immutable; if someone is a landowner, his/her land belongs to him/her in a manner unquestionable and thus he/she may use it to further his/her interests, regardless of the consequences on the greater environment/community. The free market is the environment in which he/she may use this land and no one, even the state, may limit his/her right to use this land however he/she wishes. Of, course, there are laws and measures meant to regulate his/her use’s impact on the greater community; but, this never brings into question his/her continued ownership of said land.
“The implication of ownership in Islam is that the right of man over things is limited and qualified…”
- The Concept of Land Ownership: Islamic Perspective
Islam’s take, first and foremost, is founded on the belief that one’s ownership of land, although exclusive, is not immutable. It is subject to the effect of its use on his/her fellows. Considered, in this faith, as the Lord-sovereign overall, Allah S.W.T. is regarded as the only true and absolute owner of all land – a premise seen as unquestionable. Mankind is the warden designated by Allah S.W.T. to oversee the management of all the planet’s resources thus, as such, all individual human beings are equally tasked in this respect. They, therefore, have equal rights to access its use. The Islamic state’s purpose is to maintain this mutual equality by following the Sharia laws, ensuring that none whom it delegates abuse the power and authority afforded to them for this purpose. The state is a trust and the land it allocates for ownership to recipients makes them trustees. According to these laws, landownership is merely a claim to benefit from land use for both the claimant and the greater community; this claim grants the claimant sanctioned abilities relating to the method of the land’s use, limited by their effects on the community.
People have a divine right to use land for their benefit, yes, but that also comes with the divine responsibility to ensure that the benefit accrued is shared with their community at large. No individual must benefit alone for no one truly owns the land. Sole benefit is a divine right reserved for the sole creator: Allah S.W.T. This is where the Islamic perspective distances itself from both the Capitalist and Marxist positions: the former, which believes in the absolute ownership of the individual and the latter, in that of the proletariat class. Both of which, according to the Islamic perspective, make the mistake of assigning a Godly status to human beings.
“Why is it that whenever we talk about ownership we always equate it with ownership of Allah S.W.T.?”
- The Concept of Land Ownership: Islamic Perspective
The use of land in any way that undermines the interests of the Islamic state hence also those of the community at large will deem one’s ownership revoked forcefully by the state. One’s right to benefit from his/her use of land is maintained by one’s continued proper use of that land: i.e. use that grants benefit to both him/herself and the community at large – as a resource vested to human beings in their capacity as trustees – that is Allah S.W.T.’s will. So long as landowners comply with it, they may then utilise the land, within those limits, however they may wish and are protected, by Sharia law, not to be interfered with. In short, the Islamic perspective regards property rights as claims, powers and immunities granted to the landowner by the state and applicable to the landowner’s method of land use within limits set by the state. What is interesting here is that Allah S.W.T’s will, being grounded on the premise of equal access to use and share in the use of all land, inherently opposes greed in any form, including monopolistic activity whereby the concentration of resources, in this case – land, in the hands of a few creates a dependency of the many on the few. So, unlike the capitalist system, the amount of land one can own is restricted so all others may get a chance as well.
“That is, land, as a free and universal gift from Allah must be utilized to the fullest. It was also given to men for their common use as well as for the general welfare of the society.”
- The Concept of Land Ownership: Islamic Perspective
This, I find interesting as it seems to be an effective way of tackling corruption. Unfettered individual ownership leads to classes of inequality; thus creating a demand-and-supply dynamic between them based on the dependency of those more unequal on those less thereof. Exploiting the dynamic is what constitutes corruption, the benefits of which perpetuate a vicious cycle of endless poverty. My understanding here is that the Islamic faith regards its state as a religious gathering of Muslims who, in conducting their daily lives according to Sharia laws, are brothers and sisters as sons and daughters of Allah S.W.T., working together in prayer. The Islamic state as Jama’ah: the congregated prayer of all its citizens to their God Allah S.W.T. Inequality is this ideal’s greatest adversary as it undermines the most fundamental principles of this faithful gathering – equality; one which is the cornerstone of humanity’s mandate on earth – to share.
Allah does recognise that the Islamic state may have those who dwell within who are not believers – non-Muslims. The Islamic state may expand its territories via conquest or diplomatic treaties with other states, some of them being non-Muslim thus those already dwelling on those lands would have to be brought under Islamic rule. Nowadays, what’s more likely is migration by non-Muslims to Muslim countries; as fellow human beings thus equal trustees on behalf of Allah S.W.T., Sharia law does have room for them to access land ownership in these states.
“Islam along with the security of life guarantees security of ownership of property to every human being. Such right is applicable only to property, which has been legally acquired.”
- The Concept of Land Ownership: Islamic Perspective
Muslim landowners, as those who believe in Allah S.W.T. as the creator of all and whole-heartedly subscribe to Sharia law, are considered citizens of the Islamic state. The land they own, called “Ushri”, grants them claims, powers and immunities as previously discussed, and they pay a 10% tax/zakat to the state. Zakat is considered a religious responsibility for the Muslim landowner as a sanctified member of the Jama-ah; the term “Ushri” literally means tithe; so, Zakat is considered a tithe. It seems to me that their property rights are regarded in the highest order – as sacred; thus, they have greater protection against state intervention regarding their proper use of the land.
Non-Muslim landowners, whose newly integrated land they have been allowed continued occupation by the Islamic State following pacts or peace-treaties entered upon between the state and theirs, have, as previously discussed, access to the benefits of land-use but limited to those agreements’ terms and conditions; the state’s power to intervene is also restricted in the same manner in this case. However, it is reasonable to presume that the only reason the Islamic state would agree to any terms is if they fell under the mandate of Allah S.W.T.; so, I assume the state still has powers to expropriate land if its use becomes detrimental to the well-being of the greater community. A second type of Non-Muslim landowner: whose land, also having been integrated under Islamic rule, was so done as part of the spoils of war and those who have also been allowed to continue occupation by the Islamic state are afforded similar property rights as the first, although arguably to a lesser extent.
The land owned by both types of non-Muslim landowners is called Karaj land because it is owned by non-Muslims as its defining characteristic. Karaj landowners seem to me an under-class – that is, religiously speaking and resultantly, as you’ll soon read, also politically speaking. Although like Ushri landowners, Karaj landownership enjoys the same usufructuary claims to the benefits of land use subject to terms and conditions imposed by the state, it differs in its enjoyment of powers and immunities related to abilities as methods in which one may use said land.
The degree of or claim to ownership/use in the latter case is lower/weaker in that the state deems it as temporary; it is closer to renting as the tax paid to the state from land-use benefits is regarded as such – Ushri landowners though, as members of the Jama-ah: the state-congregation, pay tax as a tithe – a clear distinction segregating, spiritually, those ordained from heathens/non-believers. As such, Karaj landowners are more exposed to the whims of the state on the use of the land they currently ‘own’; once the state discovers an opportunity for greater benefit from the use of said land, their access can be revoked and, them, relocated. Ushri landowners, on the other hand, are protected from said form of state intervention as their claim to access said benefits is considered sacred. This, also shown by their ability to delegate said benefits by renting out their land or even selling it outright; an ability Karaj landowners, as non-owners, do not possess.
“The State being the guardian of individual rights is endowed with the power to intervene and in some cases take away the individual rights to property with a view of protecting the social and individual interests, which are of vital importance. As for the degree and extent of State interference, public welfare or benefit determines this at large. The State acting as representative of the people is empowered to implement the conditions imposed on private ownership even by force.”
- The Concept of Land Ownership: Islamic Perspective
Granted the state’s power supersedes the property rights of both Ushri and Karaj landowners, I imagine the quotation above applies more to Karaj landowners than owners of Ushri land.
What I find funny is that S. M. Malinumbay and S. Salasaj denounce the description of the relationship between the Karaj landowner and the Islamic state as that of tenant-landlord and yet proceed to provide it as a feature of that type of relationship:
“the kharaj holding is not of a landlord/tenant relationship. It is a special form of land tenure whereby the land is owned by the State as guardian of the community and held by the individual holder pursuant to the rules stipulated in the Shari'ah and the conditions imposed by the State.”
- The Concept of Land Ownership: Islamic Perspective
Karaj landownership is protected until it is not – that is until the state finds a use for said land that is more beneficial to the greater community. Again, the degree of immunity from state intervention offered by the state is what differentiates Karaj from Ushri landownership.
According to Sharia law, land ownership comes in three forms:
1. Iqta’tamlik: one wherein the grant recipient receives powers, claim and immunities relating not only to the benefits of using the land in question but abilities to lease or sell it. This, seems to me, is what is meant by the full ownership as given to Ushri landowners.
2. Iqta’istigial: one wherein the grant recipient only receives the benefits of using the land; a use that must be beneficial to the wider community. The ‘landowner’ in this case, may not further lease or sell said land as he/she does not own it; I assume that this grant would be one given to non-muslims as Karaj landowners.
3. Iqta’Irfaq: one wherein the grant recipient receives access to a portion of land for purposes and a period pre-approved by the state. This is more like obtaining the state’s permission to use an area for an event temporarily.
The Islamic perspective on property rights denounces any unlawful manner of handling landownership; this includes providing access to own land or revoking one’s ownership of land. This is just a long way of saying that the Islamic perspective denounces all corruption relating to property rights – all legal processes in distributing and/expropriating land must always be adhered to. With that said, no owner’s land may be expropriated/simply taken, for any reason, without compensation. I wonder, first, how this would apply to an Ushri landowner whose land is to be expropriated due to his/her inability to adhere to the terms and conditions, set by the state, which validate his/her continued ownership. And, considering that Karaj landowners are not considered owners of the land they use to the same degree as Ushri landowners in that the tax they pay is, in fact – rent, I assume they are not entitled to compensation for losing their ‘ownership’ but will receive it for the loses they’ve incurred in developing the land:
“The amount of compensation envisaged in Islam covers not only the loss of ownership of property but also to indemnify the owner of his expenses incurred on the land and the loss of income arising from the loss of use of the land. The compensation is usually based on what he has actually been deprived of it.”
- The Concept of Land Ownership: Islamic Perspective
Do landowners who dishonour their claim of ownership by misusing their land also receive compensation when their land is taken? It seems so.
“It is worth noting that no Islamic State can just acquire the property of any person without. his consent and without adequate payment of compensation.”
“It has been mentioned above that nobody can just take another's property even the State for that matter. Thus, it must be acquired lawfully and likewise compensation must be adequately provided.”
- The Concept of Land Ownership: Islamic Perspective
Anyone who feels wronged by another, including the state, with regards to his/her property rights is free to approach the courts, in an Islamic state, to seek remedial action. Sharia law speaks of violent consequences for transgressors, including the cutting off of hands. It goes to reason that such drastic measures would not be tolerated in a new South Africa being built under the constitution. Aljama-ah, if in government, would likely want to make changes to our country’s many laws to re-align our justice system with Sharia law; is there room for the constitution in a penal system adherent to Islamic principles?
The Islamic state’s Sharia-law take on the term ‘equitable’ in ‘equitable access' to landownership is practical. One can own land in two ways:
1. Simply come by an unused, un-owned piece of land and begin rehabilitating it – working it.
2. Applying directly to the state for access to own land and having that application approved then that land’s ownership given as a grant.
The first instance is based on the premise that the piece of land one stumbles upon, which one seeks to own, is land that is dead – Mawat land: of no use to anyone in its current state and unowned when found. The act of rehabilitating it is called ‘ihya al-mawat’ meaning, bringing that land back to life. Although legal to simply wander onto un-used, unowned land and begin working it, legal processes will have to regulate said behaviour to verify the current ownership-state of the land and thereby deny/approve one’s claim to work it to own it. As a result, despite the difference in administrative steps to ownership (application for access to ownership) between the above ways of gaining access, they both involve the final approval of the state wherein the owner is granted an “al-iqta”: a title deed-like recognition of ownership.
So far, this process seems simple when speaking of land that is not owned by any individual, thus owned by the state, when found – regardless of whether that land is dead or not. I presume that If I stumbled upon fertile (still alive) deserted land, I would still be able to claim ownership, not by bringing it back to life in this case, but by simply making use of it. If that piece of land, now dead when I find it, was previously owned but neglected (not made use of) for three years, the state deems the owner to have disowned it. The physical state of the land as dead seems to be taken as evidence of said neglect but what happens if that neglected land is still alive and well? How would the state confirm its three-year abandonment by the owner then? Does the term Mawat refer only to the physical state of the land or to its abandonment by its owner as either-or, or both? If the piece of land I find has not been abandoned for three years by its owner but is physically dead, can I claim its ownership by ihya?
There are some within the Islamic state who, to better regulate ihya claims to land ownership, prefer that ihya tillers (those who work on mawat land to own it) inform the state of their intention to own a piece of land before they till it. This, presumably to have the questions raised above answered; also, to verify the ownership-state of that land and ensure its availability; lastly, to control its availability to others, who may be interested, by tying a deadline to its rehabilitation. The timeframe to be granted is three years, after which a successful revival will qualify the tiller for an iqta. Failure thereof would require its circumstances to be considered before either a denial of access or an extension is granted. Others within the state prefer that an al-iqta be granted to the prospective ihya tiller as soon as the ownership-status of the land is established – no rehabilitation deadlines; Again, the distinction between the two ways of access to land ownership seems to me a little more than just a mental exercise; one’s ability to till dead land to own it is based on whether that land is currently owned; the state’s involvement at the very beginning is necessary to find out, not to mention the questions I have posed above which would also require official answers from state representatives. Why work to own when you can simply apply for an al-iqta directly?
A third perspective is that: should an ihya tiller have been working on a piece of land already owned by another for three years or more, his/her claim to ownership will supersede that of the current owner. This makes sense since land is considered disowned if abandoned by its owner for three years; but, then again, I presume an investigation to verify the length of time the tiller has occupied the land (a.k.a. how long the land has been neglected) as in order, assuming the current owner contests his/her claim which brings us back to my questions and assertion that the Islamic state should do away with having two ways of accessing land ownership; there should be one process: apply for an iqta within a process which will establish the ownership-state of the land and deny/approve accordingly. My suggestion would avoid complications where, within the circumstance presented by this third perspective, the landowner, whose claim when considered stronger, would have to pay the ihya tiller for work done on the land; and whose claim when considered weaker, would be entitled to compensation from the ihya tiller for ownership to the land.
With one landownership process, even the practice of ‘booking’ a dead piece of unowned land with intent to revive it for eventual ownership (this act of booking is called ‘tahir’) wouldn’t be necessary; first application approved, based on that which is first submitted, should be first served. Besides, what is the use of tahir when the piece of land in question is not yet established as available? Notifying other interested parties, being the point of tahir, should be undertaken only after the landownership process has established its availability.
In conclusion, the fact that Al Jama-ah does not plainly state anything on land reform as part of its party platform is something to think about. Sharia law’s take on land ownership and property rights, as per Siti Mariam Malinumbay and S. Salasal’s paper, is quite accessible and exhaustive in that it answers most of the relevant questions around the issue; albeit some of the answers may not suit you. The law is prejudicial of non-Muslims by excluding them completely from accessing landownership rights and leaving them only access to property rights. They may use and benefit from said use of land but do not have certain powers and immunities, e.g., selling the land or renting it out for profit, Muslims have. Considering that this prejudice is backed by religious doctrine is extremely concerning; despite the exhaustive take of this law, who knows how malleable it is to human agendas? In answering this question, consider that there are those within the faith who have what they consider a religiously backed rationale for suicide bombings and terrorist attacks.
Yes, it is great that the Islamic state, presumably, will not force the conversion of non-Muslims in any way direct, but equally discouraging that, due to their different religious beliefs, they will be effectively discriminated against. This brings into question the role/place of the constitution in this party’s government’s rule in our country: will Sharia law supersede it? Some of the questions for you to consider if you’re planning to vote for this party.
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