A critique of Moroka J’s abolition of the delict of Adultery
Ndulamo Anthony Morima
EAGLE WATCH
In a recent land mark judgement in Precious Kgaje v Oreneile Phindile Mhotsha, CVHFT-000237/17, Moroka J made two Orders which may, unless the judgment is appealed and quashed by the Court of Appeal, forever change Batswana’s family institution.
Moroka J’s judgment is undoubtedly of historical moment in our jurisprudence. His Orders were short, yet far reaching. His first Order was that “the delict of adultery is no longer consistent with the boni mores (good morals) of contemporary Botswana.” In other words, according to Moroka J, Batswana’s general sense of justice and legal convictions today view adultery favorably and condone it and such evolution of Batswana’s culture should be reflected in our law.
The second was that “the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia (insult to the self-esteem) and loss of consortium ( comfort and society) is no longer wrongful and thus no longer available as part of our law.” In resolving the question whether the delict of adultery is still valid given the change in the boni mores of society, Moroka J answered in the negative influenced, inter alia, by the fact that many countries including England, Namibia, South Africa and Seychelles have abolished the delict of adultery.
Moroka J was also persuaded by the argument that highly personal relations should not be regulated by the law but should be left to the sphere of ethical self-regulation of the community through unwritten norms and values. According to Moroka J it is the quality of the citizen, his or her integrity and voluntary respect for the marital institution and not the fear of sanction that sustains tranquility in the marriage.
Moroka J cites the Setswana proverb which says ‘matlo a na otlhe’, translated to mean all houses have leaky roofs, to demonstrate that Batswana accept adultery since the proverb is often used to counsel the innocent spouse in cases of adultery. This, he says, shows that while Batswana condemn adultery family preservation is encouraged as opposed to impulsive breakdown through divorce, stating that marriage is a union of forgivers.
He also cites the Setswana saying ‘Nyatsi e tiisa lelwapa’, translated to mean that an adulterer strengthens a marriage, to demonstrate Batswana’s tolerance of adultery. But, in admitting that Batswana regard adultery as wrong he states that “this is by no means an encouragement of an otherwise reprehensible conduct but an expression of attitudes towards it.” Before critiquing the judgment, it is apposite that I address some of the things that have been said about the judgment itself and the judge generally.
Some have wondered why one person, a judge, can change a law, arguing that only Parliament should have the preserve to make and change law. Judges have the power to develop the common law provided they do so in a manner that promotes the spirit, purport and objects of the Constitution, and in accordance with public policy. I, however, suggest that the law be amended to provide that decisions of the lower courts which have constitutional implications, as this one does, should be referred to a panel of three judges to confirm it before they have effect.
Others have, while accepting that Moroka J had the power to change the law, argued that he became overzealous and considered matters that were not before him, arguing that it is as if he had been waiting for the case to make a land mark judgment for his own legacy. At paragraph 1 of the judgment, the judge states that “the Defendant has invited this court to evaluate the constitutional and common law validity of the third party delictual actio iniuriarum claim based on adultery pertaining to a civil marriage, in the light of the changing mores of our society.”
The question is: did the judge do that and nothing more? Though one is not privy to the evidence led during the trial and the heads of arguments submitted by the parties, one wonders at the judge’s conclusion that Batswana’s morals have changed to the extent that they no longer consider adultery as wrongful. There is no reference, in the judgment, of evidence led during the trial which supports such a conclusion. There is also no reference to any empirical report or survey which supports such a conclusion.
Moroka J also, at paragraphs 53 and 54 of the judgment, refers to reasons for the support of the remedy and reasons against, which he says are, in part, from the readings of legal and sociological books and material, but such books and material are not referenced in the judgment. It has also been asked whether Moroka J’s judgment abolished the delict of adultery for both civil and customary marriages. Some argue that it only abolished adultery in civil marriages because the case dealt with the actio iniuriarum based on adultery which relates to civil marriages and not customary marriages.
If that interpretation is correct, does it mean the claim is still available for those who contracted their marriage under customary law? If that is the case, won’t we see those who are in support of the continued outlawing of adultery opting for customary marriages? But, some say because the judgment said the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia and loss of consortium is no longer wrongful and thus no longer available as part of our law means that it applies to both customary and civil marriages because they are both ‘part of our law.’
But, was the issue before the court adultery in customary marriages? Did the judge make his enquiry in relation to customary marriages? Now, back to the substantive critique of Moroka J’s judgment. The question is: was Moroka J right in holding that there is no longer need for the continued existence of the delict of adultery.
Mandla J, in DE v RH [2015] ZACC 18, was right in concluding that, in essence, this is the only issue to be determined. The question is whether or not in contemporary Botswana the act of adultery meets the element of wrongfulness in order for delictual liability to attach. In determining whether or not the act complained of is wrongful the Court applies the criterion of reasonableness.
As was held in the case of Delange v Costa 1989 (2) SA 857 (A), this is an objective test which requires the conduct complained of to be tested against the prevailing norms of society in order to determine whether such conduct can be classified as wrongful. Since the element of wrongfulness is cardinal for delictual liability, by holding that the delict of adultery is no longer consistent with the boni mores of contemporary Botswana Moroka J is effectively saying adultery no longer meets the element of wrongfulness for delictual liability to attach. I disagree.
Moroka J is saying the majority of Batswana no longer find adultery wrong and distasteful; they find it right. This cannot be correct. Below I give examples of practices and sayings that demonstrate that adultery is as much abominable for Batswana today as it was in the past. In Tswana culture, when newlyweds go through ‘go laiwa’, that is, when they are counselled by elders on how to conduct themselves in marriage one of the things that is emphasized is faithfulness to their spouse.
In Setswana, the third party adulterer is called Nyatsi, which is from the word go nyatsega which means something which is to be belittled. I disagree with Moroka J’s statement that the fact that the Childrens’ Act, Cap.28:04 does not permit discrimination of children born of adultery means that in Botswana both adultery and its fruits are no longer regarded with sort of inflexible moral fundamentalism.
Firstly, the Childrens’ Act was meant to protect the innocent child, not the adulterer. Secondly, despite the Childrens’ Act’s existence children born of adultery still face discrimination. Thirdly, even in cases where such children face no discrimination it does not mean that the adultery itself is condoned. Moroka J has held that the continued existence of the delict of adultery does not protect the marital institution, holding that it is only the parties themselves who, through fidelity, should protect their marriage.
I disagree with the judge’s assertion that adultery has nothing to do with the culpability of the third party and that it is the adulterous spouse that would have pierced the veil of unavailability. Granted, married persons should themselves abide by their marital vows. But, are we saying a third party who, knowing full well that a person is married, gets involved in an adulterous relationship with such person does no wrong and should not suffer any recrimination?
I agree with Moroka J that the fact that the actio iniuriarum of adultery renders the guilty spouse beyond the reach of the law despite clear culpability is an anomaly and that there are instances where the guilty spouse assists the third party to pay damages. But, should such anomaly warrant abolition of the actio iniuriarum of adultery itself?
Shouldn’t Moroka J have developed the common law to provide that both the third party and guilty spouse are liable in damages to the innocent spouse? Of course some would argue that that would be of no effect because the guilty spouse would pay from the joint estate. I take the point, but a provision could be made that the guilty spouse pays from sources other than the joint estate. But, can a spouse married in community of property own anything not part of the joint estate? No.
Or, a provision could be made that a guilty spouse’ share of the joint estate is reduced, and such would have consequence in the division of the joint estate during divorce. But, what if the spouses never divorce? Moroka J states that no threat of sanction may protect the marriage from a spouse who is no longer willing to live by the marriage vows. That is not wholly correct. Some marriages have been saved by the fear of the delict of adultery.
Imagine a situation where, as a result of this judgment, adulterers would fear no legal repercussion! It would result in anarchy, the so-called passion killings, murder-suicides and all manner of immorality. Moroka J argues that because of the principle of Botho which is based on self-respect, self-restraint and respect for others and sacred institutions, Batswana respect the law not out of fear of sanctions, but out of self-respect.
But, the very Batswana, governed by the very Botho still commit rape, murder, theft, e.t.c and laws exist for punishment, deterrence, reform, rehabilitation and even retribution. Where is their self-respect and self-restraint in such cases? Why should we only talk of self-respect and self-restraint in the case of marriage?
I am aware that there is an adage which says ‘monna ke selepe oa hapaanelwa’, loosely translated to mean a man is an axe who is exchanged, which has been used to justify adultery, stating that it means that like an axe which is exchanged a man or husband can be shared by women. This interpretation is erroneous. Tradition has it that the adage means that a man should be of assistance in the community so that even unmarried women or families without a male should not suffer when it comes to male related duties when there is a male in the community.
I am also aware of the adage which says ‘monna ga a botswe ko a tswang teng’, loosely translated to mean that a man or husband is not asked where he is from, which is interpreted to mean that a man or husband can leave the home or even spend a night away from home, even for adulterous escapades, and he should not be asked where he is from.
This too is an erroneous interpretation. The correct interpretation is that a responsible man or husband always communicates his whereabouts or is, if away from home, does so for the family’s good such that there is no need for him to be asked about his whereabouts. Even today, in some cultures a guilty spouse is regarded as not only having defiled his or her body, but also brought insult to the innocent spouse, and, as a pre-condition for forgiveness, is required to compensate the innocent spouse by giving him or her a cow. In some cultures, a cleansing ceremony is performed to cleanse the adulterer of the evil and filth that is adultery.
Moroka J canvassed the changing societal norms mainly in terms of such new forms of sexual indiscretions as sexting and cybersex which are neither regarded as moral by the majority of Batswana nor are they forms of adultery. Besides, these sexual indiscretions were not before the court. Neither was the issue of adultery with a prostitute. What was before the court was adultery in relation to an ordinary married person and a third party.
Moroka J’s argument that the fact that the lurid details of adultery have become a source of amusement in tabloids and social media platforms means that adultery has ceased to be regarded with shock and revulsion cannot be sustained. On the contrary, it shows that it is not condoned, hence the desire to name and shame the culprits. The same applies to his argument that the right to privacy, entrenched in section 9 of the Constitution, which recognizes that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion, should be used to protect adulterers.
Moroka J talked of consortium and society of the spouses, today, being lost to multiple sources and adultery being just a small percentage of these threats. But, that was not the issue before him. The issue before him was consortium and society of the spouses lost through adultery.
When the CoA, in Mabote and another v Mabote [1999] 1 BLR 386 (HC), approved Watermeyer JA’s views that “…in modern times and in the so-called permissive age there is now no inherent improbability per se about two persons in love, although not married to each other, committing adultery…”, it did not say Batswana no longer regarded adultery as wrongful. It was merely commenting on the increased existence of the vice.
Also, when the CoA said “…there can be no doubt that in many modern societies adultery no longer carries the stigma that it did 50 years ago. This in turn has impact on the loss of dignity sustained by the innocent party…” it was talking of the reduction in stigma, not that adultery was no longer wrong. Also, the comment was made not mainly in relation to the moral blameworthiness of adultery, but mainly in relation to the determination of the quantum of damages against the third party. In my view, therefore, this judgment would better be served by an appeal or referral by the Attorney General, failing which the legislature should intervene by legislation. I may be wrong.
Columns
GONE FISHING
In recent years, using personal devices in working environments has become so commonplace it now has its own acronym, BOYD (Bring Your Own Device).  But as employees skip between corporate tools and personal applications on their own devices, their actions introduce a number of possible risks that should be managed and mitigated with careful consideration. Consider these examples:
Si-lwli, a small family-run business in Wales, is arguably as niche a company as you could find, producing talking toys used to promote the Welsh language. Their potential market is small, with only some 300,000 Welsh language speakers in the world and in reality the business is really more of a hobby for the husband-and-wife team, who both still have day jobs. Yet, despite still managing to be successful in terms of sales, the business is now fighting for survival after recently falling prey to cybercriminals. Emails between Si-Iwli and their Chinese suppliers were intercepted by hackers who altered the banking details in the correspondence, causing Si-Iwli to hand over £18,000 (around P ¼ m) to the thieves. That might not sound much to a large enterprise, but to a small or medium business it can be devastating.
Another recent SMB hacking story which appeared in the Wall Street Journal concerned Innovative Higher Ed Consulting (IHED) Inc, a small New York start-up with a handful of employees. IHED didn’t even have a website, but fraudsters were able to run stolen credit card numbers through the company’s payment system and reverse the charges to the tune of $27,000, around the same loss faced by Si-Iwli.  As the WSJ put it, the hackers completely destroyed the company, forcing its owners to fold.
And in May 2019, the city of Baltimore’s computer system was hit by a ransomware attack, with hackers using a variant called RobinHood. The hack, which has lasted more than a month, paralysed the computer system for city employees, with the hackers demanding a payment in Bitcoin to give access back to the city.
Of course, hackers target governments or business giants  but small and medium businesses are certainly not immune. In fact, 67% of SMBs reported that they had experienced a cyber attack across a period of 12 months, according to a 2018 survey carried out by security research firm Ponemon Institute. Additionally, Verizon issued a report in May 2019 that small businesses accounted for 43% of its reported data breaches. Once seen as less vulnerable than PCs, smartphone attacks are on the rise, with movements like the Dark Caracal spyware campaign underlining the allure of mobile devices to hackers. Last year, the US Federal Trade Commission released a statement calling for greater education on mobile security, coming at a time when around 42% of all Android devices are believed to not carry the latest security updates.
This is an era when employees increasingly use their smartphones for work-related purposes so is your business doing enough to protect against data breaches on their employees’ phones? The SME Cyber Crime Survey 2018 carried out for risk management specialists AON showed that more than 80% of small businesses did not view this as a threat yet if as shown, 67% of SMBs were said to have been victims of hacking, either the stats are wrong or business owners are underestimating their vulnerability. A 2019 report by PricewaterhouseCoopers suggests the latter, stating that the majority of global businesses are unprepared for cyber attacks.
Consider that a workstation no longer means a desk in an office: It can be a phone in the back of a taxi or Uber; a laptop in a coffee shop, or a tablet in an airport lounge. Wherever the device is used, employees can potentially install applications that could be harmful to your business, even from something as seemingly insignificant as clicking on an accidental download or opening a link on a phishing email. Out of the physical workplace, your employees’ activities might not have the same protections as they would on a company-monitored PC.
Yet many businesses not only encourage their employees to work remotely, but assume working from coffee shops, bookstores, and airports can boost employees’ productivity.  Unfortunately, many remote hot spots do not provide secure Wi-Fi so if your employee is accessing their work account on unsecured public Wi-Fi, sensitive business data could be at risk. Furthermore, even if your employee uses a company smartphone or has access to company data through a personal mobile device, there is always a chance data could be in jeopardy with a lost or stolen device, even information as basic as clients’ addresses and phone numbers.
BOYDs are also at risk from malware designed to harm and infect the host system, transmittable to smartphones when downloading malicious third-party apps. Then there is ransomware, a type of malware used by hackers to specifically take control of a system’s data, blocking access or threatening to release sensitive information unless a ransom is paid such as the one which affected Baltimore. Ransomware attacks are on the increase,  predicted to occur every 14 seconds, potentially costing billions of dollars per year.
Lastly there is phishing – the cyber equivalent of the metaphorical fishing exercise –  whereby cybercriminals attempt to obtain sensitive data –usernames, passwords, credit card details –usually through a phoney email designed to look legitimate which directs the user to a fraudulent website or requests the data be emailed back directly. Most of us like to think we could recognize a phishing email when we see it, but these emails have become more sophisticated and can come through other forms of communication such as messaging apps.
Bottom line is to be aware of the potential problems with BOYDs and if in doubt, consult your IT security consultants. You can’t put the own-device genie back in the bottle but you can make data protection one of your three wishes!
Columns
“I Propose to Diana Tonightâ€
About five days before Princess Diana and Dodi Al Fayed landed in Paris, General Atiku, a certain Edward Williams was taking a walk in a woods in the Welsh town of Mountain Ash. Williams, then 73, was a psychic of some renown. He had in the past foretold assassination attempts on US President Ronald Reagan, which occurred on March 30, 1981, and Pope John Paul II, which came to pass on May 13, 1981.
As he trudged the woods, Williams  had a sudden premonition that pointed to Diana’s imminent fate as per Christopher Andersen’s book The Day Diana Died. “When the vision struck me, it was as if everything around me was obscured and replaced by shadowy figures,†Williams was later to reminisce. “In the middle was the face of Princess Diana. Her expression was sad and full of pathos. She was wearing what looked like a floral dress with a short dark cardigan. But it was vague. I went cold with fear and knew it was a sign that she was in danger.â€
Williams hastily beat a retreat to his home, which he shared with his wife Mary, and related to her his presentiment, trembling like an aspen leaf as he did so. “I have never seen him so upset,†Mary recounted. “He felt he was given a sign and when he came back from his walk he was deeply shaken.â€
The following day, Williams frantically sauntered into a police station to inform the police of his premonition. The officer who attended to him would have dismissed him as no more than a crackpot but he treated him seriously in view of the accuracy of his past predictions. He took a statement and immediately passed it on to the Special Branch Investigative Unit.
The report read as follows:
“On 27 August, at 14:12 hrs, a man by the name of Edward Williams came to Mountain Ash police station. He said he was a psychic and predicted that Princess Diana was going to die. In previous years, he has predicted that the Pope and Ronald Reagan were going to be the victims of assassination attempts. On both occasions he was proved to be correct. Mr Williams appeared to be quite normal.â€
Williams, General, was spot-on as usual: four days later, the princess was no more.
Meanwhile, General,  even as Dodi and Diana were making their way to the Fayed-owned Ritz Hotel in central Paris, British newspapers were awash with headlines that suggested Diana was kind of deranged. Writes Andrew Morton in Diana in Pursuit of Love: “In The Independent Diana was described as ‘a woman with fundamentally nothing to say about anything’. She was ‘suffering from a form of arrested development’. ‘Isn’t it time she started using her head?’ asked The Mail on Sunday. The Sunday Mirror printed a special supplement entitled ‘A Story of Love’; The News of the World claimed that William had demanded that Diana should split from Dodi: ‘William can’t help it, he just doesn’t like the man.’ William was reportedly ‘horrified’ and ‘doesn’t think Mr Fayed is good for his mother’ – or was that just the press projecting their own prejudices? The upmarket Sunday Times newspaper, which had first serialised my biography of the princess, now put her in the psychiatrist’s chair for daring to be wooed by a Muslim. The pop-psychologist Oliver James put Diana ‘On the Couch’, asking why she was so ‘depressed’ and desperate for love. Other tabloids piled in with dire prognostications – about Prince Philip’s hostility to the relationship, Diana’s prospect of exile, and the social ostracism she would face if she married Dodi.â€
DIANA AND DODI AT THE RITZ
Before Diana and Dodi departed the Villa Windsor sometime after 16 hrs, General, one of Dodi’s bodyguards Trevor Rees-Jones furtively asked Diana as to what the programme for the evening was. This Trevor did out of sheer desperation as Dodi had ceased and desisted from telling members of his security detail, let alone anyone else for that matter, what his onward destination was for fear that that piece of information would be passed on to the paparazzi. Diana kindly obliged Trevor though her response was terse and scarcely revealing. “Well, eventually we will be going out to a restaurantâ€, that was all Diana said. Without advance knowledge of exactly what restaurant that was, Trevor and his colleagues’ hands were tied: they could not do a recce on it as was standard practice for the security team of a VIP principal. Dodi certainly, General, was being recklessly by throwing such caution to the winds.
At about 16:30, Diana and Dodi drew up at the Ritz Hotel, where they were received by acting hotel manager Claude Roulet. Â The front entrance of the hotel was already crawling with paparazzi, as a result of which the couple took the precaution of using the rear entrance, where hopefully they would make their entry unperturbed and unmolested. The first thing they did when they were ensconced in the now $10,000 a night Imperial Suite was to spend some time on their mobiles and set about touching base with friends, relations, and associates. Â Diana called at least two people, her clairvoyant friend Rita Rogers and her favourite journalist Richard Kay of The Daily Mail.
Rita, General,  was alarmed that Diana had proceeded to venture to Paris notwithstanding the warning she had given Dodi and herself in relation to what she had seen of him  in the crystal ball when the couple had consulted her. When quizzed as to what the hell she indeed was doing in Paris at that juncture, Diana replied that she and Dodi had simply come to do some shopping, which though partially true was not the material reason they were there. “But Diana, remember what I told Dodi,†Rita said somewhat reprovingly. Diana a bit apprehensively replied, “Yes I remember. I will be careful. I promise.†Well,  she did not live up to her promise as we shall soon unpack General.
As for Richard Kay, Diana made known to him that, “I have decided I am going to radically change my life. I am going to complete my obligations to charities and to the anti-personnel land mines cause, but in November I want to completely withdraw from formal public life.â€
Once she was done with her round of calls, Diana went down to the hair saloon by the hotel swimming pool to have her hair washed and blow-dried ahead of the scheduled evening dinner.
THE “TELL ME YES†RING IS DELIVERED
Since the main object of their Paris trip was to pick up the “Tell Me Yes†engagement ring Dodi had ordered in Monte Carlo a week earlier, Dodi decided to check on Repossi Jewellery, which was right within the Ritz prencincts, known as the Place Vendome.  It could have taken less than a minute for Dodi to get to the store on foot but he decided to use a car to outsmart the paparazzi invasion. He was driven there by Trevor Rees-Jones, with Alexander Kez Wingfield and Claude Roulet following on foot, though he entered the shop alone.
The Repossi store had closed for the holiday season but Alberto Repossi, accompanied by his wife and brother-in-law,  had decided to travel all the way from his home in Monaco  and momentarily open it for the sake of the potentially highly lucrative Dodi transaction.  Alberto, however, disappointed Dodi as the ring he had chosen was not the one he produced. The one he showed Dodi was pricier and perhaps more exquisite but Dodi was adamant that he wanted the exact one he had ordered as that was what Diana herself had picked. It was a ploy on the part of Repossi to make a real killing on the sale, his excuse to that effect being that Diana deserved a ring tha was well worthy of her social pedigree. With Dodi having expressed disaffection, Repossi rendered his apologies and assured Dodi he would make the right ring available shortly, whereupon Dodi repaired back to the hotel to await its delivery. But Dodi  did insist nonetheless that the pricier ring be delivered too in case it appealed to Diana anyway.
Repossi delivered the two rings an hour later. They were collected by Roulet. On inspecting them, Dodi chose the very one he had seen in Monte Carlo, apparently at the insistence of Diana. There is a possibility that Diana, who was very much aware of her public image and was not comfortable with ostentatious displays of wealth, may have deliberately shown an interest in a less expensive engagement ring. It  may have been a purely romantic as opposed to a prestigious  choice for her.
The value of the ring, which was found on a wardrobe shelf in Dodi’s apartment after the crash,  has been estimated to be between $20,000 and $250,000 as Repossi has always refused to be drawn into revealing how much Dodi paid for it. The sum, which enjoyed a 25 percent discount, was in truth paid for not by Dodi himself but by his father as was the usual practice.
Dodi was also shown Repossi’s sketches for a bracelet, a watch, and earrings which he proposed to create if Diana approved of them.
DIANA AND DODI GUSH OVER IMMINENT NUPTIALS
At about 7 pm,  Dodi and Diana left the Ritz and headed for Dodi’s apartment at a place known as the Arc de Trompe. They went there to properly tog themselves out for the scheduled evening dinner. They spent two hours at the luxurious apartment. As usual, the ubiquitous paparazzi were patiently waiting for them there.
As they lingered in the apartment, Dodi beckoned over to his butler Rene Delorm and showed him the engagement ring. “Dodi came into my kitchen,†Delorm relates. “He looked into the hallway to check that Diana couldn’t hear and reached into his pocket and pulled out the box … He said, ‘Rene, I’m going to propose to the princess tonight. Make sure that we have champagne on ice when we come back from dinner’.†Rene described the ring as “a spectacular diamond encrusted ring, a massive emerald surrounded by a cluster of diamonds, set on a yellow and white gold band sitting in a small light-grey velvet boxâ€.
Just before 9 pm, Dodi called the brother of his step-father, Hassan Yassen, who also was staying at the Ritz  that night, and told him that he hoped to get married to Diana by the end of the year.
Later that same evening, both Dodi and Diana would talk to Mohamed Al Fayed, Dodi’s dad, and make known to him their pre-nuptial intentions. “They called me and said we’re coming back (to London) on Sunday (August 31) and on Monday (September 1) they are
Columns
RAMADAN – The Blessed Month of Fasting
Ramadan is the fasting month for Muslims, where over one billion Muslims throughout the world fast from dawn to sunset, and pray additional prayers at night. It is a time for inner reflection, devotion to Allah, and self-control. It is the ninth month in the Islamic calendar. As you read this Muslims the world over have already begun fasting as the month of Ramadan has commenced (depending on the sighting of the new moon).
‘The month of Ramadan is that in which the Qur’an was revealed as guidance for people, in it are clear signs of guidance and Criterion, therefore whoever of you who witnesses this month, it is obligatory on him to fast it. But whoever is ill or traveling let him fast the same number of other days, God desires ease for you and not hardship, and He desires that you complete the ordained period and glorify God for His guidance to you, that you may be grateful”. Holy Qur’an (2 : 185)
Fasting during Ramadan is one of the five pillars upon which the structure of Islam is built. The other four are: the declaration of one’s belief in Allah’s oneness and in the message of Muhammad (PBUH); regular attendance to prayer; payment of zakaat (obligatory charity); and the pilgrimage to Mecca.
As explained in an earlier article, fasting includes total abstinence from eating, drinking, smoking, refraining from obscenity, avoiding getting into arguments and including abstaining from marital relations, from sunrise to sunset. While fasting may appear to some as difficult Muslims see it as an opportunity to get closer to their Lord, a chance to develop spiritually and at the same time the act of fasting builds character, discipline and self-restraint.
Just as our cars require servicing at regular intervals, so do Muslims consider Ramadan as a month in which the body and spirit undergoes as it were a ‘full service’. This ‘service’ includes heightened spiritual awareness both the mental and physical aspects and also the body undergoing a process of detoxification and some of the organs get to ‘rest’ through fasting.
Because of the intensive devotional activity fasting, Ramadan has a particularly high importance, derived from its very personal nature as an act of worship but there is nothing to stop anyone from privately violating Allah’s commandment of fasting if one chooses to do so by claiming to be fasting yet eating on the sly. This means that although fasting is obligatory, its observance is purely voluntary. If a person claims to be a Muslim, he is expected to fast in Ramadan.
The reward Allah gives for proper fasting is very generous. Prophet Muhammad (PBUH) quotes Allah as saying: “All actions done by a human being are his own except fasting, which belongs to Me and I will reward it accordingly.†We are also told by the Prophet Muhammad (PBUH) that the reward for proper fasting is admittance into heaven.
Fasting earns great reward when it is done in a ‘proper’ manner. This is because every Muslim is required to make his worship perfect. For example perfection of fasting can be achieved through restraint of one’s feelings and emotions. Prophet Muhammad (PBUH) said that when fasting, a person should not allow himself to be drawn into a quarrel or a slanging match. He teaches us: “On a day of fasting, let no one of you indulge in any obscenity, or enter into a slanging match. Should someone abuse or fight him, let him respond by saying: ‘I am fasting!’â€
This high standard of self-restraint fits in well with fasting, which is considered as an act of self-discipline. Islam requires us to couple patience with voluntary abstention from indulgence in our physical desires. The purpose of fasting helps man to attain a high degree of sublimity, discipline and self-restraint. In other words, this standard CAN BE achieved by every Muslim who knows the purpose of fasting and strives to fulfill it.
Fasting has another special aspect. It makes all people share in the feelings of hunger and thirst. In normal circumstances, people with decent income may go from one year’s end to another without experiencing the pangs of hunger which a poor person may feel every day of his life. Such an experience helps to draw the rich one’s conscience nearer to needs of the poor. A Muslim is encouraged to be more charitable and learns to give generously for a good cause.
Fasting also has a universal or communal aspect to it. As Muslims throughout the world share in this blessed act of worship, their sense of unity is enhanced by the fact that every Muslim individual joins willingly in the fulfillment of this divine commandment. This is a unity of action and purpose, since they all fast in order to be better human beings. As a person restrains himself from the things he desires most, in the hope that he will earn Allah’s pleasure, self-discipline and sacrifice become part of his nature.
The month of Ramadan can aptly be described as a “season of worship.†Fasting is the main aspect of worship in this month, because people are more attentive to their prayers, read the Qur’an more frequently and also strive to improve on their inner and outer character. Thus, their devotion is more complete and they feel much happier in Ramadan because they feel themselves to be closer to their Creator.