Authored By: Ofentse Lisbeth Molokoane
University of South Africa
Abstract
Child marriage is a setback that needs urgent attention. Bennet portrays “ukuthwala as a mock abduction or irregular proposal aimed at achieving a customary marriage”.1 This action was a capture of a partner for marriage in the past,2that followed traditional marriage rules.3 This day it is the capture of a child by an elderly male, resulting in forced marriage.4It disrespects human rights within the Constitution when conducted in cultural activities and this should be prevented.5 The article will look into the dispute enclosing a cultural practice called ukuthwala in South Africa that harms the rights of young women and it reviews the consequences, the rights within the Constitution that are at risk, all important laws that ukuthwala presents, disputing that there should be fairness around human dignity and cultural practices. The target is to give advice on shielding children’s rights to a fair hearing, as well as finding ways to manage the difficulties and restore the dignity of children in our country.6
Background and Context
Ukuthwala comes from the Xhosa tradition and happens when a young women is taken forcefully by a man for marriage purposes. The practice has its roots in customs of tradition which then later distributed to other parts of the world, to convince a female to accept marriage and is connected with exploitation, violence, economic opportunities and limited education which has a negative impact on women. The South African Consitution lays out that human rights must be protected and at the same time acknowledges the significance of cultural practices. Ukuthwala raises a lot of issues in rural South Africa and is frequent in Eastern Cape as well as KwaZulu-Natal where poverty and cultural norms are high and highly practiced.7
Constitutional Rights under threat
The Constitutional rights under threat include the right to freedom, security and dignity. Ukuthwala involves kidnapping and rape which violates human rights and the South African Constitution lays out the rights to be protected. It is crucial that cultural practices should not endanger human dignity because most of the time young women are naïve , as well as vulnerable when this cultural practice happens.
Relevant laws and Regulations
The Childrens Act 38 of 2005 and the Sexual Offences and Related Matter Act 32 of 2007 are crucial laws that are applicable to ukuthwala because they stop sexual offenses such as human trafficking and protect children from being harmed. These two laws protect those who are victims as well as holding offenders accountable. Other International human rights include African Charter on the Rights and Welfare of Children,1990 which promotes equality and dignity for all women, Convention on the Rights of Child (CRC), 1989 that shields the well being and rights of children, Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) 1979 which removes prejudice and unfairness against women that encourages equality discourage violence in any form. All of these laws are made to manage ukuthwala, defend the rights of humans and so that all human rights are respected and protected whilst at the same time putting and end to ukuthwala from increasing.
Challenges and Implications
Ukuthwala presents difficulties such as promoting male domininance and gender inequality, violence against women and children, child marriage, weakens the rights of young women to receive education and being protected from abuse. It enables a toxic environment , a culture of violence and exploitation leading to long lasting effects. This further generates suffering such as young women getting pregnant accidentally without having consent to it, sexually transmitted in young women because no form of protection is being used or because the man has many sexual partners he is pursuing and those young women who are victims of ukuthwala may need medical attention for a long time so that they can cure the problem that is related to the health problem they are diagnoised with. Some young women do not survive because of health problem because they do not have money to cure themselves because of poverty so the money to buy medication is not available and as a result some or majority of the ladies pass away because the health problem cannot be treated. Within the Jezile case,8a 14-year-old female was involved. She brought in charges against Jezile asserting that he had transgressed against her rights by attacking, assaulting, kidnapping and raping her.9
Conclusion and Recommendations
Child marriage hinders South African legislative structures, which cannot fight on their own and If any rights are encroached, then restrictions must be placed.10 It requires an intersectoral approach between Non-Government organisations and government authorities, to address the occurrences of abuse towards females.11 When a female reports an incident she must receive prompt assistance and traditional leaders should urge parents to foster an environment of equality for their sons, stressing respect and equal rights for females.12The state should offer community centre’s that offer counselling for sufferers, so their voices are heared in order to help them heal and since ukuthwala is ingrained in African culture, trying to ban it leads to an ineffective symbolic gesture.13
Bibliography
Books
Bennet Customary Law
Bennett TW Customary Law in South Africa (Juta Cape Town 2004)
Case law
Jezile v S 2015 (2) SACR 452 (WCC)
Journal articles
Karimakwenda, N.(2021). “Rethinking ukuthwala, the South African ‘bride abduction’ custom”, 12 Sept 2021,10.18am SAST, The Conversation
Karimakwenda, N. (2021). “Rethinking ukuthwala, the South African ‘bride abduction’ custom”, 12 Sept 2021,10.18am SAST, The Conversation. Available at https://theconversation.com/rethinking-ukuthwala-the-south-african-bride-abduction custom-165496
Himonga and Bosch 2000 SALJ 315
Himonga, C and Bosch , C. ”The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning?” 2000 Volume 117 South African Law Journal 306
International and regional Instruments
African Charter on the Rights and Welfare of Children,1990.
African Charter on Human and Peoples’ Rights, 1981.
Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 1979.
Convention on Consent to Marriage, Minimum age for Marriage and Registration of Marriages, 1962.
Convention on the Rights of Child (CRC), 1989
Legislation
Constitution of the Republic of South Africa, 1996
Children’s Act 38 of 2005
Criminal (Sexual Offences and Related Matters) Act 32 of 2007
Domestic Violence Act 116 of 1998
Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003. (Maputo Protocol)
Trafficking in Persons Act 7 of 2010
1 Bennet Customary Law in South Africa 212.
2 Also known as abduction or ukuthwala intombi that forces females and males into marriage and happens when the female is not at home.
3 Ukuthwala means “to transport” and was as a way to marry a female that was 18 years old and above. No force, kidnapping, violence, rape of underage female and no arrests for those that kidnapped females happened.
4 Refer to Himonga and Bosch 2000 SALJ 315. Forced Marriage happens when one or either person has not given permission to the joining.
5It contravenes Children’s Act 38 of 2005, Sexual Offences and Related Matter Act 32 of 2007, Domestic Violence Act 116 of 1998, and Trafficking in Persons Act 7 of 2010. Females under the age of 18 years are subjected to physical and emotional abuse by men who claim to follow ukuthwala. In modern society represented by the Constitution, the ukuthwala has lost value.
6 Refer to, Article 2; 3;4;5;7;8; 9; 11; 16; 19; 20; 23; 21; 25; 26; 27; 29;31 of ACRWC.
7 Karimakwenda, N.(2021). “Rethinking ukuthwala, the South African ‘bride abduction’ custom”, 12 Sept 2021,10.18am SAST, The Conversation.
8 Refer to Jezile v S 2015 (2) SACR 452 (WCC) para 5, para 10. Several pieces of legislation were reviewed including the Children’s Act, wherein section 1 defines trafficking, section 12(1) outlaws exposing children to harmful cultural practices, and section 284(1) prohibits child trafficking. The Sexual Offences Act was discussed in certain contexts, most notably in relation to rape(section 56(1), and the Recognition of Customary Marriages Act (RCMA), which outlines requirements for valid traditional marriages, were both examined . Additionally, the CRC and ACRWC were taken into consideration as both are instrumental in abolishing traditional practices that are hazardous to a child. Lastly, information provided by parties and friend of the court concerning his cultural practice also had to be evaluated.
9 Refer to Jezile v S 2015 (2) SACR 452 (WCC) para 8, para 11.
10 Refer to section 36 of the Constitution of the Republic of South Africa, 1996.
11 Educational opportunities should be provided to everybody in communities.
12 This decreases boys participating in ukuthwala when they grow up into men.
13 Himonga 2008 A Legal Perspective 85.
