The Legal Implications of Marriages in the Nazareth Baptist Church: A Constitutional Analysis of Religious Freedom, Equality, and the best Interests of a child

Introduction

In the heart of South Africa, KwaZulu-Natal exists one of the biggest churches that have grown over the years, founded by Isiah Mdliwamafa Shembe. The Church has grown in all parts of South Africa since being founded in 1910[1] and has since practiced similar practices to those of Christianity combined with the IsiZulu tradition. Isiah Shembe to his people is to the likeness of God himself and is referred to as ‘umqali wendlela’ translated beginner of all things. The church is today one of the churches that uphold dignity amongst its people, teaches respect and girls are taught how to behave appropriately from a young age. Part of some practices in the Shembe Church is the administrations of their marriages and the selection of bride’s[2] which is one of the centralised issues of this article and its alignment with the South African Constitution[3], Legislation and International Conventions.

In South Africa’s Jurisprudence, the First Certification Judgement[4] had a strong hold in the protection of the rights now enshrined in South Africa’s Constitution in Chapter two, those including equality, protection of women and children, dignity and many others found in the Bill of Rights. These rights are derived from International Articles such as CEDAW and CRC. The practices alleged onto the Nazareth Baptist church are associated with abolished practice of Ukuthwala which still exists today in many other countries under different names. These practices arguably impede on the rights of woman and children and raises a question of how countries in this context South Africa under the Marriage Act can protect these children from the harm associated with marriage at young ages.

Resemblance of ukuthwala in the Shembe Church

Ukuthwala, defined by scholars as child abduction for marriage[5] which is a similar tradition to ‘ALA KACHUU’ of Kyrgyzstan, where the bride is kidnapped forcefully and convinced into marriage and if she happens not to be convinced then her own family members convince her into the marriage.[6] This trend of women being abducted has also been seen in various countries in the world and many whom practice it including the women defend the abduction’s as part of their culture even though courts and human right groups have condemned it. In the South African Shembe church there have been allegations to practices of a similar nature which raises issues of 1 Are these practices in line with legislative provisions and if they are or not what is the recommended changes. Marriage act section… In Caucasus( Georgia, Armenia) there have been historical acts of bride kidnapping that have however lessoned due to modernization and development of human rights and the various legal enforcements[7]. A question which is raised and which this article tackles is what are the legal implications of these acts and are they not infringing on women and children’s rights as various International documents( CEDAW, article 16) obligate states to eliminate discrimination  in marriage and family matters.[8]In the Shembe Nazareth Church, minors have had arranged marriages linked to older men and these supported and defended by their family members and those that believe in this tradition that has seen a similar trend to that of Ala Kachuu. Well aged men, who have experienced life get to choose a bride of their liking whom has been a virgin before that marriage and unexperienced of life, now has to go into a marriage with a man capable of being her own father at times. This is a form of exploitation[9] of the minor child who has not fully groomed into the role which her church and family may expect of her.

This act is one that scholars have said to cause or lead to medical issues for these young children[10]. The performance of ukuthwala is done by prior talks with the young girls family and in instances with help of her friends where she is then taken involuntarily with the consent of her family[11]. In the Shembe Nazareth church, a similar chain of what happens in ukuthwala is seen, the families, some driven by the extreme poverty faced in South Africa as well as the belief of Isiah Shembe that people within their religion must economically alleviate each other which sees the arrangement of marriages of the child often to a man already with an experience in life

The Nazareth Shembe church, not being the only one performing these derogatory action, this paper seeks to achieve what really are the best interests of the child[12], are the age Gaps in these marriages to extreme, why has ukuthwala been abolished in the xhosa tradition. This paper seeks to highlight the unconstitutionality of marriages and certain aspects of this church and not to discriminate against the church as these issues of equality, child marriages are common outside of the church as well.

THE PRACTICES IN THE CHURCH

As pointed out in the history of the church, Isiah Shembe whom they see as their Holy spirit, founded the church to lead his church to God; whereas now it sees a move into organised marriages and sittings that discriminate against women. Article 21 of the UDHR[13] stipulates that women and children have special needs and protection which mandates the state, South Africa, a constitutional democracy to protect these rights of women and children. However, inequality through the seating of the uShembe church, Ukuhlolwa and Child marriages seem to overlook what the UDHR states about the rights of women and Children.

South Africa is faced with many economic pressures, and one of the goals of the Shembe church is to uplift their people and alleviate families from poverty. Here comes in the issue of Child marriage in a way of child marriage arrangement which highly symbolises ukuthwala in nature and sees a way of uplifting the bride’s family in ‘sacrificing’ their daughter to another grown man’s house hold which can be detrimental to a child.

LEGAL ANALYSIS

The Case of S v Jezile[14] highlights the harm that accompanies the act of ‘ukuthwala’, it may seem however lack to find a precise solution in the matter of child abduction or rather in the act of ‘ukuthwala’. In this 2015 Western Cape High Court Case on appeal;

Jezile, a 28-year-old male was accused of raping and assaulting his 14-year-old wife and in his defence he concluded that this act was due to his tradition that has been practiced for years and still continues so. The court in its judgement stated that his defence was not sufficient and charged him with counts of human trafficking, etc. This being a very instrumental case at the core of South Africa’s Constitution, however it does not abolish the act itself nor create a protection for women and children even though it talks of the many constitutional rights infringed by the act.

In South Africa exists a Separation of Powers, it may be stated that the court in its judgement held away from creating a law abolishing the act as that would be the job of the legislature. This being true, but the Constitution is Apex in SA and the best interests of the child are paramount as in the case Christian Education South Africa v Minister of Education[15]; ‘religious practices may be limited where necessary to protect constitutional rights’. Children’s Rights are one of the most protected rights in the world and nations such as South Africa are obliged to stay consistent with certain rights like article 19 of CRC[16] stating children should be protected against any form of harm and this is far greater than any SOP.

It is acknowledged that a children’s act, marriage act and a constitution exist, however there is no Section in these Acts abolishing the cruel act of Ukuthwala being seen practiced and a strictness into letting children grow and make their own informed mature judgement especially in such thing as the nature of a wedding.

The Need for Legal Reform

The South African Constitution is by far one of the best IN THE WORLD, but a constitution needs implementation and accountability. The activities seen in the Shembe Church seem to undermine the constitution and the jurisprudence of South African Law. Children are the future of the world, and the CRC seeks to ensure their protection thus the best interest of the child are of paramount importance.

The right to select your own religious practices in constitutional in nature, objectively however if you raise a child into believing that marrying off at ages such as 14 or just below 17 in itself is in a sense immoral, worse to someone double or triple that young girls age. A child needs to grow, not just to mature but fully develop inside otherwise they can be vulnerable and can end up adding to the already high number of HIV[17] cases as these old men have probably been with multiple woman already since in the church only women go through a process of virginity testing and seating arrangements and that alone seems to depict a picture of weighed inequality within a church existing under a constitution of the Republic.

There lies a great danger as a child can be mentally traumatised and scarred for life as family members may themselves be part of these arrangements even when the child is expressly not agreeing but can be convinced as done in ALU KACHUU. South African Marriage Act provides for protection for minors and has age limits and restriction for marriages and certain need the consent of a Minister or High Court however this article believes the law should be strict in disallowing marriages for u18s and also laws for those members who continue to trick these children into marrying instead of letting the child to grow up, experience life, and be a person of their own liberty, free to choose religion, free to speech, free to choose where they will live and not be obliged by customs bestowed on them while dependant on the family they are born into.

Conclusion

The history of the development of the Constitution reflects the big importance of the protection of children and in the view of the article these rights are undermined by certain groups in this context being the Shembe church resembling the acts of ukuthwala within the church and the inequality that comes with it and law itself does not provide concise legal solutions into ukuthwala. The act needs to be abolished; Courts are restricted from making law however courts may read in certain words or sentences in special circumstances and in the circumstance of children they would be in the best interest of a young girl child to have read in “a marriage is between a man and a woman and not a child u18”. The courts have a great deal in protecting constitutional rights and if it fails at that for woman and children then the whole nation is in a dark area.

Reference(S):

Books

Jarvis, L. V. (2024). A Prophet of the People: Isaiah Shembe and the Making of a South African Church.

Lauren V Jarvis, ch 6, ‘A Matchmaker at Ekuphakameni’

Table of Legislation

Constitution of the Republic of South Africa, 1996.

Children’s Act 38 of 2005

Constitution of the Republic of South Africa, 1996, S28 (2)

Table of Cases

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, [1996] (4) SA 744 (CC)

S v Jezile and Others [2015] (2) SACR 452 (WCC).

Christian Education South Africa v Minister of Education [2000] (10) BCLR 1051 (CC)

Table of International Conventions

CEDAW [Article 16] 18 December 1979, New York.

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (1948) [art 16(2)].

Convention on the Rights of the Child [New York, 20 November 1989] Article 19.

Articles and Journals

Aizat Aisarakunova, ‘Globalization and Kyrgyz Traditional Culture’ (2010) 54(1) Central Asiatic Journal 1.

Handrahan, L. (2004). Hunting for Women, 6(2), 207–233.

Mwambene, Lea, and Julia Sloth-Nielsen. “Benign accommodation? Ukuthwala,’forced marriage’and the South African Children’s Act.” African Human Rights Law Journal 11.1 (2011): 1-22.

Nour NM, ‘Health Consequences of Child Marriage in Africa’ (2006) 12(11) Emerging Infectious Diseases 1644. 

[1] Jarvis, L. V. (2024). A Prophet of the People: Isaiah Shembe and the Making of a South African Church. Michigan State University Press. https://doi.org/10.14321/jj.9127995

[2] Lauren V Jarvis, ch 6, ‘A Matchmaker at Ekuphakameni’

[3] Constitution of the Republic of South Africa, 1996.

[4] Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC)

[5] Mwambene, Lea, and Julia Sloth-Nielsen. “Benign accommodation? Ukuthwala,’forced marriage’and the South African Children’s Act.” African Human Rights Law Journal 11.1 (2011): 1-22.

[6] Globalization and Kyrgyz Traditional Culture By AIZAT AISARAKUNOVA (Bishkek)

[7] Handrahan, L. (2004). Hunting for Women, 6(2), 207–233.

[8] -Art16, CEDAW

[9] -Art19, CRC

[10] Nour NM. Health consequences of child marriage in Africa.

[11] Mwambene, Lea, and Julia Sloth-Nielsen. “Benign accommodation? Ukuthwala,’forced marriage’and the South African Children’s Act.” African Human Rights Law Journal 11.1 (2011): 1-22.

[12] Constitution of the Republic of South Africa, 1996, S28 (2)

[13] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (1948) art 16(2).

[14] S v Jezile and Others 2015 (2) SACR 452 (WCC).

[15] Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051 (CC)

[16] Convention on the Rights of the Child

[17] Nour NM. Health consequences of child marriage in Africa.