Debate over the practice of older men abducting girls and forcing them into marriage goes back many decades, says Elizabeth Thornberry.
Durban - Since 2008, a series of cases in which girls as young as 12 have been abducted and forcibly married to much older men in the Eastern Cape and KwaZulu-Natal has captured national attention.
Men who have committed these abductions, called ukuthwala, defend them as customary and some traditional leaders agree.
As South Africans celebrate Heritage Month, it makes sense to consider the customary and historical claims of ukuthwala.
In contemporary South Africa, the English phrase “it is our culture” (in Xhosa or Zulu, yisiko lethu) provides a shorthand by which black South Africans explain a variety of practices unfamiliar to their fellow citizens. Calling a practice “customary”, however, is more than a simple description.
The constitution protects the right to culture, and recognises customary law.
It also protects children against abuse with rights that take precedence over the recognition of customary law.
Abduction and rape are criminal acts under South African law, whether we call them ukuthwala or not.
Nonetheless, men prosecuted in these cases regularly raise the “custom” of ukuthwala as a defence because the act of describing a practice as a custom is a means of inoculating it against criticism, particularly from people outside of the cultural community practising the “custom”.
But how do we know what counts as a custom? People may be using any one of three very different definitions.
Firstly, there is officially recognised custom encoded during colonialism and apartheid, and that continues to be enforced in large swathes of the former Bantustans.
As rural people have long known and historians have more recently discovered, anthropologists and apartheid bureaucrats often distorted custom – sometimes on purpose, sometimes through ignorance – in the process of writing it down.
Secondly, “living custom” has been recognised as the appropriate source of legal authority by the Constitutional Court.
Living custom is defined by the practice of local communities and is more varied and flexible than officially recognised custom.
It is invoked by community members to reject the blanket authority claims of traditional leaders, and by activists and academics working to reconcile the idea of custom with the constitution.
Finally, people also use the term “custom” to refer to historical – and particularly pre-colonial – practices. In Xhosa or Zulu, the word isiko calls forth historical continuity.
The term carries an ethical claim, denying the right of a colonial government to demand changes in the culture of the colonised.
Mandla Mandela, chief of the Mvezo traditional council and Nelson Mandela’s grandson, recently defended ukuthwala by warning that “when you are going to discuss culture do not even try to bring in white notions as such an approach will turn things upside down.”
This last sense of “custom” rejects demands that custom be “developed” to comply with the constitution. On the other hand, it can also be used to point out the distortions caused by codifying custom.
Living custom has been shaped by the official versions enforced over the past century and a half.
For many people, the moral authority of living custom rests on its claim to a strong continuity with historical practice. Pre-colonial practice – itself unstable, flexible, and varied – contributed strongly to the forms of custom enforced by colonial and apartheid governments and to living custom now practised.
Do current forms of the practice have a historical claim to legitimacy, or are they perversions of a more benign practice? The historical record shows that something like ukuthwala has been practised in the Eastern Cape for well over a century.
Disputes over “irregular forms” of marriage that took place without the consent of a woman’s parents appear in the earliest colonial court records, beginning in the 1860s.
The term ukuthwala appeared during the 1880s to refer to a variety of irregular forms of marriage that took place without the consent of a woman, or of her father, or both.
The term encompassed consensual and forced marriages. In some instances, women were active and willing participants; as one woman told the local magistrate, “he is my man, I term him my husband. I went away with him. I never received my father’s consent. I went with him of my own free will”.
In 1891, a Nqamakwe headman explained that ukuthwala cases were frequent and the woman “is generally a consenting party”. In such cases, couples used ukuthwala to persuade a woman’s family to accept their marriage.
The term was also, however, applied to 19th century cases in which women were abducted. In one, a father told the court that his daughter “was forced against her will to go”, and that “the messengers did not ask my consent to let them have the girl”.
In another case, a young woman’s family colluded with the man who abducted her, after she ran away from her home several times to avoid the marriage. In these cases, men used ukuthwala to force women into marriage, and fathers used it to reassert their will over daughters who were trying to avoid unwanted unions. The historical record does not support the claim that such abductions are distortions of the “true custom” of ukuthwala.
If violent forms of ukuthwala have a long lineage, however, it is also true that the customary status of the practice has been debated since the 19th century. While men accused of abduction sought to defend themselves by referencing the “custom of ukuthwala”, one father retorted: “I call it stealing a man’s child.”
The defendant in an 1889 Nqamakwe civil case admitted: “I know it is wrong to twala a girl. (Although) it is a crime among us in Tembuland to twala a girl it is commonly done.”
William Sigenu captured the ambiguous status of ukuthwala when he described the practice to an 1883 government as a “modern custom”. Since the term “custom” (isiko, in Xhosa) usually implied historical continuity, calling ukuthwala a “modern custom” underlined the practice’s contested legitimacy.
In the 19th century, Xhosa men and women agreed that ukuthwala happened frequently (and not always with a woman’s consent), but did not agree over whether it should be accepted as a custom.
More than anything, it was the recognition of customary law by the colonial state that elevated ukuthwala to the status of a recognised custom.
In the eyes of the state, ukuthwala either qualified as “custom” or did not, and its frequency in practice made its recognition as custom the path of lesser resistance for colonial magistrates.
This elevation of practice to custom provides one way to understand the description of ukuthwala as a “modern custom”.
For participants in contemporary debates about ukuthwala, then, history provides an uncertain guide.
Most importantly, the question of whether ukuthwala is really a custom – and, if so, what practices are properly included in this custom – goes back as far as the practice of ukuthwala itself. From the historian’s perspective, debating ukuthwala is perhaps the most authentic custom of all.
The recognition of a “custom” by the apartheid state is no reason to continue to enforce that custom in the present.
Likewise, the fact that a custom was practised a century or more ago does not mean that it should be recognised now. Community members may justify living custom by referencing the past, but a rigid adherence to historical norms should not be imposed from the outside.
Custom is not timeless but, like all other forms of law, has evolved in response to social changes, and communities should not be forced to return to outdated practices that no longer suit their circumstances.
* Dr Elizabeth Thornberry is assistant professor of History at Hobart and William Smith Colleges, and is currently a postdoctoral fellow at the Centre for Law and Society at UCT.
** The views expressed here are not necessarily those of Independent Newspapers.