Cape Town - A government move to outlaw forced child marriages, performed in the guise of ukuthwala, has received backing from the Xhosa Royal Council and children’s rights organisation Molo Songololo.
Ukuthwala is a custom in some African communities where a girl is “kidnapped” to force her parents into marriage negotiations with her “kidnapper”, who is known to the family. The practice has become controversial as it infringed on the rights of children and was exploited in some instances.
The SA Law Reform Commission has drafted the Prohibition of Forced Marriages and Child Marriages Bill to, among others, criminalise an attempt, conspiracy or incitement to commit an offence relating to forced marriage.
In a discussion paper, the commission noted a number of different definitions of ukuthwala, but summarised it as a way to fast-track marriage negotiations where timing was an issue (such as when the girl is pregnant), and to force the hand of the parents if a boy (the prospective husband) was too poor to afford lobola.
In 2010 Mvumeleni Jezile, then 32, abducted and forced a 14-year-old girl into marriage under the guise of ukuthwala.
Jezile had kidnapped the teen from her home in Ngcobo, Eastern Cape, and brought her to Philippi. In 2014 the Wynberg Regional Court sentenced Jezile to 22 years in prison for human trafficking, three counts of rape and two counts of assault.
Xhosa Royal Council chief executive Zolani Mkiva said on Tuesday some people had abused the custom of ukuthwala and the council supported regulation that would criminalise unlawful acts.
“The Xhosa culture is opposed to forced marriages and especially those of underaged girls who are not ready for marriage. The draft bill is a progressive step and it will protect the culture,” Mkiva said.
Molo Songololo director Patrick Solomons said the organisation also supported the commission’s move.
The Customary Marriages Act of 1998 states that for customary marriages to be entered into, both people need to be over the age of 18 and both must give consent.
The chairperson of the commission’s advisory committee on ukuthwala, Professor Thandabantu Nhlapo, said many people used customs as an excuse to marry underaged girls. A new act would nullify the practice of ukuthwala as an excuse, Nhlapo said.
Starting on Thursday, the commission will conduct workshops to discuss proposals in a revised discussion paper on the practice of ukuthwala.
In 2009 the commission received a request from the Gender Directorate to investigate the practice, which included the impact of ukuthwala on the girl child; the appropriateness and adequacy of the current laws on ukuthwala; and whether or not the laws upheld the human rights of the girl child.
Following an evaluation of the responses and final deliberations, the commission will submit the bill to the minister of Justice and Constitutional Development for tabling in Parliament.
Chairperson of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Thoko Mkhwanazi-Xaluva, said it would be wrong to abolish ukuthwala, but those who exploited the practice should be brought to book.
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Cape Times