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South Africa must live up to its constitutional values

‘Ukuthwala’ practice undermining the rights of women and girls

‘Ukuthwala’ practice undermining the rights of women and girls

Published Apr 4, 2022


Nkosikhulule Nyembezi

CAPE TOWN - One of the major tasks ahead of us as a nation is to act swiftly on the recent recommendations of the South African Law Reform Commission to criminalise forced marriages.

Following years of advocacy and lamentation, the commission last week finally handed over four reports to Justice Minister Ronald Lamola, one of which recommends new legislation on the abuse of the ukuthwala custom that makes forced and child marriages criminal offences.

The commission researches all branches of the law to make recommendations to the government for the development, improvement, modernisation, or reform of the law.

Because it investigates matters that have been pre-approved by the justice minister, it has struggled to get the necessary approval to prioritise the abuse of ukuthwala custom all these years, despite numerous calls for urgent action by various stakeholders.

As a research associate at UWC’s Centre for Legal Integration in Africa and at UCT’s Centre for Law and Society, I have often come across strong arguments stating that it is important that democratic South Africa lives up to its constitutional values and beliefs.

It is no accident that advocates for human rights protecting women and girls are growing more vocal as notions of the rule of law, universal human rights, democratic accountability, and transparency are in retreat in the face of the continuing aberrant form of abusive ukuthwala practice that subjects underage girls to offensive behaviour such as rape, violence and similar criminal conduct under the guise of the observance of a traditional custom.

But the disjointed legislative framework that is supposed to facilitate the enjoyment of constitutional rights to which traditional customs are subjected is two-faced in that it applies one rule for black women and one for the rest of our citizens.

It indulges the oppressive conceptual link between marriage and non-consensual sex by confirming each time vulnerable individuals cry for justice that the coercive aspects of the practice are not anomalous in some communities.

It also emphasises the negative disjuncture between the legalistic framing and the community’s rationale for tolerating violent forms of ukuthwala practice.

Human rights organisations providing support to victims have long asked for legislative reform, citing numerous incidents of the abuse of ukuthwala custom to victimise women and children; academics have also lent their support, and community organisations have been present to fulminate.

But these formations don’t have the legislative powers to introduce the necessary framework and are too easily depicted as anti-African culture and pro-Western values.

This polarisation has for too long left many with a heart-piercing feeling that if you are a woman living in a rural community treated as a version of a mediaeval era community, and are considered by the ruling elite to be undeserving of equality and accountability, you must look after yourself.

Yet as hard criminal justice power to curb gender-based violence wanes, and the increasing community use of vigilante power in response to violent attacks on women and children is fraught with myriad unintended consequences – not to mention illegality – comprehensive legislative and prosecutorial power is increasingly our only reliable tool.

The most urgent challenge we face is to stimulate and give succour to rule-of-law communities throughout the country so that it is well understood – as the recommendations assert – that there is no excuse for anyone who “attempts or conspires, aids, abets, induces, incites, instigates, instructs, commands, counsels or procures another person to enter into a forced or child marriage”.

The recommendations aim to pave the way for legislation to allow the victims of forced and child marriages “to apply for a forced marriage protection order, which is a remedy that may contain prohibitions, restrictions, requirements, or other terms that the court may consider appropriate”.

Such legislation and the institutional enforcement arrangements are the only durable response – and unless the government can start to become more effective, a new dark age awaits. It extends into every dimension of moral regeneration and daily efforts to make the equal enjoyment of human rights a reality.

What to do? The Cabinet, Parliament, courts and civil society, if they act in unison and on principle, can make forward-propelling waves.

Community members must compel traditional leaders at all levels to insist that men in their communities either comply with the law prohibiting forced marriages, or leave their communities, or face prosecution.

Parliament should speedily introduce and pass the recommended legislation, and convene public hearings to enable communities to ask tough questions about what pressure they are bringing to bear through a mutually reinforcing framework to end gender-based violence.

The criminal justice system should follow suit by providing adequate protection for vulnerable individuals, including establishing user-friendly and accessible systems to allow any victim of forced or child marriage to apply for a forced marriage protection order.

Civil society organisations can go further; they can educate individuals and communities about available resources, where and how to access them in a manner that makes effective any spectrum of legal prohibitions, restrictions, requirements, or other terms the court may consider appropriate to ensure the effective protection of human rights.

They must pull us out of the disgrace of an aberrant form of ukuthwala practice where schoolgirls are routinely waylaid and abducted by strangers between school and home, and end up in a nuptial bed with a total stranger.

A disgrace where, contrary to rape, which is a statutory crime with a prescribed minimum sentence, such abduction usually occurs with the connivance of the girl’s parents and relatives who receive ilobola as a price for this kind of betrayal and no legal punishment for their accomplice role; and where onlookers do not intervene to protect the girls under the excuse that they must respect the decision of the families concerned to adhere to this now-abused custom.

What we do next and how fast we do it must underline the larger point: we have to live up to our constitutional values and make common cause with those who share them through adequate legal protection for the vulnerable individuals in our society.

Nyembezi is a human rights activist and policy analyst

Cape Times

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