The African custom of ukuthwala began as a romantic, old-world tradition. A young woman was “stolen” or abducted by a man and his friends to initiate the marriage process and lobolo negotiations with the woman’s family. Strict rules and requirements applied. Yet judging by recent case law and media reports, this once charming custom has developed a shady side, often being abused under the pretext of culture and tradition. Teenage girls are being kidnapped, violated and forced into marriage with much older men under the guise of ukuthwala.
Glancing at the existing framework of laws and protocols by which South Africa abides, one might think that the argument in favour of introducing a prohibition on ukuthwala is simple and straightforward. After all, section 28 of our Bill of Rights stipulates that every child has the right to be protected against maltreatment, neglect, abuse or degradation, and that a child’s best interests are of paramount importance in every matter concerning the child. In addition, section 30 provides that while everyone has the right to participate in their preferred culture, the exercise of those rights may not occur in a manner inconsistent with any provision of the Bill of Rights. Section 12 of the Children’s Act 38 of 2005 affords every child the right not to be subjected to social, cultural or religious practices that are detrimental to their well-being, irrespective of any consent given by the child or by the person having control over the child. Moreover, the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the Recognition of Customary Marriages Act 120 of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 all seem to point to the unlawfulness and inappropriateness of what ukuthwala has become. These domestic laws are underpinned by the contents of the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Protocol to the African Charter on Human and Peoples’ Rights, the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child (ACRWC) and the Addis Ababa Declaration on Ending Child Marriage in Africa. All signed and ratified by South Africa, these agreements create a framework with which ukuthwala in its modern-day form appears to be incompatible.
However, in a country of exceptional diversity and long-cherished customs, introducing a prohibition on a cultural tradition is no straightforward exercise. In the modern age of human rights, ukuthwala confronts us with a contentious paradox, pitting the universal individual rights entrenched in the Bill of Rights against treasured traditional customs. The only sensible way forward is to weigh up the respective parties’ rights. Therefore this article contributes to the discourse on a potential prohibition on ukuthwala by considering the constitutional rights to equality, personal freedom and security, human dignity, a child’s right not to be maltreated, neglected, abused or degraded, as well as the imperative to use the child’s best interests as the deciding factor in all matters concerning the child, against the right to freedom of religion, belief and opinion as well as the right to language and culture. In terms of section 36 of the Constitution the key considerations in determining whether a person’s constitutional rights may be limited are (i) the nature of the right, (ii) the importance of the purpose of the limitation, (iii) the nature and extent of the limitation, (iv) the relationship between the limitation and its purpose, and (v) whether there are less restrictive means to achieve the purpose. An analysis of these considerations against the backdrop of ukuthwala yields the following: (i) Expressly prohibiting ukuthwala would limit the right to freedom of religion, belief and opinion as well as the right to language and culture. (ii) The purpose of the limitation would be significant, namely to ensure that others’ fundamental rights (the right to equality, freedom and security of the person, human dignity, a child’s right not to be maltreated, neglected, abused or degraded, as well as the paramount significance of the child’s best interests in all matters concerning the child) are respected and not violated. (iii) Yet the limitation would not be absolute. Persons would still have all these rights and may rely on them to continue with customs that are consistent with the other freedoms in the Bill of Rights. They would simply no longer be permitted to observe the custom of ukuthwala. (iv) The limitation and its purpose are closely linked. While the rights to freedom of religion, belief and opinion and to language and culture are intended to ensure that communities remain true to their roots in a country renowned for its cultural diversity, this cannot be permitted at the expense of another person’s fundamental rights. Limiting these rights to the extent described above would therefore prevent others’ rights from being violated. (v) On the face of it, the only way to prevent others’ rights from being violated through ukuthwala appears to be the limitation of the rights cited above, for that particular purpose.
These findings are not inconsistent with case law. On a number of occasions the Constitutional Court has established that communities’ rights in relation to language, culture or religion cannot serve as a justification for the violation of other freedoms in the Bill of Rights (see Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC), and Christian Education of South Africa v Minister of Education 2000 4 SA 757 (CC)). Membership of a community who adheres to a particular custom does not afford members a free pass to infringe on others’ rights in observing such custom.
The article concludes with a few recommendations. Firstly, despite having a range of laws, conventions and protocols that are supposed to regulate ukuthwala in South Africa, abuse of the custom continues. Therefore, the country does not necessarily need more laws, but rather more competent enforcement of existing ones. Although the South African Law Reform Commission’s Prohibition of Forced and Child Marriages Bill is a commendable effort, it ultimately represents no more than a compilation of prescripts and concepts already contained in other, existing laws. Informing communities of such a new law would require extensive awareness and training campaigns into the most far-flung, rural corners of our vast country – a costly exercise. Instead, it might be sensible rather to invest the funds earmarked for promulgating a new law in equipping law enforcers with sufficient human and financial resources to educate communities about forced and child marriages, and to act against flagrant human rights violations. Secondly, underlying the misuse of ukuthwala is abject poverty and parents’ desperate need for lobolo to survive. Although possibly a very sombre view of the matter, the custom is therefore set to continue as long as poverty continues. Combined with the deep-rooted nature of the tradition in many communities, this renders the police powerless in many instances. Addressing this state of affairs will require a painstaking process of raising education and awareness levels, enabling sustainable livelihoods and rehabilitating the victims of ukuthwala. The third recommendation is essentially an appeal for sensitivity and understanding. With South African society plagued by ongoing racial tension and social disparities, no attempt to combat the misuse of ukuthwala should take the form of a denouncement or condemnation of any culture. It will be essential to tread the fine line between finding fault with an entire culture and its people, and rejecting a single custom that may no longer have a place in modern society. Community engagement will be vital to initiate the discourse on the harmful effect of the misused form of ukuthwala. Traditional leaders, local leaders and community policymakers will have to play their part in explaining to communities why existing laws will be more stringently enforced against those hiding behind tradition to commit an offence.
Whether South African lawmakers opt for an explicit prohibition on ukuthwala or the laying down and strict enforcement of constitutional guidelines to which ukuthwala needs to adhere, this traditional custom – along with others that have turned into a pretext for maltreating people and violating human rights – requires urgent attention. Besides being incongruous with domestic law, the custom in its modern-day form is inconsistent with a range of international conventions and protocols that South Africa has voluntarily ratified. This in itself should be enough to spur lobbyists and authorities on to action.
Keywords: Africa; cover-up for abuse; custom; customary law; human rights; ukuthwala