BACKGROUND TO THE STUDY AND INTRODUCTION TO THE THESIS
1.3. MOVES BY THE SALRC TO OUTLAW UKUTHWALA PRACTICE
Subsequent to negative views about ukuthwala, moves towards developing laws to outlaw the practice started. The SALRC as a statutory body was tasked with reviewing and reforming South African law, and held a round-table discussion on the practice of ukuthwala on 30 November 2009 at the SALRC in Pretoria. I was part of the round-table discussion as a nominee for Dr Olive Shisana (Chief Executive Officer: Human Sciences Research Council, Pretoria). I represented the Gender Studies Department at UKZNas a
10 researcher dealing with the topic at hand. The aim of the Commission was to investigate the impact of ukuthwala cultural practice on females, the appropriateness of ukuthwala in the context of human rights, and its compliance with women’s human rights.
The Commission reported that in the first and second quarters of 2009 the media reported cases of the emergence of the practice of ukuthwala in some parts of the country. Furthermore, it was reported that girls as young as 12 years old are forced to marry older men, in most cases with the consent of their parents or guardians. In addition, the SALRC reported that cases of ukuthwala, that were referred to as
‘abductions’, prompted the then Minister in the Presidency, Dr Manto Tshabalala, to visit the affected areas and places used for refuge by the young females. It was stated that the practice had been widely condemned by traditional leaders, government and civil society. As a result the government isin the process of imposing law and sanctions on the abductors, based on the violation of young women’s rights. The Commission hosted a round-table discussion on the practice of ukuthwala as part of its preliminary investigation to determine whether the proposal should be included in their law reform programme and in an effort to gather information on the subject. According to Michael Palumbo (Deputy Chief State Law Adviser, SALRC), the round-table discussion sought to explore issues such as:
1. The magnitude and nature of ukuthwala practice in South Africa.
2. The extent to which ukuthwala practice clashes with international law, the South African Constitution, and legal statutes in the country.
3. Whether the current legal framework provides adequate protection against this practice to women and girlchildren or whether there is a need for law reform.
4. The extent to which the investigation would contribute to the implementation of broader government policy.
11 5. Whether the problems occasioned by the practice of ukuthwala can be overcome other than by a change in the law, for example by improved implementation of existing legislation.
6. Whether the Commission is the appropriate institution to undertake this investigation.
7. The extent to which this investigation will benefit previously disadvantaged communities.
At the round-table discussion Advocate Dumisa Ntsebeza SC (Commissioner, SALRC), gave the background to the pre-investigation on ukuthwala. He mentioned that the Commission was requested by the Minister of Gender Justice and Development of the Gender Directorate in the Department of Justice to investigate the emergence of the practice of ukuthwala in South Africa. This was as a result of the fear that young women were ‘abducted’ at the age of 11-14 years of age, with the knowledge of their parents, who are alleged to have accepted a form of bribery in exchange forilobolo. Ukuthwala practice was also linked to poverty alleviation. The law was seen as a solution; hence the intervention sought from the SALRC.
Facilitating the discussion, Advocate Ntsebeza focused the debate on whether the custom of ukuthwala exists or not; what a customis; to what extent it has changed; and what the impact of Section 39 of the Constitutionis. He questioned whether the current practice is a custom or not and how it relates to criminal law. Furthermore, he highlighted the fact that the South African Constitution is in favour of human rights in the same way that it favours group rights, such as the freedom of groups to practise their cultures, which include customs and traditions. He concluded by highlighting the fact that this poses a conflict of interests and is a problem to be solved, hence the discussion about the practice of ukuthwala.
12 During the discussions Fanyana Mdumbe (Principal State Law Adviser, SALRC) highlighted the international and domestic legal frameworks impacting on ukuthwala,and indicated that ukuthwala practice has taken another dimension. He expressed his frustration that incidents of ukuthwala are rarely reported to the law. The views of the CGE and the South African Human Rights Commission as well as the Children’s Rights Commission on ukuthwala practice were that it violates human and women’s rights.
These views were contradictory to those of the local government and the House of Traditional Leaders that were in favour of the practice of ukuthwala, arguing that it is a custom. However, the local government and the House of Traditional Leaders highlighted that we need to take out that which is not part of the custom in order to distinguish between the custom and the abuse of it.
Justice Mokgoro (Chairperson, SALRC) stated that ukuthwala is not a problem if it is used in a way not contrary to the Constitution, and does not impinge on children’s rights.
She expressed her concern that increasing incidents of the practice involve young women. She further indicated that it is not a legal issue alone. She stated that Section 31 of the South African Constitution protects the cultures and religions of our people, and the aim was to revive Africanism as it had been abandoned in the past, during the apartheid era. In conclusion, the Principal State Law Adviser of SALRC, Fanyana Mdumbe, together with all the stakeholders who were part of the round-table discussion, adopted zero tolerance of ukuthwala for children and promised to determine the age of consent. Furthermore, the discussion took a resolution to educate society on the Constitution of South Africa in order to stop the practice of ukuthwala.