Ukuthwala Custom
Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act
Lea Mwambene and Julia Sloth-Nielsen(
Abstract
In this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. Questions arise relating to the impact of constitutional principles upon customary law and practice. It is suggested that instead of a prohibitionist stance towards customs that seem to violate human rights norms, a benign accommodation of aspects that promote the positive aspects of culture be adopted. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act are framed in this context.
1. Introduction
The practice of ukuthwala in South Africa has recently received negative publicity, with numerous complaints being recorded. In the first and second quarter of 2009, the media reported that ‘more than 20 Eastern Cape girls are forced to drop out of school every month to follow the traditional custom of ukuthwala (forced marriage)’.[1] Girls as young as 12 years are forced to marry older men, in some cases with the consent of their parents or guardians. Commenting on the matter, Congress of Traditional Leaders of South Africa (Contralesa) chairman, Chief Mwelo Nokonyana, said ukuthwala was ‘an old custom that was now being wrongly practiced in several parts of the eastern Transkei.’[2] Dr Nokuzola Mdende of the Camagwini Institute also stated ‘that abducting a girl of 12 or 13 is not the cultural practice we know. This is not ukuthwala, this is child abuse. At 12, the child is not ready to be a wife.’[3] At the SA Law Reform Commission ‘Roundtable Discussion on the practice of Ukuthwala’,[4]
Lea Mwambene and Julia Sloth-Nielsen(
Abstract
In this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. Questions arise relating to the impact of constitutional principles upon customary law and practice. It is suggested that instead of a prohibitionist stance towards customs that seem to violate human rights norms, a benign accommodation of aspects that promote the positive aspects of culture be adopted. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act are framed in this context.
1. Introduction
The practice of ukuthwala in South Africa has recently received negative publicity, with numerous complaints being recorded. In the first and second quarter of 2009, the media reported that ‘more than 20 Eastern Cape girls are forced to drop out of school every month to follow the traditional custom of ukuthwala (forced marriage)’.[1] Girls as young as 12 years are forced to marry older men, in some cases with the consent of their parents or guardians. Commenting on the matter, Congress of Traditional Leaders of South Africa (Contralesa) chairman, Chief Mwelo Nokonyana, said ukuthwala was ‘an old custom that was now being wrongly practiced in several parts of the eastern Transkei.’[2] Dr Nokuzola Mdende of the Camagwini Institute also stated ‘that abducting a girl of 12 or 13 is not the cultural practice we know. This is not ukuthwala, this is child abuse. At 12, the child is not ready to be a wife.’[3] At the SA Law Reform Commission ‘Roundtable Discussion on the practice of Ukuthwala’,[4]