Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act
Lea Mwambene and Julia Sloth-Nielsen(
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.
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)’. 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.’ 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.’ At the SA Law Reform Commission ‘Roundtable Discussion on the practice of Ukuthwala’, which was held as part of its preliminary investigation to determine whether the proposal should be included in the Commission’s law reform programme and in an effort to gather information on the subject, it was observed that ukuthwala, like many other customary institutions, has changed radically. The practice has now taken on other dimensions, including young girls forcibly being married to older men, relatives of the girl kidnapping and taking the girls themselves as wives, and abductions not being reported to the Traditional Authorities.
These changed practices around ukuthwala potentially increase the vulnerability of children’s’ rights violations. The main aim of this article is to evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Insofar as the recent media comments are pertinent to some of the conclusions reached in this article, a preliminary discussion of ukuthwala in its differing dimensions is important. For that reason in the second part of this article we trace the history of ukuthwala, and the traditional reasons for, and the different forms of, ukuthwala. We further discuss the procedure of ukuthwala and the legal position of the practice under customary law. In the third part, we will contextualize the debate of ukuthwala within the constitutional and international rights to culture and equality paradigms. In the fourth part, we proceed by looking at the framework for the consideration of culture and custom in the Children’s Act before discussing the implications of the Children’s Act for ukuthwala. The last part contains some conclusions.
2.1 What is ukuthwala?
In South Africa, the custom originated from the Xhosas. However, although the custom is predominantly practiced among Xhosa speaking tribes, the practice has expanded into different ethnic groups. For example, the Mpondo clan has adopted ukuthwala from Xhosa clans such as the Mfengus. Young Sotho men, through contact with...