What is Ukuthwala?
Ukuthwala is a form of abduction that involves kidnapping a girl or a young woman by a man and his friends or peers with the intention of compelling the girl or young woman’s family to endorse marriage negotiations. In ancient Africa, particularly among the Nguni, Ukuthwala was a condoned albeit abnormal path to marriage targeted at certain girls or women of marriageable age. But it did not involve raping or having consensual sex with the girl until marriage requirements had been concluded.
The act of Ukuthwala, however, was not with impunity;
it incurred Delictual liability for the culprit, in the form of the payment of one or more herd of cattle to the father or legal guardian of the girl. Today Ukuthwala, particularly in the Eastern Cape, increasingly involves the kidnapping, rape and forced marriage of minor girls as young as twelve years, by grown men old enough to be their grandfathers.
What is the Impact of Ukuthwala on the Girl-Child ?
Ukuthwala steals childhood. It causes an abrupt end to a girl’s childhood and the carefree existence that all children are entitled to. Suddenly the little girl is a wife with a husband and in most instances, children and in-laws to serve or look after.
- Health: Research conducted with young girls that have been victims of Ukuthwala and attendant rape, forced marriage and teenage pregnancy has revealed numerous health complications for the young girls. These range from HIV and other sexually transmitted infections to pregnancy related complications such as infant mortality, maternal mortality and fistula related diseases. These health complications are consistent with findings of United Nations (UN) Secretary General’s Report on Violence Against Children (2006) and UN agencies such as the World Health Organization, UN Children’s Fund and UN Development Fund for Women in countries that are plagued by forced and early marriages.
- Human development: In virtually all child-marriage cases, the child is removed from school. Dropping out of school deprives the child education opportunities, including tertiary education and skills training. The social development of the child is also stunted as the early marriage and fast tracking into the adult world skips organic developmental phases.
- Gender equality: Early marriage is a symptom of and exacerbates gender inequality. If it were not for gender inequality and child abuse, Ukuthwala would have no place in our society. The subordinate position of the girl or young woman is reinforced by the fact in most of the documented cases the girl-children have been forced to marry men old enough to be their fathers and/or grandfathers.
What is the Impact of Ukuthwala on the Community?
- Development: A community’s development depends on its people this includes the level of health, knowledge and education, skills and the resources controlled by those people. Since Ukuthwala undermines the girlchild’s access to these opportunities. It indirectly undermines community development. Girls and women who constitute more than 52% of the population are part of the critical human capital that families and communities rely on for their development. In rural areas women and girls’ numbers are even higher and therefore more critical in rural development.
- Cycle of poverty: There is a proven
link between the lack of education,
underdevelopment and poverty, Ukuthwala deprives girl-children opportunities to educate and develop. Furthermore, research indicates that the majority of the girls and young women that are victims of Ukuthwala are from poor families. Their lack of education and underdevelopment due to Ukuthwala deepen their poverty and perpetuate the cycle of poverty. In many instances the children born into poverty tend to be poor also. This contributes to the cycle of poverty in the communities, particularly rural communities, where Ukuthwala is rife.
What are the rights of victims of Ukuthwala?
- Child Care Act: Health care professionals, social workers, educators, and staff and managers of children’s homes have a duty to report the ill treatment of children and young people in care.
- Children’s Act: The Children’s Act provides that in all matters involving children, the best interest of the child are of paramount importance. It also stipulates the age of consent to marriage as 18 years.
- Domestic Violence Act: A victim of Ukuthwala may apply for a protection order under the Domestic Violence Act against family members involved in her abduction.
- Rights under Criminal Law: A girl or woman that has been subjected to Ukuthwala may lay a charge of abduction, kidnapping, rape and trafficking in persons.
- Family law: A girl-child or woman that has been subjected to Ukuthwala has a right to have the marriage annulled and, where appropriate, claim maintenance.
- Civil remedies: A girl-child or woman may also claim damages for all harmful consequences of the Ukuthwala. This may include pain and suffering, missed educational opportunities, and long-term medical needs.
- Victim’s Charter: The Victim’s Charter holds law-enforcement officers to specific standards, including victim participation and accountability to the victim.
- Social assistance: It is open to a victim of Ukuthwala to approach the South African Social Security Agency or any Department of Social Services for a social grant for their children.
Can culture be used as justification for Ukuthwala?
Culture as a way of life for a group of people, is given a place in our Constitution. But no culture is above the law. The Constitution is clear that cultural rights are protected subject to the Constitution. Section 31 of the Constitution recognises cultural rights of communities and groups provided that such rights are not exercised in a manner inconsistent with any of the provisions of the Bill of Rights.
Ukuthwala and the cruelty it inflicts on the girl-child by denying her of her right to be a child, among other things, are further inconsistent with the African value of ubuntu.
It must also be borne in mind that culture is dynamic and communities sometimes discard practices that were seen as benign in the past as they develop as a people. In this day and age, the kidnapping and abduction of girl-children that have barely reached puberty cannot be reconciled with the ancient practice of Ukuthwala, which was condoned by communities but subjected to delictual sanctions.
It’s often said that some apparent victims of Ukuthwala feign crying when they are happy and have tacitly consented to their “kidnapping”. As is the case with modern law on rape, the law requires consent, not a secondguessing of the girl’s wishes. The Recognition of Customary Marriages Act also requires consent.
What can the community do to end Ukuthwala?
To play a meaningful role in combating Ukuthwala, communities can:
- report violations and monitor law enforcement processes to end
- provide life skills education for men to obtain suitors legally
- assist child orphans to ensure that they do not become prey to male predators and relatives seeking to shun responsibility or to cash in on lobolo.
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MS N Rampete
Directorate: Gender Issues
Tel: 012 315 1670
Fax: 012 315 1960