Article

Ukuthwala ( Let’s protect our children)

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 although 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 care free 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 (STIs) to pregnancy related complications such as infant mortality and maternal mortality. These health complications are consistent with findings of UN Secretary General’s Report on Violence Against Children (2006) and UN Agencies such as WHO, UNICEF and UNIFEM in countries that are bedevilled 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 wasn’t 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 that in most of the documented cases, the girl children have been forced to marry men old enough to be their parents and grandparents.

What is the Impact of Ukuthwala on the Community?
Development: A community’s development depend on its people, this includes the level of health, knowledge and education, skills and the resources controlled by those people. Since ukuthwala undermines the “girl-child’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, development is critical as research reveals that the number of women and girls is higher than that of men and boys.

Cycle of Poverty: There is a proven link between lack of education, underdevelopment and poverty, ukuthwala deprives “girl-children” opportunities to educate and develop themselves.  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 deepens their poverty and perpetuate the cycle of poverty. In many instances the children born into poverty also tend to be poor. This contributes to the cycle of poverty in the communities, particularly rural communities, where ukuthwala is rife.

What are the Human Rights Implications of Ukuthwala?
Convention on the Rights of the Child and Other Human Rights Treaties
Ukuthwala as currently practised is in blatant violation of the rights of the child as articulated in the UN Convention on the Rights of the Child (CRC). South Africa is bound by the CRC because by signing
it, it meant that our country has ratified it without any reservations. The CRC states that every act or decision involving a child must be in the best interest of the child. Forced and early marriage is, as demonstrated above, not in the best interests of the child. The acts of abduction, forced marriage, child marriage, rape and sometimes trafficking in persons involved in most instances of ukuthwala violate other international human rights obligations for South Africa. As a signatory to the following international treaties, South Africa is required by international law to protect and prevent the kinds of harm to children that are inflicted through the practice of ukuthwala:
- Convention on the Elimination of all forms of Discrimination Against Women(CEDAW), Particularly Article 5 on Harmful Traditional Practices
- African Charter on Human and People’s Rights and Protocol on Women’s Rights in Africa
- SADC Protocol on Gender and Development.

The Constitution
The Constitution of South Africa states that “A child’s best interests are of paramount importance in every matter concerning the child (person below 18 years). As already stated above, ukuthwala my not be in the best interest of the child, it specifically violates the right of a child to be cared for. This includes the right to be protected from maltreatment, neglect, abuse or degradation. It also includes not subjecting children to work or services that “place at risk the child’s wellbeing, education, physical or mental health or spiritual or social development”. Instead, little girls are turned into instant wives with all the burdens of wives in a gender unequal society exacerbated by age, rural poverty and the burden of care attendant to HIV and AIDS.

Promotion of Equality and Prevention of Unfair Discrimination Act
By perpetuating the oppression of girls and young women, ukuthwala violates the prohibition of gender discrimination in the Equality Act. In addition, rape and early marriage involved in ukuthwala practice violate the provisions of section 8 of the Equality Act, which include: Gender based violence; and “any practice, including traditional customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child...”

What Does the Law Say on Ukuthwala?
Sexual Offences Amendment Act of 2007
Having sex with a child without her consent, following her kidnapping and abduction (ukuthwala), constitutes rape in violation of the Criminal Law (Sexual offences) Amendment Act of 2007(section 15). This Act, which is known as the Sexual Offences Amendment Act of 2007, prohibits the sex with a person without their consent. Regarding a child, the age of consent is 16 meaning that sex with an under 16 constitutes statutory rape. 

Sex with a child that is 12 and below is rape as a child of that age is legally incapable of consent. The Act also prohibits other sexual activities with children (sections 16 and 17), including sexual grooming (section18).

Section 17 of the Sexual Offences Amendment Act of 2007 prohibits the sexual exploitation of children by parents and others. Parents or relatives and others who collude in or aid and assist the ukuthwala of a girl child commit the crime of sexual exploitation of children. These parents and relatives also face being charged with Trafficking in Persons under section 71 of the Sexual Offences Act.

Recognition of Customary Marriages Act
According to the Recognition of Customary Marriages Act, both the bride and the bridegroom must consent to marriage. The age of consent is 18 years. If one of the parties is under 18 years of age, parental consent is an additional requirement for a valid marriage. If this cannot be obtained the permission of a child Commissioner, a Judge of the High Court or the Minister of Home Affairs must be sought. However, this is subject to the provisions of the Sexual Offences Amendment Act of 2007, which sets the age of consent to sex at 16.

Prevention and Combating of Trafficking in Persons Bill of 2009
Parents and relatives that hand over a child into forced marriage for financial or other gain can potentially be prosecuted under section 4 read with section 1 of the Prevention and Combating of Trafficking in Persons Bill. The Bill prohibits the recruitment, sale, supply, procurement, transportation, transfer, harbouring, disposal or receipt of persons by means of the use of threat, force, intimidation or other forms of coercion; or by abusing vulnerability, for the purpose of exploitation.

Transkei Penal Code
“Ukuthwala” of young girls was also prohibited in the Transkei under the Transkei Penal Code. The Penal Code criminalised the abduction and kidnapping of children under 18 years.

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 (SASSA) or any Department of Social Development for a social grant for their children up to
14 years.

Can Culture be used as Justification for Ukuthwala?
Culture as a way of life for 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 the right to be a child, among others, is further inconsistent with the African value of ubuntu.

It must also be borne in mind that culture is dynamic and sometimes practices that were seen as benign in the past are discarded by communities as they develop as a people. Furthermore, today’s 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 victims of ukuthwala pretend to cry as if they don’t want to be taken away when in actual fact they are happy and have tacitly consented to their ‘kidnap’. As is the case with modern law on rape, the law requires consent, not a second guessing of the girl’s wishes.  The Recognition of Customary Marriages Act also requires consent.

What are the Responsibilities of Various Agencies?
The Police: The police must arrest every person accused of ukuthwala. It’s not for the police to determine whether culture and or consent are defences in any particular case. Where sex has taken place with a child below 12, the charge is rape and below 16, it’s statutory rape regardless of alleged consent. Where the girl is above 16, the charge should be rape if she alleges the absence of consent.

The supposed bridegroom should also be charged with abduction. Those that assisted should also be charged and where parents and or relatives were involved for gain, they should be further charged with trafficking in persons for the purposes of sexual exploitation under the Sexual Offences Amendment Act of 2007.

Social workers: Social workers should investigate and report to the police any reported or suspected child abuses, including ukuthwala involving children.  Similar abuse of teenagers with mental disabilities should be dealt with similarly.

School Teachers: School teachers should report to the police and social workers any reported or suspected child abuses, including ukuthwala. Similar abuse of teenagers with mental disabilities should be dealt with similarly.

Prosecutors and Courts: All ukuthwala cases involving children below 18 years of age should be prosecuted in accordance with the laws of the land.  This includes abduction and kidnapping, child abuse, child procurement, rape, and trafficking in persons.

Department of Home Affairs:
Officials of the Department of Home Affairs should assist victims of ukuthwala to secure the necessary documents regarding their statuses and that of their children to facilitate access to appropriate social services.

Public functionaries and Others:
Persons exercising public power have a duty to prevent child abuse within their sphere of control. This includes traditional leaders.

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 impunity
  
• 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 ilobolo.

Where to go for Help?
Child Line: Toll free: 080 005 5555
South African Police Services (SAPS) Tel: 08600 1011
Department of Social Development Tel: 012 312 7014
Independent Complaints Directorate (ICD):Tel: 011 403 7182
Commission on Gender Equality: Tel: 011 403 7182
SA Human Rights Commission: Tel: 011 484 8300
The Public Protector (To complain about State failure to protect girls): Tel: 0800 11 2040
Local Police Station and local Social Services will consist of different local Numbers.

By Joyce Maluleke
Justice Today 2009, Vol5