The Commission for Gender Equality recently made a presentation to the KwaZulu-Natal (KZN) Provincial Executive Council on the findings of its investigation into ukuthwala and underage marriages in KwaZulu-Natal.
One of the resolutions taken by the Executive Council was that the Department of Co-operative Governance and Traditional Affairs (COGTA) together with the Commission should initiate a dialogue with amaKhosi and other stakeholders to deliberate on the harmful manner in which this custom is being practiced, contrary to tradition.
Equally, the Commission is concerned at the incidence of under-age arranged marriages within certain religious communities, in terms of which girls below the permissible age of 18, are either engaged to be married by their parents, or actually married, in contravention of the law.
As a result of such practice within traditional and religious communities, girls below the age of 18 are either abducted, committed or forced into marriage, in violation of their Constitutional rights and South African legislation, with disastrous impact on their education, health and emotional well-being.
Accordingly, today, the Commission and COGTA KZN convened a dialogue on the customs of ukuthwala, and the practice of forced, arranged and under-age marriages within traditional and religious communities, and their relevance within the context of a Constitutional democracy. The intention of the dialogue is to secure traditional and religious leaders as champions in eradicating these practices, and establish appropriate reporting, response and awareness interventions to this end.
MEC for Co-operative Governance and Traditional Affairs, Honourable Ms Nomusa Dube-Ncube, set the scene by stating clearly that as Government, they have no intentions of stripping away cultural practises, but to rather enhance our culture: “That is why in the Province of KwaZulu-Natal we have a social cohesion programme called Azibuye emasisweni, where we partner with the institution of traditional leadership to ensure that together, all sectors of society we collectively find ways and mechanism of fighting this scourge of abuse of women, children and the elderly, and other related social ills”.
Dube-Ncube, further added that it is imperative that strong partnerships are formed so as to ensure that as a collective we all play our part in fighting those who abuse and misuse culture and customs in perpetuate evil deeds against young girls, women and the elderly.
She stressed the importance of bringing back the family nucleus in ensuring that as a society, we raise children under the protection of their parents and the communities we come from. Dube-Ncube also called upon traditional leaders to take this message and engage in dialogue at the district level with their membership, to raise awareness, foster dialogue, and eradicate harmful practices.
Stakeholders from the national and provincial Houses of Traditional Leaders all spoke to critical elements of the traditional practice of ukuthwala, which should be adhered to. They stressed that the practice should only take place where the couple intending to marry through this practice have both consented, and that the girl is of marriageable age in terms of South African legislation, being 18 years of age.
It was further reiterated that the practice should take place in accordance with cultural prescripts, that the parents of the intending bridegroom be informed of the process and that no sexual intercourse should take place between the couple until formal negotiations have been concluded.
Representatives from the KwaZulu-Natal Council of Churches and inter-faith communities spoke out strongly against any practice of forced or underage marriage, stating that this goes against religious scriptures, texts and beliefs, and should not be tolerated within our society.
Participants were reminded that the rights to equality and non-discrimination are paramount and fundamental rights and principles, which take precedence over any cultural, traditional or religious rights or practices.
Speakers advised that international and national legislative provisions stipulate that marriage can only take place with the full and free consent of both parties, and that both parties must be of marriageable age, being 18. The Children’s Act expressly prohibits the giving out of a child, either in marriage or engagement, where that child is below the minimum age of 18.
It further states that a child above the age of 18 may be engaged to be married, but only provided she or he has expressly consented to marry. Clearly, the forced or arranged marriage of a child below the age of 18, and the marriage of a person over the age of 18 without their consent, are both expressly prohibited by law.
Professor Thandabantu Nhlapo, as Chairperson of the South African Law Reform Commission’s Project Committee on ukuthwala, spoke of the consultative and research process currently underway to ascertain appropriate legislative responses to ukuthwala.
Stakeholders from the justice and security sector delivered very strong messages that they would not tolerate any violation of human rights, and would ensure that the laws of South Africa are enforced. Provincial Commissioner for the South African Police Services, Lieutenant-General Ngobeni noted that through traditional and religious leaders, the National Prosecution Authority, SAPS and communities, South Africa would make a difference in addressing violence against women and girls.
District Public Prosecutor Adv Noko noted that international conventions, the Constitution and South African legislation prohibit marriage without consent. She stated that where girls are taken for marriage against their will, or in contravention of these legislative measures, the National Prosecution Authority will charge offenders and complicit parents with abduction, kidnapping, and where this results in economic exploitation of women or girls, with the criminal offence of trafficking.
In discussion, participants noted the need for prevention of abuse in the first instance, with education and awareness-raising measures as a starting point, within families and communities. They called upon amakhosi to stipulate guidelines for community members on how to respond to instances of illegal and underage marriage, and for the creation of a hotline for reporting such abuse.
They called for provision of counselling and support for victims and those associated with the abuse, and the creation of a multi-stakeholders’ forum to coordinate services and response to instances of abuse. Amakhosi proposed an end to impunity of offenders, stating that perpetrators of abuse should be further punished through being isolated and excluded from community life. Participants called for the harmonising of legislation where there are discrepancies in relation to age for marriage, and for clear definitions of the practice of ukuthwala.
The Commission and COGTA committed their institutions to taking forward the recommendations emerging from the dialogue, to ensure the creation of a reporting and response mechanism, and take-up of additional proposed interventions.
They pledged to support the district-level dialogues proposed by MEC Dube-Ncube, as well as the envisaged outreach and awareness measures. Above all, they committed to respond to instances of abuse, to ensure these are reported and addressed.
Upon conclusion of the dialogue, Hon. Dube-Ncube; the Chairperson of the Commission, Commissioner Mfanozelwe Shozi; Chairperson of the KZN Provincial House of Traditional Leaders, Inkosi Chiliza; and Bishop Vorster, Chairperson of the KZN Council of Churches signed a pledge, denouncing practices of forced or underage marriages, and committing themselves to raising awareness within their communities towards eradicating these.
They committed themselves as champions in declaring their communities child marriage-free zones, stating that they would not support, preside over or tolerate the marriage of children and would seek to ensure that perpetrators are held accountable. Leaders committed to cooperate with structures of the state to support a reporting and response mechanism for any alleged incidents of forced, arranged or underage marriages.
They committed further, as leaders within their communities, to collaborate in the struggle to end gender-based violence in South Africa, and called upon their constituencies to join them in a campaign to promote the full attainment of the rights guaranteed under the Constitution, for women and girls in the province of KZN.
