Is Ukuthwala Another Form of ‘Forced Marriage’?

Abstract

ABSTRACT The practice of ukuthwala in South Africa has evolved considerably. It is a form of preliminary procedure for a customary marriage where the young man forcibly takes a girl to be his wife. Sometimes it is undertaken with the consent of the girl, parents or guardians. In recent times, the practice has taken on new dimensions: young girls are being married forcibly to older men. One of the challenges of the South African Constitution is the contradictions it raises between universal individual rights guaranteed in the Bill of Rights, on the one hand, and long cherished traditional practices such as ukuthwala on the other that tend to violate the rights contained in the Bill of Rights. The purpose of the article is to investigate if ukuthwala is another form of ‘forced marriage’. It looks at the local, regional and international legal framework in order to assess ukuthwala's constitutionality within the domain of human rights. It notes that ukuthwala occurs in different ways, violates children's rights and contributes to the prevalent problem of domestic violence in South Africa. Ukuthwala fails the constitutional compatibility test on any number of grounds. Girls are deprived of their right to choose whether to marry, whom to marry and when. It impacts on aspects of girls’ lives including their right to human dignity, their right to education, right to live free of violence and their right to freedom and security. Ukuthwala perpetuates the cycle of gender inequality. It concludes that though ukuthwala occurs in different forms, it is equivalent to ‘forced marriage’.