Abstract
In 2014 the South African Law Reform Commission (SALRC)released a Discussion Paper on the practice of ukuthwala. TheDiscussion paper was revised and released again in 2015 toinclude public consultations and the proposed Prohibition ofForced Marriages and Child Marriages Bill (Prohibition Bill). TheProhibition Bill introduces an expanded crime of forcedmarriages and child marriages, including because of ukuthwala.In view of the SALRC's proposed Prohibition Bill, this paperinvestigates whether South Africa should criminalise ukuthwalaor not. The paper also examines the advantages anddisadvantages of criminalising breaches of ukuthwala in theprotection of women and girls affected by the practice by drawingupon the field research findings from the community where theS v Jezile 2015 2 SACR 452 (WCC) case originated. Amongother findings, the field research show that the practice ofukuthwala is deeply rooted in the communities where it is stillprevalent to the extent that the approach taken by the ProhibitionBill, expecting the victims to report their own parents or familymembers to law enforcement agents, might force the practice togo underground. Ultimately, we suspect that this might make itmore difficult to protect women and children's rights violationsassociated with ukuthwala. We therefore recommend that toeffectively address the malpractices surrounding ukuthwala, theprocess of law reform look at the elements of ukuthwala, theprocedure that is followed, appreciate the cultural significance ofthe practice, as well as understand the merits and demerits ofthe customary delictual claims that are already used bycommunities where processes of the practice have beenbreached. In this way, communities will be more receptive to anygovernment's efforts that are aimed at addressing forced andchild marriages linked to ukuthwala. In addition, we submit thatunless government prioritises awareness campaigns into thecommunities that are going to be affected by the proposed lawreform, such law, will again be what Himonga calls "paper law".
Highlights
In 2009, the Gender Directorate called upon the South African Law Reform Commission (SALRC) to investigate the impact of the practice of ukuthwala on the girl child, and to explore whether there are appropriate and adequate laws on the practice which uphold the human rights of the girl child.1 In 2014, the SALRC released a Discussion Paper on the practice of ukuthwala.2 The latter paper was revised and released again in 2015 to include public consultations and the proposed Prohibition of Forced Marriages and Child Marriages Bill (Prohibition Bill).3 The Prohibition Bill introduces an expanded crime of forced marriages and child marriages, including as a result of ukuthwala.In view of the SALRC's proposed Prohibition Bill, this paper will investigate whether South Africa should criminalise ukuthwala or not
In view of the SALRC's proposed Prohibition Bill, this paper investigates whether South Africa should criminalise ukuthwala or not
Linking to the discussion to follow in section four of this paper, DAW/DESA provides that: Legislation preventing harmful practices must seek to acknowledge that communities have an integral role to play in the abandonment of forced marriages and child marriages, and call for government support for community-based abandonment initiatives that are targeted at changing behaviour and attitudes, and the training of traditional leaders about modern policies protecting women and children
Summary
In 2009, the Gender Directorate called upon the South African Law Reform Commission (SALRC) to investigate the impact of the practice of ukuthwala on the girl child, and to explore whether there are appropriate and adequate laws on the practice which uphold the human rights of the girl child. In 2014, the SALRC released a Discussion Paper on the practice of ukuthwala. The latter paper was revised and released again in 2015 to include public consultations and the proposed Prohibition of Forced Marriages and Child Marriages Bill (Prohibition Bill). The Prohibition Bill introduces an expanded crime of forced marriages and child marriages, including as a result of ukuthwala. The latter paper was revised and released again in 2015 to include public consultations and the proposed Prohibition of Forced Marriages and Child Marriages Bill (Prohibition Bill).. The Prohibition Bill introduces an expanded crime of forced marriages and child marriages, including as a result of ukuthwala. In view of the SALRC's proposed Prohibition Bill, this paper will investigate whether South Africa should criminalise ukuthwala or not. Part two provides an overview of the Prohibition Bill. This is followed by a critical analysis of the Prohibition Bill in part three. The fourth part provides a brief overview on theoretical perspectives on criminalising harmful cultural practices generally. The fifth part is a discussion of the advantages and disadvantages of criminalising forced marriages and child marriages because of ukuthwala. In the sixth part, we conclude that unless government prioritises awareness campaigns into the communities that are going to be affected by the proposed law reform, such law, will again be what Himonga calls "paper law".5
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