The power of state law

Abstract

The negotiation of power in the practice of female initiation in South Africa has been significantly altered by the Children’s Act of 2005, which regulates children’s participation in cultural practices. The state regulation uses the child’s consent alone as the determining condition for participation in cultural practices and it preferences legally enforceable rights within an individual/state paradigm. By drawing on interviews and focus groups with female initiates in Limpopo, the chapter reveals that the conceptualisation of consent in statutory legislation fundamentally distorts how consent is practised and understood on the ground. Our findings reveal that consent for female initiation is obtained through intergenerational processes, which comprise three degrees of consent – an individual’s wilful choice, family instruction and communal normative orders. At the same time, statutory provisions introduce new tensions to the process of female initiation at these three distinct levels of the individual, family and community. At each level, the pitting of the interests of one group against another underscores the operation of power processes and mechanisms that highlight the state’s disruption of living customary law. We argue that the power of state law to determine how and when consent can be obtained excludes the voices of older women who participate in these practices. It distorts the complex, intergenerational social embeddedness of the practice and how this embeddedness makes the practices meaningful and capable of conferring dignity on the girls and women who participate in them. We argue that only by including all women in the construction of law can we overcome the power of codified state law.