Ukuthwala is a traditional practice, which takes place in South Africa. It allows room for forced child marriages to occur. Girls in rural areas are vulnerable to abduction, rape, violent abuse and premature marriage. Here’s what you need to know about the South African Law Reform Commission’s investigation on Ukuthwala.
1 It was not intended to be an abuse of human rights, quite the contrary
Ukuthwala is largely practiced by Nguni groups. It was traditionally intended to force marriage negotiations between families who may not have otherwise approved of the intended marriage. Historically, communities and families were heavily involved in marriage negotiations. If a courtship was public and the families or community disapproved, the marriage would simply not be allowed. To avoid this, couples would stage an abduction of the would-be bride. The groom would then approach her family and marriage negotiations would commence.
2 The practice has changed, girls are no longer given a choice
While traditionally, the girl or woman would be in on the abduction, men are now abducting young girls and forcing them into marriage. Why can’t the parents of the girl refuse? While financial reasons contribute to their succumbing to marriage negations, it is mainly the stigma attached to marriage that coerces negotiations. This places immense and unfair strain on the girl, who is often shunned by her family, should she attempt to escape from her new husband or husband to be.
3 Ukuthwala is not only a violation of the Bill of Rights – but a health risk too
The motive for the abuse of the Ukuthwala practice is, among others, that people still believe that sex with a virgin cures HIV/Aids. This adds an alarming health burden to this practice. Not only are the human rights violated, not only is the Bill of Rights as well as the Children’s Act being disregarded but the victims of Ukuthwala are at risk of life threatening diseases.
4 So why is it not illegal?
Many believe that Ukuthwala is not an act of marriage but a prelude to marriage. Therefore, whether it should be governed by legislation such as the Recognition of Customary Marriages Act is uncertain. This despite the reality is that marriage negotiations do follow Ukuthwala. That it is not a widespread practice suggests that it is ‘dying out.’ Thus, some argue that legislating the practice would somehow revive it.
5 What should happen?
It doesn’t matter how few and far between, forced marriage, abuse and abduction is unconstitutional. Rather than reviewing existing laws to encompass Ukuthwala, the practice of marriage without consent must be outlawed.
While minors can be emancipated and then enter into marriage, they must do so by consent. Marriage is a contract. It must be entered into by free and consenting individuals. Where marriage or related practice is coerced, it must be punishable.
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