UKUTHWALA: DRAWING A LINE BETWEEN PRIORITISING CHILDREN’S RIGHTS AND RESPECTING AFRICAN TRADITIONS
By Valimbavaka Raherimananjara
Africa is the only region in the world that has a comprehensive framework for dealing with children's rights. We should use the African Charter on the Rights and Welfare of the Child as a powerful weapon to promote activism on children's rights.
Sometime in January 2010, in the Eastern Cape of South Africa, a 14-year old girl who had just commenced Grade 7 was forced to marry a 28-year-old man against her will. She was ambushed by the male members of her family, traditional marriage rights were conducted and she was coerced into acceptance. Her protests and cries fell on deaf ears. A young girl who had thought she would come back from school to her usual mundane life was now called “wife” and shipped off to a different city, away from everything and everyone she knew. These are the facts in the South African criminal case of Jezile v S and Others, where the court sought to determine the legitimacy of the practice of Ukuthwala. It is a cultural practice of having a young woman abducted by a man, his family and friends in order to force the young woman and her family to affirm the marriage negotiations.
Across Africa, we have come to realise that children within the continent and the world at large do not have the same experiences of childhood. The recognition of the peculiar position of the African child as a result of cultures and the environment they live in gave rise to the formation of the African Charter on the Rights and Welfare of the Child, which came into force in 1999. Considering prevailing African social constructs on one hand and the objectives of the law, on the other hand, it is pertinent to understand the ability of the African courts to uphold the rights of children while also taking into account cultural practices.
Indeed, it is common in some African communities to see parents and families forcing their young daughters into marriage under the guise of custom with the hopes of alleviating the poverty they experience. However, in the case of Jezile v S, the girl was not happy in her matrimonial home. She attempted to run away but she was apprehended, beaten and brought back to her husband. She was also raped on all the occasions she turned down her husband’s sexual advances. On her eventual escape, she suffered severe injuries, however, with the assistance of some women, she was able to report to the police station. Her husband was arrested and charged for the crimes he committed against her.
In his appeal, the husband cited Ukuthwala as a defence for the legitimation of his union with the minor. He cited important cultural and constitutional implications to justify that the girl was wrong to oppose what was expected of her as a bride. Given that the African Charter on the Rights and Welfare of the Child emphasises the need to include African cultural values and experiences when considering issues of children's rights in Africa, the court called on organisations and experts in the practice of Ukuthwala to clarify the matter. They also asked the South African Law Reform Commission (SALRC) to investigate the matter. Subsequently, it emerged that the traditional understanding of Ukuthwala is different from its current practice. Indeed, in its traditional form, Ukuthwala is a strategy of collusion between consenting lovers to ensure marriage negotiations. This practice was originally initiated by lovers whose parents opposed the union. It starts from two consenting people who wish to avoid possible obstacles in their marriage, such as the man's inability to pay the lobola, or the woman's arranged marriage to another man who is not of her choice. It is thus intended to be a harmless and romantic practice. In this traditional form, Ukuthwala comes with the following conditions:
The woman must be of childbearing age to be married
The woman and the man must agree in advance on their union
The process involves the mock abduction of the woman at nightfall. She pretends to refuse out of modesty, but it must always be taken into account that she has consented to the arrangement from the beginning. Then she is placed secretly on the man's property, and women are in her care to protect her person and reputation. It is then that the man's father is made aware of the woman's presence on his property and his son's desire to marry her. No sexual relations are allowed between the woman and the man at this stage. The man's family thus sends the woman's family an invitation to negotiate the marriage,
If the woman's family refuses the proposal of the man's family, then the woman is sent back to her family with damages for the failure of the Ukuthwala.
But today, this practice has evolved into an extreme and fundamental violation of women's rights, especially those of young girls. It now consists of abducting young girls and subjecting them to violence and sexual abuse forcing them to accept the arrangement after their parents and family have inopportunely received the “lobola”. Given the abuse, trauma and rape suffered by the young girl in this case justified by Dr Narula's conclusion that the current practice of Ukuthwala represents an abuse of the traditional custom and is a "harmful cultural practice" violating women and young girls’ rights to dignity, equality of life, liberty, health, human development and security. Therefore, the Western Court held that Ukuthwala does not justify the crimes of rape, human trafficking, and assault. And subsequently, the High Court dismissed the husband's appeal.
There are several lessons to be learned from this case. Firstly, the courageous actions of the girl who despite her young age and the pressures of her family, did not settle for a fate that did not match her aspirations, is noteworthy. She reminds us that children are autonomous beings whose perspectives and opinions deserve to be respected. Contrary to the actions of the girl's family, the responsibility of parents and guardians is to guide their children and wards, but this does not mean that they have total authority over them. More so, the actions of the two women who accompanied the girl when she ran away and filed a complaint are also commendable. Their actions send a clear message about the importance of the community in protecting children and people in general, against dehumanising situations; whether under patriarchal tyranny or under the guise of custom and tradition.
NGOs and civil society must also be very active as they represent a powerful force for awareness-raising. Similarly, the media must play an important role in the promotion of Children's Rights. Africa is very fortunate to be the only region in the world that has a comprehensive framework for dealing with children's rights. Thus, we should use this Charter as a powerful weapon to promote activism on children's rights. As for African states, they should not forget that rights are affirmative claims. In other words, on the one hand, there is a person who is entitled to something (in this case the child), and on the other hand, there is the duty bearer (the parents/state) who must always act in the best interests of the child. Thus, in the child’s best interests, the state has the right to bypass the parents.
This case also shows the importance of courts taking a holistic approach in analysing cases. If the Court in the Jezile case did not take the time to assess the individual experiences of the girl, it would have risked neglecting many issues such as the girl's autonomy, education, dignity, and potential to live life to its full potential. Indeed, how we understand a person's development, their environment, and our very definition of who they are has a lot to do with how we treat them and the kind of laws we create for them. In this sense, there must be an ongoing process to align or strike a balance between social and legal constructs. Hence the importance of litigation in advancing children’s rights. Although this litigation has protected the rights of one particular child, it has given a voice to millions of girls who suffer the same fate but whose voices are not heard and who every year lose a significant aspect of their childhood.
Valimbavaka Raherimananjara
A 24-year-old native of Madagascar who has lived most of her life in the capital Antananarivo. Having dreamed of becoming a chartered accountant since she was a child, she studied finance and accounting at the National Institute of Accounting Sciences and Business Administration in Madagascar (INSCAE Madagascar) and at the University of Poitiers in France. She currently holds two Masters degrees in accounting, management control and auditing, as well as two Masters of Research in management sciences. While doing these Masters, she worked full time as an accountant and corporate financial auditor in an audit firm in Antananarivo.
In 2019, she obtained the Chevening Scholarship, which allowed her to complete a Master's degree in Public Administration and Public Policy at the University of York. Having graduated in January 2021, Val is currently a public policy analyst. However, her interest lies more in economic policy issues in Madagascar and economic policy decision-making in Africa.
In her spare time, Val plays Valiha (the traditional Malagasy harp), an instrument she chose to learn to play, in particular, to symbolise her love for her country.
You can connect with her on Twitter @RAHERIMANANJAR1 and Linkedin - VALIMBAVAKA RAHERIMANANJARA