Cape Town - More than 91 000 girls, aged between 12 and 17, in South Africa were married in either customary or civil marriages, or divorced, separated, widowed or living with a partner, says Statistics South Africa.
A high number of minors are believed to be victims of the practice of ukuthwala, a form of abduction with the intention of compelling marriage negotiations.
“Unlike in the past when ukuthwala was intended to start and build families, these days girls as young as eight years old are taken out of school, abducted and get raped,” says Bongeka Mhlauli, a lecturer at the University of Western Cape (UWC).
Although ukuthwala has been criminalised and incorporated into the Trafficking in Persons Act, it is being practised in the Eastern Cape. Recently, two girls, aged 14 and 15, were abducted by two men in separate incidents in the Eastern Cape.
The Congress of Traditional Leaders of South Africa (Contralesa) President Kgoshi Mathupha Mokoena said there was no place in society for those practising the custom.
“We call on all law enforcement agencies to arrest all those who are involved in the practice. Parents are encouraged to please stop using young girls as cash cows,” he said.
According to scholars, the original custom requires consent between the two parties, the man and woman. It was described as a method instigated by two lovers to initiate the marriage negotiations by the respective families where there was some form of resistance to the marriage by the parents.
“I was so shocked because we are just a normal happy family like many others,” said Mhlauli, who is a product of the practice. “And when I realised from media reports that the practice still continues, I was interested to compare the old tradition with the current practice, which is more criminal than anything.”
Mhlauli recently conducted a study titled, The Relevance of the Custom of Ukuthwala in Modern Xhosa Society, for her Master’s degree.
“I hope my work could be a helpful cultural-educational tool to those who are not familiar with ukuthwala. And it creates awareness to those who still practiae the tradition by highlighting the negative aspects of it towards human rights,” she said.
Unicef's James Elder said the number of victims was probably higher than those reporter because many cases went unreported.
“Poverty, the perception that marriage will provide protection, family honour, and social norms like customary and religious laws condone the practice, as well as inadequate legislative frameworks. All these things are at play, but it is a complicated issue,” he said.
The country has recognised that marriage under the age of 18 is one of its shortcomings and has committed to eliminate child, early and forced marriage by 2030, in line with target 5.3 of the Sustainable Development Goals.
Last year, the government announced that it was developing a Draft Prohibition of Forced Marriages and Child Marriages Bill, which would provide greater protection from the harmful practices.
What are the rights of victims of ukuthwala?
Child Care Act: Health-care professionals, social workers, educators, and staff and managers of children’s homes have a duty to report the ill treatment of children and young people in care.
Children’s Act: The Children’s Act provides that in all matters involving children, the best interest of the child are of paramount importance. It also stipulates the age of consent to marriage as 18 years.
Domestic Violence Act: A victim of ukuthwala may apply for a protection order under the Domestic Violence Act against family members involved in her abduction.
Rights under Criminal Law: A girl or woman who has been subjected to ukuthwala may lay a charge of abduction, kidnapping, rape and trafficking in persons.
Family law: A girl-child or woman who has been subjected to ukuthwala has a right to have the marriage annulled and, where appropriate, claim maintenance.
Civil remedies: A girl-child or woman may also claim damages for all harmful consequences of ukuthwala. This may include pain and suffering, missed educational opportunities, and long-term medical needs.
Victim’s Charter: The Victim’s Charter holds law-enforcement officers to specific standards, including victim participation and accountability to the victim.
Social assistance: Victim of ukuthwala can approach the South African Social Security Agency or any Department of Social Services for a social grant for their children.
What can the community do to end ukuthwala?
– Report violations and monitor law enforcement processes in order to end impunity.
– Provide life skills education for men to obtain suitors legally.
– Assist child orphans to ensure that they do not become prey to male predators and relatives seeking to shun responsibility or to cash in on lobola.