ABSTRACT

In the name of the ‘ukuthwala’ (bride abduction), girls as young as ten have been taken away to be married to older men. In olden days it was an arranged group abduction used to enforce marriage negotiations if a girl wanted to be married to her man of choice but her family did not agree. The practice of ‘ukuthwala’ is said to be cultural and to have been practiced by indigenous people. However, the way it is practiced currently is illegal and harmful to the wellbeing of young girls. Young girls usually suffer physically due to their bodies’ response to premature sex, including pregnancy. They are also at risk of sexually transmitted infections and emotional disturbance and in some cases their educational development is disturbed too. South Africa has passed a law that protects children from harmful practices, but the ‘ukuthwala’ is still evident in some parts of the country. There is also a customary marriage law in place to prohibit harmful traditional practices. This paper seeks to determine whether ‘ukuthwala’ is a cultural right or a crime perpetrated under the guise of culture. Some of the factors that make the practice occur regardless of Children’s Act, the impacts of the practice on the educational, economic and social well-being of the child are also discussed.

INTRODUCTION

‘Ukuthwala’ is a form of abduction that involves kidnapping a girl or a young woman by a man and his friends or peers with the intention of compelling the girl or her family to endorse marriage negotiations. [i] The practice generally takes the form of a mock abduction, whereby a suitor and his friends ‘kidnap’ the girl and carry her off to his homestead. [ii] In South Africa, the custom originated from the Xhosa-speaking clans but it has recently expanded to different ethnic group. [iii] ‘Ukuthwala’ is a widespread practice, although it is especially associated with the so-called Nguni cultures of the eastern and south-eastern regions of South Africa. [iv] In some instances, either the girl or her family may not approve of the suitor. This type of kidnapping has become traditionally acceptable, as long as cultural rules are followed. While highly unusual, it has also been known to happen that a woman ‘conspires’ with her kidnapper giving rise to a situation more like an elopement.

More often, though, a man abducts a young woman he selects and sends word to her family that he will be making ‘lobola’ available – bride wealth, usually in the form of cattle. She is kept hidden and is usually raped, after which family members from both sides meet to discuss marriage. [v] After having had sexual intercourse, whether consensual or forced, a young woman loses her perceived value to the family. Nomagugu Ngobese of Nomkhubulwane Culture and Youth Development Organization refers to ukuthwala as a practice that was sometimes performed by girls whose parents did not approve of their boyfriends, then arranged to be abducted so that the families would be forced to allow their marriage. ‘This was to ensure that parents would be forced to accept the relationship and accept ‘lobola’ (bride wealth) from the unwanted boyfriend, and the girl would then marry the man of her dreams and it was never done without a child’s consent’. [vi]

Bride kidnapping has been reported in at least 17 countries around the world, from China to Mexico to Russia to southern Africa. [vii] Some modern cultures maintain symbolic kidnapping of the bride by the groom as part of the ritual and traditions surrounding a wedding, essentially giving approval to the practice of bride kidnapping which may form part of that culture's history. [viii] ‘Ukuthwala’ violates the rights of the girl child in the sense that in most cases, the girl is forced into marriage without her consent and she is forcibly separated from her family by a group of people, one of them being the future husband. [ix] To kidnap a young woman for marital purposes is technically against the law in most countries, but these laws are often not enforced. [x]

CAUSES OF ‘UKUTHWALA’

Most countries have passed laws declaring 18 years as the minimum legal age for marriage. Too often the laws are not effectively enforced and social, economic, and cultural realities bring about practices like ‘ukuthwala’. [xi]

Culture

Aspects of culture are evident in everything we do in our daily lives - from speaking to eating to clothing -yet defining the term `culture' is no easy task; it is an abstract and ever evolving concept. [xii] In the context of this policy brief culture is defined by online Word Dictionary [xiii] as ‘the total of the inherited ideas, beliefs, values, and knowledge, which constitute the shared bases of social action’. Local cultures and traditions influence the way the custom of early marriage is practiced in different regions, but the causes and consequences are universal. [xiv] Because the practice is often linked to legitimate economic and social needs of struggling families and societies, addressing those needs may prove essential for communities to accept delayed marriage and childbearing as an integral part of development. [xv] Gender-based expectations greatly influence the experience of adolescence. [xvi] Girls are often left at a disadvantage as they enter puberty; bias against girls puts them at higher risk than boys of dropping out of school, sexual violence and child marriage. [xvii] The other traditional factor that puts young girls at risk of being married at a young age is the belief that marriage will ensure her safety by preventing premarital sex and out-of-wedlock children. [xviii]

Poverty

Although bride abduction is rooted in long-standing cultural traditions, poverty also helps to fuel the practice. [xix] In many traditional settings, poor families use the early marriage of daughters as a strategy for reducing their own economic vulnerability, shifting the economic burden related to a daughter’s care to the husband’s family. [xx] Poor families have few resources to support healthy alternatives for girls, such as education, or even to feed and clothe them, and economic gains to families in the form of a bride wealth may act as further motivation for child marriage. [xxi] At the same time, the practice serves to ensure another cohort of poverty by forcing young girls into early marriage, with no education or economic skills and insufficient knowledge to raise children, as will no doubt be a consequence of the marriage. [xxii] Several studies conducted in developed and developing countries also indicate that adolescent mothers are more likely to have been brought up in less-advantageous poor families and experience pre-existing disadvantages that result from poorer economic circumstances. [xxiii]

SOCIAL IMPACTS ON THE GIRL CHILD

‘Ukuthwala’ has negative impacts on young girls. They are sometimes beaten if they object to sex and other wifely duties, and are very often raped to prevent parents from initiating efforts to have the girl returned or to report the matter (pre-marital sex is very taboo, and shame is often a factor that leads to inaction). [xxiv] Besides the fact that they may end up pregnant and have to drop out of school, they are also faced with lack of social and economic opportunities. The domestic demands placed on them often result in unsatisfactory school experiences and poor academic performance. [xxv]

Health

Although child marriage is sometimes believed to be a protective mechanism from the spread of HIV/AIDS, the truth is that early marriage can increase young girls’ risks of HIV and AIDS and other sexually transmitted infections (STIs). [xxvi] Child marriage is often associated with multiple health risks, because young girls have limited access to use of contraception and reproductive health services and information. [xxvii] Recent trends in the HIV/AIDS epidemic indicate a high prevalence of HIV infection in young women. This is due to a combination of biological, socioeconomic, cultural and political factors that put young women at greater risk of infection. [xxviii] Married girls aged 15-19 are 75 percent more likely to become infected with HIV than their sexually active but unmarried age group, according to a 2004 study conducted in Kenya. [xxix] In South Africa research done on young girls who are victims of forced marriage and rape showed that the girls had health complications as compared to their unmarried counterparts. [xxx]

The other belief that makes young children vulnerable to early marriage and HIV/AIDS is the virginity cleansing myth. The belief that sexual intercourse with a virgin can ‘cure’ a man of HIV/AIDS , but that the girl will not be infected in the process. [xxxi]

ECONOMIC DEVELOPMENT OF THE GIRL CHILD

Early marriage violates a girl’s right to a future and by doing so perpetuates the ‘feminization of poverty’ (this is a global trend whereby women increasingly and disproportionately are numbered among those living in poverty).[xxxii] It does so by denying a girl opportunities and compromising their development in areas such as education, livelihood and personal growth [xxxiii]. Furthermore, loss of schooling is more likely to reduce the chances of lessening household poverty, as a result of loss of both the education and skills necessary for gaining employment. [xxxiv]

Education

Education is the key area where many child brides lose out when they are married too early. In large parts of Asia, Africa and in some Middle Eastern communities, girls are not enrolled in school or are withdrawn at puberty often to undertake domestic duties or specifically for marriage. [xxxv] In South Africa, in the first and second quarter of 2009 the media reported that ‘more than 20 Eastern Cape girls are forced to drop out of school every month to follow this traditional custom of ‘ukuthwala’. [xxxvi] Evidence shows that the more education a girl receives, the less likely she is to marry as a child. Improving access to education for both girls and boys and eliminating gender gaps in education are important strategies in ending the practice of child marriage. [xxxvii]

CHILDREN’S AND MARRIAGE ACT IN SOUTH ARICA

1. Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being. [xxxviii]
2. A child:
(a) Below the minimum age set by law for a valid marriage may not be given out in marriage or engagement; and
(b) Above that minimum age may not be given out in marriage or engagement without his or her consent. [xxxix]
Sections 3 contains the requirements for validity of customary marriages. The main requirement being 18 years as the age of consent to marriage under customary law and that marriage must be negotiated and celebrated in accordance with customary law. [xl] According to J.C. Bekker, C. Rautenbach, and N.M.I. Goolam, in their ‘Introduction to Legal Pluralism in South Africa’ ‘ukuthwala’ is not a customary marriage, but a method to force the girl’s family to enter into marriage negotiations. [xli]

Conclusion

Various reasons exist for the practice of ‘ukuthwala’, some of which are arguably strong and weighty. They include: to force the father of the girl to give his consent, to avoid the expense of the wedding and to speed matters up if the woman is pregnant. [xlii] However, these reasons are also suggestive of the fact that the girl or the unmarried woman involved is, in some cases, abducted without her consent. [xliii] Culture as a way of life for people, is given a place in our constitution, but no culture should be above the law. [xliv] The practice of ‘ukuthwala’ and early marriage is unconstitutional and it is discriminatory against the girl child on grounds of sex and gender. [xlv] Marriage in South Africa and other countries, regardless of religion or culture, requires the full consent of both parties. ‘Ukuthwala’ does not meet this requirement or the age requirement and is not a valid marriage arrangement in terms of the Marriage Act or the Recognition of Customary Marriages Act. [xlvi] Exploring how poor health status, including sexual and reproductive health, illiteracy, social exclusion and powerlessness affects married girls provides a better understanding of their vulnerability to poverty. [xlvii] The other harmful consequences include separation from family and friends, lack of freedom to interact with peers and participate in community activities and decreased opportunities for education. [xlviii Child marriages deprive girls of the opportunity to obtain education which would be helping them live an economically rewarding life in future. [xliv]Their rights to choose their life partners are deprived because they were not given a chance to counter the decision to be married.

END NOTES

[i] Joyce Maluleke, (2009), Justice Today, Vol 5 available
[vii] The Independent on Sunday, London- Sunday,9 October 2011: “Bride napping” a growing hidden crime. Available at http://www.global-sisterhood-network.org/content/view/2640/59/
[viii] en-wikipedia.org
[ix] Wadesango, N., Rembe, S., & Chabaya, O. (2011). Violation of Women’s Rights by Harmful Traditional Practices. Africa, 13(2), 121-129.
[x] Laws.com, Children’s Law: What You Didn’t Know about Bride Kidnapping in Modern Culture. Available at http://children-laws.laws.com/child-abduction/bride-kidnapping/bride-kidnapping-in-modern-culture
[xi] RIGHT TO EDUCATION Project © 2008, available at http://www.right-to-education.org/node/58
[xii] Greiff, S. (2010). No Justice in Justifications : Violence against Women in the Name of Culture, Religion , and Tradition. Program, Available at www.stop-stoning.org
[xiii] Dictionary.com. the American Heritage® New Dictionary of Cultural Literacy, Third Edition, Houghton Mifflin Company, 2005. dictionary.reference.com

[xiv] Marry, P. G. (2008). Before she’s ready. NMS07381_0808 © 2008 World Vision, Inc.
[xv] ibid
[xvi] UNFPA, Srate of World population, (2005): The unmapped Journey, Adolescent, Poverty and Gender. Chapter 5. Available at http://www.unfpa.org/swp/2005/english/ch5/index.htm
[xvii] Alexandra H, Charolotte F. (2011). Who Speaks for Me? Ending Child Marriage. Education, Available at http://www.prb.org/pdf11/ending-child-marriage.pdf
[xviii] Alexandra H, Charolotte F. (2011). Who Speaks for Me? Ending Child Marriage. Education, Available at http://www.prb.org/pdf11/ending-child-marriage.pdf
[xix] www.care.org
[xx] Naana Otoo-Oyortey,”Early Marriage and Poverty. Forum on Marriage and the Rights of Women and Girls Framework. available at http://www.swaasthya.net
[xxi] International, Planned Parenthood Federation and Forum on marriage and rights of women and girls, (2006). Ending child marriage. Human Rights. Article available www.unfpa.org

[xxii] ibid
[xxiii] Petra Otterblad Olausson, Bengt Haglund, Gunilla Ringbäck Weitoft & Sven Cnattingius, (2001), Teenage Childbearing and Long-Term Socioeconomic Consequences: A Case Study in Sweden, Available at http://www.guttmacher.org/pubs/journals/3307001.html

[xxiv] Nicole Soucie, (2011), Child Marriage: Ukuthwala in South Africa, Available at www.genderacrossborders.com

[xxv] Grant, M. J., & Hallman, K. K. (2008). Pregnancy-related school dropout and prior school performance in KwaZulu-Natal, South Africa. Studies in family planning, 39(4), 369-82. Retrieved from http://www.ncbi.nlm.nih.gov/pubmed/19248721

[xxvi] ibid
[xxvii] International Planned Parenthood (2006) Federation: Ending child marriage. Human Rights. Available at web.unfpa.org

[xxviii] ibid
[xxix] www.trust.org/ Lisa Anderson childmarriage,(2011)
[xxx] Justice Maluleke: Department of Justice and Constitution, (2009), Ukuthwala (lets protect our children). Vol 5. Available at http://www.justice.gov.za/docs/articles/2009_ukuthwala-kidnapping-girls.html
[xxxi] Suzanne Leclerc-Mdladla (2002), On the virgin cleansing myth: Gender bodies, AIDS and Ethno medicine, Africa Journal of AIDS research, 1:87-95 available at scnc.ukzn.ac.za
[xxxii] Naana Otoo-Oyortey and Sonita Pobi Jul., (2003),; Gender and Development, Vol. 11, No. 2, Marriage (pp. 42-51Published by: Taylor & Francis, Ltd. Article Stable URL: http://www.jstor.org/stable/4030639
[xxxiii] ibid
[xxxiv] Tladi L.S (2006). Poverty and HIV/AIDS in South Africa: an empirical contribution. Journal des Aspect Social=ux du VIH/SIDA, page 370. Available at www.childinfo.org
[xxxviii] Children’s Act 38 of 2005
[xxxix] ibid
[xl] Republic of South Africa’s recognition of Customary marriage Bill, as introduced by National Assembly, 1993
[xli] Association for women rights in development (2011), child marriage: ukuthwala in South Africa, Available at www.awid.org
[xlii] ibid
[xliii] ibid
[xliv] ibid
[xlv] Federation of House Commission & Street, Association. (2010). WOMEN’ S LEGAL CENTRE SUBMISSIONS ON SOUTH AFRICA TO THE COMMISSION ON STATUS OF WOMEN, (021).
[xlvi] ibid
[xlvii] ibid
[xlviii] Wadesango, N., Rembe, S., & Chabaya, O. (2011). Violation of Women ’ s Rights by Harmful Traditional Practices. Africa, 13(2), 121-129.
[xlix] ibid