The cultural practice of ukuthwala in South Africa

Abstract

It has been argued that the practice of ukuthwala is one of the forms of child marriage in South Africa. The practice is widely spread, especially in the Eastern Cape among the Xhosa Communities. The practice of ukuthwala involves the marriage of young girls below the age 18 years, mostly to older men. That is below the minimum age requirement for marriage as set by the national law as well as international and regional instruments to which South African is a party. This type of marriage is often arranged by the family of the bride and the groom without the bride's consent. The way in which the customary practice of ukuthwala is performed has led to constant violation of children's human rights. Some of the rights which have been violated include the right to education, the right to health, the right to the survival and development of the child, and the right to dignity. So the cultural practice of ukuthwala has negative effects on the well-being and development of the girl child. Hence it has been arguably regarded as a harmful cultural practice. International and regional instruments address the need to protect children's rights from harmful cultural practices such as ukuthwala, which have negative effects on children. One of the most significant treaties to address the issue of such harmful practices is the African Charter on the Rights and Welfare of the Child, which also provides for principle of the consideration of the best interest of the child in all matters affecting the child. South Africa has ratified these treaties and as a member state it has an obligation to comply with the standards set by the instruments. The Constitution of the Republic of South Africa, 1996 provides for the protection of the rights of children, and the very same Constitution affords everyone the right to culture. However, the right to culture need not violate any other constitutional rights. There is also a legislative framework provision in the Children's Act 38 of 2005, which prohibits child or forced marriage. Despite such provisions, children's rights are constantly violated through ukuthwala in the guise of a constitutional cultural right.