Quest to understand ukuthwala
By Shamin Chibba
Kholosa*, 13, from rural Eastern Cape, was abducted by a man and taken to Johannesburg. He made her his bride. For over a year she lived with her husband in a shack in Orange Farm informal settlement. Every morning, he would ritually beat and rape her before locking her inside the shack and leaving for work.
One day, Kholosa decided she had had enough and managed to escape. She got in touch with a local teacher who took her to the police. Thereafter, she was safely returned to her home in the Eastern Cape.
This is just one example of modern-day “ukuthwala”, a Xhosa marital practice that still does not have a clear English translation. Some believe it means “forced marriage” and others say it is “arranged”.
However, according to South African Human Rights Commission’s researcher, Aubrey Mdazane, the practice has little to do with forced or arranged unions, and historically it had nothing to do with abductions and domestic violence.
Mdazane actually believes that in our times, people are conducting ukuthwala against the spirit of the practice and have brought in a range of criminal elements into it.
“The approach is not to say that these practices are wrong but we need to understand it and conduct them properly,” he said.
Mdazane was at Masimanyane on Thursday, 18 October, to conduct a focus group for a report he is currently compiling. A little more than 10 women from rural areas in the Eastern Cape attended to discuss how ukuthwala can be integrated into modern society.
“We want to find out what makes people start the practice in the first place and the prevalence of other related practices,” said Mdazane.
These related practices include circumcision, female genital mutilation, ingqithi (cutting off of the ring, index or little finger), virginity testing and scarring on the face.
Mdazane said that many people practicing ukuthwala are not conscious of the fact that it can lead to the contraction of HIV/Aids, teenage pregnancy and even infant mortality.
Most victims of modern-day ukuthwala are adolescent girls, sometimes as young as 11-years of age, from rural and poor backgrounds. Many times, men from urban areas take the girls as their brides.
“In some instances where a dowry is involved, as soon as the man pays up, he thinks he owns the woman. She becomes the man’s property.” said Mdazana.
He started researching ukuthwala at the beginning of this year and his intention is to show South African society how the practice affects us all.
“In the past, ukuthwala was a good practice. But in its modern manifestation, it is no longer the case. There are criminal elements in it now that we need to get rid of. We need to revisit and re-evaluate the practice. With culture there is an element that has to evolve,” said Mdazana.
He added that society needs to be cautious not to trample on culture and instead, be innovative to get human rights and culture working together.
“We are dealing with the issue of reconciling human rights and culture. We still have to find each other and accept the new human rights framework.”
Ukuthwala violates constitutional rights
The issue of ukuthwala had come under the spotlight when last year Mandla Mandela, who is in favour of the practice, said that it has nothing to do with age and that bringing “white” notions into culture will turn everything upside-down.
According to a Mail & Guardian report on December 2, Mandela met with the Tshwaranang Legal Advocacy Centre, the Rural Women’s Movement and the Commission on Gender Equality to clarify his position on ukuthwala.
In response to Mandela’s claim, Tshwaranang executive director, Lisa Vetten, said ukuthwala “violates the constitutional rights to dignity, freedom and security of the person, as well as the Recognition of Customary Marriages Act of 1998, which prescribes that prospective spouses be over the age of 18 and that they must both consent to the marriage”.
“Genuine” ukuthwala does not involve violence
In a Business Day report, attorney Duncan Dukada, a one-time lecturer in African customary law, said "genuine" ukuthwala custom did not involve violence.
“When a woman was ‘taken’, she was immediately taken to the new home. The following day, they will go and report to the mother, to the parents of the girl, to say don't look for the girl, the girl is here. And she will not be touched. She will not be harmed. And if the parents disapprove of this intended marriage, they would say so. The man would be fined. And that would be the end of the matter. That was proper customary law. So what has been happening is really an illegal act, done under the pretext of custom.”
Ukuthwala an ancient practice that leads to statutory rape
According to the National Department of Justice and Constitutional Development (DOJ&CD), Ukuthwala is an ancient African practice particularly among the Nguni.
It is a form of abduction that involves kidnapping a girl or a young woman of marriageable age by a man and his friends or peers with the intention of compelling the girl or young woman’s family to endorse marriage negotiations. Though the practice was condoned, it did not involve raping or having consensual sex with the girl until marriage requirements had been concluded.
“The act of Ukuthwala, however, was not with impunity; it incurred delictual liability for the culprit, in the form of the payment of one or more herd of cattle to the father or legal guardian of the girl.”
Constitutional expert at the University of South Africa, Shadrack Gutto, said on TVSA.co.za that modern-day ukuthwala that involves sexually violating girl children is nothing but statutory rape according to the South African Constitution.
*Name has been changed.