Long Road still ahead for ‘Child Marriages’ Bill

Despite alarming figures of tens of thousands of child marriages in the country, much-needed legislation to address the issue is seemingly still a long way off for those considered child victims of forced marriages.

The issue of forced child marriages and specifically the practice of ukuthwala recently came under the spotlight during question time in Parliament. Minister of Women, Susan Shabangu faced a barrage of questions from MPs on issues of gender-based violence when she was asked what programmes her department have for ukuthwala.

The department of justice defines ukuthwala as 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 young woman's family to agree to marriage”.

DA MP Terri Stander asked the Minister of Women in the Presidency what programmes her department have in place to address ukuthwala.

Child marriages came under the spotlight when StatsSA released alarming figures of more than 90 000 girls between the ages of 12 and 17 that were married or had been in some sort of relationship in 2016.

This, Shabangu said, translates to 3% of child marriages, thus confirming that child marriages “are common” in South Africa. Shabangu said adverse cultural practices will not be tolerated, yet the much-needed legal certainty especially around ukuthwala is still lacking.

The legal uncertainty is in big part due to inconsistencies between different pieces of legislation. Marriage is allowed for girls under 15 years subject to certain conditions but this contradicts provisions of the Children’s Act on statutory rape.

The Draft Prohibition of Forced Marriages and Child Marriages Bill will contain provisions on conviction and sentencing for those who force children into marriage.

State law advisor Maite Modiba told ParlyBeat the Law Reform Commission must follow processes which included publishing the Discussion Paper on ukuthwala, public consultations and consolidating the comments received in these public consultations as well as written comments.

This, according to her, has now been done. “We completed a Draft Report based on those comments. We had a Commission meeting recently in which the report was tabled. The Commission approved the Draft Report, subject to some amendments. We are currently making those changes as recommended by the Commission.” The Discussion Paper on the practice of ukuthwala will serve as a basis for drafting the Bill

 Modiba said only when the Commission approves the report, will it be sent to the relevant minister who will have to consider it and take a decision to table it in Parliament. “The next Commission meeting is scheduled for 02 December. The Report will then be submitted to the Minister of Justice and it will be in his hands to decide when to introduce it in Parliament after considering it.” She could not confirm the exact time as to when will this happen. Then minister of Justice, Jeff Radebe in 2011 established an advisory committee to assist the Law Reform Commission in developing a Discussion Paper on the issue.

Shabangu in her answer focussed on the legislative aspects of the issue stating her department’s position on the criminalisation of illegal forms of ukuthwala. Said Shabangu: “The Department of Women also proposed that the South African Law Reform Commission amend the Recognition of Customary Marriages Act to protect the victims of ukuthwala who have already accepted their condition and consider themselves as married under customary law.”

Over the years many cases of forced child marriages made the headlines. In 2013 a 57-year-old sangoma in Limpopo married a 13-year old girl. In 2014 a man was sentenced in Wynberg, Cape Town to 22 years in prison for raping and assaulting a 14-year old girl after an ukuthwala incident.

Shabangu labelled this conviction as a sign that the country will no longer tolerate practices that violate women’s rights. She said it is important to engage communities about the anomalies of culture and the rights of women. “This will help us address the challenge of harmful cultural practices.”

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