It is not foreign in African cultures to find marriages being arranged for the children who are of marriageable age, such being done in the spirit of Ubuntu and to also strengthen families’ relations [See Report: Workshop on the violation of children’s rights through the abuse of cultural practice of Ukuthwala].
Ukuthwala is defined by Maluleke J “as a form of abduction that involves kidnapping a girl or young woman by a man and his friends or peers with the intention of compelling the girl or young woman’s family to endorse marriage negotiations”.
Section 2 of the Constitution states that the Constitution is the supreme law of the country and any law that is inconsistent with it is invalid.
Further, the Constitution provides that everyone may practice their culture, as long as such practices are not inconsistence with the Bill of Rights.
Ukuthwala, as presently practised, violates the rights of children and women, as children of minor age, are kidnapped and raped, without their families’ knowledge or sometimes being ‘sold’ by their own families for money [Jezile v the State 2014].
The rights violated include but not limited to the right to dignity [Section 10], Section 28 which speaks of the Children’s rights, ie, right to be protected from maltreatment, neglect, abuse and degradation, right to education [Section 29], the practice denies the child of her right to be a child and does not cater for the best interest of the child, is against the values of the African values of Ubuntu and also the Constitution.
As much as the Constitution embraces cultural practices, such practices must be in line with the Bill of Rights and upholding the values which the Constitution stand for.
