A Clarion Call to End Underage Marriages

By: Pinkie Sobahle and Javu Baloyi

Call it underage marriage; child marriage; forced marriage or “ukuthwala”, all these are a violation of human rights as enshrined not only in Article 16 (1) of the Universal Declaration of Human Rights 1948, Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Charter on the Rights and Welfare of the Child (African Children’s Charter) and many more but also in the Constitution of the Republic of South Africa.

In some instances, this practice is utilised under the pretext of religion or culture. Child marriage also violates the rights of women and girls that are enshrined in regional treaties. These include the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (the Maputo Protocol), which calls on governments to “enact appropriate national legislative measures to guarantee that “the minimum age of marriage for women shall be 18 years”; and the African Charter on Human and Peoples’ Rights (the African Charter), which calls on states to “ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions”.

Furthermore, the Convention on the Rights of the Child states that a minimum age of marriage of 18 will also help to ensure that children are able to give their free and full consent to marry and have the minimum level of maturity needed before marrying.

 The African Charter on the Rights and Welfare of the Child is unequivocal regarding the relationship between culture and children’s rights. It explicitly asserts its supremacy over any custom, tradition, cultural or religious practice inconsistent with the rights and obligations guaranteed under it.  The African Women’s Protocol also contains provisions relating to the elimination of harmful practices, including the prohibition, through legislative measures backed by sanctions, of all forms of harmful cultural practices.

Chapter two of the Constitution of the Republic of South Africa enshrines the rights of all people and affirms the democratic values of human dignity equality and freedom.

The UN Secretary-General Antonio Guterres reporting on progress towards Sustainable Development Goals stated that globally child marriage is declining but not fast enough. He reported that around 2000, nearly 1 in 3 women between 20 and 24 years of age reported that they were married before 18 years of age. Around 2015, however, the ratio was just over 1 in 4. He observed that the decline is driven by an even steeper reduction in the marriage rate among girls under 15 years of age during that period.

A different picture is, however, painted by STATISTICS SA Community Survey of 2016. They indicate that more than 91,000 South African girls between the ages of 12 and 17 were married, divorced, separated, widowed or living with a partner as husband and wife in 2016. Although it has been reported that the numbers in South Africa are not as high as some other countries in the continent, what is happening in the country is extremely unacceptable.

What causes people to target young children as their brides? Is there any joy in marrying a child? Why is it that some parents accede to these actions? As many have said, patriarchy is the main cause. The Commission for Gender Equality (The CGE/The Commission) has noted that the practice has a class character as many of the victims come from poor family backgrounds. There is also a commercial aspect to the practice. Some poor families agree to the child marriage because there is an exchange of money in what they consider as “ilobola”. 

Child marriage is not just unacceptable because it is a violation of human rights; it also has a negative impact on the heath of the young girls. In many cases, because of their young age in relation to that of the perpetrator, they have no say in what happens in the relationship. More ominously, their bodies are not fully developed and as such are susceptible to sexual reproductive complications. Their young bodies are ill-prepared for the adult responsibilities. 

Furthermore their education is also obstructed. The impact thereof perpetuates poverty. Is it worth it? Unabated it becomes a cycle of poverty, generation after generation.

The CGE has been involved in a number of these cases either intervening directly to stop them or acting as amicus curiae in some of the cases. 

In KwaZulu-Natal for instance, CGE intervened directly by reporting the case of an abducted girl. She was returned to her home. This was done with the assistance of National Prosecution Authority (NPA), the HAWKS, South African Police Service (SAPS) and the Department of Social Development. In KwaZulu-Natal the Commission has seen positive cooperation between the communities and CGE in an Endeavour to end child marriages.

In a matter that started in the Eastern Cape and ended in Cape Town – the matter between Mvumeleni Jezile vs. the State – a widely reported case of a 32-year old man in 2010 who abducted a 14-year old girl from Engcobo. He was sentenced in 2011 in the Wynberg Regional Court to an effective 22 years in jail for three counts of rape, human trafficking and assault. The CGE was amicus curiae in the case.

CGE was best equipped to testify because of the work that CGE has done on “ukuthwala”. In line with its investigative mandate and its duty to promote gender equality under the CGE Act, investigations had been held in both KZN and the Eastern Cape. The objective of these investigations was to assess whether the practice referred to as “ukuthwala” was being practiced in a constitutional manner and whether government departments were responding adequately to ensure that the best interests of minor girls and women are protected and advanced. CGE found that this practice has been distorted. Subsequently, awareness raising seminars were held in both provinces culminating in a Report in 2012.

Recently CGE exposed the abduction of a 14-year old in Idutywa. The girl was forced into an underage and unlawful marriage. Had it not been the involvement of the Commission, the case would have gone unreported. CGE’s involvement led to the arrest not only of the perpetrator but also of the accomplices. There were 9 of them! CGE is monitoring the case. This confirms that in many of these cases, it is not just the perpetrator that is involved. There are accomplices who, in some cases involve the parents and relatives.

What should be done to avert this? When is a child an adult?  South Africa needs to address this matter urgently.

There is a need to arrest not only the perpetrator but all those who were involved in the case. This will send a strong message to those who believe girls are for sale. Harsh sentences should be imposed to both the perpetrator and the accomplices.

It is unfortunate that Mvumeleni Jezile’s case was concluded in Cape Town. This should have happened in the Eastern Cape where it started in order to send a strong message to other would be perpetrators. 

These crimes happen mostly during the festive season when people have extra money from their bonuses. There is therefore a need to be pro-active. Police should be on the alert. They also need to act swiftly. I still maintain, had it not been for the swiftness of the CGE, the man would not have been arrested and worse still; the 14-year old would have been “married” to this man. In KZN for instance, it is a known fact that around December at Ixopo, there is an event called “ihlahla”. This involves dancing that is done by virgins only. This then becomes a fertile ground to “hunt” for brides. Any plans to avert this? I have not heard of any.

In court, Jezile did not show any remorse. To him abducting and marrying an underage girl was part of his culture. This means there is a pertinent need to run awareness raising workshops on this.

The Commission is calling on the citizenry not to be complacent when it comes to the abduction and marriages of underage girls. The CGE has been vociferous in calling for an end to underage marriages. It is therefore incumbent upon us all to be vigilant and work closely with the South African Police Services (SAPS), NPA, the HAWKS and other likeminded institutions in ending this scourge. The Commission is also cognizant of the possibility of many more cases of this nature throughout the country going unreported due to many factors.

 We implore the community to use our Toll-Free Number 0800 007 709 to report cases of underage marriage/forced marriage/“Ukuthwala” or any gender related violence.