Law reforms are needed to prevent abnormal traditions like Ukuthwala

Justice and Correctional Services Minister Ronald Lamola this week said a mouthful about the significance of law reform in a fledgling democracy like South Africa, among others the tradition of ukuthwala.

“Historically, there has been a major discrepancy between the content of the law and the ideal of justice,” said Lamola when being presented with four reports from SA Law Reform Commission (SALRC) chair Justice Jody Kollapen, recommending changes to some branches of the law.

“The law is not static, nor is it forever cast in stone. The laws that apply in a country must be dynamic and subject to regular review and improvement when the need arises.

“As society changes, so must the law – constantly improving, asking what works and what doesn’t. For the law to remain relevant and useful to society, it must be monitored and followed by extensive research and proper consultative processes.”

Key among the SALRC far-reaching recommendations has been the overhaul of the practice of ukuthwala.

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While the practice has initially not involved any form of violence or rape, in later years it deviated from the original concept of being a consensual way of encouraging the parents of the bride to begin marriage negotiations.

While staunch proponents of ukuthwala – particularly in the rural areas of the Eastern Cape and KwaZulu-Natal – would like us to believe that the current violent, dehumanising, chauvinistic and exploitative practice is synonymous with tradition, they better think again, especially in a country that prides itself in a constitution which enshrines human rights.

Describing ukuthwala as “the act of taking a marriage partner in unconventional ways”, the commission recommended the enactment of a new legislation: the Prohibition of Forced Marriage and Regulation of Related Matters Bill.

This will make it:

• A criminal offence for anyone to attempt, conspire with any other person to procure another person into a forced or child marriage;
• Victims can apply for a forced marriage protection order; and
• It is mandatory for a person convicted of ukuthwala to pay appropriate compensation to the victim for any damages suffered.

Ukuthwala has degenerated into kidnapping and rape of young girls by older men, forcing them into “customary marriages”.

It is time for a rethink on whether the practice is still relevant. India – a country which has, for centuries, been known for arranged marriages – has in recent years seen a trend of the new generation of women moving away from the norm.

Like in South Africa, forced marriages in India – particularly involving children – have increased.

Studies have revealed the adverse impact of ukuthwala on women – especially girls, whose childhood has been taken away at an early age.

Research by the Taylor & Francis Group “revealed that girl children who are forced into marriages are deprived of their learning opportunities, innocence and childhood.

“They also fall into a trap of early pregnancies, domestic violence and, as a result, simply drop out of school.” Nothing normal about ukuthwala.