A CONCEPTUAL FRAMEWORK
SIX DEFINITIONS of terms in human rights relevant to GBV
INTERNATIONAL AFRICAN REGIONAL SUB-regional NATIONAL
UN AU SADC RSA
DE violence ?
against women CRC APRW
Wo Rights ACRWC
R+W? child SADC
Gender & equality Constitution
Discrimination Discrimination Discrimination Discrimination Discrimination Discrimination
Harmful cultural practices Harmful cultural practices Harmful cultural practices Harmful cultural practices Harmful cultural practices Harmful cultural practices Harmful cultural practices
GBV/VAW Violence Against women Violence Against women –
Gender Stereotypes Gender Stereotypes Gender Stereotypes Gender Stereotypes Gender Stereotypes Gender Stereotypes
Freedom from torture Freedom from torture Freedom from torture Freedom from torture Freedom from torture Freedom from torture
Equal protection under the law Equal protection under the law Equal protection under the law Equal protection under the law Equal protection under the law Equal protection under the law Equal protection under the law
Narrative on the Conceptual Framework
Gender based violence (GBV) remains one of the challenges that negatively impact on men women, boys and girls, including their rights and freedoms. The international community has developed a number of treaties that respond to gender-based violence, key to this assignment are the Convention on the Elimination of Discrimination Against Women herein referred to as (CEDAW), the Declaration on Elimination of Violence Against Women, herein referred to as (DEVAW) and the Convention on the Rights of the Child herein referred to as (CRC).
It is important to mention that while the CEDAW was developed to promote the equality of women and men and hence did not fully directly consider issues of GBV. Consequently, the UN General assembly developed the DEVAW. Consequently, while the CEDAW aims to reduce discrimination by promoting the equality of men with women, the DEVAW aims at addressing violence that is perpetrated against women because they are women.
Further, at regional level, Africa also developed the African Charter on the rights and Welfare of children, and the African Charter on Women’s Rights. These two treaties were developed to domesticate the international protocols into the culture and content of Africa, to ensure that the women’s rights can be negotiated within a culture specific context.
Further, as the conceptual framework shows, from the African treaties the SADC has also developed more specific declarations that are supposed to guide SADC efforts to eliminate violence perpetrated against women and children. Since, South Africa is a signatory to all these treaties South African has domesticated many of these provisions in the above-mentioned conventions into its own legal framework. It is in the aim of this assignment to explore the extent to which the enacted national legislation on GBV in South African comply with the international and legal frameworks and the extent to which they provide adequate protection against violence.
1.1 Assignment framework
This assignment explores Gender Based Violence (GBV) from the international, African, regional, and national (South Africa) legal perspectives. The assignment has three major components. Component 1, provides a conceptual framework which describes terminology (definitions) and human rights enshrined in key prescribed international, African regional and the 1996 South African Republican Constitution which are relevant to GBV, with specific reference to; i) rape and marital rape, ii) domestic violence, and the (iii) harmful social or cultural practices. Secondly, this component also provides concluding remarks to compare the legal perspectives and clarify the gist of the conceptual framework.
While the second component critically evaluates whether South African constitution complies with international and African treaties, the third component explores the extent to which South African legislation provide sufficient protection concerning; a) marital rape, b) domestic violence, c) intimate partner killings, with reference to Walkers’ view on the battered woman and the judgment in S v Steyn 2010 1 SACR 411 SCA, d) certain social or cultural practices, including, (i) male circumcision, (ii) female genital mutilation (FGM), (iii) virginity testing, (iv) ukuthwala, (v) forced marriages and (vi) child marriages. The assignment discussion starts with the situation of GBV in South Africa as described in the section below.
1.2 The situation of GBV in South Africa
GBV refers to violence that happens because of unequal power relations and the normative role expectations associated with different sexes and genders within a specific society (Bloom 2008: 14). The following below are some of the GBV issues that will be dealt with in this assignment
1.2.1 Rape and Marital Rape
In South Africa statistics show that up to half of women are raped, and that over 41% of cases of rape in South Africa involve children below the age of 18 (Vetten, 2014:4). In the year 2013/14, 62,649 sexual offenses cases were recorded by the South African Police Services (SAPS). Further, 34.6% of the rape cases reported to police in that year, were committed by relatives, and intimate partners, while 24.4% of the victims did not know the attacker (Institute for Security Studies and Africa Check, 2014).
Considering low reporting of GBV cases, the medical research Council and Gender Links dispute the figures shared by the SAPS and argue that in the year 2013/2014 actually one in twenty-five cases of were reported to police and that 0.3 % of domestic violence cases were reported (Gender Links, 2012: 23).
South Africa happens to be one the Southern African countries with highest cases of GBV (Masimanyane, 1998). The South African Stress and Health Survey (SASH), names intimate partners violence as one of the most common cases of GBV in South Africa (Vetten, 2014: 3). A SASH study conducted by the John Hopkins in Mpumalanga, Limpopo and the Eastern cape in 1998, revealed that one in four women (25%) reported to have experienced physical violence perpetuated by their male partner in their life time, while one in ten (10%) had experienced such violence in the year preceding the study (Jewkesa et al., 2001:1604).
The National Institute for Crime Prevention and Rehabilitation (NICRO) puts the figure at one in twenty rape cases being reported to SAPS (Vetten, 2014: 2). These contradictions, explains how challenging it is to have authentic data on GBV in South Africa and also points to a gross underestimation of the actual burden of GBV by the SAPS.
1.2.2 Domestic violence
Domestic violence is not recorded by SAPS as a criminal offense (Vetten, 2014:2). As such there is no consistent statistics available on the phenomenon of domestic violence, as cases that are expected to be described as such get categorized as assault, murder, malicious damage of property and so on (Vetten, 2014: 2). The most common reported cases of domestic violence get recorded as intimate partner violence (Vetten, 2014:3).
However, it is important to mention that since the Domestic Violence Act was enacted in 1998, the majority of people seeking protection orders in South Africa are married women (Vetten, 2014: 5). The section below explores the key international treaties relevant to this assignment.
2. INTERNATIONAL AND AFRICAN TREATIES RELEVANT TO GBV
South Africa has signed a number of international and African conventions and treaties that are related to GBV. This section explores these treaties in depth.
2.1 Convention on the Elimination of Discrimination Against Women (CEDAW)
The United Nations General Assembly adopted the CEDAW in 1979 to principally prohibit discrimination and promote equality of men and women. Even though the CEDAW do not clearly define “Gender Based Violence”, it however, contains a number of provisions that to protect women and girls from violence. Firstly, the CEDAW considers GBV as form of discrimination based on sex and a violation of their human rights, including their right to life, to liberty, and security of the person, to health, and to be free from torture (Byrnes, 1999). Article 1 of the CEDAW define discrimination as
“… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” .
The CEDAW committee through its General Recommendation (GR) 19 provides guidance on how the CEDAW can be interpreted to tackle GBV. GBV is defined by the GR 19 as;
“violence that is directed against a woman because she is a woman or that affects women disproportionately” (Art. 1 of the GR 19).
Among other things, the GR 19 urges member states to ensure that legislative measures are provides to victims and survivors of GBV together with services as counseling and shelter and that officers including police are provided with gender-sensitive training to handle GBV cases .
Article 5 of the CEDAW mentions harmful social and cultural traditions as playing a key role in nullifying women’s enjoyment of their rights (CEDAW, 1979). Consequently, in its preamble, the CEDAW urges member states to,
“.. change traditional roles of men and women in society and the family to achieve full equality between men and women “.
Further, the CEDAW article 17 (1) also provides for a CEDAW committee to monitor and report on progress on the implementation of its provisions. It is through these monitoring mechanisms that countries get assessed on their compliance with international conventions and obligations.
2.2 The DEVAW (1993)
Noting that almost all UN Protocols and conventions did not have clear provisions on GBV and violence against women (VAW), the UN General Assembly passed the DEVAW on 20 December 1993.
The DEVAW provides a comprehensive definition of VAW as;
“Violence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life” .
The DEVAW divides VAW in three components, namely, violence that takes place in the family, (incest, harmful cultural practices, physical violence, sexual and domestic violence), secondly, violence that takes place in the community, (harmful cultural practices rape, forced marriage, forced prostitution and sexual harassment), and thirdly, violence that is perpetrated by the state, (custodial violence and rape during war and armed conflicts) (UN, 1993).
Article 3 of the DEVAW urges states to provides women their rights including those in CEDAW Art. 1, such as the right to life, the right to liberty and security of the person, the right to equality, the right to protection under the law, and the right to be free from all forms of discrimination against women, among others.
Further, Art. 4 obliges states to desist from invoking customary or religious traditions to run away from their obligations to eliminate VAW. In this respect the declaration obliges state parties to legislate against VAW and provide enough resources for the implementation of activities and interventions that are aimed at eliminating VAW.
2.3 The Convention on the Rights of Children, 1990
The UN General Assembly adopted the CRC on 2nd September 1990. The following are the specific provisions from CRC that particularly protect children from violence; non-discrimination , the best interest of the child , survival and development , and participation . Ensuring that children are protected from mental and physical, violence, or abuse, neglect, maltreatment, exploitation, including sexual abuse , protection from economic exploitation , protection from sexual exploitation, including child prostitution and child pornography , protection from torture, or other cruel, inhuman or degrading treatment or punishment .
2.4 The African Charter on the Rights of Women in Africa.
The protocol is very comprehensive on the rights of women and girls with regards to GBV. For instance, article 3, the right to dignity, article 4, the right to life, integrity and security of the person, and Article 5 Elimination of harmful cultural practices.
Just like the CEDAW, the protocol calls on member states to; a) implement measures that protect women’s rights to dignity and violence, b) enact or enforce laws to prohibit all forms of VAW, and eradicate traditional practices, and stereotypes that legitimize and tolerate VAW, d) produce programmes for rehabilitation of victims of GBV, e) prohibit trafficking in women, and ensure that those are risk ate protected, f) that states provide enough resources to implement and monitoring interventions aimed at ending VAW, g) protect refugees and asylum seekers from violence, rape, and sexual exploitation.
2.5 Solemn Declaration on Gender Equality in Africa
The declaration was adopted by the AU head of states and government of AU member states in Addis Ababa on 6 July 2004. The deceleration recognizes that gender equality still remains one of the obstacles to development in Africa.
Article 4 of the declaration provides a commitment by heads of states to launch and sustain within two years public campaign to end GBV and the trafficking of women and girls. In article 5 the heads of states committed to develop and reinforce legislation that provides women adequate protection against VAW and eliminates impunity on crimes committed against women while also changing citizens attitudes and positively influencing behaviors of societies in Africa.
3. SOUTH AFRICAN CONSTITUTION COMPLIANCE TO INTERNATIONAL AND AFRICAN TREATIES
South African is party to the above international and African instruments. The country ratified the CEDAW in 1995, the CRC in June 1995, and the African Charter on Women’s rights in 1996. Further, South Africa ratified these international conventions without any reservations, suggesting that these conventions are legally binding upon the state (Sibande-Moyo, 2017:9). Consequently, the status and importance of the international law in South Africa can never be overemphasized (Sibande-Moyo, 2017:9). Further, South African constitution urges the state to make sure that domestic legal instruments are aligned to international conventions signed and ratified by the country, and that the courts interpolates the domestic laws in line with these international treaties. Consequently, based on the forgoing, South African as a sovereign state has managed to align its Constitution to the international conventions.
Despite aligning itself to the international treaties, a number of factors make South African constitution fail to comply with international conventions. Firstly, while the CEDAW general recommendation 19, and the DEVAW and the African protocol on women’s rights provides definitions of GBV and VAW, the South African Constitution does not provide any definition on GBV. Further, all the treaties above recognize that harmful traditional and cultural practices are a major cause of discrimination, and VAW. These treaties therefore urge national states to take measures to eliminate harmful traditional practices that limit children and women’s enjoyment of their rights and further expose them to GBV.
Despite this, South Africa has moved very slowly to eliminate harmful cultural practices, with limited progress (Sibande-Moyo, 2017:32-33). The rising rate of cases of GBV continue to mirror the existent conflicts in the constitution, between the bill of rights that provides for non-discrimination and equality, and citizens’ rights to enjoy their rights (Mahey, 2017:242). One such instance is article 16 of the CEDAW which seeks equality in marriage. Though a signatory, South Africa’s Recognition of Customary Marriages Act of 1998 continues to allow recognition of polygamous marriages, which is also a direct contradiction of CEDAW General Recommendation 21, paragraph 14.
Further, article 17 (1) of the CEDAW requires that member states submit progress reports on the state of implementation and the status of the achievement of gender equality and non-discrimination. However, it is a concern that the country has not complied to the reporting on CEDAW, and other instruments. As the Commission on Gender Equality indicates, the reports have been submitted several years late, or did not provide all the information required to evaluate the efforts made by government to implement these treaties. It can therefore be concluded from the for-going, that South African has partially complied to the international treaties it signed.
4. SOUTH AFRICAN NATIONAL LAWS ON GENDER BASED VIOLENCE
Consistent with the CEDAW article 2 (f) which calls for member states to modify and abolish existing laws and regulations that are discriminatory to women (UN, 1979), South Africa has enacted two new legal instruments to tackle sexual and domestic violence, namely, the Domestic Violence Act No 116 of 1998, herein referred to as the DVA, which provides guidance on the country’s response to the scourge of domestic violence, and the Criminal Law (Sexual Offenses and Related Matters ) Amendment 32 of 2007, here in referred to as SORMA. The section below looks at these two laws in detail in light of key human rights issues, namely; rape and marital rape, domestic violence, intimate partner killings, and certain social, harmful cultural practices such as male circumcision, FGM, virginity testing, Ukuthwala, forced marriages and child marriages.
4.1 Rape and marital rape.
The Criminal Law (Sexual Offenses and Related Matters) Act (SORMA) of 2007, defines rape as;
“.. a situation in which “any person (a) unlawfully and intentionally commits an act of sexual penetration with complainant (B), without consent.
Even though the CEDAW as ratified by South Africa does not directly address rape and marital rape, it considers rape as a form discrimination based on sex. Consistent with the CEDAW article 2 (a) which calls for members states to include the equality principle in their constitutions and other pieces of legislation (UN, 1979) the government of South Africa has included section 9 in its Constitution, which articulates provisions on non-discrimination and equality of men and women (RSA, 1996).
South Africa is also a signatory to the CRC, ratified in 2000. Consistent with Article 2 which seeks the “best interest of the child” to be the primary consideration, and article 34, which urges national states to prohibit sexual exploitation and protect children from sexual offenses such as rape (UN, 1989), the government of South African has included section 28 in its constitution which articulates all provisions related to child protection (RSA, 1996).
In terms of marital rape, South Africa, unlike other countries such as Nigeria, does not provide any defence for marital rape (SORMA sec 56(1); Yebisi ; Balogun 2017:545) and has therefore complied with international obligations that aim to protect women’s rights and freedoms as enshrined in the CEDAW article 3, the DEVAW article 4 and the Constitution of the Republic of South Africa, especially section 12.
As argued by Randall (2015: 155) states failure to criminalize sexual offenses in marriage is a breach of due diligence and demonstrates the country’s compliance with international human rights provisions. Consequently, by taking steps to criminalize marital rape South Africa has demonstrated a strong will to eliminate family related sexual offenses, thereby respecting the women’s fundamental rights to equal benefits of the law as enshrined in the CEDAW article 5 (a) (UN, 1979).
Furthermore, the SORMA makes it evidence in the last paragraph of its preamble that its formulation is aligned to international legal instruments such as the CEDAW (1979), and the CRC (1989), which place obligations on member states to combat, and eradicate VAW and children.
4.1.1 Key protections provided to victims of GBV provided by SORMA
In terms of responding to rape and marital rape, the SORMA is progressive in a number of ways. Firstly, it expands the definition of rape, , to include all forms of non-consensual penetration. Further, the definition of rape in the SORMA suggests limited use force and instead puts consent at the center of it, in line with internationally accepted definitions of rape.
The broadened definition of rape, allows for inclusion of a variety of acts of sexual penetration , such as objects, in contrast to the common law definition which only considered the insertion of the penis of a man into the vargina of a woman. This definition therefore broadens the protections that the act can provide to victims of rape and marital rape. Further, the broadened definition also of rape also recognizes that other than heterosexual women, other transgenders such as lesbians, homosexuals, asexual people can also be victims of rape (Sibande-Moyo, 2017: 21). Consistent with many international and regional protocols, the act provides guidelines on how services important to victims of sexual offenses could be provided (Criminal Law Act 36/2007). Among these services are free post-exposure prophylaxis for HIV, and support to the victims to access court orders that allows for compulsory HIV testing for offenders (Criminal Law Act 36/2007). Furthermore, the act has also managed to create special sexual offences courts to tackle rape and other offences (Sibande-Moyo, 2017:42).
4.2 Domestic violence
A key legal instrument in responding to domestic violence in South Africa is the Domestic Violence Act, No 116 of 1998 (DVA) (Sibande-Moyo, 2017:41). Consistent with CEDAW article 2 (c) which urges states to provide women with legal protections on equal basis with men, the DVA is framed in such a way that it aims to provide maximum protection to people against violence, especially women and girls (Domestic Violence Act 116/1998).
It achieves this through many different ways. In the first place, it broadens the definition of “domestic violence”, so that it recognizes the different types of abuses, such as, emotional, physical, sexual, psychological, economic or verbal abuse; as well as intimidation, harassment, stalking, and damage to property (Kruger, 2004:34). Furthermore, the DVA also covers domestic violence suffered by children, whether by parents, family members, or people not directly related to the child (Kruger, 2004: 34). Further, it allows the child to obtain a protection order themselves or through support from others, other than their parents. Consequently, this provision is consistent with Articles in the CRC that aim to protect children from torture, and to advance their best interest (UN, 1989).
Furthermore, through its broader definition on “domestic relationships” the Act includes same – sex relationships as well as extended families, hence acknowledging that GBV can occur in different familial and domestic relationship. The DVA further mandates the magistrates to serve perpetrators of domestic violence with court orders, to bar them from visiting the victim’s residence or work places. It also empowers the courts to lay penalties for to the police and the courts for not executing the said orders (Kruger, 2004: 23).
The DVA orders the perpetrator to provide financial support to the victim and also provides the courts powers to disarm the perpetrator (Kruger, 2004: 23). Furthermore, unlike the previous act, the DVA mandates the police to provide support to the victims by, a) helping them to obtain a protection orders, b) providing them with information on their rights, and the remedial options they have, c) and helping them access services such as medical, accommodation and counseling services (Mogale et al, 2012, CSVR, 2015: 13). These obligations expressed in the DVA are consistent with Article 4 (d) and 4 (g) of the DEVAW and demonstrates how the DVA has effectively been aligned to international treaties.
Despite this, Article 3 (f) of the DEVAW requires national states to allocate adequate budgetary resources to ensure effective implementation of interventions that protect and provide support to victims and survivors of violence. Further article 3(h) of the DEVAW urges national states to collect data and compile statistics on the situation of violence. Despite this, South Africa’s limited budgetary allocation to VAW interventions, and lack of adequate and reliance statistics on violence, has made it very difficult for the victims and survivors of violence to receive adequate protection under these two progressive laws. As a result, cases of VAW continues to rise (Sibande-Moyo, 2017: 41)
4.3 Intimate partner killings
In recent times there have been increasing cases of women killing their abused husbands, commonly referred to as battered women (Walker, 2012: 321). Consequently, increasing incidence of such cases, has in recent times forced the judiciary to begin to understand the dynamics existent in abusive relationships and the psychological impacts that this may have on the women’s state of mind (Walker, 1992: 333).
Walker (2012: 321) states that initially, such women did not have any substantial legal defence. Instead they were merely asked to plead guilty to murder. In few instances, battered women were only provided some defence, in situations of proven insanity.
One of the conditions that is consistently used, is to assess whether the act of self-defense applied in unlawful killing is consistent with international human rights principles and the constitutional norms and value. This assessment criteria compels the courts to assess the abuse suffered, which have in many cases forced them to act in self-dense, to protect their lives, their dignity, their bodily integrity and their emotional wellbeing and freedoms.
The understanding of these situations in light of the South African constitutional provisions has been beneficial. The constitutions aim is to preserve life and the dignity, physical integrity and security of person. Consequently, this provides a legal defense which is based on the justification of the act they have committed as necessary to protect themselves or someone else from harm or death (Carstens, 2010: 4).
Consequently, the judgement provided in the case of Mrs. Engelbrecht demonstrates South Africa’s positive steps towards provision of equal justice to battered women. the facts of the matter are that Mrs. Engelbrecht has been in an abusive marriage for 9 years where she frequently suffered physical, emotional, and sexual abuse. Even though Mrs. Engelbrecht, had tried a number of times to apply for a protection order, the required support was not received as the courts and the police did not manage to timely provide the support (Papp. 2015: 31).
Even though Mrs. Engelbrecht was acquitted, and that justice was provided to her, such situations raises questions on whether other people could not abuse the system and carry the law in their own hands to kill innocent people and get away with it.
5. PROTECTION FROM HARMFUL CULTURAL PRACTICES
This section looks at different pieces of legislation in South Africa to explore the extent to which they provide children with protection from harmful cultural practices.
At regional level, article 21 of the African Charter on Rights and Welfare of Children protects children from harmful cultural practices. The article urges states to take measures to eliminate harmful cultural practices that affect welfare, dignity, and normal growth and development of the child (Article 21(a)). It also urges states to prohibit child marriage and betrothal of young girls and boys through legislation and to ensure that the minimum age of marriage is 18 years. At international level the CRC especially, article 24 (3) urges members states to abolish traditional practices prejudicial to the health of children.
Even though the South African Constitution does not have specific provisions that prohibit harmful cultural practices, nevertheless it has certain provisions that can be used to protect children from these practices. Among these provisions are; the right to dignity (section 10), the right to privacy (section 14), the tight? to life (section 11), the right not to be tortured or to be treated in cruel and degrading way (section 12 (1)(d) and (e); and the right to bodily and psychological integrity (section 12(2); the right to be protected from maltreatment, neglect, and abuse, (section 28(1)(d); the principle of the best interest of the child in matters concerning children (section 28 (2)) (Mahey, 2017:229).
Furthermore, the South African, Children’s Act, section 12 is also meant to protect children from harmful practices and promote their wellbeing. Section 12(1) of the act states every child has the right to be protected from social, cultural and religious practices that are dangerous to their health and wellbeing. As argued by Mahey (2017; 229). In this regard, the act is in a good position to protect children from harmful cultural practices such as virginity testing, male circumcision, ukuthwala, female genital mutilation, forced and early child marriages. The discussion in this section starts with Male Circumcision.
5.1 Male Circumcision
Male Circumcision (MC) is a traditional or medical process that involves the cutting of the foreskin from the tip of a penis (Mahey, 2017: 229). In line with the international and regional protocols stated above section 12(8) of the Children’s Act sets a number of guidelines that protect young boys from undesirable effects of MC. The act prohibits MC of children below the age of 16 (Mahey 2017:230) and allow the circumcision of children above 16 to take place with their consent.
Further, despite having the Children’s Act in place, South Africa does not have one coordinated legal framework to control and regulate MC. The regulation of MC rests in provincial governments who are expected to develop their own regulations to manage circumcisions taking place in their provinces (Mahey, 2017: 231). Further, while the act refers to circumcisions conducted on religious grounds, it does not mention circumcisions that are conducted on cultural grounds (Mahey, 2017: 231).
Consistent with article 5 of the CRC, section 12 (10) of the act provides for every child taking into consideration age and maturity and stage of development to refuse to undergo male circumcision. Even though this section may seem to be promoting the best interest of the child, it is very uncertain how a child in a cultural setting would refuse to undergo a cultural tradition without being chastised. The country is currently developing a new Customary Initiation bill that will harmonize all pieces of legislation on male circumcision (Mahey, 2017: 232).
5.2 Female Genital Mutilation
Article 5(a) of the CEDAW obligates state to prohibit all cultural and harmful practices that discriminate against women and expose them to violence and harm. Further, the CEDAW committee, General Recommendation 14, urges member states to prohibit Female Genital Mutilation (FGM). Further, consistent with these international protocols, the South African constitution protects children’s rights to not to be subjected to torture, and cruel treatment that is associated with genital mutilation.
Section 12 (3) of the Children’s Act, completely prohibits and outlaws the FGM of children (Children’s Act 38/2005). Consequently, female genital mutilation is completely outlawed as a criminal offense (Mahey, 2017: 235, Mubangizi, 2013:5). Further, the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) outlaws discrimination of any person on grounds of gender and culture, including FGM.
Despite all these protections, including the prohibition of FGM, studies in South African shows that the practice continues to be conducted unabated, especially among the Venda, north east of South Africa (Mubangizi, 2017), suggesting that South Africa is failing to comply with international and African legal obligations on FGM. Mahey suggests that instead of just banning FGM South African should expand the children’s Act to criminalize other activities, such as aiding FGM, sponsoring or providing utensils, transporting the child to have FGM in another country to be criminalized and to create an anti-FGM board to monitoring this harm (Mahey, 2017: 242)
5.3 Virginity Testing
Virginity testing is an inspection of the genitals of girls or women to determine if they are sexually virgins (Mahey, 2017: 236). It is considered a form of VAW, discriminatory in nature as it violates and infringes on women and girl’s dignity. Section 12 (4) prohibits children of 16 years to be exposed to virginity testing (Mahey, 2017: 237).
For children above 16 there are regulations and safeguards that are put to protect children from exploitation. However, these conditions continue to be resisted, and despite suggestions to outlaw, virginity testing continues unabated (Mahey, 2017:242).
Despite this, the case involving providing bursaries to girls who were certified virgins, has initiated debates on whether the state had mechanisms to certify and monitor people who conduct the testing. Further, it is not clear how government monitors the activities of the virginity testers to safeguard children against harm (Mahey, 2017:242). Further, Mahey (2017:242) argues that virginity testing is one of the cases where children are provided their rights to culture on one hand, while their constitutional rights to privacy, dignity and equality on the other hand are being violated. Consequently, Mahey (2017:242) suggest the need for more education and awareness to on the dangers of virginity in communities that still conduct virginity testing.
Ukuthwala meaning to carry in Xhosa, refers to a practice where girls are abducted for marriage. It is a practice that is meant to force parents to start negations that leads to marriage. As Mubangizi argues, in many cases girls are unaware and unwilling and hence it has all characteristics of being associated with abduction and rape (Mubangizi, 2012: 39). Maluleke, (2012: 5) argues that ukuthwala undermines the constitutional guarantees of gender equality in many ways. Firstly, the practice targets young girls, mostly under the age of 18, which means ukuthwala is not usually conducted based on the girls consent and not in their best interest as enshrined in article 8 of the CRC, and sections 28 (1) and 28 (2) of the South African Constitution.
Secondly, the SORMA, considers kidnapping or abducting and having sex with a girl without her consent as rape, in violation of section 15 of the sexual offenses act. Further, kidnaping a girl is a criminal offense both under international human rights law and according to the South African constitution. Regarding the child, the age of consent is 16, meaning that sex with someone under 16 constitutes a sexual offence. Further, the sexual offenses act states that sex with a child who is under 12 is rape since such person cannot constitutionally provide consent.
Further, the SORMA protects children from sexual exploitation either by their own parents or by other people. If parents are involved in arranging for Ukuthwala it means that they are aiding a crime and hence they will be charged of trafficking and exploiting children as provided under section 71 of the SORMA (Maluleka, 20123: 8).
Despite the failure to criminalize Ukuthwala, the case of Jezile Vs the state demonstrates the commitment of the state to address harmful cultural practices that perpetuate rape and sexual and GBV violence. In the case of Jezire, the court moved swiftly to admonish cultural and traditional customs that perpetuate and expose women and girls to harsh crimes such as trafficking, abduction, and rape, which are committed in the name of exercising cultural rights.
5.5 Child marriage
Child marriage violates the rights of the girl child to be free from discrimination, torture and degrading treatments. The CEDAW Art. 16, prohibits early or child marriages . Even though the CRC does not directly talk about child marriages, the convention has some provisions that prohibit cultural traditions that are dangerous to the health of the children . The CRC prohibits States parties permit marriage of minors, namely someone under the age of 18 . Further, the Committee of the Rights of the Child stipulates that the minimum age of marriage for both boys and girls is supposed to be 18 years.
Mahey (2017:243) provides a case of Zimbabwe where a determination against child marriages was recently declared. In a case where the applicant argued that section 78(1) of the Zimbabwe constitution sets 18 years as a minimum age of marriage, it was argued that any legislation that allows girls to marry at 16 years was unconstitutional. The court also held that this constitutional provision was a means of complying with provisions of the African Charter on Rights and Welfare of the Child. Consequently, as argued by Mohanty (2017:243), South African can do the same to comply to its international obligations by bringing the Children’s Act provisions on child marriage in line with international standards.
5.6 Forced Marriage
In addition to cultural practices discussed above, section 12(2) of the children act aims to protect children from early marriages and forced marriages. Forced marriage is a situation in which a child is given out in marriage without him or her consenting.
In most cases girls are forced into marriage because of poverty. Yet early marriages expose the girl child to many human rights abuses. Among these human rights abuses are rape, and denial of access to education and other social services. Mahey (2017: 240) argues that early marriages amount to statutory rape which is described as sexual abuse of children.
With regard to protecting children from early marriages, section 12(2) of the children’s act, prohibits child marriages, or marriages of people below the marriage minimum age set by the law. Even though the CRC does not provide specific minimum age, the child rights committee puts 18 years as a minimum marriage age without parental consent for both boys and girls. On the other hand, the African charter makes this age (18 years) an actual requirement that state parties must put in their legislation (Mahey, 2017: 240).
South Africa has three instruments that government marriages, namely; the Marriage Act 25 of 1961, the recognition of Customary Marriages Act 120 of 1998, and the Civil Union Act 17 of 2006. The Civil Union Act is very clear as it only allows people, who are 18 or older to get married, which means children cannot get married. Since the other two laws allow for children to marry and not set a minimum age of marriage, it means that South African is failing to comply to international obligation, all of which have prohibited forced marriages and have asked members states to revised their laws and come up with the minimum age of marriage, which according to the African protocols in 18 years. Further, by failing to comply to international treaties, South African Child Act is not protecting but harming children.
From the discussions above, it can be noted that south Africa has managed to align its legal framework to the international legal instruments on GBV but does not seem to comply with these treaties in terms of implementation. The constitution and the legal instruments on domestic violence and sexual offenses are all very progressive laws. However, despite these laws studies show that implementation is a challenge as a result the people who are supposed to benefit from these laws do rarely benefit from them. Further, the dichotomy between the promotion of human rights in the constitution and the need to respect and promote culture and tradition, has relaxed the implementation of most of its good laws. For instance, even though South Africa is a signatory to CRC, and that CRC Article 24.3, urges members states to abolish traditional cultural practices that can harm children’s health, South Africa has been very slow in abolishing those traditional harmful practices that expose children to life threating harms.