Jezile Appeal Highlights Difficult Questions About Ukuthwala and Violence*

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Are rape and force legitimate parts of custom? When a man raises ukuthwala as a defence to rape, assault and trafficking, what consideration should these assertions be given? The answers to these questions are not simple, and are dependant on what one’s view or definition of culture is.  It is for this reason that the authenticity and acceptability of the violent acts now associated with ukuthwala continue to be actively interrogated. At present, no consensus on the parameters of the practice exists.  These questions around the intersection between violence and ukuthwala are central to the landmark Jezile case, on appeal before the Western Cape High Court.  The case evidences how different versions of culture can exist alongside one another, and how in some families and communities, violence is indeed a habitual part of tradition.

In February, at the Wynberg Regional Court, the defendant Mvumeleni Jezile (aged 32) was sentenced to 22 years imprisonment after being found guilty of trafficking, assaulting and raping the victim. This was the first ukuthwala-based conviction handed down by a Western Cape court.  The victim was only 14 years old when she was abducted from her home in the Eastern Cape.  She was forced into a marriage with Jezile during which he held her captive and beat and raped her.  He believed he did nothing wrong, claiming he had abducted and married the victim in accordance with tradition. He rejected being guilty of rape and the other charges on the basis that these acts were culturally legitimated.  On appeal, the Western Cape High Court will, amongst other things, ascertain what the cultural parameters of ukuthwala are, and whether ukuthwala constitutes a valid defence to the charges.

In August of this year, several organizations including the Women’s Legal Centre and Centre for Child Law, were admitted as amicus curiae (friends of the court) in the case.  These groups, represented by the Legal Resources Centre, presented their arguments to the Court in October.  They will play a critical role in educating the court about ukuthwala, responding to the Defendant’s arguments, and determining whether the practice of ukuthwala is consistent with Constitutional principles.  Consequently this case presents an extremely important opportunity for the law on ukuthwala-related crimes to be developed, and for the numerous gaps in knowledge that exist about this custom to be filled.

The Jezile case, and discussions around whether violence is an accepted part of ukuthwala, symbolize the tension between cultural ideals and cultural practices; between the standards that present our societies in the best light, and the less merciful things that may happen regularly at the most grassroots level.

On the one hand, the assaults and rapes that have become synonymous with ukuthwala, have been vehemently repudiated as distortions of culture.  The South African Law Reform Commission’s comprehensive and thoroughly researched discussion paper on ukuthwala released in May 2014, adheres to this view, stating that the practice “traditionally…did not involve culturally offensive behaviour such as rape, violence, or criminal abduction.”  To illustrate further, the National House of Traditional Leaders, one of the groups admitted as a friend of the court in the Jezile matter, maintains that Jezile’s actions of “kidnapping, rape and trafficking” do not fall within the traditionally approved bounds of the custom of ukuthwala.

In contrast, violence as a part of ukuthwala is sanctioned in some communities, anchored by precedents set through previous generations; and it is for this reason that it endures.  Research has shown that, amongst some segments of Xhosa-speaking groups, brutality has long been utilized as a part of ukuthwala abductions.  As was elaborated upon in previous articles, even as far back as the 1800’s and early 1900’s, particular features of Xhosa tradition permitted men to marry women whom they had thwala-ed and subsequently raped.

Human-rights activists and some traditional leaders are espousing a view of culture that does not countenance violence.  These opinions are rooted in codified or more widely accepted customary law and common law principles.  However, for the families and communities that – generation after generation – do continue to condone the raping, and forcing of young girls into marriage, these actions are also part of custom; a custom that is lived.

The lived aspect of customary law often has the greatest impact on girls’ and women’s lives.  In early November, ukuthwala was the subject of Focus, a program on Paris-based international news channel France24.  It featured an educational workshop in rural Eastern Cape organized by community activist Nonkosi Mntu.  During the workshop, she urged the women gathered to “not to do to their daughters what their mothers did to them”.

The women, now mature in age, were victims of ukuthwala themselves.  They shared their own harrowing experiences of being abducted as young girls, tied down and raped, later immobilized by the crushing pain.  These generational patterns – the things that these older women experienced without their own mothers or families coming to their rescue – evince how in some communities violence has been an accepted part of customary practices such as ukuthwala.

Ultimately, no custom, whether it be hallowed or controversial, should ever stand as a legitimate defence to the abuse of women and girls; or to the violation of any human rights principles enshrined in the Constitution.  Consequently, it is commendable that groups such as the National House of Traditional Leaders reject the violent aspects of ukuthwala as being authentic.  This represents a progressive and human rights-oriented stance on culture .

At the same time, we cannot ignore the idea that some cultural narratives can permit violence, as much as this may be repugnant to our ideals.  Culture is not simply an amalgam of grand principles and egalitarian practices.  It is a complicated force – driving not only aspects of human behavior and thought that are characterized as beneficent, but also those that may be far less palatable.  By acknowledging this, we are not condoning customary understandings which allow violence, such as in the Jezile case, but merely acknowledging that they exist and indelibly colour the lives of many.

*This article was initially published in The Daily Dispatch on 26 November 2014

opinion-grey Nyasha Karimakwenda is a human rights lawyer and researcher on gender based violence and women's rights.
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