Validity of “ukuthwala” depends on definition of custom

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Since 2008, a series of cases in which young girls have been abducted and forcibly married to much older men in the Eastern Cape and KwaZulu Natal has captured national attention. Journalists and community members have grouped these abductions together under the heading of ukuthwala cases. Men who have committed these abductions defend them as customary, and some traditional leaders agree. However, representatives from the Congress of Traditional Leaders of South Africa (Contralesa) and from women’s human rights groups have asserted that such forced marriages go against custom.

In contemporary South Africa, the English phrase “it is our culture” (in Xhosa or Zulu, yisiko lethu) provides a shorthand by which black South Africans explain a variety of practices unfamiliar to their fellow citizens. Calling a practice “customary”, however, is more than a simple description. The South African Constitution protects the right to culture, and recognises customary law. Of course, the Constitution also protects individual rights, including the right of children to be protected against abuse, which takes precedence over the recognition of customary law. Abduction and rape are criminal acts under South African law, whether we call them ukuthwala or not. Nonetheless, men prosecuted in these cases regularly defend themselves by claiming that their acts are customary. These men raise the “custom” of ukuthwala as a defence because the act of describing a practice as a custom invites respect and deference. Calling ukuthwala—or any other practice—a custom is a means of inoculating it against criticism, particularly from people outside of the cultural community in which the “custom” is practised.

But how do we know whether such claims are correct—in other words, what counts as a custom? When people describe a practice as “our culture” or as a custom, they may be using any one of three very different definitions. First, there is the body of officially recognised custom that was encoded during the colonial and apartheid period, and that continues to be enforced as law in large swathes of the former Bantustans. As members of rural communities have long known and historians have more recently discovered, these codified forms of custom were often distorted—sometimes on purpose, sometimes through ignorance—by the anthropologists and apartheid bureaucrats who wrote them down.

Second, there is the “living custom” that has been recognised as the appropriate source of legal authority by the Constitutional Court. Living custom is defined by the current practice of local communities. It is both more varied and more flexible than officially recognised custom. Living custom is invoked by community members seeking to reject the blanket authority claims of traditional leaders, as well as by activists and academics working to reconcile the idea of custom with the rights guaranteed by the Constitution.

Finally, people also use the term “custom” to refer to historical—and particularly pre-colonial—practices. In Xhosa or Zulu, the word isiko calls forth historical continuity. The term carries an ethical claim, denying the right of a government formed through colonial conquest to demand changes in the culture of the colonised. For instance, Mandla Mandela, who is chief of the Mvezo traditional council and grandson of former South African president Nelson Mandela, defended ukuthwala by warning that “when you are going to discuss culture do not even try to bring in white notions as such an approach will turn things upside down.” This last sense of “custom” serves a defence against demands that custom be “developed” to comply with the Constitution. On the other hand, it can also be used to point out the distortions caused by codifying custom. While historical custom does not have the same legal authority as either codified or living custom, it nonetheless carries significant moral authority in public discussions of customary practices.

These three definitions of custom are deeply intertwined. For better or worse, living custom has been shaped by the official versions enforced over the past century and a half. For many people, the moral authority of living custom rests on its claim to a strong continuity with historical practice. And, of course, pre-colonial practice—itself unstable, flexible, and varied—contributed strongly to both the forms of custom that were enforced by colonial and apartheid governments and to the living custom now practised.

The co-existence of these three different ideas of custom creates ambiguity in debates over ukuthwala and other supposedly customary practices, but it’s important to disentangle them. The recognition of a “custom” by the apartheid state is no reason to continue to enforce that custom in the present. Likewise, the fact that a custom was practised a century or more ago does not mean that it should be recognised now. Community members may justify living custom by referencing the past, but a rigid adherence to historical norms should not be imposed from the outside. Custom is not timeless but—like all other forms of law—has evolved in response to social changes, and communities should not be forced to return to outdated practices that no longer suit their circumstances.

The status of ukuthwala as a valid custom, then, depends on what definition of custom is being used. Ukuthwala seems to qualify as living custom, at least in the sense of being an acceptable practice within some local communities. The forms of ukuthwala that were recognised in codified customary law, on the other hand, generally required young women’s consent to the marriage. Historically, the record shows that the practice of ukuthwala (including cases of violent abductions) extends at least a century into the past—but so do objections to the practice. The question for the present is what weight to give each of these definitions in our understanding of what counts as custom, and what should be acceptable in a democratic South Africa.

*This is the first in a three-part series on on debates over ukuthwala as a customary practice. Read part 2 here and part 3 here.

opinion-grey Dr Elizabeth Thornberry is Assistant Professor of History at Hobart and William Smith Colleges, and is currently a postdoctoral fellow at the Centre for Law and Society, University of Cape Town
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