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"Balancing Tradition and Human Rights: The Debate Over Criminalising Ukuthwala in South
Africa"
Ukuthwala is a traditional South African practice involving the abduction of a woman by a man,
often as a prelude to marriage. However, this practice has been criticized for being coercive and
harmful, especially when it leads to forced marriages or child marriages. In some instances,
ukuthwala is seen as a form of gender-based violence, with the woman’s consent often not being
obtained, or the practice is performed in violation of her rights and freedoms (Mwambene &
Mqidlana, 2021).
The article by Mwambene and Mqidlana outlines arguments on both sides of the debate on whether
South Africa should criminalize ukuthwala. Those against criminalization argue that the practice,
when conducted within the boundaries of consent and cultural tradition, is an important custom and
should be respected. Some communities feel that laws against ukuthwala interfere with their cultural
heritage and violate their rights to practice traditions as they see fit. These proponents argue that
criminalization would impose external legal frameworks that disregard the value of the practice
within their social and familial structures, and they advocate for community-driven changes instead
(Mwambene & Mqidlana, 2021).
On the other hand, there are strong arguments for criminalizing certain forms of ukuthwala,
especially those involving force or minors. Critics argue that the practice, particularly when it
involves the abduction of young girls or the use of force, is a violation of human rights and an
infringement on the dignity and freedom of women and children. The abuse of ukuthwala in cases
such as the Jezile case (involving the abduction, rape, and assault of a 14-year-old) illustrates how it
can lead to serious harm, including psychological trauma, violence, and perpetuation of gender
inequality. Supporters of criminalization, such as the South African Law Reform Commission
(SALRC), emphasize the need for clear legal measures to protect vulnerable individuals, including
children (Mwambene & Mqidlana, 2021).
South African law, particularly the Constitution, seeks to balance respect for cultural practices with
the need to protect human rights. Section 7(1) of the Constitution affirms the right to human dignity,
equality, and freedom from violence, which conflicts with harmful practices such as forced
marriages (Constitution of South Africa, 1996). Consent and age are central to this debate, as valid
marriage requires the free will and informed consent of both parties, especially in the case of minors,
who legally cannot consent to marriage under South African law (Mwambene & Mqidlana, 2021).
In conclusion, while ukuthwala as a cultural practice has historical significance, it is crucial to
understand that ukuthwala as a custom should be practiced responsibly, ensuring that the rights and
safety of individuals, particularly women and children, are safeguarded in line with constitutional
protections. This balance between cultural rights and human rights remains a central challenge in the
discussion of criminalizing the practice.
"Balancing Tradition and Human Rights: The Debate Over Criminalising Ukuthwala in South
Africa"
Ukuthwala is a traditional South African practice involving the abduction of a woman by a man,
often as a prelude to marriage. However, this practice has been criticized for being coercive and
harmful, especially when it leads to forced marriages or child marriages. In some instances,
ukuthwala is seen as a form of gender-based violence, with the woman’s consent often not being
obtained, or the practice is performed in violation of her rights and freedoms (Mwambene &
Mqidlana, 2021).
The article by Mwambene and Mqidlana outlines arguments on both sides of the debate on whether
South Africa should criminalize ukuthwala. Those against criminalization argue that the practice,
when conducted within the boundaries of consent and cultural tradition, is an important custom and
should be respected. Some communities feel that laws against ukuthwala interfere with their cultural
heritage and violate their rights to practice traditions as they see fit. These proponents argue that
criminalization would impose external legal frameworks that disregard the value of the practice
within their social and familial structures, and they advocate for community-driven changes instead
(Mwambene & Mqidlana, 2021).
On the other hand, there are strong arguments for criminalizing certain forms of ukuthwala,
especially those involving force or minors. Critics argue that the practice, particularly when it
involves the abduction of young girls or the use of force, is a violation of human rights and an
infringement on the dignity and freedom of women and children. The abuse of ukuthwala in cases
such as the Jezile case (involving the abduction, rape, and assault of a 14-year-old) illustrates how it
can lead to serious harm, including psychological trauma, violence, and perpetuation of gender
inequality. Supporters of criminalization, such as the South African Law Reform Commission
(SALRC), emphasize the need for clear legal measures to protect vulnerable individuals, including
children (Mwambene & Mqidlana, 2021).
South African law, particularly the Constitution, seeks to balance respect for cultural practices with
the need to protect human rights. Section 7(1) of the Constitution affirms the right to human dignity,
equality, and freedom from violence, which conflicts with harmful practices such as forced
marriages (Constitution of South Africa, 1996). Consent and age are central to this debate, as valid
marriage requires the free will and informed consent of both parties, especially in the case of minors,
who legally cannot consent to marriage under South African law (Mwambene & Mqidlana, 2021).
In conclusion, while ukuthwala as a cultural practice has historical significance, it is crucial to
understand that ukuthwala as a custom should be practiced responsibly, ensuring that the rights and
safety of individuals, particularly women and children, are safeguarded in line with constitutional
protections. This balance between cultural rights and human rights remains a central challenge in the
discussion of criminalizing the practice.
