The Committee met to receive submissions from stakeholders on the Customary Initiation Bill (CIB) [B7-2018]
It heard that SAPS fully supported the development of the CIB with its concerns flagged. Those included the fact that:
- The definition of “abduction” is removed from the CIB, as the common law and statutory offences of abduction relate to specific instances where a child is removed for purposes of sexual intercourse or to marry the child. The unlawful removal of a person against his or her will constitutes the offence of kidnapping – a definition is contained in Clause 1, and would be sufficient for purposes of the CIB.
- Reference to a “person” in clause 28(3) (a) could be replaced with the word “child”. The reference to the general regulations regarding children in clause 28(6) (b) had also been superfluous, especially in view of the fact that the clause also referred to the Children’s Act (which includes the regulations in any event). The offence created in clause 28(10) had also been superfluous in view of the provision dealing with offences in clause 33(2).
The Department of Health (DoH) was highlighting the full health benefits of HIV prevention and the avoidance of repeat circumcisions in future. The evidence was quite strong that Medical Male Circumcision (MMC) done in traditional settings would allow initiates to have HIV and sexually transmitted infections (STIs) prevented, as well as improved penile hygiene and the prevention of cancers in the long term. It sought clarity on what type of training traditional surgeons and traditional health practitioners involved, as captured in the CIB. There also needed to be clarity as to what guidelines were used to decide whether there should be traditional or MMC, as confusion remained amongst parents and the traditional communities, leaders or practitioners as to what remained the best practise for young initiates.
The NPA wanted to ensure that circumcision continued to be a cultural practice that was conducted within parameters that ensured initiates completed the process unscathed. They referred to the Children’s Act No. 38 of 2005, and said that when one circumcised a child one was bound by section 12 of that Act. The CIB would create national legislation which would apply to all provinces, as all provinces and municipalities had different rules to date regarding initiation. For the NPA, the definition of the term ‘sacred and secret’ had the potential to make people condone the prevention of investigations and prosecutions from being conducted in a proper manner. It felt strongly that the various initiation practices had to clarify whether traditional surgeons would be required to do follow-ups after the male circumcision procedure. Subclause 28 (3) (a) in the CIB involved parental consent for a child between 16-18 years, whereas the Children’s Act referred only to a child. A potential eventuality was where a child would consent and the parents decline permission.
The Committee was interested to know:
- Whether SAPS had any ongoing cases of abduction relating to initiation schools, and the type of challenges that were involved.
- Whether the use of ‘abduction’ instead of ‘kidnapping’ affected the prospects of a case brought before the court by a parent regarding the unlawful removal of a child from the parents’ care to an initiation school.
- Whether the DoH had an issue with traditional practitioners continuing with male circumcision without the intervention of the DoH.
- Who had been paying for traditional male circumcision practitioners for MMC currently, and who would remunerate its performance once the CIB became law? Why could the doctors who were being paid currently to conduct MMC in hospitals not go to traditional settings and conduct it there?
- Did the Department of Women (DoW) support the section on virginity testing as it was, or did it need strengthening?
- How did the DoW distinguish between traditional and western medical doctors and what their different roles were in initiation?
The Committee did not support the proposed clause 8 regulating the appointment of the National Initiation Oversight Committee (NIOC). It also proposed that there needed to be an alternate process for initiates who were unable to obtain a medical fitness certificate before undergoing initiation.
Ms Shereen Cassiem, Committee Secretary submitted the Chairperson’s apology, noting that he was delayed at a different meeting. She asked for nomination for a stand-in Chairperson. The Committee nominated Mr A Masondo (ANC), so the meeting could proceed.
Customary Initiation Bill: SAPS Presentation
Brigadier Bert van der Walt, Legal Adviser, South African Police Service (SAPS), said that the Customary Initiation Bill (CIB) would make the current system of initiation that much more manageable, hence its support for the bill’s principles and objects.
SAPS had two major comments whereas the rest of the comments related to the drafting style.
SAPS fully supported the development of the CIB with its concerns flagged.
In this clause, It was proposed that the definition of “abduction” be removed from the Bill, as the common law and statutory offences of abduction relate to specific instances where a child is removed for purposes of sexual intercourse or to marry the child. The unlawful removal of a person against his or her will constitutes the offence of kidnapping – a definition is contained in Clause 1 and will be sufficient for purposes of the Bill.
SAPS proposed that the matters contained in Clause 10 could be provided for in the regulations for the CIB.
SAPS also suggested that the exact number of representatives to form part of the Provincial Initiation Coordinating Committee (PICC) be provided for in regulations.
(See the comments in respect of Clause 4).
It was proposed that procedural matters pertaining to the meetings of the PICC be determined by the Committee itself.
Clause 28(3) (a)
Reference to a “person” in clause 28(3) (a) could be replaced with the word “child.”
The reference to the general regulations regarding children in clause 28(6) (b) had been superfluous, especially in view of the fact that the clause also referred to the Children’s Act (which includes the regulations in any event).
The offence created in clause 28(10) had also been superfluous in view of the provision dealing with offences - clause 33(2)
Mr Masondo asked for input from the Committee and stakeholders the draft bill was considered clause by clause.
Mr E Mthethwa (ANC) asked whether SAPS had any ongoing cases of abduction relating to initiation schools, and what type of difficulties they encountered.
Brig Phil Mokholwane, SAPS, Visible Policing, replied that SAPS did have such cases, especially in the initiation period of winter schools holidays. It happened across provinces, where children were taken from Gauteng to Mpumalanga, or from Limpopo to Mpumalanga. The delegation unfortunately had not brought the statistics of reported cases, but the complaints were recorded in those provinces.
Ms B Maluleke (ANC) said she needed clarity as to whether the use of ‘abduction’ instead of ‘kidnapping’ affected the prospects of cases brought before the court by a parent regarding the unlawful removal of a child from the parents’ care to an initiation school.
Brig Van der Walt replied in the affirmative, saying that the interchangeable use of the terms did cause confusion even at station level with the reporting of cases. However, when the docket went before the National Prosecuting Authority (NPA), the correct charges were drafted. In the event that a child was abducted for purposes of sexual intercourse, such charges would be reflected in the docket. In the cases the CIB was trying to deal with, the docket would reflect kidnapping charges.
Ms Philile Ntuli, Researcher: Department of Women in the Presidency (DoW), Cooperate Governance, said the notion of abduction and kidnapping would be different for young girls and young boys respectively. Because of the overarching patriarchal norms within current society, initiation for girls was geared around sexuality. For example, the sowing of a girls libido would be for sexual satisfaction of a man, and even virginity testing would be to ensure that girls were pure at the age of marriage. Her question, therefore, was to what extent the term ‘abduction’ should be used regarding initiation practices for girls, considering the perversion of many of the initiation practices around sexuality.
Mr C Matsepe (DA) said children did in fact get abducted, but when they reached the initiation schools they would be threatened with death if they divulged that they had been abducted. Did SAPS delve deeper during interrogation of the child about his removal from parental care for circumcision?
Mr Masondo proposed that SAPS and the support staff note the concerns around the wording from the Committee and stakeholders for the Committee’s deliberation in future.
Clauses 8& 9
Mr K Mileham (DA) said a common practice when passing legislation was the regulation of Committees through setting minimum standards, and that had happened in a number of laws the Committee had passed. For example, in the CIB it had been stipulated that at least two members of the PICC had to be part of the National Initiation Oversight Committee (NIOC), and that gave the Minister a framework with which to appoint them. For the Committee to want to move all of that work to regulations would require the regulations first to be adopted, and would be a delegation of power by Parliament to the Minister. That was like saying the Minister could appoint who the Minister liked to that NIOC, and how many times that the NIOC would meet.
He did not support the proposal in clause 8 relegating the appointment of the NIOC to regulations. He also felt the same way about the SAPS proposal on clause 9.
Mr Mthethwa asked SAPS to elaborate on why it wanted provisions under clause 10 of the CIB to be moved to regulations.
Brig Van der Walt said that SAPS were simply proposing this clause because the composition of the committees under the CIB could change over time, as the legislation was supposed to last for some time. Eventually the Committee would have to decide to accept or reject SAPS’s proposal.
Ms Maluleke said that the Committee would decide on how many meetings the NIOC would convene, specifically the minimum number, rather than the maximum, as it had experience from past legislation on how to set standards.
Mr Mileham noted that sub-clause 16 (1) (a) was open ended and was not restrictive at all, as it allowed the PICC to constitute an adequately representative and tailor-made technical support team for specific areas in particular provinces.
Mr Mthethwa commented that the Committee had been informed that some initiation schools had up to 3 000 initiates.
Adv Shaida Mahomed, Senior State Advocate, National Prosecuting Authority (NPA), said although she understood SAPS’s concern regarding sub-clause 25 (1)(a), it did occasionally happen that dockets were not opened for some reason, therefore it was of no concern that the SAPS proposal be kept. However, it did provide one with security by providing that a docket had to be opened.
Mr Mileham said he understood where SAPS was coming from, and probably the heading in the draft CIB was misleading, as the clause 25 spoke to investigation more than medical treatment. He wondered therefore if the heading should be redrafted to clarify that clause 25 was about investigation.
Mr Mthethwa asked what other role SAPS believed it had to play, apart from investigating as per clause 25.
Brig Van der Walt said the proposal had been driven by the instances where, after it had closed an illegal initiation school, injured initiates would remain. The proposal was not necessarily for SAPS to provide medical assistance, but for it to do its investigative function as mandated. However, SAPS could not arrive at a scene were there were injured initiates and refuse transport for medical care, because its primary function was to investigate. Having a provision for what procedure was to be followed after closing a school would enable not only health facility involvement, but could assist with prosecution after that investigation, as there had to be a chain of evidence which could be impossible if the CIB clause 25 just stopped at the closing of an initiation school.
Dr Rinaldi Bester, Chief Director: Policy and Legislation, Department of Cooperative Governance and Traditional Affairs (COGTA), said although it was unusual for COGTA to respond during stakeholder engagements, the concern raised by SAPS had been addressed in sub-clause 15 (7) of the CIB.
Mr Mthethwa said the Committee knew, and had been informed during public hearings, about people beyond the age of 18 that attended initiation schools. Therefore SAPS had to reconsider its position on wanting the reference to ‘person’ to be changed to ‘child’.
Mr Mileham agreed that sub-clause 28 (10) was duplicated in sub-clause 33 (2).
Mr Mileham did not agree that the Committee should remove clause 30(4) of the CIB, since the Liquor Act transgressions were enforced upon complaints by liquor control officers at SAPS, and SAPS officers conducting inspections at initiation schools would not necessarily be looking at offences against sub-clause 30 (4). The Committee had heard that illegal provision of alcohol at initiation schools did create problems sometimes. Therefore the CIB probably had to have a provision that said ‘provision of alcohol to minors was an offence in terms of the Liquor Act and had to be prosecuted.’
Adv Mahomed agreed with Mr Mileham that probably the Liquor Act could be referenced instead of the sub-clause 30 (4) as currently captured.
Mr Masondo thanked the SAPS delegation that had presented inputs on the CIB.
Medical male circumcision: Department of Health presentation
Mr Dayanund Loykissoonlal, Programme Manager: Medical Male Circumcision (MMC), Department of Health (DoH), said the CIB was partially aligned to the MMC guidelines the DoH had proposed in 2014 to COGTA and others. These had included the fact that MMC had played a critical role in ensuring better outcomes for young initiates during the initiation process and circumcision procedure in traditional settings.
The DoH was highlighting the full benefits of HIV prevention and the avoidance of a repeat circumcision in future, for health benefits. The evidence was quite strong that MMC done in traditional settings would enable the initiates to enjoy prevention of HIV and sexually transmitted infections (STIs), as well as penile hygiene and prevention of cancers in the long term.
The DoH sought clarity on what type of training traditional surgeons and traditional health practitioners was proposed, as captured in the CIB. It also said there needed to be clarity as to what guidelines were used to decide whether there was traditional circumcision or MMC, as confusion remained amongst parents and the traditional community, leaders or practitioners, as to what remained best the practice for young initiates.
Mr Mthethwa asked whether the DoH had an issue with traditional practitioners continuing with male circumcision without the intervention of the DoH.
Ms Maluleke asked who had been paying the traditional male circumcision practitioners for the MMC currently, if the DoH was concerned about the provision regarding the procedure, and who would remunerate its performance once the CIB became law. Why could the doctors that were being paid currently to conduct MMC in hospitals not go to traditional settings and conduct them there?
Mr Mileham proposed that there needed to be an alternate process for initiates who were unable to obtain a medical fitness certificate before undergoing initiation. For example, if an initiate went to a doctor to obtain a certificate and was informed that the initiate had a heart condition, what would be the following process? He understood that it was an offence to admit a person without a medical certificate to initiation, but there was no offence for a person who forged a similar certificate. It was also an offence for an initiate to forge a consent form as well, and Mr Mileham felt that it was warranted to cater for all of those situations.
Mr Matsepe wanted clarity on the prescription of the age groups of 16 and 18. Additionally, his knowledge was that in early May annually doctors performed MMC in hospitals so that initiation happened in June separately. He did not understand how the issue of payment had arisen, and he needed clarity on that as well.
Adv Mahomed said usually medical doctors were registered with the Health Practitioners Council of South Africa (HPCSA), and were bound by the ethics of that council. From her understanding, doctors were prohibited from performing surgical procedures outside of particular hospital environments. Would medical doctors then be able to perform MMC in the veld? It was notable that in Mpumalanga, traditional leaders received payment from families of initiates as they were responsible for appointing the traditional practitioner. Even where a medical doctor had been appointed, the doctor was paid in cash, as had been noted by the NPA. She hoped that as far as medical fees for MMC were concerned, that doctors would conduct MMC out of charity instead of asking for fees from poor initiates. How did the DoH propose to deal with situations where sometimes hygiene was not all encompassing? Did the DoH propose to have medical practitioners monitoring the entire initiation process, as experience had shown that medical doctors to date continued denying responsibility for an initiate’s progress and for completion of the initiation process?
Mr Matsepe believed Limpopo province had given the rest of the country a blueprint of how to conduct traditional male circumcision, as the standard age was 13 years. All initiates returned home, as the 53 000 initiates had just done in the most recent initiation season. In the same period, in the Eastern Cape (EC), 27 initiates had died during initiation. That spoke to the monitoring which seemed to be non-existent in other provinces. In fact, in Gauteng it seemed that initiation was a business rather than a traditional practice.
Mr Loykissoonlal said the DoH was not contesting circumcision, but wanted to make the procedure much safer, as the MMC programme was an HIV prevention intervention. The role of traditional surgeons was not being questioned, because social science and ecological studies had shown that circumcision had contributed towards the reduction in HIV infections. The randomised control trials (RCT) that had followed to confirm this fact had been based on the ecological studies, and they attested to the reduction when a particular procedure was followed. Therefore the DoH was asking that a way be found to ensure the full removal of the foreskin to ensure enjoyment of the full benefits of MMC. The DoH was simply suggesting the need for closer collaboration between traditional surgeons and medical practitioners during the circumcision procedure.
The CIB provided that the Minister of COGTA had been empowered to prescribe a fee for the circumcision procedure by a traditional surgeon or medical practitioner. To avoid a potential conflict that could arise from the fee prescription, the DoH was strongly advocating its earlier view that there needed to be collaboration between the surgeon and the medical doctor. It would be difficult for the provincial DoH to pay for medical doctors to perform the circumcision procedure, as the CIB also provided for parents to buy the services of a doctor to go to the initiation site and circumcise the child there.
The DoH was struggling to manage the forging of medical certificates, and the MMC programme had experienced a few occasions where a non-relative would be signing consent for a child to be circumcised. The MMC programme was currently asking parents to bring their children with the identity documents, together with the parents, to sign consent to ensure authenticity of consent.
The age cohort for male circumcision eligibility started from age 10-49 years for the DoH, as young children debuted in sexual activity quite early, and were at risk of HIV and STI infections.
Limpopo’s model was indeed assisting the DoH with its MMC targets, so it paid for the circumcisions. However, in other provinces, initiates were ostracised after undergoing MMC when they went to initiation schools and sometimes were even re-circumcised or cut again as punishment for undergoing MMC instead of traditional circumcision. The DoH was grappling with such cases, especially in the EC.
The DoH had commented on environmental issues around initiation schools because it continued providing funding to provinces to ensure there was clean water, catering and emergency medical services (EMS) to react to any eventualities during the initiation process, especially in the EC. Statistics showed that injury to initiates occurred during the circumcision procedure, so if it was not done according to standards, then an initiate could pick up the array of sicknesses listed above.
Mr Mileham asked how long MMC took to complete. If it was a short process, what prevented the DoH from putting resources close to initiations schools, as the CIB asked that all initiation schools be registered so that their locations were known.
Mr Loykissoonlal replied that MMC was quite short when the surgeon was adept at doing it. The challenge to date was ‘buy in’ from the traditional sector and leaders in general, and possibly the competition between traditional surgeons and medical doctors. Overall, he thought these were ‘bread and butter’ issues as well, since traditional surgeons derived an economic benefit from performing circumcisions. The DoH had the resources on hand from doctors and mobile clinics, but still needed to be invited. Moreover, the children were part of very high targets set by the MMC, and the science indicated that high volumes of circumcision within a very short period resulted in bigger impacts of HIV reduction. MMC had been shown to have prevented over 100 000 new HIV infections to date through its implementation.
Children’s Act: National Prosecuting Authority comments
Adv Mahomed said that she had been dealing with initiation matters since the 30 deaths of initiates in Mpumalanga in 2013, and what had emerged then was that there had been instances where 100 initiates had been circumcised within two hours. The circumcisions had occurred in the early hours of the morning until 10h00, depending on how many people were being circumcised. It had been dark, and sometimes the generators providing light were not working. The traditional surgeons had been elderly and had issues with sight while perfuming those surgical procedures. There also had been no follow-up on the initiates by the circumciser. The perception at the time was that after the circumcision procedure, the initiates no longer remained the responsibility of the traditional surgeon. The NPA had been advised that amongst the amaNdebele, traditional surgeons had to perform some traditional ritual after conducting circumcisions, which was why they were not available to follow-up. That had been the reason she had been concerned about the CIB provision that the traditional surgeons had to follow-up on the initiates after the surgical procedure. She was uncertain whether it was a general cultural ritual which the amaNdebele practised. However, those cultural and ethnic differences and how they conducted initiation rituals, had to be considered in the CIB.
The NPA had then established a task team with mainly amaNdebele SAPS members who had undergone the initiation rites there, and had investigated the deaths. Some action had been taken and since then very few male circumcision deaths had occurred in Mpumalanga.
If a matter had to come to the NPA, it would be serious because there would either have been a death, assault or some kind of crime committed, and therefore one would want to prevent intervention of the NPA. The NPA wanted to ensure that circumcision continued to be a cultural practice, but within parameters that ensured initiates completed the process unscathed and having achieved the purpose of having undergone the rites.
In 2013, very little had been known about the Children’s Act No. 38 of 2005, no one understood that when one circumcised a child one was bound by section 12 of the Children’s Act. Section 12 (8) drew a distinction between two categories of children -- children below the age of 16 years and children between the ages of 16-18 years. For 16-18 years, the Children’s Act prescribed that children had to be allowed to apply their choices to their lives, as it involved their bodily integrity, privacy and their dignity.
She said the CIB would create a national legislation which would apply to all provinces, as all provinces and municipalities had different rules to date regarding initiation. She foresaw that when the CIB was enacted into law, there would be conflict between provincial laws and the CIB, but constitutionally the ‘law of general application’ would triumph.
Although preparations for initiation schools had involved the National House of Traditional Leaders, the Provincial Houses of Traditional Leaders, relevant Royal Houses/Chiefs, the Department of Health, SAPS, the NPA and traditional surgeons, the chiefs who would have attended the workshops with other stakeholders had not been obliged to use the traditional surgeons that they had attended the workshops with.
In 2013 the NPA had tended to charge those responsible, with murder or culpable homicide or contravention of section 12 of the Children’s Act for the death of initiates, but a difficulty that had arisen had been proving the cases due to the secrecy involved in initiation, and the NPA had to ensure that there was no infringement of cultural practice even though prosecution had to proceed. Supervising a prosecution from a distance was difficult, in that there was a demand by the public for accountability for the deaths, but cultural practice had to be respected as well. Currently the Children’s Act had to be enforced by the NPA if there were contraventions of its provisions, and initiation schools were quite challenging. If secrecy extended to something that prevented the NPA or SAPS from doing their jobs, that created problems, as the general chain was that X would say that he had not been a principal to initiate Z, or that initiate Z had been circumcised by someone that X had not seen.
A new challenge was that with the new demarcations between Limpopo and Mpumalanga, children from Limpopo were being brought to Mpumalanga to illegal initiation schools, as they were fleeing the scrutiny and monitoring in Limpopo.
SAPS had been correct in saying that the NPA did rectify kidnapping charges when they were presented to the NPA as abduction charges. There was an element of peer pressure as well with consenting children who went to initiation schools voluntarily, even with children that belonged to ethnic groups that did not practise circumcision.
Mr Loykissoonlal interjected, asking whether the MMC intervention violated the Children’s Act when circumcising 10-15 year olds.
Adv Mahomed replied that if the circumcisions were for any other reasons, except medical or religious reasons, then MMC was violating the Children’s Act.
Mr Loykissoonlal said MMC was a medical intervention governed by the surgeon’s ethics protocols, and if a 12-year-old could consent for an abortion and an HIV test, how could it be that a boy child could not consent for MMC?
Adv Mahomed reiterated that if the circumcision was for medical reasons, then it complied with the Children’s Act.
Customary Initiation Bill: NPA comments
For the NPA, the definition of the term ‘sacred and secret’ had the potential to make people condone prevention of investigations and prosecutions from being conducted in a proper manner.
Sub-clause 15 (2) did not mandate that there needed to be control of those documents that would be required by the Children’s Act, which were important ,and had to be kept on file.
In sub-clauses 22 (1) (a) and (b), the reference to ‘child’ included anyone below 16 years in terms of the Children’s Act, which also prohibited such persons from being circumcised. This meant that the sub-clauses could not be referring to someone below 16 years.
The NPA felt strongly that the various initiation practises had to clarify whether traditional surgeons would be required to do follow-ups after the male circumcision procedure.
It also noted that medical practitioners who conducted male circumcision for religious purposes had been excluded from clause 24 of the CIB.
Sub-clause 28 (3) (a) in the CIB involved parental consent for a child between 16-18 years, whereas the Children’s Act referred only to a child. A potential eventuality was where a child would consent and the parents decline permission.
Mr Mileham asked how many cases the NPA had prosecuted successfully in the current legal regime without the CIB, in the traditional initiation sector. What more, in terms of the clause 15 provisions, did the NPA think needed addition in terms of document management by initiation schools?
Ms Maluleke asked how the NPA differentiated between culture and religion. Was it not discriminatory to allow others to circumcise, based on medical and religious reasons, and to prosecute others for taking their children to initiation schools below the age of 16 years?
Mr Mthethwa also echoed the sentiments of Mr Mileham and Ms Maluleke.
Adv Mohamed replied that in Mpumalanga there had been several prosecutions where there were acquittals, but three guilty findings had also occurred specifically on contravention of the Children’s Act. There were seven more cases arising from the 2013 matters in Middelburg and Witbank.
The NPA was in a Catch 22 situation when dealing with initiation matters, as its mandate was to prosecute contravention of South African laws. Cases had been placed on the roll, and the NPA had received representations on behalf of a medical practitioner or a traditional surgeon who had been a circumciser. Some had been successful and others not. In most of the cases, inquests had been opened and there had been successes in a few cases. The provision of clause 15 of the CIB would indeed be enough, as she had missed them in her comments.
Not being a philosopher, her understanding of religion was that it was a belief system dependent on the written word, like the Bible, Quran, Torah and other texts, while cultural practices were a belief system of a particular grouping of people. Adv Mahomed said as an implementer of the law, she knew that many groupings had been invited to comment on the Children’s Act and she was not sure why some sentiments had not formed part of the law, but the NPA could enforce only what was written in law.
Section 12 and its regulations in the Children’s Act did not differentiate between a medical doctor and a traditional surgeon regarding male circumcision of persons between 16-18 years. The standards of hygiene that traditional surgeons had to aspire to, had to be those of MMC, which was where the CIB would be helpful in ensuring that hygiene practice would be followed by both categories of practitioners.
Customary Initiation Bill: COGTA/Department of Women -- contextual background
Ms Shoki Tshabalala, Acting Director-General (ADG), Department of Women (DoW), said there was a gender dimension to customary, traditional or modern initiation.
Ms Philile Ntuli, Chief Director, Governance and Social Transformation, said that the DoW’s work was governed by the gender mainstreaming paradigm, which required the DoW to communicate effectively with Government whilst being incredibly under-capacitated. For the DoW to be effective, it required buy-in from government, and Parliament in particular.
The DoW’s interest, through gender mainstreaming, would be to get the positions of the NPA, DoH and SAPS on the role of women, and how they were affected by CIB and customary initiation in general. Without a clear position from all those listed stakeholders, that left the DoW with the mammoth task of gender mainstreaming alone and perpetuating further gender inequality in the customary and religious practices. The DoW further was requesting that all stakeholders, including trade unions, when presenting and submitting input to Parliament on bills, needed to have a gender analysis, especially on the CIB.
Ms Ntuli referred to the customary initiation for boys, and said botched circumcisions resulted in psychological damage (suicides), violent tendencies and had an economic impact. The DoW, having consulted with non-Governmental organisation (NGOs) on the psychological effects on customary initiation for boys, had found some of the most atrocious psychological effects that resulted from botched circumcisions to be violent rape of young girls with objects by those suffering from botched manhoods.
The migrant labour system involved the absence of male figures in households. The effects of the social dynamics of single parent mother-led and absent-father households on cultural and religious practises were the points of entry into gender perspectives for the DoW, especially in rural homes. When boys or girls wanted to go to initiation schools, the mother had to give consent, but in the context of patriarchy, the mother’s voice to permit a child was not a matter of her agency only, but what her choice implied and the results for her and her child.
She said there was a disconnect between spiritual links and economic factors. For the DoW, the question that arose with the commercialisation of initiation schools, particularly in rural areas, was about the status of poor rural women in the context of customary initiation being commercialised.
Ms Tshabalala said the only concern remaining for the DoW was what the NPA had raised -- whether there had to be harmonisation between the laws governing children’s rights or to reference the constitution in terms of the age dimension regarding customary initiation. Although not directly linked to the discussion, the CIB linked clearly with the matter of early marriage of young girls, where the argument made for such practice was that a girl child below the age of 18 could be married off with the consent of one parent.
The Chairperson said the constitution was the supreme law of the land, and it was concerning that government departments would be uncertain about that, as the potential problems which would arise would cause havoc in SA society.
Mr Mileham was concerned that the DoW presentation did not speak directly to the CIB. For example, he wanted to know what recommendations the DoW had for strengthening the clause on consent in the CIB. How could the Committee make a law of general application to fix the example Ms Tshabalala had made about consent regarding the CIB? Did the DoW support the section on virginity testing as it was, or did it need strengthening?
Mr Loykissoonlal asked how the DoW distinguished between traditional and western medical doctors, and what their different roles were in initiation.
Ms Ntuli apologised, noting that the DoW presentation was not a comprehensive and detailed critique of the CIB, as it had been focussed on submitting the DoW’s views on its initial reading of the CIB.
The DoW understood a traditional medical practitioner or surgeon would be an individual who commonly conducted circumcisions. The differentiations between western and traditional surgeons were academic and conceptual debates for other platforms, and pertained to the legitimacy of conducting circumcision.
The Chairperson thanked the stakeholders who had made submissions on the CIB, commenting that the stakeholders still had time to refine their inputs for future engagements, as the process was still at the initiation stage. Parliament’s broader challenge was the harmonisation of current laws.
The meeting was adjourned.
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