SUBMISSION ON THE CHILDREN’S BILL [B70B-2003]

SUBMITTED BY: GIRL’S NET ALFRED NZO CLUB

Affiliated to the SIYAKHANA YOUTH OUTREACH AND EDUCATION PROGRAMME-MOUNT FRERE CENTRE

ALFRED NZO DISTRICT

EASTERN CAPE

Date 4th October 2005

We request to make an oral presentation at the public hearings on the CHILDREN’S BILL on 11th October 2005

We are a club of girls called "Girl’s Net Alfred Nzo Club". The club aims to assist the development of girls by establishing them as active participants in the production and dissemination of information that focuses on their own development, that is, information by girls, for girls. We run training courses for girls from different backgrounds in basic computer literacy and digital audio production, with a view to build awareness of the gender issues.

Our submission on the Children’s Bill is about stopping forced marriages of young girls, in particular

 

What happens in practice to girls under 21

Forced marriages are common in many remote rural areas, Girls forced into marriage often suffer and die a silent death, degrading their being and dampen their confidence. Their lives end when they get married, they are forced to have sex without their consent; they cannot go to school as they have to take care of everyone in the household and extended family. It is a disgrace for a virgin girl who has been taken as a wife, to go back home if she doesn’t want to be married. This to them, means they have no place as girls in their own Village if they come back because they have been forced to have sex while in the process of being made wives. Their own families refuse to take them back, often beating them up before returning them to the husband’s family.

Section 28 of the Constitution gives children the right "to be protected from maltreatment, neglect, abuse or degradation" and that a "child’s best interests are of paramount importance in every matter concerning the child". Forced marriage is maltreatment, abuse and degradation of the girl-children and is not in the best interests of the girl-child. It is also a violation of their human dignity.

In this submission we would like to present only three cases studies of which they are the drop in the ocean.

Case Studies

These are real cases but the names have been changed to protect the girls.

  1. At the age of 14 Nomsa had to leave her household, from the pressure her parents put on her to marry a man she didn’t even know. Negotiations for lobola were made by her parents and the other family without even asking her. While on the way back from school, a group of men snatched her and took her to the family home of the man to whom she was to be married. She was forced into marriage and as a wife to have sex with her husband. As a wife she was expected to take care of her husband, and his family. She didn’t cope and fled to a relative but to her surprise she was already pregnant. Her family wanted to return her to her husband. She attends school doing grade 9 and wants to continue, whilst raising her child, a good Samaritan has hidden her as a shelter, so that she will not be returned against her will to the new family.
  2. Whilst taking photos and doing documentaries of how gender differences affect girls and women in the Mount Frere area; one of the girls in the Girl’s Net Club, Vuyiswa, happen to come across and meet one of the umakoti’s (fresh young wive) at a Sigqingeni Village. Sigqingeni is a place where cultural rituals are practiced. Buyiswa who is 13yrs old, struggling to cope as a wife and also a child. One of the things Buyiswa mentioned was how she hates not to be able to go to school, while her husband is, a minor too.
  3. Boys that were interviewed about this ritual of taking younger girls as wives did not mind negotiations being taken for them. They want virgin wives to ensure that their children are HIV free. When boys are older they will choose a second wife liked and loved by them.

  4. Nolunthandi, a fifteen-year-old girl was snatched on the way to school by group of men, to be married to a boy of the same age as her, became a wife and stayed at this boy’s family home. She also was obliged to stay to this home. While she was there she fell pregnant. Her sister-in-law spread lies that she was not pregnant by her husband. After hearing these rumours the husband neglected her and went to stay to with his brother in Johannesburg, he refused to even answer. Having being left with the pregnancy on her own, she decided to go to her home and explained the situation to her mother whom she didn’t want to comment on this and didn’t give her support at all. She decided to commit suicide but she was caught in the act and she survived to live. Her mother’s sister took her to an organisations dealing with children and women for counselling and her matter was forwarded to a senior magistrate in Mt Frere, for advice, after giving birth to her baby she was forced to go back to her marriage. She has no other way but to obey her parents saying in this matter. She is still there.

Clause 12 of the Children’s Bill

Currently the Children’s Bill states:

Social, cultural and religious practices

12. (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.

(2) Every child—

(a) below the minimum age set by law for a valid marriage has the right not to be given out in marriage or engagement; and

(b) above that minimum age has the right not to be given out in marriage or engagement without his or her consent.

(3) Genital mutilation or the circumcision of female children is prohibited.

(4) Virginity testing of children is prohibited.

(5) Taking into consideration the child’s age, maturity and stage of development, every male child has the right to refuse circumcision.

(6) (a) A person who contravenes subsection (3) or (4) or who permits such contravention in respect of a child whom he or she is obliged to protect against maltreatment, abuse or degradation is guilty of an offence.

(b)A person who circumcises a male child against his will or a person who is obliged to protect a male child against maltreatment, abuse or degradation and who allows that child to be circumcised against his will is guilty of an offence.

Offences

305. (1) A person is guilty of an offence if that person—

(a) commits an act in contravention of the prohibition set out in section 12 (3), (4) or (6);

(6) Subject to subsection (8), a person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment.

However, it is not clear what the "minimum age set by law for a valid marriage" is that is referred to in clause 12(2). The Marriage Act and the Recognition of Customary Marriages Act do not refer to a minimum age for marriage. They do provide at what age a child can decide to get married without having to consult their parents i.e. at the age of 21. They are not very clear about the minimum age for marriage.

The two Acts above do not specify a minimum age. However, the common law has set ages of 12 for girls and 14 for boys.

However, despite there being a minimum age, it does not mean that girls above that age can be forced into marriage. Girls above the minimum age must agree to the marriage. The parents cannot make the decision for the child.

The Marriage Act says that for civil marriages, a girl between the ages of 15 and 18 can get married but she needs the consent of her parents. This also means that if a girl is between the ages of 15 and 21 and she does not want to get married, she cannot be forced to do so by her parents. The Act also says that girls below the age of 15 may not be married unless the Minister of Social Development gives permission and their parents have also consented.

The Recognition of Customary Marriages Act says that girls aged 18 to 21 can get married but they need the consent of their parents. This also means that if a girl is between the ages of 18 and 21 and she does not want to get married, she cannot be forced to do so by her parents. The Act also says that girls below the age of 18 may not be married unless the Minister of Social Development gives permission and their parents have also consented.

We therefore ask that the Children’s Bill make it clear that the decision whether or not to marry is a decision that the child must make, not a decision made by the parent. If a parent forces a child, then there must be a penalty so that the child can go to the police for help.

Recommended changes to Clause 12 of the Children’s Bill

The following paragraph should be added to clause 12(6) to criminalize forced marriages:

(c) A person who gives out a child in marriage or engagement against his or her will or a person who is obliged to protect a child against maltreatment, abuse or degradation and who allows that child to be given out in marriage or engagement against his or her will is guilty of an offence.

Recommended change to Clause 305

Offences

305. (1) A person is guilty of an offence if that person—

(a) commits an act in contravention of the prohibition set out in section 12 (2), (3), (4) or (6);

(6) Subject to subsection (8), a person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment.

 

Contact Details

Darkie Mpikwa

Email: [email protected]

073 5541099

(039) 255 1631

(039) 255 0047(f)