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.
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.
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)