The recent tragic deaths of 28 initiates in Mpumalanga have sparked new debate. (John McCann)
The recent tragic deaths of 28 initiates in Mpumalanga have sparked new debate about the regulation of the cultural tradition of circumcision.
Cultural circumcision is an age-old practice in many African communities and its advocates see it as a vital rite of passage for boys in their preparation for manhood. My contribution to the debate focuses on the constitutional rights that allow the practice, other rights that must be respected, and how these rights, including the state's obligations, are balanced in the Constitution.
Most boys who undergo cultural circumcision are younger than 18 and thus under parental care, so it can be assumed that their initiation is sanctioned or encouraged by their parents. In some communities, boys from families who do not uphold the practice participate nonetheless, driven by peer pressure. Non-participants can suffer stigma and marginalisation – rejection for not being "real men" – by their peers.
Most cultural circumcision in South Africa takes place in winter. Initiates are expected to stay in the mountains for a lengthy period without access to education, healthcare and other basic necessities. The reported cases of botched circumcisions by inexperienced cultural practitioners suggest that the lack of access to healthcare makes the initiates very vulnerable.
According to the Bill of Rights, the right to enjoy a cultural practice may "not be exercised in a manner inconsistent with any provision of the Bill of Rights". Thus, cultural practice may not infringe on the boys' right to equality, life, human dignity, mental health and their spiritual, moral and social development, among other things. They are entitled to healthcare, education, protection from maltreatment, abuse or degradation, as well as an environment that is not harmful to their health and wellbeing.
Here the Bill of Rights strikes a balance between the right to culture and other fundamental rights: the right to a cultural practice must fall within the ambit of other rights as entrenched in the Constitution. No such qualification is made in the case of other fundamental rights mentioned above.
It could be argued, therefore, that the interest in protecting other fundamental rights outweighs the right to culture. Throughout, the right to culture has to give way to other rights, rights with no countervailing rights over them. In this, the Constitution created no space to manoeuvre for cultural circumcision to compete with, or trump, other rights.
Reasonable and justifiable
Furthermore, the Constitution provides that the rights entrenched in the Bill of Rights may be practised subject to a limitation clause. This means that the right to cultural practices may be limited "in terms of law of general application to the extent that the right is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including … the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose".
The limitation clause applies to all fundamental rights entrenched in the Constitution. Ultimately, the status of this clause reflects the reliance of democracy on the views of the majority: that is, what is democratic should be approved by the majority.
It is clear that exploitation, abuse and the deaths of initiates during cultural circumcision has become a concern for many, including those who support the practice in general. For these reasons, cultural practices that can be harmful and not openly justifiable by the majority in society must be limited.
This does not mean the right to cultural circumcision may not be practised, but that certain measures be put in place to ensure that it does not contravene the initiate's rights.
This shifts our argument to the responsibility imposed on the state to work towards the realisation of all rights. The Constitution requires that the state "protect, promote and fulfil all the rights entrenched in the Bill of Rights". Thus, there is a compelling reason for the state to establish legislation to regulate the practice of cultural circumcision for the sake of the wellbeing of children.
The state's contribution in this area goes back to March 2004, when national traditional leaders met to discuss the establishment of a national policy framework to address some of the concerns about malpractices in cultural circumcision.
A policy framework was to be developed on receipt of inputs from the provincial branches of traditional leadership groups. The meeting resulted in the enactment of provincial circumcision laws by the Free State, Eastern Cape and Limpopo; laws that seek to prevent injury or death during such ceremonies. These laws require the inspection of the initiation school by health officials to ensure hygienic conditions and proper water supply. They further require a medical report to be submitted a month after the circumcisions, detailing the health of all initiates as well as the consent of the parent or guardian of each child.
Yet there is a gap in this intervention: there has been no progress yet on finalising the national policy framework on cultural circumcision. Also, some of the provincial laws have gaps, because they do not require the child's consent to participate in cultural circumcision. (They also fail to specify a minimum age at which a child may participate in cultural circumcision.)
Valuable contributions
This is the case despite the explicit provision in the Children's Act that "every child that is of such an age, maturity and state of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given consideration". This message was echoed by the South African Human Rights Commission in 2009, when it said that South Africa needed to ensure that "children's voices were heard in matters affecting them".
The state has made valuable contributions to the lives of children by enacting the Children's Act, which gives effect to certain children's rights. But the Act also has gaps: for instance, there is no express mention of cultural circumcision in it. It simply prohibits circumcision of a male child younger than 16, though it makes exceptions for medical reasons (on the recommendation of a medical practitioner) or religious practices.
The Act also requires that a male child who consents to circumcision undergoes counselling. He is allowed to refuse circumcision if he has the mind, age and maturity to do so. The Act refers to medical and religious circumcision only.
To end the inconsistencies in the Act, the state must, among other things, consider incorporating a provision explicitly prohibiting cultural circumcision that is exploitative, abusive or harmful.
A further provision could prohibit the cultural circumcision of children younger than 18. There should be a requirement that such acts be performed in an accredited institution, by qualified medical personnel (in the absence of trained cultural practitioners), and that the boys receive therapeutic care before and after circumcision.
The state must investigate rural communities for initiation schools that operate unlawfully. It should inspect sites to ensure they reach the required standard for the children's safety and wellbeing.
The right to cultural practice should be enjoyed in a safe environment, one in which the risks of harm are mitigated.
Dr Ria Nonyana-Mokabane is a legal scholar with a doctorate from the University of Pretoria