Catch 22: When fly-by-night initiation schools botch circumcisions
The recent deaths and hospitalisation of circumcision initiates have raised serious concerns and debate over whether South Africa’s legal and health systems provide adequate protection to vulnerable youths who undergo traditional circumcision.
The challenge remains how to uphold the constitutional right to participate in traditional initiation practices as part of a unique cultural life without allowing infringement of their other rights by the actions of others, which may cause pain and sometimes untold sorrow to initiates and their families.
There are existing laws that protect youths who undergo traditional circumcision. But are these laws enough in the light of the fatality rates or serious disfigurement?
The current laws, which provide for and regulate circumcision of infants and young boys, can be found in the Children’s Act of 2005 as well as the National Health Act of 2003. Further laws and policies are expected to be introduced in the future, hopefully with the effect of strengthening the protection given to youths undergoing this procedure.
The Children’s Act lays down strict rules as to when a circumcision may be performed. Male children under the age of 16 may only undergo circumcision if it is for religious or medical reasons. A number of religious orders require neonatal circumcision to be performed and this is also catered for in our law.
Children older than 16 may undergo the procedure if they have been counselled appropriately as to the risks and benefits of the procedure and have given written consent.
These rules apply to all South Africans regardless of one’s cultural or religious affiliations and are comparable to international standards. Unfortunately the conditions under which the procedures are done differ greatly in South Africa, be it in hospitals, a traditional initiation school and often in rural or urban settings.
There are legal remedies for those who suffer injury as a result of circumcision. For example, victims of botched circumcisions can claim for assault in terms of South African common law. There is also the option of suing under breach of contract, or any legal duty which relates to the provision of healthcare services entitles the claimant to sue for certain types of damage.
Transgressions of the Children’s Act and National Health Act constitute crimes, which carry substantial penalties. For example, abducting a boy under the age of 16 years to undergo circumcision against his will constitutes an offence. A person found guilty of this may be sentenced to up to 10 years’ imprisonment, a fine, or both.
Families who have lost sons or grandsons as a result of botched circumcisions can bring civil damages against the doctor or person employed by the initiation school for shock and trauma, and they may claim for funeral expenses.
The same applies to those who are injured and hospitalised as a result of negligent performance of the procedure. Their pain and suffering (including any disfigurement) is also actionable in law.
The biggest problem when looking at legal recourse is identifying who should be charged with the crime or sued civilly for these damages.
The owners of fly-by-night initiation schools are the most likely candidates to be held accountable for any crimes committed in the performance of the ritual, but are also least likely to have the financial means to satisfy claims for damages by injured persons or their families.
There is a raft of new provincial legislation (such as the Limpopo Initiation Schools Bill, 2014 and the proposed Eastern Cape Traditional Initiation Bill) that seeks to properly regulate traditional initiation schools, including traditional initiation schools having to register. New enforcement mechanisms are to be introduced, as well as new offences that incur stiff penalties.
These legal developments will hopefully provide a comprehensive legal framework and lead to a reduction in circumcision-related deaths and injuries. At the same time, it will encourage the establishment of safe environments for traditional circumcision to be performed. Through stronger enforcement of existing and future laws, these youths can enjoy their cultural rights in a dignified and safe manner that upholds constitutional values and freedoms.
Justin Malherbe, Lerothodi Mohale and Faheem Kaka work for the law firm Norton Rose Fulbright