‘The law is the way it is. If you try to apply it directly to tradition, you will find that it is not a perfect fit and will affect a lot of [cultural] practices such as initiation.” This is the opinion of Siya (not her real name), a 32-year-old married Tsonga schoolteacher in Limpopo. The sentiment was shared by most people who took part in an investigation of the clash between “harmful” cultural practices and constitutional principles. (“Harmful” is in inverted commas to indicate the ambiguous nature of the so-called harm of cultural practices.)
Human Rights Day is a reminder to ask ourselves: How compatible are human rights with “traditional” African cultural practices? Or put more appropriately: What is it about human rights that is allegedly incompatible with specific cultural practices such as initiation or polygamy?
Two of the weaknesses of the literature on African human rights is the tendency to generalise about African traditional societies as if they were a single culture and to speak of them without including the voices of those who practice these cultures.
Our research, outlined in our report Community Dialogues on “Harmful” Cultural Practices within the South African Constitutional Framework, sought to overcome these weaknesses by examining how the people who undertake practices, identified by others as “harmful”, understand and evaluate initiation and polygamy. The study, conducted in Limpopo, revealed several reasons there is a misfit between cultural practices and human rights.
First, limited knowledge about the Constitution and different understanding of rights led to noncompliance. There are several reasons the majority have little knowledge of their rights. Although some people were simply unaware, others attributed it to the Constitution being seen as “the law of the white people” or as a document written in a foreign language (even though the Constitution has been translated into local languages).
An important part of the participants’ views about the Constitution included what they perceived rights to be. In several cases they defined rights only in terms of socioeconomic rights, such as the right to food, shelter and safety: “Yes, I know my rights. I would buy food for everyone in the homestead, even clothing for the other women and their children and I see nothing wrong with it. That is how I see my rights.”
Furthermore, many women spoke about the rights associated with domestic responsibilities, such as: “Our right is to wake up and heat water for your husband and your in-laws, especially your mother-in-law.”
Second, people didn’t recognise human rights because they viewed customary law as the exclusive system that regulates cultural practices.
Third, rights were not always seen as legitimate. There were grave concerns that rights emphasised individual rights. It is the giving of a certain set of rules and ways of behaving to individuals that is not compatible with the ways in which people live their lives. A male participant explained: “I have an understanding of what [constitutional] rights are, but I know that, in our culture, rights are not the basis for how things are done or should be done. I know that rights give a person the space to do what they want, when they want to, provided they are not forced into the situation and they agree to everything that is happening, not forgetting your responsibilities.
“In our culture, whether or not you know what your responsibilities are is irrelevant. You cannot, and you will not be allowed to do whatever you want, whenever you want. You may not want to go to initiation, but if your father wants you to go, you will go. No one is going to consider your rights; you won’t even raise them. You will just have to go. So what I can say is that rights are not considered or respected in our culture. A young person cannot tell an older person that what they are doing is wrong. It is a taboo, because the word of a senior is final.”
In treating people as individuals, human rights do not connect the individual to family and community. Therefore, participants were concerned that the focuses on individual rights did not mention the ensuing responsibilities.
Fourth, the laws did not make sense to the people who undertake a practice because the differential treatment of people in different systems raised questions about the legitimacy of the rights, as Siya alluded to, specifically in relation to the age of consent for initiation: “That law [you must be 16 years or older] does not make sense also because you can take a seven-year-old to the hospital to be circumcised and they won’t turn you back.”
Finally, the participants didn’t see the need for compatibility of cultural practices with the Constitution because they did not see the relevance of the latter. They considered the Constitution a bad fit for their cultural practices because it introduced and measured elements of privacy, harm and choice that did not play a role in their practices and in their lived realities.
Moreover, they did not see the cultural practices as denying specific rights that are deemed necessary, because they believed the practices were humanistic and incorporated values such as human dignity, respect and solidarity. The overwhelming finding of our research was that the practices did not violate rights that are relevant to people’s experiences. Therefore, the practices are not “harmful”.
Examining the practices from a constitutional perspective, there are aspects of initiation and virginity testing that appear to violate the constitutional rights to freedom to choose and the right not to suffer physical harm or impairment to dignity, and so forth.
Some negative parts of female initiation (one person reported the practice of girls having to climb a tree naked) could be seen to be a violation of bodily integrity, harm and a violation of human dignity. The freedom to choose is premised on the age of 16 years, as set out in the Children’s Act, yet the practice of initiation can commence from the age of puberty, and this would suggest a violation of the freedom to choose. The way in which the status of the virginity of the girl is publicly announced may raise issues of harm, dignity and discrimination. Discrimination results from the ways in which girls who are virgins are treated differently from those who are not.
But, from the perspective of the participants, there was no indication of a violation of any of these rights. They expressed positive experiences of virginity testing and female and male initiation and did not report any violations. In fact, they saw themselves as being treated with respect. Overall, the individuals assessed participation in the practices to be in line with their human dignity. Moreover, there is no issue of forced consent and the majority of the boys and girls chose to undergo initiation and virginity testing and their family members supported them.
Looking at the practices of polygamy, there is a clear alignment between the cultural practice and the constitutional obligation and right to obtain consent from the first and subsequent wives when contracting a polygamous marriage. The participants don’t see the need to comply because their own practices comply. There was equality between the co-wives, which is aligned to the constitutional obligation, but it was not expressed in such terms. Rather, this was expressed as a cultural right.
From the perspective of the Constitution, men and women are not treated equally in that men marry more than one wife and not vice versa. But the women stated that this was not a violation of rights, and they supported it for some of the benefits it gave them, such as sharing responsibilities and labour.
The findings that emerge from the study signal that practices of initiation, virginity testing and polygamy, as practised in parts of Limpopo, are partially consistent with human rights, but would be more consistent with their conception of human rights, which values interdependence, individuals’ responsibility towards others and a genuine regard for legal pluralism.
Elena Moore is in the University of Cape Town’s sociology department and is the director of the Families and Societies Research Unit at the Centre for Social Science Research as well as the National Research Foundation’s acting chair in customary law, human rights and indigenous values. Chuma Himonga is the dean of law at the University of Zambia and professor emeritus of private law at UCT