When culture and policing collide

Girls as young as 13, kidnapped and forced into marriages with older men. Boys as young as 14, dead as a

result of botched circumcisions. These events make for attention-grabbing headlines and short-lived national

outrage. But when it comes to putting those responsible behind bars, information released by SAPS this week

reveals that it's just not happening to any meaningful degree. The numbers of arrests for circumcision deaths

and ukuthwala abductions are negligible. Is this a case of SAPS inefficiency, or are there more complex

cultural issues underlying an unwillingness to treat these matters as serious crimes?

Ukuthwala, the practice of 'abducting' a girl from her family for marriage, is believed to have been practised

in some form in parts of South Africa for over a century. But historical records suggest that objections to

the practice stretch back just as far, according to ukuthwala researcher Dr Elizabeth Thornberry. One of the

complexities of the issue is that certain forms of the practice - which Thornberry notes are the ones

generally recognised in customary law - require the young woman's consent to the marriage. The type of

ukuthwala which has attracted increasing negative media attention over the past few years, however, does not.

With a girl's consent, ukuthwala becomes a situation "more like an elopement", Brenda Modisaotsile suggested

in an article for Pambazuka News in July. While unusual, this occurred in the past in situations when, for

instance, the girl's family disapproved of her boyfriend. But, more frequently, young women are abducted

without their consent.

Modisoatsile lists a number of reasons why this occurs, such as to force the consent of the girl's father, and

to avoid the expense of a wedding. Once the abduction has been executed, word is sent to the family that

lobola will be paid. For deeply impoverished families, such lobola may be a lifeline.

The young women, meanwhile, "are sometimes beaten if they object to sex and other wifely duties, and are very

often raped to prevent parents from initiating efforts to have the girl returned or to report the matter",

Modisaotsile notes. The latter is premised on the taboo against pre-marital sex.

Aside from the obvious human rights abuses at play here, there are good economic reasons to object to

ukuthwala as well. New domestic duties are likely to reduce the time a girl has available for schoolwork - or

indeed education at all. The loss of opportunity to acquire marketable skills perpetuates the cycle of poverty

in rural communities.

It's unclear how many girls fall prey to ukuthwala in South Africa every year. In 2009, there were media

reports that more than 20 Eastern Cape girls per month were being removed from school as a result of

ukuthwala, but it's uncertain what the source of those numbers were. In November last year the Commission for

Gender Equality voiced their concern over the fact that in KwaZulu-Natal, at least, the government wasn't

keeping any statistics on the practice.

There are some encouraging signs that the tide is turning against ukuthwala. For one thing, in August

President Jacob Zuma approved the Prevention and Combating of Trafficking in Persons (TiP) Act. Though it will

take a while to come into force properly, those in the know say it removes some of the ambiguity attached to

non-consensual ukuthwala by firmly defining the practice as trafficking in persons.

For another thing, a number of top government officials have come out strongly against the practice recently.

This week, ANC Women's League President, Angie Motshekga, added her voice. "Cultural practices and traditions

that promote the violation of women's rights must be abolished and these include, among others, ukuthwala,"

she told journalists in Johannesburg.

In an op-ed published in The Star last month, meanwhile, National Police Commissioner Riah Piyega wrote of the

urgent need for improved policing in rural areas. One example she gave of a type of rural crime which policing

needed to step up to handle was ukuthwala. Phiyega defined the practice as "a rather sensitive cultural

matter" but stressed the need to deal with "the illegal aspects of this practice".

Yet judging by a SAPS briefing to parliament on Wednesday, police simply can't - or won't - handle ukuthwala

adequately as a crime at present. Figures released by SAPS to the Select Committee on Women, Children and

People with Disability show that only a handful of arrests have been made for ukuthwala abductions over the

past year.

In the Eastern Cape, over the 2012/2013 period, there were 116 reported ukuthwala abduction offences, and 17

arrests. In KZN over the same period, there were 138 reported abduction offences and 3 arrests. Nationally,

there were 255 ukuthwala-related abduction cases in total, with only 21 arrests. And this entirely excludes

Gauteng: Gauteng had 171 abduction cases over 2012/2013, but it's unknown how many of these were ukuthwala-related. Either way, no arrests were made.

"This could partly be due to SAPS incompetence, but I think it's more than that," gender activist Nomboniso

Gasa told the Daily Maverick. "Since 2008, government has been insisting that forced marriages of minors is

illegal, and they have been saying that they should be dealt with in terms of the law as unconstitutional.

However, the experiences of women and communities that have gone to the local police stations to report forced

marriages have generally not yielded much positive results."

In parts of the Eastern Cape like Lusikisiki, Gasa says, both police and traditional leaders have shown

reluctance to act against ukuthwala. "In some communities, on these issues, SAPS tends to want to work with

traditional leaders. So they would want to go into a village and sort of get permission from traditional

leaders and so on, which they shouldn't do."

Melanie Hamman-Doucakis, the head of the Child Protection & Trafficking programme for Media Monitoring Africa,

has spent much of this year engaged in a research project on_ ukuthwala_, including four months spent with

communities in the Eastern Cape.

"It wasn't initially an easy issue to approach," she told the Daily Maverick. "Through the process we

encountered some people who we could see were pushing back against any outsider's opinion of [ukuthwala].

There was a sense of defensiveness, of 'you can't tell me about my culture'. And that's understandable: we're

not very sensitive in South Africa to the notion that a person's culture is so tied up with identity."

Hamman-Doucakis said that their research did reveal instances where ukuthwala "works quite well and overcomes

the obstacles of young people who both want to get married". She said, for instance, that she had met an

advocate in East London who married his wife in this manner in the 1980s. "But in situations where a girl is

just taken and raped and then lobola is paid, that's a different story."

Hamman-Doucakis told of speaking to a Grade 8 girl who had been thwalad in December. Having explained some

of the issues around ukuthwala to the girl, she asked her whether it was better to be thwalad or to choose.

"She initially said better to choose. But then she changed her mind and said ukuthwala was better. She

explained that if she didn't choose her husband and he beats her, she can go home to her family and get

sympathy. If she goes home and she didn't choose him, less chance of sympathy."

When it comes to policing the issue, Hamman-Doucakis says there is definitely a stumbling-block. "Police in

the area might well have the same understanding of the world as those who are doing [ukuthwala]," she says.

Gasa made the same point: "It is difficult for the police, as some of them come from these communities and

know the perpetrators. It is complex, but they are supposed to do their job."

Many of the same issues apply to the prosecution of those responsible for the deaths of young male initiates

at circumcision schools. But here again, one of the problems has to do with record-keeping. One of the only

provinces for which seemingly firm figures has been available in recent years is the Eastern Cape, which has

been ahead of the game in its collaboration with traditional leaders on the issue. But the Daily Maverick

found conflicting figures forthcoming from the Eastern Cape Department of Health, and from SAPS.

In September, the Eastern Cape Department of Health - represented by Health MEC, Sicelo Gqobana, - gave a

presentation to the parliamentary committee on Women, Children and People with Disabilities in which it was

stated that in the Eastern Cape, in June 2013, there had been 40 initiate deaths and 19 arrests.

On Wednesday, SAPS told the department's select committee that in the Eastern Cape for 2013 so far, there had

been 36 initiate deaths and 4 arrests.

When the Daily Maverick contacted the Eastern Cape health spokesperson, Sizwe Kupelo, to inquire about the

apparent contradiction, he stuck by the Department of Health's figures. Their records were, he said, based on

the department's "hands-on approach". We had not received a response from SAPS on the matter at time of

writing.

Asked in September why the number of arrests was so low, MEC Gqobana stated that the police sometimes had

difficulty making arrests or deciding upon an appropriate charge. Sometimes the victims or witnesses were also

too afraid to identify the perpetrators.

"Often people go to lay charges - those who are brave - and after they have laid the charge there is very

little follow-up," Gasa says. "Police don't [act] because in many cases they don't want to be seen to be going

against dominant cultural practices, but also because they don't see this as something which is urgent. So

consequently they think after the outcry it will go away."

In Gasa's view, police inaction on the matters of both ukuthwala abductions and circumcision deaths often

comes down to a belief that these issues "fall into a cultural sphere which falls beyond their scope of

influence".

What can be done? In an op-ed piece for the M&G in August, researcher Lusana Ngcaweni suggested that in the

case of ukuthwala, schools have the potential to intervene. "Many of these girls are school-going, so

teachers, school governing bodies and the education department have one of the most critical roles to play in

reporting ukuthwala as soon as it happens," she wrote.

"Education is the only way that things will change," Hamman-Doucakis says. She points to organisations in the

Eastern Cape that carry out workshops with parents about the provisions of the Children's Act, and suggests

that this type of intervention is essential.

Gasa says it comes down to the state. "The state is a custodian of minors where parents have proven not to be

capable," she says. "The state and its institutions have a responsibility to ensure all children are

protected."

This column appeared in Daily Maverick.