Over the last week, public debates have centred on the possible contradictions between the constitutional rights with respect to cultural rights, and the rights that aim to protect women and girls from discrimination and violence. The discussion itself provides a lens on the complexities of South African society. Traversing these complexities with a view to strengthening the rights of women and girls requires dialogue and engagement amongst different stakeholders. That being said, I would like to focus on the implications of the so-called “maidens bursary” on the broader struggle to improve the lives of women and girls in South Africa.
As indicated by those who have generally spoken out in favour of the “maidens bursary”, the South African Constitution does provide for the protection of cultural rights. The protection of cultural rights was included in the constitution, given the systemic attack on indigenous African ways of living by colonialism and apartheid laws. Constitutional protection for cultural rights does not, however, provide a license for the continuation of practices of any kind that may seek to continue discrimination and violence against women and girls. In fact, the Bill of Rights was designed to undo a legacy of discriminatory practices including those bequeathed to us through colonial laws. It is important to remember that the apartheid era legal attacks on women’s bodies and the LGBTI communities were not derived from African law or custom, but came directly from the norms and laws of European countries, whose legal frameworks we inherited. The constitutional framework we have developed therefore outlaws all discriminatory practices irrespective of its origin.
It is for this reason, therefore, that the South African Constitution, with respect to cultural rights, includes a qualification that stipulates that no person or institution exercising cultural rights may do so in a manner that is inconsistent with any provision in the Bill of Rights. It is within this context that South African society must engage in a proper and detailed discussion on how we can ensure that cultural rights are respected and practiced in ways that are in line with the constitution and related laws. This will includes looking at all practices that are harmful to women and girls. This implies looking comprehensively at issues such as Ukuthwala, virginity testing, widow’s rituals, uk u ngena, breast sweeping/ironing, and practices such as “cleansing” after male circumcision, male circumcision itself, witch hunting and other practices that may be discriminatory and harmful.
My comments on the so-called “maidens bursary” scheme are, therefore, situated within a discussion on harmful practices against women and girls that is not uniquely South African or African, but are features of patriarchal practices across the globe.
Throughout the world the practice of virginity testing continues unabated despite laws and policies that makes the practice illegal. This includes thousands of girls subjected to enforced virginity testing throughout southern Africa, including South Africa. The arguments offered by those who seek to defend the practice of virginity testing is that it is a strategy to reduce HIV and AIDS and teenage pregnancy. These arguments are, at best, misguided and inadvertently provide a convenient screen for a patently harmful practice steeped in patriarchal practices that serve to oppress women.
Virginity testing is not an African issue, it is a component of harmful practices aimed at subjugating the bodily integrity of women. It complements other harmful practices such as female genital mutilation which is essentially a practice guided by the ideology that sex for women should not be about pleasure, but about procreation. In most cases virginity testing is ineffective, unhygienic, and a gross violation of a girl’s human rights. Moreover, it is not even a reliable measure of virginity. Women’s hymens can break due to factors other than sex such as riding a bicycle or inserting a tampon. In the South African context where many first sexual encounters are unwanted, hymens are ruptured due to their being sexually assaulted. Despite this there is a huge stigma attached to girls who “fail” the virginity testing.
This results in girls putting their health in danger through engaging in practices known as “virginity saving”. This includes inserting objects such as meat and even pieces of nets to try and give the illusion of an intact hymen where tested. Middle class women and girls in places like Egypt have the opportunity to go for rather expensive hymen reconstructive surgery such is the stigma associated with not being a female virgin in patriarchal countries. The poor in South Africa do not have this as an option. This, according to doctors, may have given rise to unprotected anal sex, which in turn increases the risk of contracting HIV and AIDS.
These factors contradict the oft-stated intent of many who seek to defend this harmful practice as part of a means to reduce HIV and AIDS and to prevent teenage pregnancy. Virginity testing has not been challenged in places like Swaziland and the HIV and AIDS rates there are amongst the highest in the world. The prevention of HIV is best done through proven measures such as comprehensive sexuality education, access to dual barrier forms of contraception such as the female and male condoms, and strategies to reduce forced sexual encounters. In sum, the best way to combat HIV and AIDS is to empower women and girls, and not through practices that are, in fact, tantamount to being a sexual offense.
The Sexual Offences Act rightfully criminalises all forms of forced sexual penetration. This includes digital penetration, such as a finger. The abusive nature of virginity testing is the reason why the Children’s Act has made it illegal for Children under the age of 18 to be subjected to virginity testing and female genital mutilation. Aside from the Children’s Act and the Sexual Offenses Act that criminalises virginity tests for children under the age of 18, the South African Constitution has a few other measures that make the practice illegal. Section (12) (a) and 12(b) of the South African constitution provides that everyone has the right to bodily and psychological integrity, which includes the rights to make decisions concerning reproduction and to security and control over their body. Furthermore, the Constitution enshrines the right to dignity, and provides that no person would be subjected to torture or to cruel, inhuman or degrading treatment or punishment. These measures override what some people are claiming as a cultural right under sections 30 and 31 of the Constitution.
In addition to the South African Constitution and related laws, there are international instruments that South Africa is party to that also encourages countries to prohibit harmful practices impacting on lives of women and girls. This includes the Programme of Action of the International Conference on Population and Development (ICPD), the African Charter on Human and Peoples Rights and the Universal Declaration on Human Rights. South Africa has been a key proponent on the eradication of all harmful practices to women and girls. This includes female genital mutilation, early and forced marriage. We cannot in good conscience now want to provide some space for virginity testing specifically targeting girls and linked to educational opportunities.
I have used the term forced virginity testing, as there is provision for women over the 18 to have the tests done with their consent. This is a grey area that requires debate and discussion. Is it consent or coercion when women and girls can only access bursaries based on them doing virginity tests and passing those tests. It is not inconceivable that a number of these women and girls may in fact be engaging in the risky “virginity saving” practices discussed above. I wonder if the practice done in this regard by the uThukela District Municipality is legal given the legal provisions cited above. The Equality Act may even be contravened, as it appears as if the virginity testing is required only of women and girls. This is not a justified form of discrimination and can be challenged in court. In a bizarre twist, the “maidens bursary” may, also, distort the manner in which virginity testing is practiced in other contexts through providing an incentive for parents and bursary seekers to bribe those tasked with the act of virginity testing.
Legalities aside, if we are committed to dismantling patriarchy in all its forms, and the discrimination and violence that accompanies it we must be committed to stopping all harmful practices against women and girls. Of course legislation is not enough to do this and we must have discussions with all the relevant stakeholders concerned to change society. However, while we are having these discussions, which should also look at harmful practices aimed at men, such as non-sterile circumcision ceremonies, we must strive to implement the existing legislation to the letter. Girls under the age of 18 cannot be subjected to virginity testing. It is against the law. Girls over the age 18 must, under the current law must give informed consent. This does not include coercion through making access to resources to study a condition for that support. That is discrimination and not consent. DM
Bathabile Dlamini is South Africa’s Minister for Social Development.