National House of Traditional Leaders (NHTL)
CHILDREN’S BILL (B 70B – 2003)
We have received a copy of the Bill that was introduced in the National Assembly without our knowledge and participation as should have been the situation.
The Children’s Bill is certainly a necessary piece of legislation in South Africa. In its current form it attempts to cover a range of issues that affect children and charts procedures on different pursuits that could be done on behalf of children. Amongst the things that it deals with is children’s rights to confidentiality in as far as medical conditions are concerned, their rights to fair treatment – in courts, as people with disability, and as children generally, ways to identify and help children in need, protection against and dealing with child trafficking, motherhood surrogacy, and outlining parental responsibilities and rights. On the last aspect that is mentioned here the patrilineality (tracing of identity through the male line) of the South African society comes through in the Bill.
In its attempts to protect children the Bill begins to define too much the aspects of social morality that affect children. This is done in a manner that begins to suggest that children are protected against the normal institutions and social units that surround them such as family, churches, communities and the processes that are sometimes suggested by these institutions. Government needs to take care that the rights of people are protected in terms of the Bill of Rights as enshrined in the constitutions.
However this must not be done in a manner that suggests that individual rights are the primary units through which socialization and moral nurturing must be conceptualised. It is especially when the matter of raising children is concerned that the need to be less restricted to the individuals when thinking about society must be recognized. Institutions of society are meant to nurture children.
The issues of identity, social morality, religion, are a matter on which government can encourage an environment of negotiation and be facilitatory in so far as the best manner according to which rights and responsibilities must be recognized. In as much as rights are important the values of responsibility, humanitarianism, and mutual respect also need to be sustained. Rights must not be posed in a manner that impedes ubuntu – the society needs both.
We have considered the provisions of the Bill and wish to submit our comments as set out below.
We appreciate that the Bill has some recognition of the institution of traditional leadership in it. However, we are of the view that such recognition pertains to only recognition of traditional leaders with no power of Traditional institutions pertaining to children issues.
We maintain that in our indigenous legal system there are entrenched norms and values pertaining to the protection and care of children living in our communities.
(2) Objects of the Bill
The objects of the Bill are supported. However, the norms and values entrenched in indigenous law must be recognised and provisions should be made for a deadlocking mechanism in case of conflict between Westernised norms and values contained in the Constitution and our indigenous legal system.
(3) SOCIAL, CULTURAL AND RELIGIOUS PRACTICE – SECTION 12
We are vehemently opposed to a clause which prohibits virginity testing. This clause has been inserted by those who either have no knowledge of our culture or are simply harbouring prejudice and hatred against our culture. Ever since this Bill was publicised by media to the effect that it has been passed by the National Assembly it has evoked public outrage across the length and breath of the country and the most vocal critics being women and girls themselves. Should Parliament pass this outrageous legislation with such offensive clause it runs a risk of not being respected by our communities and they are determined to defy it.
The Bill of Rights recognises the rights of persons to participate in cultural practices of their own choice. Surely any clause in the Bill which denies our communities to exercise their cultural rights is not consistent with the Constitution.
The word "circumcision" is not defined in the Bill. There are various forms of female circumcision and in our view many, if not all, are good customary practices that must be promoted rather than prohibited.
(4) SPECIFIC PROBLEMS AND CONTRADICTIONS – SECTION 124
Once again the right of the parent is taken away and given to a twelve year old child. It is a known fact that traditional communities with their traditional leaders cannot accede to such a clause in the Bill because this clause by implication gives such a child rights attached to the status of an adult.
4) There is also a well-established custom of "arranged marriage". In practice the will of the families is invariably respected by the girl when she comes of age to marry and after traditional rituals have been performed.
We are concerned to note throughout the Bill that what is uppermost to the drafters of the Bill is to protect the interests of Westernised communities and suppress African communities!
In our indigenous legal system the rights of individuals are recognised within the family.
We also have our own traditional courts that determine disputes in our communities. They apply indigenous legal system.
The NHTL is strongly opposed to the clauses of the bill highlighted above as indicated. It is our view that such clauses should be totally removed from the set proposed legislation as their anti-cultural in their quest for children’s rights.
We trust that our comments will be acceptable to Parliament.
DATED AT: PRETORIA THIS 7th DAY OF OCTOBER 2005
INKOSI MPIYEZINTOMBI MZIMELA
NATIONAL HOUSE OF TRADITIONAL LEADERS