C. Theodora Van Der Zalm, Protecting the Innocent: Children's Act 38 of 2005 and Customary Law in South Africa--conflicts, Consequences, and Possible Solutions

• Publication year: 2008

PROTECTING THE INNOCENT: CHILDREN'S ACT 38 OF

2005 AND CUSTOMARY LAW IN SOUTH AFRICA- CONFLICTS, CONSEQUENCES, AND POSSIBLE SOLUTIONS

INTRODUCTION

Colonel Kobus Jonker, retired head of the ritual murder unit of the police force in Pretoria, South Africa, recalls his first case with the unit in 1981. A photograph shows a young girl with half of her face cut away. Jonker states that her face would have been removed "when [she was] still alive. They will hold her down [and] the more she screams, the more the ancestors will hear the pain and the muti will be more powerful."¹Another story tells of a young mother forced to hold her toddler's legs while his father, a witch doctor from whom the young woman had separated, cut the child's throat for muti purposes.²Muti murders such as these occur when a person is killed so that their body parts can be harvested for use in traditional healing practices.³As Jonker explained, the gruesome removal of body parts-such as the face, hands, tongue, or genitals-will often occur while the victim is still alive, as their screams are believed to make the muti medicine stronger. Although the case described was in 1981, the practice has not ceased during the past 27 years. To the contrary, this practice continues with disturbing frequency in today's post-apartheid South Africa. In 2003, the head of one specialized South African police unit said, "In South Africa it happens fairly regularly, it is occurring at least each month. . . . For many of the police it is nothing unusual, just treated as a normal murder. . . . So there are a lot of muti-related murders on which we are not contacted."⁴

Despite having a constitution hailed as "one of the most advanced in the world,"⁵practices such as muti killings, child rape, invasive virginity testing, male circumcision, and often deadly tribal initiation rituals continue year after year in South Africa. This Comment will examine the conflicts between carefully crafted, progressive laws-in particular, the Children's Act of

2005-and customary law and daily practices on the ground in South Africa in order to determine the odds of success for this new Act and what might be done to improve those odds.

The Children's Act of 2005 (Children's Act), assented to on June 8, 2006, was developed "[t]o give effect to certain rights of children as contained in the [South African] Constitution"⁶and specifically recognizes that "every child has the rights set out in section 28 of the Constitution."⁷Section 28 of the constitution ensures a child the rights, among others:

(c) to basic nutrition, shelter, basic health care services and social services;

(d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that-

(i) are inappropriate for a person of that child's age; or

(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development . . . .⁸

The Children's Act specifically prohibits certain rituals that are entrenched in South African customary practice. Among these practices are virginity testing of females and male circumcision.⁹The Children's Act also prohibits the physical or sexual abuse of children, exploitative child labor, and trafficking in children.¹⁰Despite these legislative prohibitions, the rights of children continue to be violated in South Africa.¹¹Provisions of the Children's Act entered into force on July 1, 2007, that lowered the age of majority from

21 to 18 and elaborated on the "best interests of the child" standard,¹²but not all provisions have entered into force at this time. For example, section 12- which deals with social, cultural, and religious practices and with which much of this Comment is concerned-has not yet entered into force.

The full Children's Act will not come into force until the South African Parliament passes the Children's Amendment Bill and all regulations are finalized.¹³As explained in 2007, "[o]nce passed, the [Children's Amendment] Bill will amend the Children's Act . . . . Combined, these pieces of legislation will form the primary legislative framework to give effect to . . . constitutional rights of children . . . [including] their right to be protected from maltreatment, neglect, abuse or degradation."¹⁴The Children's Amendment Bill explains that:

The provisions of the consolidated Bill that will apply to the national government were passed by Parliament during 2005 as the Children's Act, No. 38 of 2005. The provisions of the consolidated Bill that will apply to the provincial government are contained in the current Amendment Bill as an amendment to the Children's Act, 2005 (the

''Children's Act''). This Amendment Bill will be dealt with in terms of section 76 of the Constitution and will complete the Children's Act by inserting the provisions that deal with welfare services as delivered by the provinces into the Children's Act.¹⁵

In October 2007, political parties in South Africa agreed to drop section 139- a controversial section that would have banned the corporal punishment of children-from the Children's Amendment Bill.¹⁶Following this modification, parliament's Social Development Committee adopted the bill, moving it forward for debate in the National Assembly.¹⁷Parliament eventually passed, and the President signed into law, the Children's

Amendment Act No. 41 of 2007 in March 2008.¹⁸In May 2008, the theme for Child Protection Week in South Africa was "Getting South Africa Ready to Implement the Children's Act."¹⁹As of late May 2008, the debate continued between government and civil society in South Africa as to "what it will take to ensure the country will be ready to implement the Children's Act."²⁰While progress is being made and many in South Africa realize the need for this new legislation, implementation continues to be a slow and arduous process.

Johan D. van der Vyver has suggested that one reason "provisions in [section 12 of] the Children's Act dealing with social, cultural and religious practices have been kept on ice" may be "because of certain discrepancies between the lofty constitutional principles embodied in the Bill of Rights and actual perceptions and practices of sections of the South African community."²¹These discrepancies are of critical importance given the fact that under the South African Constitution, legislatures are required to facilitate public participation in law-making processes.²²Indeed, the most recent strategic plan for the South African Parliament lists this facilitation of public involvement as one of its core functions.²³

Numerous reasons underlie the importance of this public participation in

South Africa's law-making processes. Given the social and political upheaval leading up to the end of apartheid and the adoption of the new constitution, it is not surprising that the people of South Africa demand a voice in making the laws that will govern them. South Africa's constitution has been called "one of the most advanced in the world."²⁴Following years of apartheid, the new constitution represented "the end of an era and the dawn of a new chapter, one that contain[ed] a vision of a better future."²⁵One author has noted that the process of negotiations leading up to the drafting and adoption of the constitution "reveal[ed] a uniquely South African characteristic: an obsession with consultation."²⁶He goes on to explain that "South Africans tend to be suspicious of any process about which they have not been consulted . . . ."²⁷

Thus, even in the process of drafting the constitution that would later be called "the icon of South Africa's miracle,"²⁸adequate consultation with the public played a key role.

Indeed, this aspect of public involvement is one of the things that made the South African Constitution so unique. In addition to the historical circumstances surrounding its creation, "[t]he odds were stacked against its successful implementation, for there was no precedent for such public participation anywhere in the world."²⁹Despite these odds, the South African

Constitution was finally adopted and implemented, "establishing a constitutional democracy in which a finely crafted Bill of Rights enjoys pride of place."³⁰It is no wonder that this requirement for public involvement continues to be at the forefront of South African legislative processes.

Even with the public participation in the drafting of the constitution and the bill of rights, one author has argued that global forces outside of South Africa strongly influenced the drafting of those documents and the form that the new government would take.³¹Considering the widespread international interest in the end of apartheid, it is logical that the international community would take great interest in the system of government that would follow.³²However, given the cultural diversity within South Africa, it also comes as no surprise that some of the new rights-such as those contained in the Bill of Rights and in the new Children's Act-were essentially imposed from the top down. As one author states:

The heterogeneity of South Africa's population, one divided by language, religion and culture/ethnicity, is notorious. Under the circumstances it is understandable that groups observing distinctive cultural traditions should demand respect for their particular lifestyles and systems of law. But . . . conflicts with the fundamental rights are bound to arise because, although it is often claimed that human rights represent a universal, and therefore a culturally neutral, value system, they betray at every turn their origins in western law and philosophy.³³

Despite the obvious potential for conflict, "no one in South Africa, including those responsible for drafting the Final Constitution, intended to sweep away the country's indigenous legal heritage."³⁴This intent to maintain local influence is manifested in many ways, such as...