In November, the International Commission of Jurists (ICJ) attended a series of events in Eswatini on the country’s recently enacted Sexual Offences and Domestic Violence Act. On those occasions, the participants discussed how international and regional human rights standards may assist in the implementation and social understanding of this law.
The Act became law in 2018.
It changes some definitions of sexual crimes and creates new ones. The Act aims, among other things, to promote the realisation of women and girls’ rights and to further Eswatini’s commitments made under international and regional legal instruments relating to the rights of women and girls. The Act aims to make all forms of sexual abuse or exploitation a crime.
As staff members of the ICJ programme in the Africa region and human rights advocates from South Africa, our work involves discussing regional and international human rights standards with lawyers, judicial officers and members of civil society organisations in a range of countries on the continent.
Local activists against gender-based violence, with whom we had partnered, including the Swaziland Action Group Against Abuse, had warned us that there is much discomfort about the Act. Many oppose the Act, assuming it to be or understanding it as “against cultural values” in Eswatini. But accurate information about the Act and what it provides is low, a problem compounded by the local media’s sometimes confusing descriptions of the legislation and its contents.
Even knowing this, we did not anticipate the level of resistance to the Act, by both the men and women we encountered. There remains a real and deeply felt concern that “positive” Swazi cultural practices will be eroded by this Act. Referring to the Act’s provisions relating to unlawful stalking, one man complained: “Every time I see a woman I will have to think about this law and I will be afraid to court her as our people have done for generations”. Referring to the crime of marital rape, which the Act introduces, another man objected: “The law is coming into our marital bedrooms. That is going too far.”
As is often the case in societies the world over, these views on sexual and gender-based violence are a product of patriarchy. In the South African context, consistently with international law, the Constitutional Court has clearly indicated that the Constitution of South Africa “vehemently condemns” patriarchy, and that all customary and cultural practices must conform with women’s rights to full and equal benefit of the law.
Importantly, international human rights law preoccupies itself with the elimination of such “harmful cultural practices” and is not at all concerned with the elimination of cultural practices in general. Culture is dynamic and develops and changes over time. The law merely requires that such developments move cultural practices towards the protection of women’s rights.
Virginity “testing”, which is permitted by the Children’s Act for girls above the age of 16 provided they consent to it and are given “proper” counselling, is an example of a harmful cultural practice in South Africa. The reality is that, even though this law exists, many children under the age of 16 are “tested”, and even those above 16 are, in many cases, “tested” without consent and “proper” counselling. The proponents of this practice, much like commentators in our workshop in Eswatini, argue that the practice is important because it preserves African moral values and curbs promiscuity. This reveals the patriarchal values underlying the practice, which seeks to control and police women’s sexuality and sexual choices.
The way the virginity “testing” is often carried out is further evidence of its patriarchal core and deeply demeaning and violative of girls’ human rights and dignity.
Girls are lined up in a row. One after the other they lie on their backs on the ground. They then have to part their legs allowing the tester(s) to peer between their legs to, purportedly, ascertain their virginity. Girls are publicly rewarded if they are “pure” or publicly shamed if they are found to no longer be virgins, presumably on the basis that their hymen is no longer intact.
But studies into reproductive health indicate it is impossible to know if someone has been penetrated or not by looking at their hymen. Whether someone’s hymen is intact or not proves very little about whether or not that person has had vaginal sex and says nothing about their sexual history.
In addition to being ineffective in determining virginity, such “testing” also has harmful social consequences. It is, therefore, unsurprising that such “testing” is unlawful in international human rights law. Both the United Nations Committee on the Rights of the Child and the African Committee of Experts on the Rights and Welfare of the Child have recommended that South Africa ban virginity “testing”, because it is a harmful practice. In its Concluding Observations on the Initial Report of South Africa, the United Committee on Economic Social and Cultural Rights expressed concern that South Africa’s Children’s Act allows virginity “testing”. The committee recommended that South Africa revise the Children’s Act with a view to prohibiting virginity “testing”.
Harmful cultural practices such as virginity “testing” are a by-product of and contribute to gender stereotypes which, as the UN Committee on the Elimination of Discrimination against Women (the Cedaw committee) has acknowledged, fuel gender based-violence. This is why Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women requires that parties to it “take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.
According to the Cedaw committee, harmful practices such as virginity “testing” are often used to “justify gender-based violence as a form of protection or control of women”. This is certainly the case in South Africa and Eswatini, where men, and sometimes women, will justify the continuation of such practices on such grounds.
The South African Constitution recognises the need to respect and develop customary law. But such customary law must be consistent with the provisions of the Constitution, including the rights enshrined in the Bill of Rights, such as the rights to privacy, equality and dignity. If customary law practices are not consistent with the Constitution they are unlawful and should not be observed or legally entrenched in legislation.
Virginity “testing” is undoubtedly a harmful cultural practice that compromises the rights to privacy, equality and dignity of too many girls. South Africa must, therefore, ban this practice, without qualification relating to counselling and regardless of a girl’s age. South Africa must act with due diligence to ensure that all women and girls are protected from harmful cultural practices, such as virginity “testing”, which often does not happen in compliance with the Children’s Act. In particular, many children below the age of 16 are unlawfully “tested” and many over the age of 16 are not “tested” in compliance with the requirements of the Children’s Act.
In addition, South Africans and Swazis need to step out of their own patriarchal comfort zone and accept that some cultural practices, which at a particular point in time might have been relevant and perhaps useful, are no longer so. The urgency of the crisis of gender-based violence in South Africa and Eswatini require that all harmful practices that contribute to sexual and gender based-violence be outlawed. Accordingly, legislation such as the Sexual Offences and Domestic Violence Act should not be hastily met with resistance, but need to be understood and not cast aside on the basis of non-conformance with culture. It is worth mentioning that we met many Swazis who had made the effort of understanding the Act and were in support of it.
Whatever the law might say about harmful cultural practices, everybody has a part to play in ensuring that such practices cease to exist. And it begins with putting in the hard work to unlearn patriarchal world views and gender stereotypes about girls and women’s sexuality and sexual choices.
Khanyo Farisè is a legal associate at the International Commission of Jurists — Africa Programme