Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), Executive Director of the Malawi Law Society and Co-Director of Nyale Institute for Sexual and Reproductive Health Governance, for writing a new African case summary for the forthcoming publication, Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts:
The appellant in this case had negotiated a customary marriage with the relatives of a 14-year-old girl prior to forcibly abducting, marrying, raping, and assaulting her. At trial, the appellant had already been convicted of human trafficking, rape and common assault, and assault with intent to cause grievous bodily harm and was serving sentence.
The issue on appeal relevant to this analysis was whether the trial court’s determination of the issues should have taken into account the practice of customary marriage or ukuthwala, which allows the bride to be coerced.
The High Court held that the practice of ukuthwala on which the appellant relied for his defence is not customary marriage itself. Rather, it is one of the processes leading to negotiations for a customary marriage.
Further, the appellant relied on an aberrant form of ukuthwala to justify coercion. The consensus amongst the experts on customary marriage and law was that the true form of ukuthwala requires consent of the woman.
Practices associated with the aberrant form of ukuthwala do not comply with the requirements of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), and cannot be protected. Section 3(1) of the RCMA requires: (a) prospective spouses should be over the age of 18 years, (b) both must consent to the customary marriage, and (c) the process must be in accordance with customary law. Sections 3(3)(a) and 3(4)(a) provide for conditions under which a person below the age of 18 can enter into customary marriage with the consent of parents or guardians.
Full case summary by Godfrey Kangaude is online here.
Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts (2000 to 2008) Volumes I and II can be downloaded here. Our update will be published early in 2017: Decisions already identified for inclusion are online here. New case summaries are attached every month. If you can suggest other cases, please do! How You Can Help.