Customary Initiation Bill: briefing by Department of Traditional Affairs

Meeting report

Briefing by Department of Traditional Affairs (DTA)
Mr Mashwahle Diphofa, Director General, DTA, said the Department had met with the Committee in February to give an update on where in the bill’s legislative process the Department was. Concerns had been raised about the customary practice of initiations, but it was a legitimate practice. However, there was abuse like abductions, injuries and death of initiates. The issue then was whether there was a way one could intervene from a political and regulatory perspective. There were provincial and national interventions, but more should be done. The history of the national policy development had started from a draft code in 2012 which had been sent to Cabinet which had decided to go beyond policy and introduce legislation. Cabinet had approved the bill at the end of February and it had since been tabled in Parliament in April. The critical objectives of the bill were:

• To protect, promote and regulate initiation
• To provide for the protection of life and the prevention of any abuse.
• To provide clarity on the various responsibilities, roles and functions of the key role-players in              
•    customary initiation.
• To make provision for the effective regulation of initiation schools.

The regulation of the schools did not refer to the content of the initiation practices.

Mr Rinaldi Bester, Chief Director: Policy and Legislation, COGTA, outlined the main provisions of the bill. The bill had five chapters. The first chapter dealt with matters relating to definitions; its application; objectives; prohibitions; and guiding principles.  The bill applied to both males and females of all ages.

Chapter two dealt with oversight and coordinating structures where provision was made for a National Initiation Oversight Committee (NIOC) consisting of not more than 11 persons, nine of whom were permanent while two were experts in anthropology/customs/customary law whose membership was on a part time as needed basis. The bill then spoke to the functions of the NIOC and the attendant administrative detail. The bill also provided for Provincial Initiating Coordinating Committees (PICCs) and provided three options:

1. for provinces where there were provincial houses of traditional leaders,
2. for provinces with no provincial house, but there were recognised traditional leaders (e.g. Gauteng)
3. for provinces with no provincial house and no recognised traditional leaders (e.g. Western Cape)

He said that the functions of the PICC were found in clause 15.

Chapter three dealt with responsibilities, roles and functions of Government, Houses of Traditional Leaders, Traditional Leaders, and Principals and care-givers. Currently parents did not have rights, but the bill gave them the right to decide with the initiate whether he/she should attend initiation school or not; to obtain certificate from a medical practitioner declaring an initiate fit to undergo initiation, and the right to attend to an initiate who falls sick and may even remove an initiate from an initiation school under certain circumstances. He said SAPS had to conduct investigations relating to transgressions of the law and the NPA had to decide whether to prosecute or not.

Chapter 4 dealt with initiation schools and this was the most important part of the bill. Clause 28 was the most important clause in the bill dealing with consent, prohibitions, age and circumcision. Initiation was a voluntary customary practice and no person may be forced to undergo initiation. The minimum age of an initiate was 16. The bill confirmed the provisions of Children’s Act relating to genital mutilation, virginity testing and circumcision and that no consent in terms of clause 28 may be in contradiction with provisions of Children’s Act. No initiate may be assaulted or abused under the guise of discipline and the death of an initiate must immediately be reported by principal and investigated by the SA Police Service.

Chapter 5 dealt with general matters.  Extensive consultations took place during the development of the policy and a list of those consulted could be found in paragraph 4.1 of the Memorandum on the Objects of the bill.

Discussion

Mr A Masondo (ANC) wanted to know more about what consultation took place on the bill.

Mr N Khubisa (NFP) said that principals had to inform SAPS in cases where an initiate died. In the Eastern Cape many initiates died but they did not die immediately, they become weaker and weaker and initiates who had an illness, like the flu, were not ready to undertake the rigor of the practise. He wanted more clarity on such matters because there had been a call that the Department of Health should take an active role in the matter.

The Chairperson said the bill was important. Sometimes initiates went at age 15 or 16 but the cut off date in the bill was 16 as a minimum. He asked about circumcision done at birth. He said the bill was for all in South Africa. The difference between circumcision and initiation needed to be made very clear.  He added that it was the duty of the state to protect life and this bill protected life.

Mr J Dube (ANC) asked what informed the need to be specific in the bill that there should be at least three women on the council.

Mr Bester said he had given the Committee Secretary a list of areas and districts, per province, in which initiation took place. The list detailed whether the schools were held in summer or winter and the frequency of the schools.

On Mr Masondo’s question on consultation, Mr Bester referred to memorandum on the objects of the bill which lists all the organisations that were consulted - extensive consultations had taken place. Only eight comments were received after the bill was gazetted. In his view, this was because of the extensive discussions that had been held prior to it being gazetted.

On the issue of principals and caregivers, he said clause 21 of the bill covered their responsibilities. It was their duty to identify and arrange medical attention and not wait until the school ended. If an initiate died it needed to be reported immediately to SAPS. In the past, deaths would be kept secret until the initiation process was completed.

On the issue of the age of 16 and on circumcision, section 12 of the Children’s Act said that circumcision for religious or health reasons could be performed at any time but for cultural reasons it could only be performed once a child turned 16. The provisions of the Children’s Act were binding. If the Committee thought otherwise, one could look at amending the Children’s Act, but currently legislators were bound by the Children’s Act.

On forcing people to attend initiation, the bill spoke to abductions and kidnappings which forced people into initiation schools and then the family had to pay for attendance.

On female representation on structures, the Department of Women and the Commission on Gender Equality had said legislators had to make sure that a minimum number of females had to be on oversight structures because there were also female initiation schools and so females also had to be represented in the oversight structures. Inspectors, investigators and medical practitioners could only be selected from those who had gone through initiation themselves.

On initiates who were sick, Ms Trisha Ramsumair, Senior Manager: Legislation, DTA, said the bill made provision that if an initiate was sick, a medical practitioner needed to be seen or if a child became sick on the course, then the parent or guardian had to be informed immediately and the child may be removed from the school.

Mr Diphofa said that the initiates should be checked even before they went to the initiation school.

On the focus of the bill, he said that when Cabinet had agreed that the bill be tabled before Parliament, comments had been made that it was an attempt to control the customary practice.

The Chairperson said one could not have initiation or circumcision outside the laws of the country. It was rare that people died from circumcision, but the poor were dying in the initiation schools. He said the Council of Traditional Leaders were very focused on this issue. 

The meeting was adjourned.