Customary Initiation Bill: deliberations on public comments

Meeting report

Customary Initiation Bill: deliberations
The Chairperson said  in his view the main substantive concern remaining was the minimum age for initiation. Limpopo was insistent on retaining its minimum of 12 years, as against the Eastern Cape’s strong lobby for an age not lower than 16 years.

Ms Harriet Mekwa: State Law Advisor, Department of Justice, and Mr Abram Sithole, CEO: National House of Traditional Leaders (NHTL), were present to play a guiding role in the deliberations.

Definition of “abduction”
The first item was an objection to the Bill’s definition of “abduction”, which was stated as the forceful removal of children from their homes or families for purposes of initiation. In many traditional cultures, the leaders, customary initiation practitioners and many ordinary people did not see this as illegal.

For them “abduction” referred to the traditionally sanctioned pre-marriage practice by certain groups in South Africa where a young girl would be forcefully taken from her family and “carried” (ukuthwalwa) to the prospective groom’s family. Stakeholders said that this had nothing to do with initiation.

Ms Mekwa said the state’s position was that the definition in the Bill should be retained as “abduction” was also a common law offence used interchangeably with  “kidnapping”. Abduction could be used specifically to cover the practice of forcefully removing children from their homes for purposes of initiation. Kidnapping could then apply more generally, and to persons older than 18 years.

Mr K Mileham (DA) asked did kidnapping not apply to both children and adults? Why was there a differentiation?

Ms T Ramsumar, Senior Manager: Legislation, Department of Traditional Affairs, said there was no real difference except that the use of “abduction’ was a way of being more specific and putting emphasis on the kidnapping of children for purposes of customary initiation, as per the purview of the Bill.

Mr E Mthethwa (ANC) said the effect of the suggestion was to further complicate the matter. It was better to use “one interpretation”, whether one was talking of children, adults, customary initiation or any other sphere of life. Both kidnapping and abduction were “strong, criminalising words” when used in the context of customary initiation, and therefore he urged that a more suitable word was found.

Mr J Dube (ANC) also was not convinced by the explanation and asked for more clarity.

Mr Mileham needed no further clarity and was convinced that “abduction” was unnecessary. He proposed that it be removed from the Bill.

Ms Mekwa asked that the matter be referred back to the Department of Justice for further consultation.

Definition of  “circumcision"
Stakeholders argued that in South Africa, only males were circumcised and therefore the inclusion of female circumcision in the Bill was unnecessary.

Ms Mekwa said her colleagues were in agreement with the sentiment but wondered how this could be done “as female circumcision is still applicable” in South Africa. 

The Chairperson said the definition should cover both male and female if this is still happening.

Ms Ramsumar said she wanted to note that the Bill was “not gender specific”. Accordingly, it had been decided that the definition should apply both to male and female. 

Mr Mileham asked where the proposal for amending the definition had come from.

The Committee Content Advisor replied it had been part of a submission from the National House of Traditional Leaders.

Mr Mileham said from a legal point of view it was correct for the definition to remain as it was in the Bill as the practice “could apply” to both male and female. The Children’s Act took the same approach. 

Definition of  “curriculum”
Ms Mekwa moved on to the next objection which was that the Bill should not define “curriculum” as the traditional customs and rituals taught and performed at initiation schools were “too sacred and secret for public consumption”. Her inclination was to agree with the sentiment.

The Chairperson said he believed that circumcision should be separated from initiation (as in Limpopo, where initiates first undergo medical circumcision in hospital and then proceed to the mountain for initiation into its culture).  The real secret and sacred one was circumcision. He therefore saw no reason why one should not introduce a “curriculum” as defined in the Bill.

Ms Ramsumar added that Clause 15(1)(I)(iii) gave express protection to “initiation activities deemed sacred and secret by the relevant community”, thus allaying fears that the curriculum could be imposed by law to police cultural identity.

Mr Mileham agreed and cited Clause 29(3) (a) which specified the content of the curriculum proposed in the Bill. The Bill proposed a list of possible subjects that a curriculum may include, including ancestry, belief systems, family values, and responsibilities of adulthood. There was nothing sacred or secret about these subjects – they expressed common values shared by all South Africans.

Mr Dube agreed but advised that a good part of the curriculum should include strong input from traditional leaders.

Definition of  “principal”
Members were unanimous in their rejection of stakeholder proposals that the principal of an initiation school should be any person with an initiation experience of at least three years and should initiate one of his or her children or family member.

Mr Mthethwa disagreed with the first requirement on grounds that a principal should be an older person. Secondly, it was discriminatory to demand that people should have children first in order to qualify as principal of an initiation school.

Mr Mileham and Mr Dube disagreed with the proposal.

The Chairperson said the objective of the Bill was to ensure that a principal was a mature person with practical experience in the various aspects of customary initiation.

Ms Ramsumar said in the case of principals, care givers and traditional surgeons, Clause 37 gave room for “provincial legislation” to determine a higher minimum age than the one provided for in the relevant sections of the Bill. In the absence of provincial legislation, the Bill empowered the Premier of a Province to determine a higher minimum age. All that remained for the Department to do was add the minimum experience.

Clause 2(4)
Mr Mileham said he was in full agreement with the stakeholder proposal that medical practitioners should be exempt from the requirement that a medical practitioner “should be at least 40 years old and must have undergone initiation himself or herself”.  Medical circumcision was a simple procedure – any qualified 25 year old medical surgeon could do it.

Ms Ramsumar conceded the point but said traditional leaders had been “very specific” that medical practitioners should themselves be graduates of traditional initiation school.

Mr Mileham said it was time to establish once and for all the Committee’s unanimity on the crucial role of medical practitioners in customary initiation. His understanding was that all Members agreed that a medical practitioner should be present at all circumcisions, either as surgeon or as supervisor to the traditional surgeon.

However, Mr Dube agreed with the point made by Ms Ramsumar on the insistence by traditional leaders that a medical practitioner who was not a graduate of initiation should not be admitted into the “secret place”.

Mr Mileham said in that case a government mobile clinic could be positioned outside the initiation school for purposes of performing medical circumcision.

Mr Mthethwa said insisting that only initiated medical doctors be present at customary initiation was the same as demanding that police officers attending to incidents of crime at initiation schools must first provide proof of having undergone initiation. It would be absurd. He therefore backed Mr Mileham’s position that medical practitioners, whether initiated or not, must be part of every act of circumcision.

Mr Abram Sithole, NHTL CEO, warned that giving uninitiated medical doctors free access to initiation sites could put the lives of doctors in danger, as they may be detained there until the end of the initiation period, or worse, be forced to undergo initiation. There were “certain things” one had to know before one could interact with initiates. Mr Sithole said all the police and medical teams he was currently working with were graduates of initiation schools. Whatever the Committee eventually decided on, he urged that this be kept in mind.

The Chairperson welcomed the input and said there was still time to consult further on the subject. However, his view was that as much as one respected the cultural rights of people and communities, restricting the arm of the law was not negotiable.  

Chapter 2 Oversight and coordinating structures
There was an objection to this chapter arguing that the initiation practice was “a family matter that should not involve any level of government.” The whole of Chapter 2 was therefore unnecessary.

Ms Mekwa said this was obviously impossible as the Bill would never make sense without the Chapter, since it dealt with the actual business of oversight and the coordinating structures. 

National Initiation Oversight Committee
Mr Mileham asked for clarity on the directive that members of the National Initiation Oversight Committee (NIOC) should conduct inspections of initiation schools. Which part of initiation school were these officials going to inspect? Was it the circumcision part or the initiation/curriculum part? His view was that NIOC should have full access to all physical aspects of the facility in which the initiates were housed.

Ms Mekwa cautioned that this might be impractical. Her understanding was that women (as the Bill mandated NIOC to have women as members) were not allowed to enter an initiation site.

Mr Sithole agreed with Ms Mekwa and said the obvious solution would be for men to inspect male initiation schools and for women to attend to their female counterparts.

Members rejected the stakeholder proposal that NIOC membership should be open only to those who had undergone customary initiation.

Ms B Maluleke (ANC) suggested that even if a candidate for NIOC had not undergone initiation, he or she must have relevant, credible experience in matters to do with customary initiation.

The Committee accepted this suggestion.

Provincial Initiation Coordination Committees
The stakeholder proposal was that at least three members of the Khoi-San Council must be members of the PICC in the Western Cape, which neither has recognised traditional leaders nor a Provincial House of Traditional Leaders.

Ms Ramsumar pointed out that the Traditional and Khoi-San Leadership Bill to recognise Khoi-San leadership was still not finalised. In addition, research showed that the Khoi-San did not practice customary initiation. She therefore did not see what value the proposal could have for the Bill.

The Chairperson accepted this but felt that the Bill should as far as possible strive for inclusivity.

Medical practitioners
A sharp difference of opinion amongst Members over Cause 24(2)(b), which instructed a school principal to “arrange for a medical practitioner to perform circumcision or supervise the performance of such” in the event that the parents or legal guardian of an initiate had failed to do so.

 A view from the public hearings was that it was impractical for medical doctors to supervise experienced surgeons with a good record of accomplishment.

Mr Mthethwa agreed with the stakeholder and Mr Mileham disagreed.

Mr Mthethwa said circumcision was a centuries old skill and many communities still boasted excellent practitioners with no record of injury or fatality. The culprits were those who had commercialised the custom and it was unfair to tar everyone with the same brush.

Ms Maluleke said the aim was not to interfere or to disqualify traditional surgeons from performing circumcisions but rather to ensure that medically qualified personnel were present in a supervisory capacity.

Mr Mthethwa replied that there was no need to supervise people already doing things the right way and “in their own way”, as long as there was no harm or fatality. He cited the Kokstad region as one of many where the death of an initiate had been unheard of for years. People’s traditions should be respected, and supervision of a traditional surgeon by a medical doctor could only mean that the one was superior to the other. Mr Mthethwa warned that this would create problems.

Ms Mekwa reminded Members that the Bill’s main reason for existence was to prevent the death of initiates. She therefore proposed that the clause be retained. In the short term, greater effort should be made to persuade the Department of Health to provide, as a matter of urgency,  basic medical training for traditional surgeons as proposed by a stakeholder: The Department of Health should assist with the training of traditional surgeons.

Mr Mileham said he wanted to correct Mr Mthethwa’s claim about Kokstad. On the contrary, the locality had one of the worst records for initiate fatalities in the country.

Mr Mileham urged that upholding tradition should not be done at the expense of young men’s lives. In fact, tradition should come secon to “their manhood too”.

Mr Mileham was resolute that the Committee had to do the “responsible” thing and decide once and for all about medical practitioners. He was speaking not only on behalf of the mothers of initiates but also on behalf of their sons. 

The Chairperson said he saw no contradiction between the position of Mr Mileham and Mr Mthethwa. It was common cause that medical practitioners and traditional surgeons would be “working together”. He said Mr Mthethwa was only highlighting a concern that traditional surgeons were “doing a good job” and should not be interfered with. As soon as the envisaged training of traditional surgeons by government was under way, the role of medical doctors “would disappear over time”. There was no question of one side being superior to the other.

Registration of initiation schools
The Committee upheld the requirement that initiation schools must be registered and that registration should be renewed every season.

Initiation seasons
The Committee agreed that initiation season should not be allowed to disrupt the annual school curriculum.

Consent, prohibitions, age and circumcision
Dr Rinaldi Bester, Chief Director: Policy and Legislation, COGTA, said that Clause 28(2) on the minimum age of initiation was “probably the most difficult clause” of the Bill. Dr Bester said the Department had no objection to pleas - particularly from Limpopo Province - that the Bill should not do away with the minimum initiation age of 12 years. The problem was that acceding to this would immediately put the Bill in conflict with the Children’s Act.

The Children’s Act expressly forbade all circumcision on children younger than 16 years of age, unless performed for medical or religious purposes. This effectively outlawed traditional circumcision in Limpopo, since it was done neither for medical nor religious purposes but rather for cultural reasons.

Since the Bill could not go against the Children’s Act, Dr Bester said there were only two options available to the Committee. One option was to amend the Children’s Act which was a process potentially fraught with “major, massive issues of principle” which would need a separate Bill. Another option was to de-link circumcision from initiation, where children could undergo for initiation at age 12 and then upon turning 16, finish off with circumcision.

Dr Bester was very sceptical about the viability of the second option as in all communities the two components were almost indivisible, especially with regard to the male version of the custom. 

Dr Bester therefore could not propose an immediate solution to the dilemma except to urge that a meeting be held with the Department of Social Development, under whose custodianship the Children’s Act resided.

The Chairperson asked Dr Bester about the possibility of obtaining permission to perform customary circumcisions on religious grounds.

Dr Bester replied that the view from traditional leaders was customary initiation was a cultural practice, not a religious one.

Mr Mileham suggested a minor amendment to the Children’s Act whereby “circumcision for cultural purposes” could be added to the list of exceptions in which circumcisions were allowed. He agreed that the Department of Social Development would be crucial in effecting that amendment. 

Dr Bester agreed but pointed out that even such an amendment - simple as it might seem - would need wide consultation and formal Cabinet approval. This could delay the Bill for months or even years.

The Chairperson asked if this meant that in Limpopo they are breaking the law.

Mr Sithole replied that in terms of the Children’s Act, this was indeed the case. However he pointed out that Limpopo province’s impressive record of zero casualty in initiation stood it in very good stead as a powerful mitigating factor.

Ms Mekwa suggested that the matter should be “parked” for the time being pending consultations with the Department of Social Development. 

Water, sanitation, food, health care and liquor
The stakeholder view on the Bill’s pronouncements on the sale and consumption of alcohol and drugs at initiation schools was that the specific references to the selling of beer and its invocation of the Liquor Act were quite unnecessary.
 

Dr Bester said the reference to the Liquor Act was deliberate, as a lot of stakeholders were unaware of the “massive fines” stipulated by the Liquor Act for certain illegal acts involving the sale of alcohol (up to a million rand in some instances). 

Mr Mileham said it was necessary that the Bill should adopt an uncompromising stance towards the abuse of alcohol and drugs as reported in many initiation schools, especially the danger that younger initiates could be pressured by the older ones to drink alcohol. The Bill stressed that consumption of alcohol could only be allowed as a sacrament within a ‘quasi-religious” ritual connected to initiation, not as recreation. The Committee should therefore reject efforts to pooh-pooh these concerns.

The Chairperson agreed with Mr Mileham and instructed the Committee staff to come up with suitable language to capture his input.

In closing, the Chairperson said he was glad the public hearings comments had been finally dealt with. Next on the agenda was to settle the minimum age and then go through a clause by clause reading of the Bill itself, followed by adoption.

The meeting was adjourned.