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Chap7 Baro2019 Harmpracfin Harmful Practices 7 Patriarchy is at the heart of harmful practices. Drama perfomance by Somnjalose High School during the eZulwini Municipality Mayors walk Photo: Thandokuhle Dlamini KEY POINTS • The Constitutions of five SADC countries have claw back clauses. This means they provide for gender equality on one hand but make other guarantees that undermine that provision. Three Constitutions fail to address the contradictions between the constitution, customary laws and practices. • The average regional score for the Gender Responsive Assessments of Constitutions and laws in SADC is 57%. The lowest rated area (average 49%) is access to justice. • While all SADC countries meet the requirement of the minimum age of 18 for marriage for men, only three countries (Malawi, Mozambique and South Africa) stipulate 18 as the minimum age of marriage for women and men with no exceptions, i.e. are compliant with the SADC Protocol on Gender and Development. • In eight SADC countries (Angola, DRC, Madagascar, Malawi, Mozambique, Tanzania, Zambia and Zimbabwe) over one third of all young women are married by the age of 18. • In Tanzania, the promulgation of a law prohibiting female genital mutilation in 1998 has not ended the practice. • Widows in Southern Africa still face various forms of harmful cultural practices including forced widow inheritance, accusations of witchcraft including accusations of killing their deceased husbands, gender based violence, property grabbing and other forms of inhuman, humiliating and degrading treatment. • In Swaziland widows are openly discriminated against by State institutions. Discriminatory practices include being barred from participating in politics and other public life/spaces, being barred from getting close to the King or the Queen mother or even obtaining mundane services like applying for a passport. #VoiceandChoice Barometer 2019 201 Introduction example early or child marriage often results in early pregnancies and infection of the affected children with sexually transmitted diseases, inclu- ding HIV. This in turn has long term effects on the health and wellbeing of the child, including potentially impacting the right to life as young girls often die in child birth or from HIV and AIDS related illnesses and complications. Female Genital Mutilation (FGM) may also expose women and girls to HIV infections, as does widow inheritance and virginity testing amongst other practices. Most of the harmful cultural practices that are perpetrated on women are executed in and around a culture of coercion, discrimi- nation and violence, which increases women and girls' vulnerability and violation of their SRHR. Harmful cultural or traditional practices are a It is important to acknowledge that not all cultural form of gender based violence in that they are practices are harmful and focus on the elimi- mainly targeted at women and girls simply nation of those that are. It is also important to because they are women or girls. The practices analyse and decipher those practices that are are perpetrated by communities for so long, regarded as positive, so that they are not used often for generations. As a result they are as a decoy to smuggle in, justify and hide harmful regarded by communities and in particular those practices. who push or support the practices as part of the culture or way of doing things for those This chapter places significant focus on child communities thus assuming an aura of morality marriage as a harmful practice. Child marriage within society.1 Harmful cultural practices have is defined as “any marriage where at least one a serious bearing on the sexual and reproductive of the parties is less than 18 years of age”.3 A health rights of women and girls. Examples of child marriage is also a form of forced marriage harmful cultural practices include early forced in that as a child or children, or both parties to and child marriages, widow inheritance, property the marriage could not have given their full, free grabbing, female genital mutilation (FGM), and and informed consent. honour killings amongst others. The practice has been a cause for concern the The SADC Protocol on Gender and Development world over, including Southern Africa. The adop- states that “States Parties and policies must tion of the SADC Model Law on Eradicating Child ensure that policies and programmes... take Marriage and Protecting Children Already in account of the unequal status of women, the Marriage by the SADC Parliamentary Forum in particular vulnerability of the girl child as well as 2016 marked a turning point in the region in harmful practices and biological factors that acknowledging the scourge, and the need for result in women constituting the majority of those governments to put in place measures to contain infected and affected by HIV and AIDS”.2 For it. 1 NHS Health Scotland, (2019), 'Harmful traditional practices' available at: http://www.healthscotland.scot/health-topics/gender-based-violence/harmful-traditional- practices (accessed 15 July 2019) 2 Article 27 (2), SADC Protocol on Gender and Development 3 United Nations Office of the High Commissioner on Human Rights (Undated), 'Child, early and forced marriage, including in humanitarian settings' available at: https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/ChildMarriage.aspx (accessed 16 July 2019) 202 #VoiceandChoice Barometer 2019 Table 7.1: Key Indicators on Harmful Practices INDICATORS Eswatini Botswana DRC Lesotho Madagascar Malawi Mauritius Mozambique Namibia Seychelles South Africa Tanzania Zambia Zimbabwe Angola Constitution The Constitution has claw No Yes No Yes Yes No Yes Yes No No No No No No No back clauses The Constitution Yes No No Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes addresses contradictions between the constitution, laws and practices Gender Responsive Assessment of Constitutions and Laws (all Articles refer to the SADC Protocol on Gender and Development) Gender Responsive 50 43 39 30 50 49 73 54 32 68 73 62 67 58 74 Assessment of Constitutions and Laws (GRA) overall % Constitutional rights 52 52 60 24 44 56 84 60 56 72 60 68 48 52 72 (Article 4) % Laws and practise 40 40 N/A 30 52 64 66 62 N/A 56 72 46 62 56 56 (Article 6) % Access to justice 48 30 42 6 42 24 56 48 34 68 78 64 56 62 76 (Article 7) % Persons with disability 80 40 40 60 40 80 60 N/A 80 80 60 100 100 80 100 (Article 9) % Widows and widowers 70 50 60 0 60 60 80 80 40 80 100 90 100 100 100 (Article 10) % Marriage and family rights 47 50 70 57 40 63 93 37 50 87 73 63 77 60 83 (Article 8) % Early Child Marriages Minimum legal age of 15 21 15 16 16 18 18 18 18 18 15 18 15 21 18 consent to marriage for women Minimum legal age of 18 21 18 18 18 18 18 18 18 18 18 18 18 21 18 consent to marriage for men Exceptions for women 15 18 None Possible Possible Possible None 16 None Possible Possible None Legis- 16 None no age no age no age no age no age lation under appeal Exceptions for men 16 18 None Possible Possible Possible None 16 None Possible Possible None Legis- 16 None no age no age no age no age no age lation under appeal Percentage young 30 n/d 37 5 17 41 42 n/d 48 7 n/d 6 31 31 32 women married by Age 18 Percentage young 8 n/d 10 1 1 12 9 n/d 14 2 n/d 1 5 6 4 women married by Age 15 Source: Gender Links and Girls Not Brides. #VoiceandChoice Barometer 2019 203 Table 7.1 summarises key indicators on harmful Five countries (Eswatini, Lesotho, Madagascar, practices. It shows that: Namibia and Seychelles) make exceptions • The Constitutions of five SADC countries without stipulating age. In Tanzania this is under (Botswana, Eswatini, Lesotho, Malawi and review. Only three countries (Malawi, Mozam- Mauritius) have claw back clauses. This means bique and South Africa) stipulate 18 as the they provide for gender equality on one hand minimum age of marriage for women and men but make other guarantees that undermine with no exceptions, i.e. are compliant with the that provision. SADC Protocol on Gender and Development. • Three Constitutions (Botswana, Eswatini and • In eight SADC countries (Angola, DRC, Mada- Mauritius) fail to address the issue of contra- gascar, Malawi, Mozambique, Tanzania, dictions between the constitution, customary Zambia and Zimbabwe) over one third of all laws and practices. young women are married by the age of 18. • The average regional score for the Gender Responsive Assessments of Constitutions and Much work still needs to be done at national laws in SADC is 57%. The highest rated areas level to put in place laws, policies and other (average 71%) are disability and widowers measures to eradicate child marriage and other rights. The lowest (average 49%) is access to harmful practices as espoused in the Model Law justice. and the SADC Protocol on Gender and Deve- • While all SADC countries meet the requirement lopment. Other focus areas in this chapter will of the minimum age of 18 for marriage for include harmful cultural practices that impact men, six countries (Angola, DRC, Eswatini, on widows such as widow inheritance, witchcraft Lesotho, Seychelles and Tanzania) are in accusations, property grabbing, mourning rites violation of this provision of the SADC Protocol and practices as well as other forms of violence on Gender and Development for women. and discrimination that are perpetrated against Three countries (Angola, Mauritius and Zambia) widows in the name of culture. The chapter will allow exceptions to the 18 year rule. Botswana also cover FGM with a focus on Tanzania as the makes an exception to its 21 year age of only country in Southern Africa with high levels marriage to the minimum requirement of 18.
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