One of the conundrums of our Constitution lies in the contradictions that it raises between universal individual rights guaranteed in the Bill of Rights on the one hand and long cherished traditional and religious practices on the other.
It is thus apt that as thousands of young men, especially in the Eastern Cape, prepare themselves for summer initiation school, the question of male circumcision, which is one of the clearest examples of such a tension, has once again come to the fore. Firstly, it is the subject matter of a campaign launched by the Young Communist League (YCL). Secondly, it was the subject matter of a ground-breaking settlement reached last month in a challenge in the Bhisho Equality Court. The campaign which the YCL is promoting is for compulsory circumcision for 14 year old boys at state hospitals. Whilst laudable in its aim to reduce the incidence of HIV infection, the YCL will have to go back to the drawing board since the campaign in its present form, is both unconstitutional and unlawful. It is unconstitutional in that it violates the right to bodily integrity guaranteed by the Constitution and unlawful in that it violates the prohibition contained in the Children’s Act to circumcision under the age of 16 unless performed for religious or health reasons and to circumcision over the age of 16 unless performed in a prescribed manner and with the consent of the child after proper counselling.
Male circumcision is a core element of most indigenous African cultures as well as a central tenet of the faiths of Jews, Muslims and many Christians, but the manner in which it is practiced is irreconcilable with the Bill of Rights. In South Africa, most black males undergo circumcision when they are approximately 16 years old to mark the transition from boyhood to manhood. In the absence of this ritual transition, males cannot marry or inherit and have to be treated as a minor. It is a tradition that is still widely practised even in urban areas, where the bulk of the day to day activities of initiates are no longer governed by traditional beliefs. It is also arguably one of the purest remaining examples of a traditional institution, in that the circumcision is conducted under the supervision of traditional leaders in especially established initiation schools. These initiation schools are believed to instil the virtues of discipline, courage, endurance and resilience in initiates. As a result of this symbolic significance, boys who are not circumcised are often subjected to stigmatism and ostracism.
But the Constitution is clear on this point. It permits the freedom to practice cultures and religions of one’s choice, but only in a manner that is consistent with the Constitution. It also permits a limitation of a right contained in the Constitution, but under clearly defined circumstances. The first requirement is that only a law of general application may limit a right. The second requirement is that the limitation must be reasonable and justifiable in a democratic society. In addition it requires that such cultures be developed in a manner that promotes the spirit, purport and object of the Bill of Rights.
The question of circumcision was also the subject matter in a ground-breaking settlement reached between an Orange Free State university student and his father and the traditional leaders. The background to the challenge in the Equality Court was that the young student believed that his conscience and Christian beliefs did not allow him to undergo the traditional Xhosa rite. Having undergone a medical circumcision some three months earlier he was however subsequently abducted from his home at 4 am, tied up, taken to the bush and subjected to further circumcision by his father and some 9 community leaders. He was also forced to eat skin incised from his penis. As a result the young student laid a charge of unfair discrimination on the grounds of his religious beliefs. In his application he sought an apology from his father and the Congress of Traditional Leaders of South Africa (Contralesa), claiming that he had suffered harassment and had had his human dignity seriously undermined. In terms of a settlement reached, which was subsequently made an order of the Equality Court, Contralesa accepted the right of adult males to choose whether to attend traditional circumcision schools according to their religious beliefs. Importantly, it also apologised for the comments made by its former chairman encouraging the ostracism of teenagers who refused to undergo traditional circumcision. In delivering the order, Mr Justice Ebrahim stressed that consent was essential if the practice was to be both lawful and pass constitutional muster, stating that
Contralesa is to be lauded on their approach to this delicate issue. The task which befalls Traditional Leaders is not an easy one and it is one that requires the vision to transcend beyond historical thinking. For on the one hand Traditional Leaders are tasked with advancing traditional customs in a manner that supports the principles contained in the Constitution whilst simultaneously retaining the essence of the custom. On the other hand, they are tasked with playing a leading role in keeping alive and developing our rich customary heritage as a living law. In adopting the stance that they did, Contralesa successfully reached a balance between developing a long standing customary practice in a manner that brought it in conformity with the Children’s Act and the Constitution, whilst at the same time retaining a core element of their culture. Much work still befalls the leaders in aligning their customary law with the Constitution. In debating the tensions between a custom and a right, the Traditional Leaders would be well advised to heed the Constitutional Court’s own caveat that “[t]he objective of the Constitution is to allow different concepts about the nature of human existence to inhabit the same public realm, and to do so in a manner that is not mutually destructive.”
Nichola de Havilland
Centre for Constitutional Rights