1887

n AFFRIKA Journal of Politics, Economics and Society - The constitutionality of ukuhlola : a South African cultural practice

Volume 9 Number 2
  • ISSN : 1998-4936
  • E-ISSN: 2075-6534

Abstract

This paper is focusing on the culture of ukuhlola. Ukuhlola is a part of the cultural practices for virginity testing. There is a debate among the chapter 9 institutions that protect constitutional democracy in South Africa on the constitutionality of certain cultures including Ukuhlola. The South Africa Human Rights Commission (SAHRC), as one of the chapter 9 state institutions supporting constitutional democracy, is mandated amongst others to promote respect for human rights and cultural practice. It also promotes the protection, development, and attainment of human rights. It is within this mandate that the Human Rights Commission has observed the debates surrounding the prohibition of Ukuhlola (virginity testing) in the Children‘s Bill. Ukuhlola has been historically regarded as a vital social tool to bring pride to virgin girls, the parents, and the community. Ukuhlola is still practiced in some of the communities in South Africa, Nguni communities. Ukuhlola culture originated from the Zulu culture and is prevalent mostly in the KwaZulu-Natal Province. The motive was to receive the full lobola (the eleventh cow). Ukuhlola practice phased out during the past century but has gradually made a return in various areas of South Africa, including KwaZulu-Natal, in recent years. South Africa‘s Moral Regeneration Movement has decided to use the return of ukuhlola of teenage girls as a tool to fight against women's abuse, teenage pregnancies, and HIV& AIDS. However, gender equality is a chapter 9 organization meant to protect the fundamental human right, while the South African Constitution is the supreme law of the land. And any law that is inconsistent with the Constitution is unconstitutional.

This article investigates whether the practice of ukuhlola could pass the constitutional muster. To achieve this objective, the article considers fundamental rights enshrined in the Constitution. The article also considers various case law, journals, textbooks, and internet sources on application and protection of the rights. After considering the fundamental rights and applicable sources, the article concludes that the practice of ukuhlola is indeed unconstitutional.

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/content/journal/10520/EJC-1a8090e304
2019-12-01
2020-09-30

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