Harmful traditional practices, (male circumcision - Electronic Thesis ...

CHAPTER 1
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1. BACKGROUND AND INTRODUCTION
Chapter 1 will provide a broad overview of the practice of virginity testing and
male and infant circumcision as it occurs in South Africa and elsewhere. The first
part of chapter 1 will focus on virginity testing, how and where it is practiced,
and why it has the potential to be ‘harmful’. The second part of chapter 1 will
elaborate on the origins and reasons for male and infant circumcision and why it
is potentially ‘harmful’.
Chapter 2 will focus on the provisions relating to harmful cultural practices in the
Convention on the Rights of the Child (CRC), the African Charter on the Rights
and Welfare of the Child (African Children’s Charter) and the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW). Reference
will also be made to General Comment No.3 by the Committee on the Rights of
the Child in order to determine the impact of gender-based discrimination on the
rights of women. Since the CRC is underpinned by four general principles,
namely, the best interest principle, the right to non-discrimination, the right to
survival and development and the right to respect for the views of the child,
these provisions will be examined more closely with the aim of determining the
impact of harmful cultural practices on these provisions.
Chapter 3 will examine the Constitutional requirements of the right to culture and
religion. The chapter will also focus on section 36 of the Constitution and how it
is applied by the South African courts in order to justify an infringement of a
fundamental right in the Constitution. The chapter will provide an analysis of
court decisions relevant to the topic of traditional practices with specific
emphasis on the application of the limitation clause.