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

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CHAPTER 4 HARMFUL CULTURAL PRACTICES AND THE CHILDREN’S ACT. 1.1 INTRODUCTION. 60 The parliamentary debate around harmful cultural practices in the Children’s Bill [B70 – 2003] (hereafter referred to as the Children’s Bill) before it was enacted, was a lengthy process involving submissions from a number of stakeholders. This chapter will examine the extent to which the submissions made was accommodated for in the final Children’s Act 38 of 2005 (hereafter referred to as the Children’s Act) that emerged, and whether the provisions relating to harmful cultural practices in the Act conform to international as well as Constitutional law principles. The requirement of ‘consent’ and the right of refusal of a child to participate in cultural practices will be closely scrutinized in order to determine whether the provisions go far enough to protect children against the potential harmful consequences of cultural practices. 1.2 The parliamentary process on the Children’s Bill. After 5 years of research and consultation, the South African Law Reform Commission (SALRC) drafted the Children’s Bill which was designed to replace the Child Care Act of 1983. 195 According to experts in the field of children’s rights, the Child Care Act of 1983 which was enacted under the apartheid era government, was not written from a child rights perspective and did not take into account key concepts such as equality and the best interests of the child. 196 195 Proudlock P, “Children’s Bill – last chance to comment” in Children First, January/February 2004, Community Law Centre, University of the Western Cape at p 27. 196 Scorgie F, “A battle won? The prohibition of virginity testing in the Children’s Bill”, in Agenda No. 68, 2006 at p 26 in footnote 3.
61 After listening to submissions in August 2004 from 30 children’s sector organizations, including two groups of children, which highlighted a number of gaps in the delivery of services to children, the Portfolio Committee on Social Development spent the next 6 months calling for inputs, gathering information and deliberating on the clauses in the Children’s Bill. 197 On the 12 th and 13 th of April 2004, experts from academia, the Children’s Bill Working Group, Traditional Leaders and the Justice Department were requested to give expert advice on how to resolve contentious areas in the Bill. 198 Virginity testing and male circumcision were included in the issues that needed to be discussed at this workshop. 199 A revised version of the Bill was prepared and then passed by the National Assembly in June 2005. 200 1.2.1 Amendments proposed by the National Assembly. The National Assembly (NA) effected a number of changes to clause 12 of the Bill in June 2005. 201 When the Bill went back to the National Council of Provinces (NCOP), a number of amendments were proposed in response to the proposals by the NA. These amendments will be discussed in the ensuing section. 197 Proudlock P, “No Second-Best Law for Children” at p 3. Available online at http://www.childrenfirst.org.za/shownews?modecontent&id=24772&refto=4742. Accessed on 5 October 2006. 198 Ibid at p 3. 199 Ibid at p 3. 200 See fn 196 above at p 23. 201 See Jamieson L and Proudlock P, “Children’s Bill Progress Update: Report on amendments made by the Portfolio Committee on Social Development”, at p 11. Available online at http://web.uct.ac.za/depts/ci/plr/pdf/progress/27June2005doc. Accessed on 10 October 2006. The following changes were proposed: “12(1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to the well-being, health or dignity of the child. (4) Virginity testing has been banned outright, (5) Every male child has the right to refuse circumcision. (6) Any person who performs FMG, virginity testing, or circumcision where consent was refused, is guilty of an offence as is the person who is obliged to protect the child from abuse.”
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HARMFUL TRADITIONAL PRACTICES, (MAL
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3 Convention on the Rights of the C
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5 DECLARATION I declare that Harmfu
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7 DEDICATION This mini-thesis is de
Page 9 and 10: 9 1.4 The right to survival and dev
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Page 33 and 34: 33 1.3 THE RIGHT TO NON-DISCRIMINAT
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Page 37 and 38: 37 “The right to life is the most
Page 39 and 40: 1.5 THE RIGHT TO RESPECT FOR THE VI
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Page 43 and 44: 43 In the ensuing chapter, the righ
Page 45 and 46: 1.2 The right to culture 45 As ment
Page 47 and 48: 47 limitation on the rights contain
Page 49 and 50: 1.2.1 The application of section 36
Page 51 and 52: 51 prohibiting corporal punishment
Page 53 and 54: 53 is found in the application of t
Page 55 and 56: 55 into an in-depth analysis of the
Page 57 and 58: 57 studs. The appellant in this cas
Page 59: 59 The following chapter will exami
Page 63 and 64: 63 religious practices. 204 The fol
Page 65 and 66: 65 Outside of the debate in parliam
Page 67 and 68: 67 ‘they’ who threatened to kil
Page 69 and 70: 69 traditional leaders with the pre
Page 71 and 72: CHAPTER 5: RECOMMENDATIONS. 71 The
Page 73 and 74: 73 Government in an effort to ensur
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Page 77 and 78: BIBLIOGRAPHY BOOKS 77 Aldeeb Abu Sa
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Page 83 and 84: 83 Author unknown, “Children have
Page 85: 85 Proudlock P, “No Second-Best L
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