Involuntary circumcision of males in illegal initiation schools in South Africa : a violation of African Customary Human Rights?

• DOI: 10.10520/EJC-12222aebf1
• Date: 01 October 2018
• Author: Porsche Makama
• Pages: 1-29
• Published date: 01 October 2018
• Record Number: sapr1_v33_n1_a6

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/2950

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2950 | 29 pages

© Unisa Press 2018

Involuntary Circumcision of Males in Illegal Initiation

Schools in South Africa: A Violation of African

Customary Human Rights?

Porsche Makama

Department of Public Constitutional and International Law

University of South Africa

Email: makamsp@unisa.ac.za

Abstract

The incidence of deaths associated with the practice of forced and botched

circumcisions at initiation schools has become a topical issue in South Africa.

In recent times, the number of deaths and injuries among initiates has risen at

an alarming rate, most of them occurring at illegal initiation schools. The

continuous rise in the number of injuries among initiates at these schools has

elicited mixed reactions among community members, some referring to it as

genocide in the case of fatalities and calling for its abandonment, while others

argue that this traditional practice should be allowed to continue. The majority

of young men who go to initiation schools do not make the decision on their

own, nor do they have a choice in the matter. Instead they are compelled by

parents or guardians, influenced by friends, and also coerced by others in the

community who insist that they have to ‘go to the mountain’, as initiation

schools are generally referred to in South Africa. It has been argued by those

against circumcision that this practice infringes constitutional rights and

contravenes the Children’s Act 38 of 2005. There have been numerous instances

where young and even mature males have been taken from the streets, or even

from the comfort of their homes, and forced into circumcision camps with or

without their consent. This begs the question whether the continued practice of

a cultural tradition that violates the fundamental human right and freedom to

choose religious and cultural beliefs is justifiable.

Keywords: Male circumcision; World Health Organisation; human rights; initiation

schools

2

Introduction

This article consists of nine parts:

• introduction;

• definition of the practice of male circumcision;

• the World Health Organisation (WHO)/the Joint United Nations Programme on

HIV and AIDS (UNAIDS) policy and guidelines;

• parental authority over a child;

• the importance of the custom versus forced circumcision in violation of human

rights;

• perceptions of the practice in South Africa, Uganda and Kenya;

• societal responses to forced circumcision;

• international and regional instruments on human rights, and

• conclusion.

The practice of initiation schools and circumcision is an accepted old custom with an

African cultural denotation within African communities. In South Africa, a distinction

is made between legal and illegal initiation schools. Legal initiation schools are

regulated by law on the assumption that they are voluntary. On the other hand, most

illegal initiation schools are involuntary, with the result that people are coerced or

abducted into then. Injuries can occur either at a legal or illegal schools, but most have

been recorded at illegal schools. The purpose of this study is to examine the violation

of this customary practice by people who conduct it with insufficient knowledge or

illegally, which results in forced or botched circumcisions’, and violations of the human

rights of the victims. The focus of the study is on the forced and botched circumcisions

in South Africa that result in injuries to or the death of the initiates, which is a violation

of the Constitution. Reference is also made to other countries in sub-Saharan Africa and

the rest of the world highlighted by local and international sources on the subject.

In most parts of Africa the practice of circumcision has been, and remains, part and

parcel of people’s lives.1 To some people it is perceived as a rite of passage from

childhood to adulthood.2 Recently, however, in some countries circumcision has taken

on another dimension (although wrongly and unlawfully so): its use as a political

instrument to punish citizens who hold a different political opinion from the general

1 Susan Bailey, ‘Circumcision and Male Initiation in Africa’ in Theodore Celenko, Egypt in Africa

(Indiana University Press 1996) 88.

2 Nicola Zampieri, Emanuela Pianezzola and Cicilia Zampieri, ‘Male Circumcision through the Ages:

The Role of Tradition’ (2008) Acta Paediatrica 1305.