By De Niro Koffman
The matter of male circumcision has become a contentious issue within the international community insofar as it involves the circumcision of minors. Considering South Africa (SA) is one of the countries where the practice of cultural male circumcision occurs as a necessary prerequisite to becoming a man in certain African cultures, is cultural male circumcision compatible with international children’s rights? When the United Nation’s Convention on the Rights of the Child (CRC) came into effect in 1990, pressure was placed on those countries who were parties to the Convention to implement their provisions in an effort to promote children’s rights on an international scale. As this article deals with the circumcision of minors, it is important to note that everyone under the age of 18 years old is classified as a child in terms of the CRC. Another relevant legal instrument in the South African context is the African Union’s African Charter on the Rights and Welfare of the Child (African Charter). The African Charter is a regional instrument, which seeks to regulate children’s rights within Africa and its enactment was sparked by, among others, a lack of representation of African culture within the CRC.
The CRC on male circumcision
The CRC does not include any provisions that deal with male circumcision per se, but it does provide a standard against which the act of circumcision can be measured. The drafters of the CRC clearly envisaged its international application with it being an instrument binding on all State Parties (including SA) who have ratified the Convention. In light of this, the CRC gives due regard to traditional and cultural practices and in fact highlights the importance of these two principles within its preamble. This is the background against which circumcision – as an initiation process for boys belonging to certain tribes in SA – will be discussed. It must be noted that in terms of the CRC, the ‘best interests of the child’ is an important consideration and the Constitution contains a similar provision. One can argue that infant circumcision is a violation of the rights of a child since he cannot consent to anything, nor is he likely to engage in sexual activity at that stage of his life. The correct position would be to allow a boy to reach such an age so as to be able to validly provide consent to undergo circumcision. Following this logic, cultural male circumcision is arguably more in line with children’s rights since it usually occurs in a boy’s teenage years when he has likely gained the maturity to consent to the procedure. Article 12 of the CRC provides that:
‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’
Accordingly a boy who has reached an appropriate age and level of maturity, should be afforded the right to express his view to undergo cultural male circumcision and this expression should not be undermined. The Xhosa tribe – as a matter of tradition – practises cultural male circumcision at the age of 15 years old (Julia Sloth-Nielsen ‘A foreskin too far? Religious, “medical” and customary circumcision and the Children’s Act 38 of 2005 in the context of HIV/Aids’ (2012) 16 Law Democracy and Development at 86). Although one is still legally considered to be a child at this age, the CRC does not provide an age at which a child may acquire the maturity mentioned in art 12. I, therefore, submit that subject to the mental development of the child, he may possess the maturity to make the decision to undergo cultural male circumcision at the age of 15. This right can be viewed in connection with art 31 of the CRC, which holds that:
‘States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.’
For present purposes, the emphasis on this Article is placed on ‘the right of the child to participate fully in cultural’ life. As will be seen when dealing particularly with cultural male circumcision in SA, there are legislative provisions in place for the enjoyment of the right of boys to participate in the initiation process.
A more cultural approach in the African Charter
As mentioned above, the African Charter was implemented to fill the gap between children’s rights in relation to African culture. In this respect there are certain notable differences between the CRC and the African Charter that need to be highlighted, the first difference being the implementation provision within the African Charter, which mentions that states must discourage ‘[a]ny custom, tradition, cultural or religious practice’, which is inconsistent with the African Charter and this is not found as such in the CRC. Given the cultural practices unique to Africa, the drafters of the
African Charter included a general age of 18 without making explicit exceptions to this age. I submit that this was done to combat practices such as female genital mutilation and child marriage, which occur in certain African countries. My submission is based on the fact that these two practices are generally accepted as violations of not only children’s rights, but also of human rights, which have no beneficial purpose for its recipients (Guinea 2016 Human Rights Report at 19 – 22). There is, however, no general consensus within the international community that circumcision of boys constitutes a violation of children’s rights and it remains a subject of debate.
The African Charter goes on to mention the duty of African states, which are party to the African Charter, to protect children from harmful cultural practices, which may negatively impact their health or lives. This should not apply to cultural male circumcision where, for example, a South African Xhosa boy at the age of 15 years decides to undergo circumcision as a cultural practice and, in effect, to decrease his chances of contracting HIV (Julia Sloth-Nielsen (op cit) 86). The reasoning behind this is that as opposed to being prejudicial to his health it can in fact be beneficial to it especially in a country, such as SA where a large number of the population is infected with the disease. It ultimately becomes necessary to focus on the national legislation of SA to understand how the CRC and African Charter have been interpreted and implemented within its domestic territory.
The South African position
South Africa is a constitutional democracy and in this regard the Constitution reigns supreme. Section 28(2) of the Constitution, found in its Bill of Rights emphasises the best interests of the child and accordingly legislation regulating the rights of children in SA must have this interest as its cornerstone. The Constitution further goes on to mention that international law must be considered when interpreting the Bill of Rights, which places an obligation for South African legislation on children’s rights to be in line with the CRC and the African Charter. Article 14(3) of the CRC provides that:
‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.’
Against this background, the relevant provisions of South African legislation must be reviewed to determine whether the cultural belief of male circumcision has been limited. In SA children’s matters of this nature are regulated by the Children’s Act 38 of 2005, which applies to everyone under the age of 18. Section 12(8) of the Children’s Act deals with the circumcision of boys under the age of 16 and it provides that:
‘(8) Circumcision of male children under the age of 16 is prohibited, except when –
(a) circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or
(b) circumcision is performed for medical reasons on the recommendation of a medical practitioner.’
Cultural male circumcision would not be classified underneath circumcision for religious purposes. Accordingly it must be dealt with as a procedure performed for medical reasons and, as such, it would be necessary to consult a medical practitioner to authorise the procedure for boys under the age of 16. The South African legislators have also enacted provincial legislation in order to better regulate cultural male circumcision so as to be more aligned with international children’s rights and more specifically to ensure the protection of children’s lives and health. There are different dynamics and challenges across the country and, therefore, it is strategic to cater to these issues at a provincial level. The implementation of both the Children’s Act, as well as the provincial Acts can be seen to be in line with art 24(3) of the CRC and similarly with art 21(1) of the African Charter.
Regulation of cultural male circumcision is a method of combating practices – that are contrary to international children’s rights – and is necessary to prevent the creation of bogus initiation schools, which exploit traditional communities. It is important to note that cultural male circumcision, being an integral step into manhood for many South African boys, is an area, which is constantly being developed and improved on. Accordingly there is a Draft Customary Initiation Bill (the Bill), which has been published in the Government Gazette for comment (see GenN528 GG40978/14-7-2017).
Conclusion
From the outset it is not clear whether male circumcision is a violation of children’s rights since the CRC does not explicitly deal with the subject matter. One would expect the African Charter to crystalise this position by specifically mentioning cultural male circumcision, yet it fails to do so. It appears as though these international instruments have remained silent on the matter so as to allow the State Parties discretion in deciding whether male circumcision constitutes a violation of children’s rights in their respective territories. Therefore, cultural male circumcision cannot be found to be in violation of international children’s rights. South African legislation deals with this phenomenon nationally, as well as provincially, and although the Children’s Act suggests that circumcision should occur above the age of 16, it makes exceptions for circumcisions below the age of 16. Provincial Acts such as the Free State Initiation School Health Act 1 of 2004 also made provision for cultural male circumcision for boys under the age of 18, provided parental consent was received. It must be noted, however, that national legislation such as the Children’s Act, which was enacted after this provincial Act, will take precedence. The South African legislators realise that a balance must be struck between cultural practice and children’s rights and accordingly has put forth the Bill that will hopefully lead to a piece of legislation, which will eradicate certain abuses of the cultural male circumcision procedure. The Bill proposes –
However, this Bill has not yet been enacted and a parliamentary debate may subject its contents to an alteration.
De Niro Koffman LLB (NWU) is a law graduate in Pretoria.
This article was first published in De Rebus in 2018 (May) DR 26.
