Cultural practices and hiv in south africa: a legal perspective

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M Mswela*
Law is not everything, but [it] is not nothing either. Perhaps the most important lesson is that the mountain can be moved… [and] women's experiences can be written into the law, even though clearly tensions [will] remain.1

  1. Introduction

The HIV/AIDS pandemic has taken a grave toll on sub-Saharan-Africa, where AIDS is now the prime cause of death2 despite a range of prevention strategies. HIV/AIDS has turned out to be an uncontrollable humanitarian and human security issue constituting one of the most startling challenges to human security and survival in many parts of the world.3 It has taken a particularly heavy toll on sub-Saharan Africa, where the virus not only has devastating effects on the individuals and families touched by HIV/AIDS but is beginning to have much wider social, economic and political ramifications.4
The burden of HIV/AIDS does not fall evenly or equally. The overwhelming majority of those currently living with HIV/AIDS are young African women in developing countries.5 The epidemic continues to have a disproportionate impact on women, with a number of premature deaths in South Africa being attributed to HIV/AIDS.6
Gender-based violence and gender inequality are repeatedly cited as key determinants of women's risk of contracting HIV, yet empirical research on the probable connections remains insufficient.7 Dunkle8 submits that research on the connection between social conservative constructions of masculinity; intimate partner violence; male dominance in relationships; behaviour that increases the risk of HIV-infection, and effective interventions is urgently needed in the South African context. Despite the fact that most women affected by HIV/AIDS live in sub-Saharan Africa, it is sad to note that almost all existing research on violence and the vulnerability of women to HIV/AIDS comes from the United States of America.9
The purpose of this article is to examine – from a legal perspective - specific cultural factors which increase women's vulnerability and exposure to HIV/AIDS. Related to this topic is the debate between cultural relativism and universalism which encapsulates among other things a historical analysis of human rights and culture; the relationship between human rights and culture; whether or not universalism should trump cultural relativism; and balancing human rights and culture and attitudes on human rights on the one hand and culture on the other. Due to the limited scope of this article, however, the discussion that follows is limited to the interplay between gender inequality, gender violence and HIV/AIDS in the present South African context. The focus will also be on women specifically, as women have traditionally suffered the most in relation to gender inequality and violence.

The pattern of HIV/AIDS in South Africa

The HIV/AIDS epidemic in South Africa is mainly regarded as a heterosexual type of epidemic.10 An additional distinctive feature of the pattern of the epidemic is the young age of onset of the infection of women.11 Young black women are particularly disproportionably affected by the disease.12 There is a strong link between factors such as low income, high unemployment, violence and poor education with HIV infection.13 In all of these correlations women emerge as those who are the worst affected.14 There are of course a number of pre-disposing factors, besides violence that put women at increased risk of becoming infected with HIV. These include a range of biological, psychological, economic and cultural factors, which clearly show how complex the problem of women's increased exposure to HIV is. It goes without saying that attention needs to be directed to the factors which are causing women to be more vulnerable to the disease.

Gilbert and Walker15 have identified a number of factors that affect the pattern of HIV/AIDS in South Africa. Some of the general factors that influence the pattern of HIV/AIDS in South Africa are the general low status of women in society and within relationships; women's traditional subordinate role in the family and limited personal resources in indigenous communities; general misinformation regarding and ignorance regarding HIV/AIDS; disrupted family and communal life due in part to apartheid, migrant labour patterns and high levels of poverty; and finally, the existence of a settled transport infrastructure allowing for the high mobility of persons and therefore the rapid movement of the virus into new communities.
Specific customary practices and habits facilitate the spreading of the virus in South Africa. These are, for example, resistance to the use of condoms as a result of specific sexual and cultural norms and values; social norms which allow or promote high numbers of sexual partners especially among men; the phenomenon of an extended family household structure; preference for a male child (son); the practices of polygamy; the bride price; wife inheritance (levirate), the prevalence of superstition, and adherence to the culture of silence.
Although the relationship between HIV/AIDS and human rights is not easily understandable, the social and legal status of women in many societies points to the relation between HIV/AIDS and human rights.16 Some traditions, customs, practices and religions entrench the subordinate position and exploitation of women in marriages and relationships, thereby increasing their vulnerability to HIV infection.17 The protection of human rights is therefore of the utmost importance in protecting women's interests, in preventing them from becoming infected. and also in eradicating all forms of discrimination and intolerance practised against those living with HIV, their relatives and acquaintances. 18

Cultural practices that make women vulnerable to HIV/AIDS

Traditional practices fulfil a purpose for those who practice them.19 Although traditional practices may have a positive impact on reproductive health, they may also be harmful.20 A harmful traditional practice may be so deeply rooted in a societal group that such a practice can be changed only when the people who practise it understand the danger, risk and indignity of the practice.21 Notwithstanding this, a number of countries have managed to uproot some deeply entrenched and harmful health practices in spite of many obstacles. A good example is the Chinese practice of foot binding, which was for some time common in many parts of China.22 This practice was abolished within one generation.23

Curran and Bonthuys24 argue that there are many cultural practices that enhance women's vulnerability to HIV which have not yet effectively been studied. However, in order to contextualise these practices in the framework of a Western, liberal model, a brief examination of the right to culture is first necessary.

  1. The right to culture

The right to culture is one of the fundamental human rights that is generally acknowledged and protected. International and regional instruments protect a number of key rights relating to culture. Indeed, the constitutions of most countries in the world, including South Africa, have explicitly provided for the protection of this right.25 Van der Vyver26 emphasises that the provisions in the South African Constitution27 protecting cultural rights realise the global norm contained in article 27 of the International Covenant on Cultural and Peoples' Rights (hereafter referred to as the ICCPR).
Section 30 of the Constitution provides individuals with the right to culture while section 31 encapsulates the right of persons belonging to a cultural, religious or linguistic community to enjoy their culture, practise their religion and use their language, thus making the right an individual as well as a community entitlement.28
The right to culture articulated in section 30 is expressed in a clause of choice.29 Individuals are free to participate in the culture of their choice and they also have a right, as members of a particular cultural community, to take part in the activities of this community.30 The related duty which falls on the group is to allow access to any person joining.31 The issue of 'choice' appears to be extremely challenging when applied to the legal and social affairs of a specific cultural community.32 Importantly, choice does not, however, apply to children, who are individually vulnerable and defenceless.33 It is during the period of childhood that these cultural connections are mostly formed.34 As women in patriarchal societies have traditionally been accorded the same status as children, they too are vulnerable in respect of certain harmful cultural practices.
Sections 30 and 31 of the Constitution include an explicit reference to other rights by means of a so-called internal limitation clause.35 it was anticipated that this internal limitation section, which provides that the right to culture cannot be implemented in a way incompatible with any provision of the Bill of Rights, would prevent communities from engaging in harmful practices and would curb the oppressive characteristics of some cultural traditions.36 The equality clause contained in section 9 of the Constitution poses the greatest challenge to the right to culture generally and hence to the African legal tradition.37
The broad extent of the right to culture brings it inevitably in conflict with some laws and other fundamental human rights.38 Universalist versus cultural relativist questions arise in this context, as well as the issue of global standards versus local values. This topic is controversial predominantly in several African countries where arguments based on resistance to westernisation, as well as the desire to protect cultural standards, are raised time and again in opposition to universalism.39 In South Africa, the universalist versus culturally relativist argument has been rendered marginal by the Constitution, which is founded on a universalist human rights structure.40 Hence, the drafters of the Children's Act were faced with the complex assignment of dealing with a very contentious issue in a way that values and promotes the rights and dignity of girl children and young women, including the girl child's right not to be circumcised, while at the same time respecting traditional cultural customs and practices.41
The constitutional obligation of courts with regard to customary law is to be found in section 211(3) of the Constitution, which provides that the courts "must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law." Customary law is therefore subject to the Bill of Rights and the constitutional human rights contained therein.42 It is necessary at this point to make it clear that some of the customary practices that this article examines derive from living customary law and not from 'official' (and often distorted) customary law, as it is contained in legislation and legal precedents.43
Specific features of South African customary law directly and indirectly linked to the present pattern of HIV/AIDS infection amongst women will next be examined.

  1. Polygamy, levirate, early marriage and virginity testing

5.1 Polygamy44

Despite the various advantages associated with polygamy,45 the practice is often fraught with difficulty within the family circle, not only amid wives, but between the wives and the husband too.46 Over-protectiveness and jealousy amongst co-wives is one such feature, resulting most likely from fear that the husband does not share his affection and possessions evenly among them.47 The major concern resulting from polygamous marriages in South Africa is the problem of HIV/AIDS.48 It would be wrong to conclude that polygamy is a primarily harmful practice which leads directly to the spreading of HIV/AIDS. The manner, however, in which persons in polygamous marriages conduct themselves may facilitate the spreading of HIV. There are more potential victims of HIV/AIDS in a polygamous family circle than in a monogamous union.

Infidelity within a polygamous marriage is a clear divergence from what is traditionally required by the official customary values of polygamous marriages.49 The recently emerged "affluent polygamy"50 is practised not in accordance with the norms of the original African tradition but in a rebellious way, by flouting the original values of polygamy. Nwoye51 submits that this type of polygamy is becoming more popular in most African cities in Southern Africa. Infidelity is a characteristic feature of affluent polygamy. This type of polygamy places the women involved in these relationships at a high risk of contracting HIV/AIDS.
The manners in which HIV may be spread by members in polygamous unions are manifold. The husband in a polygamous marriage may be the source of the virus.52 This usually happens when the family or the men migrate to urban areas in search for employment.53 During their stay in the city the men may engage in sexual activities with other women. If these men become infected with HIV, they may then pass the virus on to all of their wives at home upon their return. The women in the polygamous marriage may in turn also have extra-marital sexual encounters which would expose all of them and the husband to possible infection, as well as the women with whom the husband may engage during his stay in the cities.
Within the context of HIV/AIDS, polygamy does not only affect the partners involved in this marriage.54 The children in a polygamous marriage are also exposed to the risk of infection for the reason that communal breast feeding is practised in many deeply-rooted African communities and in polygamous families.55 The extent of infection among these children is much higher than otherwise, as there are usually more children in a polygamous marriage.
The wives and sexual partners involved in polygamous marriages have little or no control over the sexual behaviour of other members within their family circle.56 The fear of being infected has led some women to oppose polygamy on the basis that it places them at a high risk not only of contracting HIV, but also of contracting a variety of other sexually transmitted diseases. Women across Africa have begun asking if a man really has a right to have more than one wife in the context of the HIV/AIDS pandemic.57 In Swaziland, where almost forty percent of the population is HIV-positive, protest against polygamy is at its peak.58 The king of Swaziland has more than nine wives and traditionally chooses a new bride each year.59
Customary marriages, and by implication polygamy, are now regulated by the Recognition of Customary Marriages Act.60 The requirements for a valid customary marriage are, briefly, consensus between the parties; a formal ceremony to transfer the bride to the other family, and the payment of lobolo.61 Although the transfer of the bride as one of the requirements is not specifically regulated by the Recognition of Customary Marriages Act, it can be regarded as a custom in terms of section 3(6) of the same Act. This custom, however, requires a woman to cry when she is formally transferred to her husband, and she has to appear semi-naked in front of the prospective family. If she does not cry she could be beaten until she does, as was the case in Mabuza v Mbata,62 where the court was asked to consider if this custom (ukumekeza) was a legal requirement for a valid Swazi marriage. In this case, Hlophe J found that the custom is not necessarily a prerequisite for a Swazi marriage and that dispensation thereof cannot be regarded as a fatal flaw in the marriage ceremony. He stated that marriage practices evolve as customary law does and that he should consider if such practices are in conflict with the Constitution or not, in this case in relation to the right to human dignity. However, as the constitutionality of the custom was not in dispute (but rather whether the parties were married or not and if a divorce decree could be granted), the question of the constitutionality was never answered.63
It is clear from the above example that polygamy indirectly impacts on the fundamental rights of women. Despite the fact that women's status as perpetual minors has changed since 2000,64 and despite the fact that the Recognition of Customary Marriages Act states in section 6 that a woman has full status and capacity in addition to any other rights that she may have in terms of the customary law,65 equality and the full enjoyment of other human rights is still not a reality for women in rural areas whose lives continue in a traditional setting.66
5.2 Levirate

Unkungena or the levirate union is a custom that is practised when a man dies without a male heir. The widow will then be required to choose another husband from amongst the deceased man's younger brothers in order to bear male children for the deceased's house. The custom is said to provide for the maintenance of the widow and to preserve the relationship between the families that was initiated in the original marriage.67 In the Zulu culture, the practice allows a male relative to marry his sister-in-law or the widow of his brother.68 The custom is also referred to as "marriage by inheritance".69
The fundamental nature of a customary marriage involves not only the union between two spouses but includes the two families of the spouses. Upon the death of the husband the marriage is not dissolved unless the widow's family pays back the bride price or lobolo to her husband's family. A widow thus does not gain her private independence upon her husband's death.70 Since a male relative may marry the divorced and widowed wife of his brother,71 the chances are that a brother who inherits a wife from his brother whose cause of death was AIDS may pass the virus on to his other wives.
The whole family unit is at risk of becoming infected owing to the 'inheritance' of the infected wife. The infected wife may perhaps not be aware of her HIV-positive status when marrying the brother of her deceased husband, or alternatively, if she is aware that she is infected, may decide to withhold this fact from the family out of fear of being rejected or losing her means of support. This practice could also force women into unwanted marriages and expose them to unwanted sex and domestic violence.
Apart from exposing women to an increased risk of contracting HIV, this practice is in conflict with the equality rights of women, as well as their human dignity and personal autonomy.
5.3 Early marriage and virginity testing

In a so-called gerontocratic society, wives may inadvertently become the principal source of the carrying and spreading of HIV.72 In a gerontocratic society, older men marry young girls.73 In most African societies this practice is known as early marriage. Some of these young women often have young lovers of their own age.74 These old bachelors may, in turn, be involved with commercial sex workers or they may have affairs with a number of married women,75 which places them at high risk of contracting HIV. The virus may consequently be passed on to both of the other sex partners, who themselves may be in polygamous relationships,76 or those young girls, if they are not already infected. The young bride herself may perhaps be the source of the virus herself, and may then transmit it to the older man and his other sexual partners.

In South Africa, especially in the province of KwaZulu-Natal, there has been a recent revival of the traditional practice of virginity testing.77 There are also reports of increasing activity in schools in the Eastern Cape and in Mpumalanga.78 A higher value is traditionally placed on virgin brides, as evidenced in the higher amount of lobolo paid for them. However, supporters of virginity testing presently claim that it will assist in the reduction of HIV/AIDS and teenage pregnancy, as well as the detection and prevention of child sexual abuse.79 It is submitted that the opposite is in fact true: as the process heavily stigmatises those children found to be impure as a result of sexual abuse.80 In view of the current belief that sex with a virgin may cure or protect against AIDS and venereal diseases, public identification as a virgin may in fact increase the risk of sexual abuse and HIV-infection. Young girls may be less keen to report sexual abuse for fear of disclosing that they are no longer virgins.81
The reality of the existence of the practice of virginity testing in South Africa is evidenced by the responses to this practice by human rights and women's advocacy groups, with the Commission on Gender Equality, for example, describing the testing as discriminatory, invasive of privacy, unfair, impinging on the dignity of young girls, and unconstitutional.82 Parliamentary and public hearings responding to the draft Children's Bill were extremely critical of female genital mutilation and virginity testing as examples of harmful cultural practices.83

5.4 Primogeniture

The process of an inheritance going to a specific male heir instead of to a wife is known as primogeniture. The principle of primogeniture places women and extra-marital children under the guardianship of an heir.84 In terms of this principle, women are not entitled to share in the intestate succession of a deceased estate.85 The heir, however, has a duty to discharge support of the widow.86 The elimination of women from heirship and subsequently from being able to inherit property was in observance with a patriarchal structure which subjected women to a position of "subservience and subordination."87 Within such a system women were looked upon as perpetual minors under the guardianship of their fathers, their spouses, or the head of the extended family.88 Extra-marital children were not permitted to inherit their father's estate under customary law.89 They were nevertheless competent to inherit in their mother's family unit, subject to the principle of primogeniture.90

The outcome of this judgement is highly significant for the reason that it regarded the customary law rule of primogeniture as unconstitutional, invalid, and discriminatory against women and extra-marital children. The Bhe case verdict resulted in the ending of an unfair customary practice which embedded unfairness and which fossilised indigenous law.91 It is also a significant step in doing away with legal pluralism founded on unfairness.92 The outcome of the decision in the Bhe case has been welcomed by most legal scholars.93
In his minority judgement in Bhe v The Magistrate, Khayelitsha and Others,94 Ngcobo J described the concept of succession, in particular the rule of primogeniture, in indigenous law as originating from a society whose social system laid emphasis on obligations and responsibilities and not rights. It was from this societal context that the rule of succession, principally primogeniture, originated and functioned.95 The duty to care for the family is imperative and is an essential role in the African social system.96
The promulgation of the Reform of Customary Law of Succession and Regulation of Related Matters Act97 introduces a shift from the succession principle of primogeniture to the devolution of intestate estates, which takes all children and spouses into account.98 This fundamental change is in line with the Constitution since its provisions are consistent with the notions of equality and human dignity.99
Despite the above legal developments, however, primogeniture is still practised. The impact of this exacerbates the situation of women and children living under customary law, specifically if this discriminatory practice leaves them without any means. Often these women have to resort to sex work to survive, or become involved in abusive relationships, whereas the children are left in the care of other family members or join the large number of street children. Primogeniture is one cultural practice whose impact on the lives of women and children is indirect and subtle, yet instrumental in increasing the vulnerability of women and children in respect of HIV/AIDS and violence.

5.5 Female genital mutilation

Female circumcision or excisions are terms used interchangeably with female genital mutilation (hereafter referred to as FGM).100 FGM is also known as genital cutting.101 FGM is a collective name relating to a number ofdiverse traditional rituals that involve the physical disfigurement connected with this exercise.102 FGM is predominantly practised in sub-Saharan countries and in Egypt.103 Of the forty-three African countries, twenty-six practise FGM.104 It is also said to be practised among certain communities in the Middle East and Asia, including parts of the United Arab Emirates, Yemen, India, Indonesia, and Malaysia.105 In 2004 it was reported that eighty-nine percent of the total population of women in Sudan were circumcised.106 FMG is practiced by Muslims, Christians and one Jewish sector, the Falasha of Ethopia.107 It is also practised in some communities in North and South America.108

Some non-governmental organisations (such as No Peace without Justice, an Italian non-governmental agency) aim to have FGM abolished.109 According to this organisation, approximately 120 to 130 million women worldwide have undergone FGM.110 Contrary to the popular belief that female genital mutilation is not widely practiced in South Africa, evidence suggests the opposite.111 Experts report that almost all of the 120 million women who were subjected to FGM come from twenty-eight countries, including South Africa.112
Women presenting with symptoms of complications arising as a result of female genital mutilation are seen with increasing frequency in South Africa.113 During a seminar on harmful traditional practice, in March 2009, the then Minister of Health, Tshabalala-Msimang, remarked that female genital mutilation has been introduced into South Africa from the rest of Africa through the migration of refugees. Some scholars submit that female circumcision is practised as an initiation process among most Xhosa groups.114
Female circumcision is symbolically analogous to male circumcision.115 The difference between male and female circumcision is that female circumcision is far more extensive and its consequences are physical, psychosomatic, violent and long-lasting.116
FGM involves a procedure in which parts of girls' external genitals are expurgated without anaesthesia. The girls subjected to this procedure experience pain and trauma, and regularly experience severe physical problems such as blood loss, infections or even death.117 The age at which this ritual takes place differs from place to place.118 In Ethiopia the required age for the ritual to be performed is seven days after birth,119 whereas in Somalia the ritual is performed between the ages of six and seven years.120
Among Africans the procedure is said to be requested by a child's parents or conservative grandparents.121 Such parents and grandparents see this procedure as a rite of passage which transforms a girl into a woman.122 Some parents firmly believe failing to carry out this procedure will prevent daughters from finding husbands. Traditionalists argue that this ritual keeps girls pure and clean for their marriage and this will result in the women's devotion and faithfulness to their husbands.123
Normally a village expert, lay person, or midwife performs the ritual at a cost. The procedure is done by means of an assortment of tools such as knives, razor blades,broken glass, or scissors. In developed countries doctors maybe required to carry out FGM in sterilised conditions and making use of anaesthesia.

FGM has turned out to be a health and human rights matter in western countries such as Australia, Canada, England, France and the United States of America. Its physical harm has drawn world-wide attention. In 1996 the United States legislative body passed criminal law legislation prohibiting the ritual in the United States.124 The legislation also mandated the education of specific immigrant groups on the health effects of this practice. Considering the unclean surroundings under which FGM takes place, attention should be drawn to the fact that the practice presents a risk to the spread of the HIV.125 Researchers in Ethiopia who studied the probable connection between FGM and HIV/AIDS126 established that there is a crystal clear risk, especially in cases where FGM is practised as an initiation rite in conditions where the same unwashed and unsterilised knives are used in the process of operating on all of the victims.127 The health risks associated with the use of the crude equipment that circumcisers use to deform girls should be widely communicated.128 If the utilisation of these tools is not stopped, they become instruments causing death and serious physical and psychological harm to innocent young girls in the name of culture and tradition.129

From a human rights perspective, FGM constitutes an abuse of women's rights, including an impairment of women's sexual pleasure, physical health and physiological health that is extremely invasive and uncalled for.130 It places them at risk of contracting HIV/AIDS.
5.6 The practice of dry sex

Dry sex is also known as vaginal drying.131 Literature on dry sex suggests that dry sex is widely practised by women132 for hygienic purposes.133 This practice entails the artificial drying of the vagina for the sexual gratification of males.134 The purpose of vaginal drying is to make sure that the vagina is "hot, tight and dry."

Despite the dangers associated with this practice for HIV transmission, people continue to practise dry sex. In an interview conducted amongst sex workers who practice dry sex, thirty-three percent of the sex workers remarked that dry sex is a painful customary practice.135 In spite of the painful process, it is continued in an attempt to attract male clients136 who in turn pay higher prices for sex offered by sex workers who engage in this practice.137 Eighty-six percent of women in Tanzania who were randomly interviewed in relation to dry sex admitted to practising dry sex.138 In South Africa, KwaZulu-Natal is the province in South Africa where dry sex is mostly practised. It is incidentally also the area with the highest prevalence of HIV/AIDS in South Africa.139
Despite the fact that dry sex is practised to please male sex partners and clients, dry sex is also reported to be practised to remove the wetness in the vagina caused by depo provera, a contraceptive injection, which leads to increased vaginal wetness.140 Some men are said to complain about this excessive wetness.141 Certain women hence remove the excess wetness through the practice of vaginal drying142 or alternatively by failing to continue with the contraceptive injection. Both of these actions have dire consequences for their exposure to HIV. The danger inherent in the practice can be summarised as follows:

  • Dry sex generates conditions where friction of the genital area is highly probable.143 The substance used by women may cause disturbances in the membrane lining the vagina and the uterine wall.144

  • Friction in the genital organs correlates with irritation of the white cells causing optimum exposure to HIV.145

  • Dry sex is linked with the failure or reluctance to use condoms, while condom usage is linked with a decrease in HIV transmission.146

  • Dry sex wipes out the bacteria which assist in fighting infection.147

  • The practice also increases the likelihood that a condom may be torn.148

There is no doubt that the cultural practice of drying of the vagina places women at a very high risk of becoming infected by HIV. The practice is again also linked with women's gender inequality and their subordinate position in rural societies.

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