The ancient-old custom of spousal mourning, known as "Ukuzila" in certain African cultures, does not reflect the norms and standards of gender equality enshrined in the South African Constitution and should be abolished. This is according to the University of the Western Cape (UWC) legal scholar Sibusiso Mmeli Ngubane, in his work, Feminist Approach to Ukuzila Custom Under the new South African Constitutional Dispensation, presented at the university's annual Research Week recently.
Ngubane argues that the ukuzila custom is outdated and clashes with women's rights. "Since there is no reasonable justification for the limitations that ukuzila custom imposes on widow's human rights, ukuzila cannot be sustained in a modern society".
Women predominantly practise Ukuzila under customary law. It has three phases:
His research is based on the Constitutional values of gender equality under Section 9. He states that the Bill of Rights guarantees equal treatment, equal protection before the law, and not to be unfairly discriminated against based on gender. It adds that necessary measures should be taken to eradicate all harmful cultural practices while adopting laws to achieve equality for all.
Ngubane used the case that was heard in the Constitutional court between Harksen v Lane as a frame of reference: The case was to assess if ukuzila passed the Constitutional muster to be aligned with values of gender equality.
He found that the spousal mourning custom violates gender equality. "For example, stage two of Harksen's test establishes that ukuzila constitutes discriminatory rituals that are only enforced on widows but not widowers. Thus, it amounts to unfair discrimination based on gender since this arbitrary application is not legally justified".
"Based on this test, ukuzila fails to be compatible with the right to gender equality. Since ukuzila fails the equality test, it cannot, therefore, be aligned with constitutional values of gender equality. And owing to the historical unfair discrimination and oppression of women under customary law, conserving and sustaining ukuzila will border against the gender transformation project aimed at advancing and promoting the rights of women living under customary law."
Drawing from the United Nations' Sustainable Development Goal Number 5, which calls for the elimination of all discrimination against women, Ngubane concluded that: "strong policies and enforceable laws for the promotion of gender equality to empower all women must be adopted."
He also recommended that South Africa should learn from how traditional communities have developed their customary laws to meet the standards set by international and national human rights in promoting and advancing women in rural areas.
Ngubane's study further called on the Department of Social Development to open help desks or forums for widows and widowers across municipalities to provide necessary legal education and any other form of support for widows' to create women’s rights awareness.
Ngubane argues that the ukuzila custom is outdated and clashes with women's rights. "Since there is no reasonable justification for the limitations that ukuzila custom imposes on widow's human rights, ukuzila cannot be sustained in a modern society".
Women predominantly practise Ukuzila under customary law. It has three phases:
- the sitting, which is done immediately after the passing of the husband until the burial;
- wearing a black garment for a certain period (mainly for a year) to indicate external mourning; and,
- the cleansing ritual (to mark the end of the mourning process).
His research is based on the Constitutional values of gender equality under Section 9. He states that the Bill of Rights guarantees equal treatment, equal protection before the law, and not to be unfairly discriminated against based on gender. It adds that necessary measures should be taken to eradicate all harmful cultural practices while adopting laws to achieve equality for all.
Ngubane used the case that was heard in the Constitutional court between Harksen v Lane as a frame of reference: The case was to assess if ukuzila passed the Constitutional muster to be aligned with values of gender equality.
He found that the spousal mourning custom violates gender equality. "For example, stage two of Harksen's test establishes that ukuzila constitutes discriminatory rituals that are only enforced on widows but not widowers. Thus, it amounts to unfair discrimination based on gender since this arbitrary application is not legally justified".
"Based on this test, ukuzila fails to be compatible with the right to gender equality. Since ukuzila fails the equality test, it cannot, therefore, be aligned with constitutional values of gender equality. And owing to the historical unfair discrimination and oppression of women under customary law, conserving and sustaining ukuzila will border against the gender transformation project aimed at advancing and promoting the rights of women living under customary law."
Drawing from the United Nations' Sustainable Development Goal Number 5, which calls for the elimination of all discrimination against women, Ngubane concluded that: "strong policies and enforceable laws for the promotion of gender equality to empower all women must be adopted."
He also recommended that South Africa should learn from how traditional communities have developed their customary laws to meet the standards set by international and national human rights in promoting and advancing women in rural areas.
Ngubane's study further called on the Department of Social Development to open help desks or forums for widows and widowers across municipalities to provide necessary legal education and any other form of support for widows' to create women’s rights awareness.
