Culture and law clash

2009-10-24 14:53

AFTER a two-year- long ­legal battle at the Equity Court with his father, ­Bonani Yamani feels that justice has finally prevailed.

The 21-year-old University of the Free State student emerged victorious in a court battle that pitted tradition against the constitution. The ­father and son were locked in a precedent-setting case in which Yamani junior took his father to court for forcing him to undergo circumcision the traditional Xhosa way.

But the news of the recent ruling by Bhisho High Court’s Judge Yusuf Ebrahim, that circumcision without consent is illegal and goes against an individual’s constitutional rights, has been met with mixed ­reactions.

Yamani is not the first person to be circumcised without his consent.

The abduction of initiates is a longstanding practice and a boy would be circumcised forcefully if his parents passed away before he had done the ritual.

“It was done to transfer his ­father’s estate to him and for him to be able to carry on the family name,” explains chairperson of the Eastern Cape House of Traditional Leaders, Chief Ngangomhlaba ­Matanzima.

The court ruling has placed the clash between cultural customs and constitutional law under the microscope, with cultural experts and ­traditional leaders calling for a ­review of the customary law.

Pastor Ndipiwe Mcotheli of the Burning Bush Ministries in East London is adamant that it is about time Christians stopped compromising their beliefs.

“The ruling is a victory for the Christian community and all those who are protected by the constitution regardless of their beliefs.”
The normally sleepy village of KwaMasele outside King William’s Town has been in the spotlight ever since news of Yamani’s bold stance against his father made headlines.

In 2007, the then 19-year-old Yamani tried to avoid initiation but his wishes were overridden when his father, Lindile Yamani, and 10 men abducted and forcefully circumcised him in his home village.

This was three months after he had been surgically circumcised at East London’s Frere Hospital in ­December 2006.

He refused to go with the men, ­informing them that he had already been circumcised. But the men mocked the hospital circumcision procedure and took him to the bush, where they circumcised him again.

A staunch member of the Burning Bush Ministries, Yamani did not want to be circumcised the traditional way, maintaining that the spilling of blood represented a covenant between two parties – a man and his ancestors.

“I’m not in a covenant with my ­ancestors but with Jesus Christ. All I asked was for that to be respected. I have the right to live my life the way I want,” he says.

Yamani found himself at the centre of a collision between individual rights and communal views.

Founder of Icamagu Institute Dr Nokuzola Mndende says: “There is a difference between circumcision and initiation, and Yamani is referring to circumcision.

“The rite of passage is part of growing up and when he defies it, he is defying growing up.

“A boy has to first consult and­ ­receive approval from his parents before circumcision. He cannot go against his parents’ wishes. If he had gone through the rite of passage, where respect is taught, he would know this,”

“He has skipped the initiation stage and will not be recognised as a man in his community. I will not be shocked if his behaviour changes in future. He has been brainwashed by the West and has undermined his identity.”

Mndende laments: “Our constitution should respect indigenous law. This was not considered in the ­ruling of this case.”
With the advent of democracy post-1994, societal structures have since changed.

Mcotheli argues: “We had segregation in the past but now we live in a democratic society with neighbours of different ­races. Perhaps we need to redefine what our societal values are post-1994.

“We should not discriminate by simplistically ­accepting some and rejecting others.”

Society needs to properly define circumcision, Mcotheli believes. “It is not the graduation of a boy to manhood, but an agreement ­between God and man. When that agreement is performed, blood and skin have to be sacrificed. The ritual has to be relevant for us Christians.

“The Bible says those who are circumcised do it to be accepted by their societies, and what is important is for a man to be born again in Christ,” says Mcotheli, quoting a scripture from the Book of Paul.

The Eastern Cape House of Traditional Leaders has since apologised to Yamani for remarks made by former Eastern Cape Congress of Traditional Leaders of SA (Contralesa) chairperson Chief Mwelo Nonkonyane, that he should be ostracised by his community.

Matanzima says: “It is now clear that the customary law has to be ­developed so that it can face the challenges of modern society. Individual rights weigh more than ­communal rights.

“There’s a clash ­between the law and culture, but we need to strike a balance between the two. We are not throwing our culture away but the makers of customary law should find ways in which we can influence the legislature to strike a balance.”  

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