The idea of offering a bursary to fund tertiary education for young women is a laudable one.
But the “maiden’s bursary” set up by the uThukela district municipality in KwaZulu-Natal and now being probed by the Human Rights Commission (HRC) is conditioned on the 16 beneficiaries remaining virgins until they complete their tertiary education.
The young women are reportedly expected to undergo examinations by elderly women in the their home village twice a year to ascertain this.
The practice violates a number of constitutionally enshrined rights.
A foundational value of the constitution is that of the achievement of equality. That the young women stand to lose their higher education funding should they be found to be non-virgins, infringes on their right to equality as is prescribed by section nine of the constitution.
Withdrawing this funding, sourced from public funds, would also be a violation of the right to further education, which the state is obliged to make progressively available and accessible.
It also violates the right to human dignity – imagine one’s body being probed to ascertain virginity?
The constitution provides that everyone has the right to bodily and psychological integrity, including the right to make decisions concerning reproduction and to security in and control over their body.
Everyone also has the right to privacy and this includes the right not to have their person searched. Forced virginity tests would violate these rights.
Said the uThukela mayor, Dudu Mazibuko, in defence of this policy, “Young girls are more vulnerable, they are the ones that fall in love with sugar daddies, get diseases and fall pregnant and then their lives are messed up.”
That may very well be, but the manner in which the municipality seeks to address the many underlying challenges involved in this issue is simply unconstitutional.
In a country with widely recorded incidences of sexual violence against girls and women, there is a high chance that for some of the young women, their first sexual encounter was not voluntary. What assistance is there, if any, for these young women?
If that municipality, like many others in the country, faces a host of societal problems such as HIV/Aids or school pregnancies, should it not implement policies to counter these problems?
Why does the municipality seek to make young women solely responsible for the outcome of these problems?
The practice of virginity testing, viewed from any perspective, is simply abhorrent and needs to be stopped immediately.
Beyond the Human Rights Commission this practice should be referred to the Commission for Gender Equality (CGE).
The CGE is tasked with promotion of gender equality specifically, while the HRC is generally mandated with promoting the respect a culture of human rights and upholding it.
As state institutions, the role of both bodies is to support and strengthen constitutional democracy. Other organs of state such as the uThukela municipality are obliged to respect their activities.
The conditions attached to these bursaries are repugnant and inconsistent with societal values.
With a mayor publicly defending constitutional infringements, it is not farfetched to suggest that constitutional education be made mandatory or all public officials.
It is important to buttress the fact that the constitution is the supreme law of the land. All traditional and cultural practices should comply with the constitution.
The virginity requirement for the young women to obtain a bursary for higher education is not a “grey area” needing further clarity. It is unacceptable and at odds with our constitutional democracy.
Ultimately, this issue speaks to a bigger problem which is part of the current national discourse – the unavailability of public funding for higher education.
Regardless, the violation of one’s rights cannot be a pre-condition to the attainment of higher education in any instance.
Phephelaphi Dube is legal officer for the Centre for Constitutional Rights. She holds an LL.B degree from the University of Fort Hare, an LL.M degree from the University of Stellenbosch, and a Diploma in European Studies from the University of Vienna. She completed her articles the Rhodes University Legal Aid Clinic in 2006 and gained international experience as a clerk for the vice president of the International Criminal Court. Most recently she was a research fellows specialising in human rights at the Ludwig Boltzman Institute for Human Rights at the University of Vienna. Her areas of expertise include constitutional law, international law and property law
Virginity test condition for bursary defies rights
But the “maiden’s bursary” set up by the uThukela district municipality in KwaZulu-Natal and now being probed by the Human Rights Commission (HRC) is conditioned on the 16 beneficiaries remaining virgins until they complete their tertiary education.
The young women are reportedly expected to undergo examinations by elderly women in the their home village twice a year to ascertain this.
The practice violates a number of constitutionally enshrined rights.
A foundational value of the constitution is that of the achievement of equality. That the young women stand to lose their higher education funding should they be found to be non-virgins, infringes on their right to equality as is prescribed by section nine of the constitution.
Withdrawing this funding, sourced from public funds, would also be a violation of the right to further education, which the state is obliged to make progressively available and accessible.
It also violates the right to human dignity – imagine one’s body being probed to ascertain virginity?
The constitution provides that everyone has the right to bodily and psychological integrity, including the right to make decisions concerning reproduction and to security in and control over their body.
Everyone also has the right to privacy and this includes the right not to have their person searched. Forced virginity tests would violate these rights.
Said the uThukela mayor, Dudu Mazibuko, in defence of this policy, “Young girls are more vulnerable, they are the ones that fall in love with sugar daddies, get diseases and fall pregnant and then their lives are messed up.”
That may very well be, but the manner in which the municipality seeks to address the many underlying challenges involved in this issue is simply unconstitutional.
In a country with widely recorded incidences of sexual violence against girls and women, there is a high chance that for some of the young women, their first sexual encounter was not voluntary. What assistance is there, if any, for these young women?
If that municipality, like many others in the country, faces a host of societal problems such as HIV/Aids or school pregnancies, should it not implement policies to counter these problems?
Why does the municipality seek to make young women solely responsible for the outcome of these problems?
The practice of virginity testing, viewed from any perspective, is simply abhorrent and needs to be stopped immediately.
Beyond the Human Rights Commission this practice should be referred to the Commission for Gender Equality (CGE).
The CGE is tasked with promotion of gender equality specifically, while the HRC is generally mandated with promoting the respect a culture of human rights and upholding it.
As state institutions, the role of both bodies is to support and strengthen constitutional democracy. Other organs of state such as the uThukela municipality are obliged to respect their activities.
The conditions attached to these bursaries are repugnant and inconsistent with societal values.
With a mayor publicly defending constitutional infringements, it is not farfetched to suggest that constitutional education be made mandatory or all public officials.
It is important to buttress the fact that the constitution is the supreme law of the land. All traditional and cultural practices should comply with the constitution.
The virginity requirement for the young women to obtain a bursary for higher education is not a “grey area” needing further clarity. It is unacceptable and at odds with our constitutional democracy.
Ultimately, this issue speaks to a bigger problem which is part of the current national discourse – the unavailability of public funding for higher education.
Regardless, the violation of one’s rights cannot be a pre-condition to the attainment of higher education in any instance.
Phephelaphi Dube is legal officer for the Centre for Constitutional Rights. She holds an LL.B degree from the University of Fort Hare, an LL.M degree from the University of Stellenbosch, and a Diploma in European Studies from the University of Vienna. She completed her articles the Rhodes University Legal Aid Clinic in 2006 and gained international experience as a clerk for the vice president of the International Criminal Court. Most recently she was a research fellows specialising in human rights at the Ludwig Boltzman Institute for Human Rights at the University of Vienna. Her areas of expertise include constitutional law, international law and property law
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