The practice violates a number of constitutionally enshrined rights. A foundational value of the Constitution is that of the achievement of equality. The fact that it is young women alone, should they be found to be non-virgins, who would lose their higher education funding, infringes on the right to equality as is prescribed by section nine of the Constitution. Withdrawal of this funding, which is 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 violates the right to human dignity – imagine one’s body being probed to ascertain virginity? The Constitution further 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. The forced virginity tests violate the latter rights.
Said the 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 true, but the manner in which the Municipality seeks to address 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 the Municipality, like many others elsewhere in the country, faces a host of societal problems such as HIV/AIDS or school pregnancies, then should the Municipality not implement policies to counter these problems? Why then does the Municipality seek to make young women responsible for these problems? This practice, viewed from any perspective, is simply abhorrent and needs to be stopped immediately.
This practice should be referred to both the Commission for Gender Equality (CGE) and the South African Human Rights Commission (SAHRC). The CGE is tasked with promotion of gender equality specifically, while the SAHRC is generally mandated with promoting both the respect for and a culture of human rights. As state institutions, their role is to support and strengthen constitutional democracy in the Republic. Organs of state such as the uThukela Municipality are obliged to respect the activities of these organisations. This constitutional duty to assist and protect the institutions means that adverse findings against the Municipality cannot simply be ignored.
This is repugnant, and inconsistent with societal values. With a Mayor publicly defending constitutional infringements, it is not a farfetched idea to make constitutional education for all public officials mandatory. 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 South Africa’s constitutional democracy. Ultimately, this issue speaks to a bigger problem which is part of the current national discourse, that of 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.
By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights
[First published in the Daily Dispatch on 2 February 2016]
