THE CONSTITUTIONALITY OF THE STATE’S INTERVENTION WITH THE PRACTICE OF MALE TRADITIONAL CIRCUMCISION IN SOUTH AFRICA

Abstract

This article analyzes the constitutionality of the state’s intervention with the practice of male traditional circumcision in South Africa. The state intervened in the practice of traditional circumcision by promulgating legislation aimed at providing the observation
of health standards in traditional circumcision, the issuing of permission for the performance of a circumcision operation and holding of circumcision schools. Provincial statutes are promulgated the Application of Health Standards in Traditional Circumcision Act 6 of 2001; Free State Initiation Schools Act 1 of 2004 and Northern Province Circumcision Schools Act 6 of 1996. Recently, in 2005 the state introduced the Children’s Act 35 of 2005, to give effect to the Constitutional rights of children by prohibiting children below the age of 16 from being subjected to traditional circumcision that is detrimental to their well-being and also protecting them from discrimination, exploitation and from any other physical, emotional or moral harm. The first part of this article discusses the initiates’ cultural right to practise traditional circumcision. The second part considers other constitutional rights to which the initiates are entitled. The final section analyzes the constitutionality of the state’s intervention with the practice of traditional circumcision.
On the question whether the state’s legislative intervention is constitutional, this article applies the internal limitation in section 30 and 31 of the Constitution and the general limitation clause in terms of section 36. The article concludes that the state’s legislative intervention, in the practice of traditional circumcision, is justifiable both in terms of internal limitation in section 30 and 31(2) and the general limitation clause of section 36.