(By Satang Nabaneh)

Female Genital Mutilation (FGM) is a widespread and pervasive human rights violation experienced by women and girls.  FGM refers to all procedures “involving partial or total removal of the external female genitalia or other injury to the female organs for non-medical reasons.”[1] It is estimated that more than 200 million women and girls have been cut in thirty countries across Africa, the Middle East, and Asia where FGM is concentrated. Another estimated 3 million girls are at risk of FGM annually.[2] The World Health Organization (WHO) has also estimated that 100 to 140 million women and girls worldwide are currently living with the consequences of FGM. It is mostly carried out on young girls at some point between infancy and the age of fifteen years old. In Africa, an estimated 92 million girls from ten years of age and above have undergone FGM.[3] 

Development of International Human Rights Norms on FGM

Over the past two decades, international human rights norms have evolved significantly to recognize FGM as a fundamental human rights violation against women and girls. Early human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[5] and the Convention on the Rights of the Child (CRC)[6] prohibit harmful “traditional practices” but do not explicitly prohibit the practice of FGM. However, these provisions can still be interpreted to safeguard women and girls from the practice.

During the Fourth World Conference on Women in 1995, notable African feminists led efforts for the explicit condemnation of FGM in the platform for action.[7] In 2012, the United Nations General Assembly adopted a resolution, calling on the international community to eliminate FGM.[8] The Sustainable Development Goals (SDGs) include a target under Goal 5 to eliminate all harmful practices including FGM by 2030.[9] In July 2018, the Human Rights Council passed a  resolution highlighting the negative implications of FGM for the status and treatment of girls which impedes gender equality.[10]

Beyond these consensus documents, UN treaty monitoring bodies have clearly established that all forms of FGM violate a range of human rights including protection from physical and mental violence,

health, life, and constitutes torture or other cruel, inhuman or degrading treatment.[11] Through their general comments, recommendations, and concluding observations, treaty bodies have affirmed that states have a legal obligation to adopt effective and appropriate measures to abolish FGM.[12]

At the regional level, the African Charter on Human and Peoples’ Rights (African Charter), the African Charter on the Rights and Welfare of the Child (African Children’s Charter), and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) have emphasized the right of women and girls not to be subjected to FGM. The African Union (AU) Agenda 2063 (Aspirations 3, 4 & 6) condemns all forms of violence and discrimination against women and girls, including FGM.

FGM and the Maputo Protocol

The Maputo Protocol (Protocol) was adopted by the African Union on July 11, 2003, pursuant to Article 66 of the African Charter and came into force on November 23, 2005.[13] The Protocol’s holistic protection of women’s rights extends to social, political, and economic spheres. It contains thirty-two substantive provisions that address the unique human rights challenges faced by women and girls in the African context.

The Protocol is unique as the only international human rights instrument that explicitly prohibits the practice of FGM. Article 5 of the Protocol specifically obliges states to ensure that legislative measures and imposed sanctions are in place to prohibit all forms of FGM and its medicalization. States are further required to promote awareness campaigns and to provide victims health, legal, and judicial services.

It should be noted that Article 5 of the Protocol must be read concurrently with Article 2 which relates to elimination of all discriminatory practices against women, because FGM is a practice that exclusively targets women and girls and reinforces their subordinate position in society. Moreover, FGM is deemed to violate the right to be free from violence, making Article 3 of the Protocol applicable because it requires states to ensure that victims of all violence (including those perpetuated because of cultural practices) are rehabilitated. This is critical because it guarantees that the dignity and well-being of women and girls that have undergone harmful practices are safeguarded. A collective reading of these provisions would seem to show that the Protocol has adopted a three-pronged approach to eradicating cultural practices such as FGM.

First, the Protocol proposes the use of criminal law to curb the spread of this practice. Second, the Protocol recommends education and awareness campaigns that will address behavioral change in societies. Third, the Protocol adopts a humanistic approach of rehabilitating victims of all forms of violence. This approach is not only pragmatic but also commendable. Applying criminal law to public health issues has remained very contentious, and prior experience has shown that this effort may, in the long run, be ineffective.[14] Indeed, such an approach may even become counter-productive in the end. Thus, countries have also adopted health, alternative rites passage, and empowerment approaches to address this serious challenge to the human rights and freedom of women and girls in the region.[15]

Influence of Human Rights Norms on National Law Reforms on FGM in Africa

The evolution of strong international and regional human rights standards recognizing FGM as a human rights violation has significantly prompted national law reform. Incorporating international human rights standards, which vary according to the legal system of individual countries, ensures enforceability within national legal systems.[16] The domestic legal framework plays an essential role in protecting the rights of women and girls against FGM. Currently, about sixty countries around the world have adopted laws that criminalize FGM, with twenty-four countries in Africa now banning the practice.[17] In many African countries, the use of legal sanctions to address FGM is by far the most common response adopted by African governments.[18]Criminalization often involves the imposition of jail sentences or fines.

During the past ten years, the trend of criminalization is increasingly found in a variety of laws including penal codes, specific anti-FGM laws, women’s rights acts, and domestic violence acts.  Between 2007 and 2018, countries such as Zimbabwe, Uganda, South Sudan, Kenya, Guinea Bissau, Mozambique, The Gambia, and Cameroon all have laws that punish the practice of FGM. Either new laws have been introduced or existing laws have been amended. For instance, The Gambia amended its Women’s Act in 2015,[19] while Nigeria adopted the Violence Against Persons (Prohibition) Act in 2015, prohibiting FGM–although only directly applicable in the Federal Capital Territory, Abuja.[20] In Mauritania, Article 12 of the Children’s Code of 2015 prohibited FGM.[21]Guinea also adopted a similar provision in its Children’s Code in2008.[22] Guinea-Bissau is the only country that adopted a separate and specific FGM law in 2011.[23]

Access to Justice for Women and Girls

The obligation to protect women and girls from FGM requires states, their agents, and officials to not only take action to prevent and impose sanctions for violation of their rights by private parties, but to exercise due diligence to investigate, prosecute, and punish such violators.

The number of court cases on FGM varies across countries. In Kenya, the special unit for investigating FGM cases opened in 2014 following the ban in 2011 and has prosecuted seventy-six cases in its first two years.[24] In The Gambia, there have been two cases relating to FGM since the law was adopted in late-2015; one case involved a five-month-old baby who died as a result of FGM in Sankandi Village.[25] Burkina Faso is increasingly recognized as one of the few countries where FGM legislation is effectively and systematically enforced. In 2016, the government of Burkina Faso reported to the CEDAW Committee that, according to the data of all regional courts of Burkina Faso in 2009, 241 persons were convicted for violating the law prohibiting FGM.[26]

In Law and Advocacy for Women in Uganda v. Attorney General, the Constitutional Court of Uganda held that FGM is a practice that violates women’s rights, their dignity, and is condemned by both the Constitution of Uganda and international law. [27] The Petitioner, a non-governmental organization, asked the Constitutional Court of Uganda to declare FGM unconstitutional in accordance with Article 2(2) of the Constitution, alleging that it violated the right to life guaranteed under Article 22(1); the right to dignity and protection from inhuman treatment, secured under Article 24; the rights of women recognized under Article 33; and the right to privacy guaranteed under Article 27(2) of the Constitution. This decision of the Constitutional Court of Uganda to prohibit FGM is an important step in the development of progressive jurisprudence of state obligations under international and national law to protect women’s rights against the practice of FGM.

The trend for criminalizing FGM comes on the heels of the push that legislation should be a supportive tool that serves as a catalyst for social change and should foster an environment that enables/encourages the abandonment of the practice. Studies have shown that in countries like Senegal, legislation on FGM can complement other strategies including alternative or mock rites passage[28] and empowerment of women and girls.[29]  

It is pertinent to point out that most of these laws have not been effective in curbing the practice of FGM in affected countries despite the influx of aid and decades of awareness raising and abandonment campaigns. In many African countries, FGM still is performed without legal consequences for offenders, despite laws prohibiting the practice. Where FGM is performed in private clinics without prosecution of physicians who carry out the procedure, the state provides de facto consent to the practice and is therefore accountable.  

The use of criminal law to prohibit the practice of FGM has its limitations. FGM as a deeply rooted traditional practice entrenched in culture serves as a major obstacle to ending the practice despite criminalization.[30]There is general lack of acceptance of laws against the practice as the majority of affected communities are usually not involved in the law-making process, and they often consider these laws as foreign and a challenge to their culture.[31] This result is public resentment which pushes the practice underground and promotes cross-border migration to perform FGM. In a majority of places where FGM is practiced, traditional and religious leaders wield more power than the government.  For example, upon the end of twenty-two years of authoritarian rule in The Gambia by former President Yahya Jammeh, during whose time FGM was banned, debates about the constitutionality and efficacy of the 2015 anti-FGM law arose. [32]

Likewise, there are no real mechanisms in place to report, refer, and protect women and girls at risk of FGM. The belief that FGM is personal and not a matter of public concern continues to affect responses in the prevention, reporting, and prosecution of FGM cases. The privacy of the practice prevents detection by law enforcement. In addition to the attitudes of the community, the attitudes of law enforcement are also a problematic as some are unwilling to enforce the law.[33] This reticence, coupled with inadequate resources and training, has a negative impact on the effectiveness of any legal measures.

While laws lay the foundation to ensure effective access to justice for women and girls with respect to FGM, other gender-specific and holistic measures–including prevention and empowerment approaches–that make women and girls more likely to seek justice should be adopted. States must implement programs, structures, and resources to intensify sensitization against the practice, especially as most perpetrators do not respect the laws nor understand the human rights implications of FGM.[34]

Conclusion

The transformative impact of normative developments on national-level laws and policies regarding FGM has also resulted in greater recognition globally of the human rights of women and girls. Laws that criminalize FGM serve as important milestones towards ensuring that legal frameworks protect the rights of women and girls against the practice of FGM. Notwithstanding this point, the effectiveness of these laws remains questionable. In addition to punitive laws, states should, inter alia, ensure gender equality frameworks, promote attitudinal and social change, and design and implement comprehensive awareness campaigns against FGM by engaging with men and boys, religious and traditional leaders, and other stakeholders. Programs geared towards women and girls’ empowerment and agency should be a strong focus as this is an effective measure to eradicate the practice by 2030. A legal prohibition on FGM is not necessarily a guarantee that women and girls would be protected against FGM. Eradicating FGM does not only require legislation and the incorporation of international human rights norms into domestic legislation but must also include these social programs as well.

This article is republished from Human Rights Brief. Read the original article.

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[1] World Health Organization, Fact Sheet:  Female Genital Mutilation (2016), http://www.who.int/mediacentre/factsheets/fs241/en/. The WHO has classified FGM/C into four broad categories: (i) partial or total removal of the clitoris and/or the prepuce (Type I); (ii) partial or total removal of the clitoris and labia minora, with or without excision of the labia majora (Type II); (iii) narrowing of the vaginal orifice by cutting and bringing together the labia minora and/or the labia majora to create a seal (with or without excision of the clitoris)—usually, the cut edges of the labia are stitched together, which is referred to as “infibulation” (Type III); and (iv) all other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping, and cauterization (Type IV).

[2] UNICEF, UNICEF’s Data Work on FGM/C (2017), https://www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf .

[3] World Health Organization, Fact Sheet:  Female Genital Mutilation (2016), http://www.who.int/mediacentre/factsheets/fs241/en/.

[4] See, Satang Nabaneh & Adamson S. Muula ‘Female Genital Mutilation/Cutting: A complex legal and ethical landscape’ International Journal of Gynecology & Obstetric. (Published online: Feb. 19 2019)  https://doi.org/10.1002/ijgo.12792.

[5] United Nations Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Dec. 18, 1979, http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.

[6] United Nations Convention on the Rights of the Child, opened for signature Nov. 20, 1989, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx.

[7] Report of the Fourth World Conference on Women, A/CONF.177/20, chap. I, resolution 1, annex II, (1995) para. 124(i)

1995 Beijing Declaration and Platform for Action, para. 124 (i), http://www.un.org/documents/ga/conf177/aconf177-20en.htm.

[8]  G.A. Res. 67/146, Intensifying Global Efforts for the Elimination of Female Genital Mutilations (Mar. 5, 2013). Another resolution was adopted in 2016, see, G.A. Res. A/RES/71/168 (Dec 19, 2016).

[9] G.A Res. Transforming our world: the 2030 Agenda for Sustainable Development’ A/RES/70/1(Sept. 25, 2015).

[10] Human Rights Council Res. 38/1, Elimination of All Forms of Discrimination against Women and Girls, U.N. Doc. A/HRC/38/L.1/Rev. 1 (July 5, 2018).

[11] U.N. Human Rights Committee, CCPR General Comment No. 28:  Article 3 (The Equality of Rights Between Men and Women), CCPR/C/21/Rev.1/Add.10 (Mar, 29, 2000). See U.N. Committee Against Torture, General Comment No. 2:  Implementation of Article 2 by States Parties, CAT/C/GC/2 (Jan. 24, 2008); Manfred Nowak (Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment of Punishment), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, A/HRC/7/3 (Jan. 15, 2008).

[12] See U.N. Committee on the Elimination of Discrimination against Women & U.N. Committee on the Rights of the Child, Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, CEDAW/C/GC/31-CRC/C/GC/18 (Nov. 14, 2014); U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 22 on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/22, paras. 29, 49(a) & 59 (May 2, 2016); U.N. Committee on the Elimination of Discrimination against Women, General Recommendation No. 14 (Ninth Session, 1990), para. 15(d) (1990).

[13] African Commission on Human and Peoples’ Rights. Ratification Table: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa http://www.achpr.org/instruments/women-protocol/ratification/.

[14] Canadian HIV/AIDS Legal Network, Criminal Law and HIV Briefing Paper 12 (2008).

[15] Elsie Johansen et al., What Works and What Does Not: A Discussion of Popular Approaches for the Abandonment of Female Genital Mutilation, 2013 Obstetrics and Gynecology Int’l (2013).

[16] In some countries, once a human rights instrument is ratified, it automatically forms part of national law.  In other countries, including many common-law countries, provisions of treaties need to be directly incorporated into national law to give rise to enforceable rights and duties.

[17] World Bank, Compendium of International and National Legal Frameworks on Female Genital Mutilation (2018) [hereinafter World Bank Compendium].

[18] Guinea (1965), Ghana (1994), Burkina Faso (1996), Ivory Coast (1998), Senegal (1999), Djibouti (1995), and Togo (1998) banned the practice of FGM in their countries. See, R.J. Cook et al., Female Genital Cutting (Mutilation/ Circumcision):  Ethical and Legal Dimensions, 79 Int’l J. Gynecology & Obstetrics 281, 285 (2002).

[19] Women’s (Amendment) Act 2015, No. 11 of 2015, (Dec. 27, 2015), https://www.lawhubgambia.com/womens-rights (last visited Feb. 13, 2019); see Satang Nabaneh, Banning Female Circumcision in The Gambia through Legislative Change:  The Next Steps, AfricLaw, Jan. 19, 2016, https://africlaw.com/2016/01/19/banning-female-circumcision-in-the-gambia-through-legislative-change-the-next-steps/.

[20] Violence Against Persons (Prohibition) Act 2015, (May, 23, 2015), http://lawnigeria.com/LawsoftheFederation/Violation-Against-Persons-%28Prohibition%29-Act%2C-2015.html(last visited Feb. 13, 2019).

[21] Ordonnance No. 2005-015, Portant Protection Penale de L’Enfant (Criminal Protection of the Child), https://www.ilo.org/dyn/natlex/docs/MONOGRAPH/73641/75348/F518879681/MRT-73641.pdf (last visited Feb. 13, 2019). See World Bank Compendium, supra note 23, at 46.

[22] Law No. L/2008/011/AN, August 19, 2008. https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.xsp?documentId=AAC20477AF5D4B28C12576DC0039A4D7&action=openDocument&xp_countrySelected=GN&xp_topicSelected=GVAL-992BUD&from=state&SessionID=DZM89NQJK2.

[23] Law to Prevent, Combat and Suppress Female Excision in the Republic of Guinea-Bissau, Law No. 14/2011; see World Bank Compendium, supra note 23, at 38-41 (reprinting full text of law).

[24] Jina Moore, Sparing Girls a Painful Rite, N.Y. Times, Jan. 15, 2018, http://www.nytimes.com/images/2018/01/15/nytfrontpage/INYT_frontpage_global.20180115.pdf.

[25] Bakary Samateh, Two Remanded for Practising Female Genital Mutilation, The Point, Mar. 11, 2016, http://thepoint.gm/africa/gambia/article/two-remanded-for-practising-female-genital-mutilation. At the time of this Article, both court cases are still pending.

[26] Committee on the Elimination of Discrimination Against Women, Seventh Periodic Report of States Parties to be Presented in 2014:  Burkina Faso, U.N. Doc. CEDAW/C/BFA/7, at 19 (June 9, 2016).

[27] Law and Advocacy for Women in Uganda v. Attorney General (Constitutional Petition No. 8 of 2007), [2010] UGCC 4, Uganda:  Court of Appeal/Constitutional Court (July 28, 2010).

[28] Girls are initiated into puberty through a mock ceremony that bears the semblance of the ritual without the actual cutting.

[29] See Bettina Shell-Duncan et al., Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal, 47 Law & Soc. Rev. 803 (2013).

[30] Editorial: Changing Culture to End FGM, 391 The Lancet 401 (2018).

[31]  See e.g., Isabelle R. Gunning, Arrogant Perception, World Travelling and Multicultural Feminism:  The Case of Female Genital Surgeries, 23 Colum. Hum. Rts. L. Rev. 189, 189-248 (1992).

[32] Nellie Peyton & Lamin Jahateh, With Newfound Democracy, Gambia Faces Resurgence in FGM and Child Marriage, Reuters, Jan. 23, 2018, https://www.reuters.com/article/us-gambia-women-fgm/with-newfound-democracy-gambia-faces-resurgence-in-fgm-and-child-marriage-idUSKBN1FC0XA.

[33] See 28 Too Many (2018), The Law and FGM:  An Overview of 28 African Countries (Sept. 2018), https://www.28toomany.org/Law (last visited Feb. 13, 2019).

[34] Rebecca J. Cook et al., Reproductive Health and Human Rights:  Integrating Medicine, Ethics, and Law (2003).