Can social change be legislated ?

Many members agreed that while it is important to have a legal framework to combat FGM, to hold perpetrators accountable and provide remedies to victims is important. However, there was also general agreement that laws alone are not enough to bring significant decrease in the prevalence, which has been seen in the case of most African countries.

Fatou Janssen, Human rights lawyer : « I do not believe that the passing of laws alone does deconstruct long held beliefs that are deeply rooted in the cultural and social life of communities. (…) laws per se will not significantly decrease the prevalence of FGM in Africa. This is not to say that having laws protecting women and girls, holding perpetrators accountable and providing remedies to victims is not necessary and important and can to a certain extent act as deterrent. However, evidence shows that despite anti-FGM laws being in place for years, in some countries in Africa and elsewhere, it has not resulted in a significant decrease of FGM in those countries. »

Annemarie Middelburg, Human rights lawyer, Phd : « History and experience tells us that laws alone cannot change social behavior. To my mind, having a law is not enough: a law needs to be implemented and enforced, and – perhaps more importantly – it has to be accompanied by strategies that encourage positive social change in communities. I think we would all agree that a multifaceted approach is necessary in order to be able to eliminate FGM. However, I do think that laws do play an important role in ending FGM. »

Reasons that laws have not had sufficient results on prevalence of FGM :

  • Laws aren’t fully implemented (for ex in Kenya)
  • Laws push FGM practice underground
  • Ignorance of laws among communities
  • Disregard of the law by practicing communities who see it as opposing their culture
  • Insufficient political will by governments
  • Insufficient resources (in terms of awareness-raising campaigns, education to trainings for students, teachers, law enforcement, health providers, creation of safe spaces for women and girls and communities to discuss and report cases of FGM, engaging men…)
  • Under-reporting of FGM
  • Lacking implementation of international treaties
  • Few or no prosecutions (but not always seen as a problem)
  • In many developing countries, the « wheels of justice turn slowly », enforcing laws against deeply ingrained cultural practices such as FGM/C takes time

Strenghts of the laws :

  • Make it explicit that the government does not approve the practice
  • Shows commitment to end the practice
  • Act as prevention and protection
  • Holding governments accountable, obliging them to comply with international treaties and to combat FGM
  • Possibility of strategic litigation – bringing cases to the public light and bringing about social change
  • Justifies training of professionals and students
  • Support for studies because governments wants to see results of the law
  • The law sparks a broader discussion about FGM in society
  • need for a strong affirmation that anti-FGM work is complying with government policy
  • the law can be used to regulate disputes around FGM at a community level, before justice procedures
  • The law is a facilitator of the change process, as it strengthens those in favor of ending the practice
  • The law can be a powerful tool for NGOs in their awareness raising and education programs

Annemarie Middelburg published a thesis focusing on the question whether states comply with international and regional human rights instruments (as highlighted at page 2 and 3 of the thematic note) in relation to FGM – whether these legal instruments that aim at ending FGM make a difference on the ground, focusing on Senegal.

« After I completed my PhD research, which included 4 months fieldwork in Senegal, I was a little disappointed in the power of law to shape behavior in relation to eliminating FGM. One of the main conclusions of my PhD research is that there is only to a limited extent compliance with (international) laws in Senegal. (…) The amount of court cases is not representative for the incidence of FGM in Senegal, because people refuse to report FGM cases to the police. » 

An UNFPA report analyse the legal frameworks in relation to FGM in 9 West African countries (Burkina Faso, the Gambia, Guinea, Guinea-Bissau, Mali, Mauritania, Nigeria, Senegal and Sierra Leone), with in-depth information about Burkina Faso. This UNFPA study on legal frameworks (available in English and French) can be downloaded here.

Annemarie Middelburg, who worked on the study in Burkina Faso, commented: « I must say that I have slightly changed my mind in relation to the importance of laws in relation to ending FGM after my experiences in Burkina Faso. While I was quite skeptical after finalizing my PhD research, I was more optimistic after I completed this UNFPA study. »

The study concluded :

  • Political will in favor of the elimination of FGM is key
  • Importance that people know and understand the law
  • Strong institutional framework is needed
  • Collaboration with law enforcement and judiciary is important

Next : States legal obligations under international treaties

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