States legal obligations under international treaties

As stated in the thematic note, governments have signed international treaties that oblige them to take measures against FGM. Laws were thought to be important to hold governments accountable to their obligations and duties takes under international law.

The Maputo protocol (The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa) obliges States to implement legislation against FGM, as well as other measures such as public awareness of FGM in all sectors of society, provision of necessary support to survivors, and protection of women who are at risk.

« Ratifying the Protocol obligates the State to respect, protect, promote and fulfil the rights. Article 5 of the Maputo Protocol is quite clear that States have an obligation to prohibit ‘through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of FGM and all other practices in order to eliminate them’. »

Nevertheless, members pointed out that even tough many (African) States have ratified international and regional human rights treaties dealing with violence against women and girls, they do not always integrate them in their national laws and policies.

Fatou Janssen : «This is the case with the Maputo Protocol is Tanzania. Tanzania ratified the protocol in 2007 and so far has failed to domesticate its provisions into national laws. This is for obvious reasons undermining the realization of women’s rights in the country, including the fight against FGM. Especially, since the Maputo protocol has specific provisions banning FGM and supporting victims. Thus, on paper it is great, but in reality women and girls can not claim their rights before national courts in Tanzania.

One member emphasized the problem with lacking reporting on the Maputo protocol by ratifying states. « To facilitate States in this process, the African Commission on Human and Peoples Rights through the mandate of the Special Rapporteur on the Rights of Women in Africa, has developed reporting guidelines to enable states meet this obligation. Despite these efforts the uptake has been quite low. States are not reporting on the Protocol to the level that we hoped they would. Even when they report on the African Charter on Human and Peoples’ Rights (the mother treaty) – they often neglect or omit to report on the Maputo Protocol (part B) specifically on women’s rights. This makes it very difficult to hold States accountable and to understand measures that they are taking to implement the Maputo Protocol and specifically to end FGM. »

Out of the 42 States that have ratified the Protocol, only 10 States (Nigeria, Rwanda, Lesotho, Burkina Faso, The Gambia, Malawi, Mauritania, Namibia, Senegal and South Africa) have reported on part B (the Maputo Protocol) this far.

In addition, there are still countries that haven’t signed and ratified treaties.

  • For Africa : the Maputo Protocol has been signed and ratified by 40 out of 55 AU Member States. Countries that haven’t ratified the protocol include CAR, Chad, Egypt, Eritrea, Ethiopia, Somalia, South Sudan and Sudan. – This means that these countries are not legally bound by the provisions in protocol.
  • For Europe : countries that haven’t ratified the Istanbul Convention (which is the first legally binding treaty in Europe that criminalizes FGM/C), are not bound by it. (See the End FGM Eu Network guide)

« When governments fail their legal obligations, women and girls and civil society organizations
can hold them legally accountable before courts. »

Strategic litigation (or impact litigation), i.e when using a lawsuit to bring a broader societal change, was mentioned by several members as a possible tool. It’s a way to hold governments accountable, as well as raising public attention to FGM, and encourage public debate on the issue.

« Although strategic litigation has its pitfalls, I believe when carefully performed, it also has the potential to start a public discourse on FGM, which in many cases does not take place but, that is a prerequisite for change of social norms and attitudes to take place. »

The End FGM EU Network, raised the concept of Due diligence in the European context: « a concept which is recognised in existing international law standards and is central in the Istanbul convention. The Istanbul Convention requires states parties to organise their response to violence against women, including FGM, in a way that allows relevant authorities to diligently prevent, investigate, punish and provide reparation for such acts, as well as to provide protection to women and girls at risk (Article 5). In this respect, states are legally obliged to prevent FGM, protect its victims and prosecute its perpetrators by adopting a comprehensive approach involving all relevant actors and agencies in their actions. It’s a recognition that legislation alone is not the solution. »

There was general agreement there is need to really hold governments and law enforcement agencies accountable when it comes to the effective implementation of anti-FGM laws.

« The regional human rights instruments, even though ratified by most African countries, still remained underutilized by most of these countries. It’s high time we harmonize our legal instruments(both domestic and regional) so that they can be effective for our continuous advocacy. »  

Brenda Dora : « In the Kenyan context, our government signed the Protocol in 2003 and ratified in 2010 therefore the Protocol is part of Kenyan law under the 2010 Constitution as per Article 2(6. In addition, the government has undertaken deliberate and systematic steps towards addressing gender discrimination and inequality through the enactment of pro-women’s legislation post-2010. Thus, Kenyan women and girls can claim their rights before national courts citing provisions of the Protocol in support of their legal claims. »

However, Tanzania has ratified the Maputo Protocol but is yet to implement its provisions in their national law.                    

The East African Community Prohibition of Female Genital Mutilation Bill, 2016, is an envisioned regional law that was formulated and tabled before the Assembly in 2016 to promote cooperation in the prosecution of perpetrators of FGM through the harmonization of laws, policies, and strategies to end FGM in Kenya, Uganda, Tanzania, and South Sudan. The Bill is very similar to the Kenyan Anti-FGM Act and borrows heavily from the Kenyan legislation – which is a pointer to the progressive nature of the Anti-FGM Act in Kenya – particularly on the penalties that have been set out in the law.

Among the objectives of the Bill :

  • the prohibition of FGM as a trans-national crime across the Member States
  • setting out the minimum penalties for the FGM across the region
  • establishment of institutions to foster cooperation towards ending FGM
  • facilitating the development and harmonization of policies, laws, strategies and programmes to prosecute offenders.  

Delays in agree on the regional Anti-FGM law has dealt a big blow in having a specific regional law that deals with FGM.

NEXT: Issues around (under-)reporting and (lack of) Prosecution

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