Legal framework in Africa
What is the situation in terms of legislation against FGM in Africa in 2021?
In 2019, at the time of the CoP FGM thematic discussion on “Law&FGM,” of the 28 countries in Africa where FGM is practiced, 22 had national legislation criminalizing the practice-either through specific anti-FGM laws, criminal codes, or other forms of legislation. Six countries had no law, meaning that FGM was effectively still legal. Fortunately, in 2021, the situation had improved in some of these countries.
Below, we have listed the main evolutions in terms of anti-FGM legislation that the African continent has seen in recent years.
In 2021, the CoP also recorded two video-interviews about the situation on the African continent in general as well as in Liberia in particular, which you will find below.
Sudan, where nearly 9 out of 10 girls are survivors of FGM, recently ratified a law criminalizing the practice. Following our 2019 discussion, where Sudan was cited as one of the countries without a law banning FGM, the nation’s highest governing body announced the criminalization of the pratice in April 2020, three months after the cabinet passed the penal code amendment (Aljazeera, 2020). The anti-FGM law in Sudan also criminalizes the medicalization of FGM by providing for three years in prison and a fine for practitioners as well as the closure of hospitals, clinics and other places where it is performed.
Since our discussion of Law & FGM in 2019, the Egyptian cabinet has tightened the law banning FGM in the country. This new development is the second of its kind in 5 years. According to Reuters, the changes to the law include increasing the maximum penalty, which is currently seven years, and banning doctors and other medical personnel involved in FGM from practicing their profession for up to five years. (Reuters, 2021)
As highlighted in our 2019 discussion, Somalia still does not currently have a law prohibiting FGM. FGM is mentioned in the constitution without being truly defined and without specifying penalties for its practice (28 Too Many). However, progress on the issue has recently been noted in Puntand, a semi-autonomous region of Somalia. According to a recent article published by Yahoo News, criminalization of FGM is close, and it could be the first country in the Horn of Africa to achieve this. Although the law has not yet been ratified, it has been endorsed by the president and cabinet and is awaiting parliamentary approval.
Reporting about the situation in Somaliland, CoP member Maria Väkiparta, shared that CSOs and local NGOs have been lobbying for an anti-FGM bill and policy for many years. Despite the advocacy work, political and religious leaders have not been able to agree on how to address the different types of FGM: while local CSOs, INGOs and the Ministry of Employment and Social Affairs (MESAF) have promoted zero tolerance, religious leaders – including the Ministry of Religious Affairs – have been willing to ban only FGM type III (“pharaonic cutting”, infibulation). According to her, the Ministry of Employment, Social Affairs and Family is intensifying its efforts to present an anti-FGM policy to the new House of Representatives and the new Cabinet.
The practice of FGM has been sanctioned in Burkina Faso since 1996. Revised in 2018, the law now includes additional prison sentences and fines. There has been no innovation since then in terms of anti-FGM legislation. However, the implementation of this law reveals a number of issues raised by actors on the ground that need to be taken into consideration in order to better combat FGM.
In general, anti-FGM laws appear to have been more strongly enforced in Burkina Faso than in neighboring countries. In fact, the country is often recognized as one of the few countries in Africa where FGM legislation is effectively and consistently enforced. This can be attributed to: strong political will, translation of laws into local languages, involvement of community members.
“An innovative approach to judicial proceedings in Burkina Faso is the use of mobile community courts, which entrust the enforcement of the law directly to practicing communities. These have been very successful in raising public awareness of the law and involving all community members and the local media in the process of sentencing FGM cases.” (Nabaneh S., Muula S. A., 2019)
Burkina Faso has a law enforcement system that criminalizes FGM. Given the situation in other countries, Burkina Faso appears to be a good example in terms of implementing the anti-FGM law. Nonetheless, in 2019, COP experts shared a growing concern that families were taking their daughters across borders to avoid prosecution in countries where laws do not exist or are weakly enforced (including Mali, Niger, Ghana, and Côte d’Ivoire).
In 2019, when we first discussed the topic of “Law &FGM,” Mali was one of six countries without a law prohibiting FGM. At that time, AMPOST, in collaboration with Equality Now and other development partners working to protect women and girls, planned to file a complaint against Mali before the ECOWAS Court of Justice. In 2021, two years later, Mali has still not passed any laws criminalizing FGM. Yet the fight against these practices has been going on in the country since the 1960s, and Mali has ratified international conventions and treaties, such as CEDAW and the Maputo Protocol for the protection of women and girls.
On April 12, 2021, several women’s rights groups jointly filed a complaint against Mali at the ECOWAS Court of Justice in Abuja. According to Equality Now’s Africa director, Faiza Mohamed, Mali has been called upon several times over the past 18 years to pass a law criminalizing FGM for the protection of women and girls within the country. According to IHDRA Executive Director Gaye Sowe, “This case would not only allow the ECOWAS Court to make a binding ruling on the FGM situation in Mali, but would also set a legal precedent and legal standards applicable not only in Mali and West Africa, but in all of Africa” (Equality Now, 2021)
There is currently no law in Sierra Leone prohibiting FGM. Sierra Leone ratified the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) in 2015, but entered a reservation on Article 5, which places positive obligations on the state to prohibit FGM by enacting and enforcing laws against the practice.
According to Equality Now, the persistence of the practice in Sierra Leone is due to the lack of political will and the inability of the state to openly condemn the act.
Chad’s new constitution adopted in 2017 and promulgated on May 4, 2018, prohibits FGM and defines it as an infringing on fundamental rights and freedom.
In 2002, Chad officially enacted Law 006/PR/2002 on the promotion of reproductive health, which is the primary piece of legislation penalizing FGM in Chad. However, it took 18 years, until 2020, for a decree to be issued, allowing the law to be implemented.
Article 9 specifically prohibits all forms of violence, including FGM, early marriage, domestic violence, and sexual abuse. It provides that everyone has the right not to be subjected to torture and cruel, inhuman or degrading treatment of the body in general and of the reproductive organs in particular. However, article 9 does not define female genital mutilation.
Article 18 criminalizes any transgression of the provisions of this law on reproductive health by: practice, writing, speech, advertising or propaganda. Given the broad nature of section 18, it is likely that aiding and abetting FGM falls within the scope of the law, although this is not explicitly stated. The reproductive health law does not, however, impose a duty on anyone to report knowledge of FGM, nor does it criminalize failure to report the practice, whether planned or already performed.
Beyond this arsenal of laws that attempts to impose a legislative framework on the practice of FGM, it often clashes with the actual norms that regulate the social space that is difficult to deconstruct. However, it is local norms and endogenous behaviors that should be taken into account in the future decree implementing Law 006/PR/2002 on the promotion of reproductive health to better combat FGM, as can be seen in : Chad – a legislative situation that is currently being implemented and that already faces several challenges.
As of 2021, there is still no law prohibiting FGM in Liberia. In January 2018, former President Ellen Johnson Sirleaf, on her last day in office, had issued a decree banning FGM for one year in the country. In early 2019, when that ban expired, the legislative arm of government repealed sections of the Domestic Violence Bill (2014) that were meant to ban the practice.
The CoP on FGM met with Harold Marvin Aidoo, Founder and Executive director of Integrity Watch Liberia, and NGO that works to promote inclusive development and a democratic form of governance with gender equity, respect for the rule of law and accountability. Watch the interview below.
Anti-FGM legislation in Africa - a conversation with Equality Now
We had a conversation about anti-FGM legislation in Africa with Carolina Lagat, Program Associate for Ending Harmful Practices, at the NGO Equality Now. We explored Equality Now’s intervention in Mali and other countries where they work. Watch it here, it’s in English with French subtitles.
“The Community of Practice on Female Genital Mutilation” is part of the “Building Bridges between Africa and Europe to tackle FGM” project, supported by the “UNFPA-UNICEF Joint Programme on the Elimination of FGM”.
The project is coordinated by AIDOS in partnership with GAMS Belgium.
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