LAW & FGM
Discrepancies in national legislations and cross-border FGM
Somalia
Somalia has one of the highest prevalences of Female Genital Mutilation with 97.9% among women aged 15-49 years.
“Female circumcision” is mentioned in the Somali Constitution as a “cruel and degrading customary practice”, equivalent to torture. The Constitution stipulates that “the circumcision of girls is prohibited”. However, there is no specific national law on FGM and there is no provision for punishment for a violation of the Constitution. The Somali Penal Code (Law No. 05/19623, April 1964), applicable to all courts in Somalia (and Somaliland), criminalizes “causing harm to another person resulting in physical or mental illness” (1). It was reported in 2015 that a bill criminalizing FGM throughout Somalia was being prepared, but no text has yet been introduced. There is also no legislation on the national level criminalizing and sanctioning the medicalization of FGM, a growing problem in Somalia, especially among wealthier families.
Due to the absence of national laws against FGM, cross-border practices are a growing problem in the Region. With many Somalis living in the border regions of Ethiopia and Kenya, families cross borders to perform FGM in Somalia, avoiding prosecution in countries where a legal framework is in place. Similarly, some families living in low-prevalence areas in the United States, Europe or Australia are believed to bring their daughters back to Somalia for FGM in order to avoid prosecution.
There are, however, regional differences. In Puntland, legislation on FGM is pending approval by Parliament and the state has a Sexual Offences Act (2016) that includes “harmful practices” as well as an Islamic ruling (fatwa) against FGM.
In the absence of national legislation on Female Genital Mutilation, there have been no cases of arrests or trials relating to FGM in Somalia.
An important problem for the Somali context is that people tend to consider all types of FGM that are not infibulation (the “pharaonic circumcision”) as “sunna” and believe that it is sanctioned by Islam. Therefore, 28 Too Many notes that future legislation will require clear definitions and understanding of all types of FGM. (28 Too Many,2018)
Guinea Conakry
Guinea was the first country to have a specific law against FGM.
CoP member Barry Bano gave us some information on the national situation:
“Regarding the law in Guinea Conakry. Based on the information at my disposal, there has been no evaluation of the effects of the different laws on FGM in Guinea by national and/or international researchers. But we know that the level of prevalence in the country, just behind Somalia, shows the limits of the legislative approach, and perhaps of other actions carried out on the ground.
Certainly, in some studies, the issue of criminalization has been addressed, but not in a frontal, central and/or comprehensive manner. For the most part, there is some data on the level of knowledge of the existence of the laws and, above all, on the positions of the population in the event of trials and convictions of guilty parties.
Finally, we know that there have been a few complaints (around 5 in the last five years), mediatized trials and a few sentences pronounced against some cutters, but not against the parents of young girls or health personnel (disciplinary sanctions and legal proceedings).
It is also known that the sentences handed down have been far below those provided for (many more suspended than firm sentences). There are a few NGOs active in denouncing and mobilizing for prosecutions, however these actions seem to be more symbolic than resulting from systematic action. There is a specific police unit with almost regular capacity building, but the chain of judicial procedure functions weakly: ‘some prosecute and others punish little and/or very weakly’. “
The Gambia
Fatoumatta A. Camara, a member of the global GirlsNotBrides community, presented the situation in The Gambia, where the law is not enforced and is easily circumvented by the population, who only have to cross national borders to escape prosecution:
“The practice of FGM in The Gambia has, over the decades, recorded very high statistics, especially in rural areas. The practice is still prevalent in most ethnic groups in the country. This is alarming and calls for the need to enact a law that will prohibit the practice. The Gambian government enacted the Anti-FGM Act in December 2015, which criminalizes the practice in its entirety.
However, the law provided only for sanctions for individuals and perpetrators of the practice in The Gambia. A key element that was missing was the issue of cross-border practice. A large number of rural people now take their children to neighbouring regions around The Gambia in order to practice FGM. There is no provision in the law to regulate this or that situation, which is a big step backwards.
Moreover, even though the law is still in force and civil society organizations and other youth and women’s groups have mobilized in recent decades, people hardly report cases of female genital mutilation to the authorities. Since the entry into force of the law, only two cases had been reported and were up to date, and the courts had not handed down any significant decisions on the cases. Although the practice continues to be highly prevalent, the provisions of the law are hardly effective in mitigating it.
In conclusion, I would just like to say that, to the extent that we need to review our advocacy commitments and adopt more concrete mechanisms to adapt to the reality of the practice, we really need to hold our Governments and law enforcement agencies accountable to ensure the effective implementation of anti-FGM laws. Regional human rights instruments, although ratified by most African countries, are still under utilized by most African countries. It is high time to harmonize our legal instruments (national and regional) so that they can be effective for our continued advocacy. “
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