The very existence of the law produces effects that go beyond the mere application of sanctions and the prosecution of those practising FGM. It serves as a deterrent and therefore protects girls at risk of undergoing FGM both from the practice itself and - in some cases - from the stigma associated with not being excised.
Maryam Sheikh shared her personal experience to highlight the dilemma faced by parents who want to both protect their daughters from FGC and to ensure their belonging and integration into the community. In addition, the girls themselves may ask to undergo FGM in order to be like other girls in their community.
Criticisms of legal measures to combat FGM vary depending on the context in the country of implementation and the prevalence rate. Despite criminalization in many African countries, the prevalence of FGM remains high. Legal measures have not yet led to a sufficient decline in the practice in many countries. This is in part because FGM is a deeply rooted, culturally entrenched practice and therefore change is slow. However, critics also argue that laws are not always implemented, that they are not always adequate and that there are several problems with implementation. 28 Too Many estimate that only 2 of the 22 countries with anti-FGM legislation meet all the criteria they consider necessary to ensure satisfactory prevention and protection. (1, 2)
In Africa, many anti-FGM laws imply that if consent is given by a woman or girl, FGM is not a criminal offence (because she has “chosen” to be cut). (1, 2) On the contrary, in most European countries, as well as in Australia, it is the fact that: Whether or not a girl or woman has consented to FGM does not affect the legal status of the act. Nevertheless, in some European countries, consent may reduce the severity of the penalty. (3)
In Mali, one of the 6 African countries that currently have no law prohibiting FGM, work is being organized in order to produce a preparatory document for the ECOWAS (Economic Community of West African States) Court of Justice and to feed into a lawsuit against the State of Mali. For more information, we recommend an article from Mali 24 on “Abandoning the practice of FGM: Towards the questioning of Mali before the ECOWAS Court” from which we have taken some excerpts:
During the discussion, members questioned the relevance of considering trials and convictions as evidence of the success of a law and as a useful tool to improve the effectiveness of the law. Hannah Wettig, working for Wadi in northern Iraq, shared her observations of the discussions on FGM laws and questioned the emphasis on prosecution. She began with the example of a German law whose effectiveness cannot be questioned by the mere lack of legal action.
Governments have signed international treaties obliging them to take action against FGM. Laws have been designed to be important tools to hold governments accountable for their obligations and duties under international law. However, members pointed out that although many African states have ratified international and regional human rights treaties addressing violence against women and girls, they do not always transpose them into national law and policy. Fatou Janssen witnesses the limits in the application of Maputo Protocol in Tanzania which has not taken the necessary measures to integrate it into national law.
In November 1996, the government passed a law prohibiting and sanctioning the practice of female genital mutilation (article 380 of the Criminal Code). The Constitution of Burkina Faso (adopted in 1991) does not, however, explicitly refer to violence against women and girls, harmful practices or FGM. In 2018, the Parliament adopted a new bill, further criminalizing the constitutive acts of violence against women and girls and providing for penalties for performing FGM.
Somalia has one of the highest prevalences of FGM 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.
The value of debating the use of anti-FGM laws was questioned by members. Two main arguments were confronted. Firstly, one of the members pointed out that any criticisms or arguments against anti-FGM legislation could apply to any existing law in the field of child protection or human rights in general. The law paves the way for social change but does not enshrine it. It is only a necessary step towards the elimination of the practice and a change in attitudes, which must be accompanied and complemented by education and awareness campaigns in particular.