The government of Burkina Faso passed a law in November 1996 prohibiting and punishing the practice of FGM (art 380 Penal Code). The Constitution of Burkina Faso (adopted in 1991) however does not explicitly reference violence against women and girls, harmful practices or FGM. In 2018 a proposed new draft legislation, further criminalising acts that constitute violence against women and girls and raising the penalties for carrying out FGM, was passed by the Parliament.
Article 380 of the Penal Code provides a clear definition of FGM and criminalises and punishes anyone who ‘harms or attempts to harm the integrity of the female genital organ by total ablation, excision, infibulation, by desensitization or by any other means’ (i.e. by performing FGM). It also sets out penalties if FGM results in death. The law does not, however, explicitly reference those who procure, aid or abet the practice. Medicalised FGM is illegal in Burkina Faso but does not appear to be significant in the country (less than 1% of women aged 15–49 years are reported to be cut by a health professional).
Anti-FGM laws seem to have been more strongly enforced in Burkina Faso compared to neighbouring countries. Thus, there is growing concern that families are taking their daughters across borders to avoid prosecution in countries where laws do not exist or are weakly enforced (including Mali, Niger, Ghana and Cote d’Ivoire). In fact, Burkina Faso is recognized as one of few countries in Africa where FGM legislation is effectively and systematically enforced. This can be attributed to: strong political will, translation of laws in local languages, involvement of members of community.
“An innovative approach to legal proceedings undertaken in Burkina Faso is the use of mobile community courts (audiences foraines), which take the enforcement of the law directly to the practising communities. These have been highly successful in raising awareness of the law and involving all members of the community and local media in the sentencing process of FGM cases.” (9)
France, where FGM was criminalized in 1983, is often cited as an example of good practice in the implementation of the law to tackle FGM in Europe. FGM is subjected to 10 years in prison or 20 years if the victim is under 15 years. Up to 2014, more than 40 FGM cases were brought before criminal courts, and about 100 persons prosecuted, most in the mid1990s. According to UEFGM, “The comparatively high number and visibility of cases prosecuted has played a major part in raising awareness within families and the general public” and the trials, together with community initiatives, have resulted in a decrease in prevalence since the 1980s. Currently, France is the only country to have prosecuted a substantial number of persons for FGM. (4, 14)
In the UK, the first law criminalizing FGM was passed in 1985 (revised in 2003). In 2015 several measures against FGM were included in the Serious Crimes Bill, including: making it illegal to fail to protect a girl from FGM, possibility to apply for a travelrestriction for girls at risk, genital examinations, anonymity for victims to encourage reporting, a lower burden of proof than before.
The first trial concerned a doctor who had treated an infibulated woman during an emergency delivery in 2013. The doctor, and another man who had been charged, were finally acquitted. This trial was critiqued as reports indicated that the government was under pressure to have a “show trial” because no prosecution had taken place despite the law and after several years of investigations of potential cases. (4)
Somalia has one of the highest prevalence of FGM with 97.9% for women aged 15–49. “Female circumcision” is mentioned in the Somali Constitution as a “cruel and degrading customary practice”, equivalent to torture. The Constitution states that “circumcision of girls is prohibited”. However, there is no specific national law on FGM and no provision establishes a punishment for breach of the Constitution. The Somali Penal Code (Law No. 05/19623, April 1964), applicable to all jurisdictions in Somalia (and Somaliland) makes it a criminal offence to “cause hurt to another that results in physical or mental illness”. It was reporter in 2015 that work had begun on a bill that would criminalise FGM across all of Somalia, but no specific bill has yet been presented. There is also no current legislation at the national level criminalising and punishing medicalisation of FGM, a growing problem in Somalia especially among wealthier families.
Because of the lack of national laws against FGM, cross-border practices are an increasing problem in the Region. Many Somalis live in the border regions of Ethiopia and Kenya, families move across borders to practice FGM in Somalia, avoiding prosecution in countries where a legal framework is in place. Likewise, some families living in low-prevalence settings in the US, Europe or Australia, are thought to take their girls back to Somalia for FGM to avoid prosecution.
There are some regional differences however. In Puntland a FGM legislation is awaiting parliamentary approval and the state has a Sexual Offences Act (2016) including “harmful practices” as well as an Islamic ruling (fatwa) against FGM. Because of the absence of national legislation on FGM, there are no reported cases of arrest or court cases concerning FGM in Somalia.
One important issue for the Somali context is that people tend to regard all types of FGM which are not infibulation (“Pharaonic circumcision” as “Sunna” and believing the latter to be sanctioned by Islam. Hence, 28 Too Many note that a future legislation will require clear definitions and understanding of all types of FGM. (2)
In USA, where approximately 500.000 women and girls are thought to be either living with or at risk of FGM, 33 states have anti-FGM legislation. Out of these, 10 have Mandatory Reporting of FGM. The Aha Foundation stress that 17 states are yet to criminalize FGM. However, others argue that FGM are already covered under general laws on child abuse. The U.S. Congress passed a federal law in 1996 making it illegal to perform FGM, including if American girls undergo the practice abroad.
In 2006, a father was sentenced to 10 years imprisonment for having performed FGM himself on his 2-year-old daughter.
In 2017 an American doctor was charged in Detroit federal criminal court for having performed genital mutilation on young girls from the (Indian) Bohra community. The “Michigan FGM trial” is the only case of FGM that has been brought to court under the federal law. However, in 2019 a federal trial court decision ruled that the federal law banning FGM was unconstitutional because the Constitution does not give Congress any general power to suppress crime, including murder, violence against women or child abuse.
Immediately following the FGM case in Michigan, the state passed the strongest and most comprehensive anti-FGM legislation in the US. Activists are calling for other states to pass their own anti-FGM laws. (3, 11)