LAW & FGM
Issues & critiques linked to anti-FGM laws
Criticisms of legal measures to combat Female Genital Mutilation 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. (28 Too Many, 2018b; Nabaneh S., Muula S. A., 2019)
In Europe and other low-prevalence Western societies, critical voices are challenging what is perceived to be an overuse of legal measures against communities from countries with high FGM prevalence, leading to stigmatization and negative consequences for the well-being of children and parents in the concerned communities.
It should be noted that prosecutions for FGM have been relatively few on this continent.
Lacking sense of ownership by communities
Lack of acceptance of laws condemning the practice is one of the reasons cited for the continuing high prevalence in many African communities. Some critics argue that the concerned communities are often not involved in the legislative processes. Thus, communities may feel that laws are imposed from outside and challenge their norms and culture.
In Uganda in 2012, practicing communities in one village were so opposed to laws against FGM that they ended up “arresting” and attacking a police officer who came to arrest potential suspects.
Another example of the negative effects of anti-FGM laws is the way in which the 1967 law in Tanzania allowed practitioners to reinvent FGM as the only cure for a “disease” affecting children, lawalawa.
In fact, in some contexts, traditional and religious leaders have more power and influence than national governments. Sometimes there is also a conflict of interest for police, politicians and community leaders who continue to support the practice.
To be effective and prevent FGM, laws must be widely known and understood in all communities. However, according to 28 Too Many, affected communities in Africa too often lack knowledge about the law (28 Too Many, 2018b). They stress the importance of drafting laws so that they are easy to understand, including in all local languages. Fatou Janssen concurred, arguing that:
“The law is largely unknown to those it is supposed to protect (women, girls and communities) and to those who are supposed to apply it (law enforcement agencies and health professionals, education officers…). ”
In Kenya, too, communities affected by FGM are still not aware of the existence of the law, as Brenda Dora points out:
“The implementation of the Prohibition of FGM Act 2011 is hampered by the fact that communities that practice FGM are totally unaware of the law and/or legal measures in favour of their culture. We are all aware of the rigidity of traditional culture and practices and their resistance to change; therefore, most communities tend to defend themselves against the legal measures imposed. Considering the punitive sanctions provided by the law that have a deterrent effect, the practice has gone underground, with most communities stating that they cannot comply with a law that does not respect their culture and the fact that they were not consulted when the law was being conceptualized . However, some communities are completely unaware of the existence of the anti-FGM law in Kenya, which raises the question of whether the government, through the FGM Control Council, has allowed for sufficient awareness and sensitization since the law was passed.”
Similarly, some diaspora communities affected by FGM lack information about the legal system of the host country. There are too few reports of FGM cases or at-risk situations.
Limited reporting of cases of FGM and at-risk situations
People from communities affected by FGM may not want to report the practice, either because they are in favour of it or because they do not want to file complaints against members of their family or community. With anti-FGM laws, FGM is carried out in the privacy of the family and community to avoid detection by law enforcement officials. In addition, where FGM is a strong social norm, community members who openly oppose it risk stigmatization and rejection and may feel excluded from their community.
For migrant communities (in low-prevalence countries), fear of host country authorities may be an additional barrier to reporting FGM. (28 Too Many, 2018b)
The limited knowledge of professionals and law enforcement about FGM and legal measures appears to be an obstacle to identifying and reporting cases (girls/women at risk or subjected to FGM) in Africa and Europe.
Moreover, according to UEFGM, professionals in Europe may not want to report a suspicion of FGM if it is vague, as they fear “disproportionate responses” which, in their view, are not in the best interests of the child. (United to End FGM) While some experts stress the importance of protecting all girls from FGM, others argue that this fear is not entirely unfounded (see section below).
Annemarie Middelburg contributed with input about the situation in Senegal:
“One of the main conclusions of my thesis (“Empty promises? Respect for the human rights framework with regard to FGM/Cutting in Senegal”) is that respect for (international) laws in Senegal is limited. At first glance, the degree of compliance might seem rather promising: the Senegalese Constitution establishes the exercise of rights without discrimination, an impressive institutional framework has been put in place and brings together many National Human Rights Institutions (NHRIs) involved in the promotion and protection of human rights, a national law criminalizing FGM was adopted in 1999, National Action Plans (NAPs) and many other policies aimed at preventing and eliminating FGM, and CSOs (including Tostan)are actively involved in community awareness-raising at the grassroots level.
However, further analysis has shown that FGM is still practiced in Senegal with impunity. The number of court cases is not representative of the prevalence of FGM in Senegal because people refuse to report FGM cases to the police. Since the adoption of the law, few people have been prosecuted for performing FGM. Although the NAPs and policies have great potential for coordinating actions in the area of FGM, they are not well implemented. Adequate accountability mechanisms at the national and local levels to monitor compliance and implementation of these policy documents are lacking.”
Brenda Dora further underlined weaknesses in reporting in Kenya:
“Implementation of the Act has also been hampered by the quality of prosecution of FGM cases since the enactment of the law. There has been under-reporting of FGM cases in the hot-spot counties where FGM is rampant; and should any arrests be made the communities have a vow of silence where witnesses are intimidated so as not to testify in court, thus forcing judicial officers to have the cases dismissed due to lack of sufficient evidence meeting the evidentiary threshold required by Kenyan criminal law.
However, we have had a few convictions over the years since 2011 where perpetrators have been successfully convicted in the lower courts but acquitted on appeal – this points to a need to improve the quality of prosecutions so as to achieve solid convictions that will also be upheld even in the appeals court.”
Barriers to prosecution
Although there have been prosecutions or arrests in some African countries (Burkina Faso, Egypt, Ghana, Senegal, Sierra Leone), overall there have been very few. In The Gambia, for example, the law against FGM was adopted in 2015 and since then we have only seen 2 cases bought to trial.
Similarly, in Europe there have been very few court cases in all countries combined, with the exception of France.
Moreover, for the African region conflicts of interest are also a problem when local police and the judiciary itself come from practising communities. (UNFPA Regional Office for West and Central Africa, 2018; World Bank, 2018; Yusuf C., Fessha Y., 2013)
Difficulties gathering enough evidence can hinder a case of FGM being brought to court, particularly in Europe.
Loopholes in the law
In some African laws on FGM, references to “therapeutic” and “medical” reasons may create loopholes for the practice. This is particularly true in Egypt, where FGM is becoming increasingly medicalized. (28 Too Many, 2018b)
In low-prevalence settings such as the USA and Europe, cosmetic genital surgery is not included in the legal definition of FGM. Thus, “medical” types of genital surgery, which share similarities with “traditional types of FGM”, such as lip, clitoral or vaginal reductions, are legal for adult women and adolescent girls.
Some laws do not address cross-border FGM
In 19 African countries, laws do not specifically address the issue of cross-border FGM: only 3 prohibit and punish it (Guinea Bissau, Kenya and Uganda). Yet in countries where FGM has become illegal, families sometimes cross borders to have their daughters cut and avoid prosecution.
Some European countries and several US states do not have a “principle of extraterritoriality”,
thus legally permitting so-called “holiday excisions”.
Legal measures are not enough… and may even have negative effects
Disproportionate responses in Europe
In Europe, critical voices consider that legal measures and other strategies to combat FGM have negative effects on African-European girls and their communities (United to End FGM;, Berer M., 2015; Johnsdotter S., Mestre R. M., 2015; STOP FGM Middle East):
- ethnic and racial profiling
- Stigmatization of certain communities and exaggerated suspicion of their members.
- compulsory genital examination of girls who are incapable of consenting, without parental consent and/or information
- detention of parents (without proof of incident)
- children placed in foster care
In two British cases, parents were arrested at the airport because they were travelling with their daughters. Both cases were subsequently dropped. Critics point out that such cases show that a simple accusation of FGM, without any evidence, is sufficient to remove the girls from their parents. (Berer M., 2015)
The use of mandatory genital examinations has been questioned in Europe: who should perform these examinations? On what grounds? How often should girls considered at risk be examined? In a recent article, Johnsdotter shows that compulsory genital examinations are overused for Swedish girls of African origin with negative effects on their well-being, and that these examinations have not identified a single case of FGM having occurred in Sweden. (Johnsdotter S., Mestre R. M., 2015)
Several authors also point out that even experts are not always able to tell whether a girl or baby has been subjected to FGM, making the evidence for trials questionable.
Given the lack of evidence of FGM in the United Kingdom, Berer (UNFPA Regional Office for West and Central Africa, 2018) questions the very existence of a specific criminal law against FGM in the country. According to her, the country’s judicial services “have spent several years trying to find appropriate cases with sufficient evidence to obtain a conviction.” She criticizes the law, which she says is aimed at “punishing behaviour that has not been proven in the UK and then finding someone to punish
for it”.
Laws are necessary but not enough
Fatou Janssen has summed up the situation stating that laws are necessary but hard to implement in order to be completely efficient and are not enough.
“To summarize, the mere fact of legislating is not enough to provoke social change. To efficiently protect women and girls from FGM, laws have to be known, accepted and wholeheartedly taken on board by practicing communities. Similarly, enough resources are necessary to ensure that stakeholders are sensitized, trained and have enough means to correctly implement anti-FGM laws and policies. Furthermore, the law can be a useful tool for holding governments accountable for their inability to apply anti-FGM laws and policies.”
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