LAW and FGM, are we having an implementation crisis?

By Cynthia Umurungi, moderator of the CoP on FGM, and Caroline Lagat, Programme Officer- End Harmful Practices at Equality Now

 

Female genital mutilation (FGM) is a serious and extreme form of gender discrimination that has been recognised as a violation of women’s and girls’ right to be protected from torture. While there is a wide assumption that FGM is mostly practiced in Africa, Equality Now and its partners found in their report Female Genital Mutilation: A Call for a Global Response that there is presence of FGM in 92 countries. This therefore means that the practice is global.

According to this report, of the countries with nationally representative data available on FGM, such as Democratic and Health Surveys (DHS), laws against FGM are most common on the African continent. In fact, 55% of all specific anti-FGM laws globally are implemented in 28 countries in Africa.  Of these 28 countries, Kenya, Benin, Eritrea, Guinea-Bissau, and Uganda have enacted specific national laws prohibiting FGM while others have prohibited FGM within other existing laws. These countries include Burkina Faso, Cameroon, Central African Republic, Chad^[1], Côte d’Ivoire, Djibouti, Egypt, Ethiopia, The Gambia, Ghana, Guinea, Mauritania, Niger, Nigeria, Senegal, Sudan, Tanzania, Togo, and Zambia.

Mali, Liberia, Sierra Leone, and Somalia^[2] are the only of these African countries without national legislation prohibiting FGM.

Moreover, Equality Now found reports, both from the media, UN agencies and small-scale studies, of the existence of FGM in another 14 countries in Africa: The Democratic Republic of Congo (DRC), Libya, Malawi, South Africa, South Sudan, and Zimbabwe. Of these countries, only 4, DRC, South Africa, South Sudan, and Zimbabwe, have specific provisions criminalising FGM.

Thus, in total, out of the 55 Member States of the African Union, 46 are known to practice FGM in larger or smaller scale. Out of these 46 FGM affected countries, only 32 criminalise FGM through legislative provisions.

Effectiveness of the law against FGM

For the law to be effective, it has to be implemented by the government, be respected by the citizens, and applied by the judicial bodies.^[3] Therefore, cultural settings or attitudes towards the law can impede implementation of an anti-FGM law. In Burkina Faso, before the amendment of the Penal Code in 2020, perpetrators who were charged with the offence of performing or aiding and abetting the performance of FGM and found to be first-time offenders were generally given a suspended sentence. This was because the punishment as prescribed under the Penal Code was considered to be too harsh by some Magistrates. Thus, the judicial practice hindered the effectiveness of that law and resulted in these first-time perpetrators being charged again for repeating the offence.

In Guinea, the first laws against FGM were voted in 1965, but it was not until 2016 that the new Penal Code included FGM as a practice considered dangerous and harmful to the health of young girls and women. . The new anti-FGM law provides for a sentence of up to 20 years of criminal imprisonment when a girl or a woman dies as a result of FGM. Despite the provisions  and the longevity of the law, FGM prevalence in Guinea has not significantly changed . This goes to show that the law needs more supporting elements for it to be effective.

Negative correlation between law and prevalence

During the conversation on Law and FGM, organized by the CoP on FGM on August 25th 2021, the panellist, Judge Kabusco Keita, stressed that despite the heavy penalties under the Penal Code in Guinea Conakry, prevalence remains high because few people report the practice. There are very few sanctions for cases referred to the police, justice system etc. The laws in Guinea i.e., the Penal Code and the Children’s Code do not have gaps or loopholes in criminalizing the practice of FGM as all situations are considered including perpetrators who take part directly or indirectly. The problem remains in preventive actions and sanctions. There is little push back against FGM resulting in very little reporting of FGM cases due to highly intrenched social norms.

The presence of  national anti-FGM laws in a country result in increase of cross-border FGM in an attempt by perpetrators to avoid prosecution. If that law prohibits cross-border FGM, the challenge of enforcement comes into play because African borders are porous, lack of coordination between law enforcement agents of neighbouring countries, varying enforcements of the law, and in unlucky situations, bordering a country that does not criminalise FGM within its laws. Mali does not criminalise FGM therefore cutters and families from neighbouring Burkina Faso, Cote d’Ivoire, Guinea, and Senegal move there to perform FGM undetected. Poor implementation of law in Burkina Faso ensures that perpetrators are not prosecuted, and victims do not receive justice. This is the same case in the region of Guidimakha in Mauritania, which is very remote and difficult to access but also a hotspot area for cross-border FGM with Senegal and Mali.

In cases where the community’s support for FGM is strong, criminalisation of the practices should go hand-in-hand with the protection of victims and witnesses from intimidations and harm during prosecution of their cases. In Liberia, when Ruth Berry Peal sought justice for having been forced to undergo FGM, she faced harassment and beating from the community to drop the case. The case proceeded until its conclusion and the perpetrators were sentenced to imprisonment, but the police refused to execute the court order.

What needs to be done beyond having a law in place?

^[4] As we can see in the examples above, having a law is not enough. Therefore, enforcement and implementation of the legislation is key and this is where many laws prohibiting FGM fail.

In Kenya, police or law enforcement officials conducting investigations do not have access to the physical copies of the FGM prohibiting laws. Secondly, even with access to these laws, most investigators and other actors in the justice chain such as medical examiners, lawyers and judges are not adequately trained to understand the specificities of FGM to enable them to perform their role effectively and ensure access to justice for victims of FGM. Additionally, in some communities, FGM is linked with child marriage. When a girl has been rescued from child marriage, she is taken to medical practitioners who examine her in order to identify if she has suffered sexual abuse (known as defilement in the Kenyan context^[5]). In most cases, the fact that she has undergone FGM is not recorded. As a result, the perpetrators who caused her to undergo FGM go unpunished even in cases where a sexual abuse case within the context of child marriage is taken to court. We cannot stress enough, the importance of both law enforcement agents and medical examiners being properly trained to understand the interlinkages of FGM and child marriage to ensure that evidence on FGM is collected in all cases of child marriage. Generally, states’ political will and adequate allocation of funds affects the implementation of the law against FGM. Government agencies in charge of FGM have to be properly funded and geographically present in areas where the services are required. In her blog, Eva Komba explains that the Anti-FGM Board in Kenya is mandated to conduct design and implement programmes aimed at eradicating FGM/C.^[6] Following the Presidential Declaration to End FGM by 2022, its activities have increased exponentially to include the launch and operationalisation of Anti-FGM Steering Committees in 22 Counties so as to localise anti-FGM programmes within communities. However, the Board receives very little funding from the government thereby relying heavily on financial support from donors and CSO partners.   In Mali, the Programme National pour l’Abandon des Violence de Lutte contre des Violence Basées sur le Genre (PNVBG), formerly known as Programme National de Lutte Contre la Pratique de l’Excision (PNLE), receives limited funding from the government thereby limiting its prevention activities to infrequent awareness-raising programmes. Similarly, CSOs in Mali have greatly supported PNVBG’s work.

Finally, it is important for Anti-FGM programmes to address the root causes of FGM. Far too often, conversation on why FGM should be eliminated have relied on the ‘harms’ approach, meaning the harmful effects of FGM. For this reason, in Sierra Leone and Liberia, pro-FGM movements are countering by arguing that medicalisation of FGM will reduce the harm of FGM and advocating for adult women’s ‘bodily autonomy’ – the right to go through FGM. More gendered and human rights centred advocacy on FGM needs to be applied to ensure that the deeply rooted gender norms and beliefs leading to discrimination against women and girls are addressed and to enrich the gender transformative approaches that the movement to end FGM adopts.

 What should we do to ensure implementation or respect of the law?

• Informed advocacy: NGOs and activists working at a grassroots level must have access to knowledge of FGM prevalence and the status of laws in order to inform their vital work to end FGM

• Encourage reporting cases of FGM: Establishing the responsibility to report FGM cases should be added into national laws of countries practicing FMG.

• Improved cooperation of all actors who work to end FGM nationally and regionally: Collaboration between state bodies and agencies such as Anti-FGM Boards, police, prosecutors, medical practitioners, child protection and civil society organizations cannot be overstated. Moreover, neighbouring African countries must strategize and collaborate to tackle ongoing challenges that include medicalisation and cross-border FGM. These are real threats which are often neglected in national legislation.

• Quality data: It is important as governments prioritise implementation of law to also collect, preserve, and disseminate qualitative and quantitative disaggregated data on FGM i.e., prevalence, practicing communities, regions, programmes implemented, and their impact amongst others. This will facilitate quality planning and implementation of programmes to prevent and address FGM. The government should enable CSOs and activists working with victims of FGM to contribute to the collection of data by adopting policies that standardise data.

• Push for amendment of laws: CSOs and women’s rights activists should advocate for amendment of laws that do not prohibit all forms of FGM and cross-border FGM to ensure that these loopholes are filled to provide maximum protection for women and girls from FGM.

• Protection of victims from intimidation: Government should adopt witness protection laws to provide protection for victims and witnesses at risk of intimidation or harm. CSOs and women’s rights activists should push their governments to adopt such protective measures.

• Mobilisation and training: The implementation of the law shouldn’t be focused on prosecuting perpetrators only but to motivate change in social and cultural norms of the community thereby offering greater protection to women and girls. It is important to sensitise the community about the provisions of the law and facilitate numerous inter-generational conversations on FGM. All state actors should receive regular training on FGM and their role in eliminating the practice to ensure that they are highly equipped to handle FGM cases that are reported and that they offer victims the highest possible care thereby minimising their re-victimisation. This includes law enforcement agents, prosecutors, medical practitioners, magistrates, and all others involved in the justice chain.

• Adequately fund anti-FGM work: African governments must invest in anti-FGM programmes that challenge prevalent social and gender norms, promote gender equality, and improve the wellbeing of girls and women.

• Hold governments accountable: Activists must continue to challenge current legal environments that do not support efforts to eliminate FGM. Together, we must put our governments under pressure to make sure they meet the commitments made to international treaties and to achieve the SDGs.

^[1] FGM/C is prohibited in Chad by the Reproductive Health Law passed in 2002 however the implementation decree required to bring the law into force was only passed in 2018. This decree has to be signed by the President before it can become effective.

^[2] The Constitution of Somalia prohibits the ‘circumcision of girls’ however there is no legislation that implements this provision and there has been no known instance of FGM/C being prosecuted under the criminal code.

^[3] Krešić Mariod, Efficacy of Law in Theory and Practice: The Effectiveness of the Adjudication (2019) Interdisciplinary Management Research XIV (IMR) <https://www.bib.irb.hr/1056516>

^[4] Krešić Mariod, Efficacy of Law in Theory and Practice: The Effectiveness of the Adjudication (2019) Interdisciplinary Management Research XIV (IMR) <https://www.bib.irb.hr/1056516>

^[5] Under Section 8 of Kenyan Sexual Offences Act (CAP. 62A), defilement is an offense in which a person causes penetration with the genital organs of a child.

^[6] Section 5 of the Prohibition of FGM Act <Microsoft Word – Paged_Prohibition of Female Genital Mutilation Act _No. 32 of 2011_.doc (kenyalaw.org)>