LAW & FGM
Legal framework on FGM (2019)
International legal instruments on FGM
Female Genital Mutilation is internationally recognized as a practice that violates human rights. A number of international conventions and declarations form the legal framework for the protection and promotion of women and girls’ human rights and are relevant to FGM:
- the Universal Declaration of Human Rights (UDHR)
- the International Covenant on Civil and Political Rights (ICCPR)
- the International Covenant on Economic, Social and Cultural Rights (ICESCR)
- the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- the Convention on the Rights of the Child (CRC)
practices, such as FGM/C.” (28 Too Many, 2018a)
Moreover, fear of FGM in one’s country of origin is grounds for international protection (asylum) under the 1951 Geneva Convention on the Status of Refugees.
Regional legal instruments on FGM
There are specific legal obligations for the African continent, including:
- the African Charter on Human and People’s Rights (art 18)
- the African Charter on the Rights and Welfare of the Child (art 21)
- the Maputo Protocol (Protocol to the African Charter on the Rights of Women in Africa, art 5).
The Maputo protocol (The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa) obliges States to implement legislation against FGM, as well as other measures such as public awareness of FGM in all sectors of society through programs of information, informal or formal education and sensitization, provision of necessary support to survivors (including health services, legal and judicial support, psychological and emotional advice as well as professional trainings), and protection of women who are at risk (art.5, Maputo)
“Ratifying the Protocol obliges the State to respect, protect, promote and fulfil the rights. Article 5 of the Maputo Protocol is quite clear that States have an obligation to prohibit ‘through legislative measures backed by sanctions, all forms of FGM, scarification, medicalisation and para-medicalisation of FGM and all other practices in order to eliminate them’.”
In the European region, FGM is considered a violation to several treaties and conventions:
- the European Convention on Human Rights
- the EU Directive on Victims’ Rights
- the Istanbul Convention (the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence)
The Istanbul Convention recognized the existence of FGM in Europe and the need to systematically address the practice and its prevention. One of the “four Ps” of the Convention is prosecution, meaning to prosecute offenders that subject (or try to subject) a woman or girl to FGM.
Thus, all States that commit to the international human rights instruments cited above are obliged to prevent FGM and protect women and girls from the practice. One of the key duties is to put in place legislative measures to prohibit FGM. However, as most of them are examples of “Soft law” they are not legally binding.
Which countries have laws against FGM?
Several countries with a high prevalence of FGM, as well as low-prevalence countries with important populations originating from countries where FGM is practiced, have passed national anti-FGM laws.
The first national law worldwide was passed in Guinea Conakry in 1965.
Legal sanctions are “by far the most common response adopted by African governments to address FGM/C”. (Nabaneh S., Muula S. A., 2019)
28 Too Many published a report in 2018 identifying current legislation relating to FGM in each of the 28 African countries where the practice continues. The aim of the report is to consider how the content of the laws as well as their implementation and enforcement might be improved in order to contribute to the decrease and eventually the elimination of FGM. The NGO also published 29 individual country reports. (Aha Foundation, 2019 )
Out of the 28 countries in Africa where FGM is known to be practiced, 22 have national legislation criminalising FGM – either through specific anti-FGM laws or within criminal/penal codes or other forms of legislation.
However, the NGO reports that legislation is currently failing to protect women and girls from FGM in most of these African countries because laws are rarely enforced, and prosecutions are rare.
Moreover, 6 countries are currently without laws, meaning FGM is effectively still legal in:
– Sierra Leone
– Somalia (FGM is mentioned in the Constitution but no national legislation forbids it)
Nevertheless, in 2018, 5 out of 6 of these countries either had a draft legislation waiting to be passed or an expressed intention to pass a law to ban FGM.
28 Too Many emphasizes that these 6 countries have signed international and regional treaties obliging them to put in place legislation and implementation measures against FGM. Nevertheless, they did not find any example of a state being formally challenged for failing to adopt and enforce national anti-FGM legislation (whether by the international and African regional institutions, or by citizens) (Aha Foundation, 2019 ).
Asia and Middle-East
There is no law on FGM in Malaysia (Berer M., 2015; FGM New Zealand). Likewise, in India, where FGM is traditionally practiced by several sects and is most prevalent among the Bohras, there is currently no anti-FGM legislation.
FGM is outlawed in the Kurdish Autonomous Region of Iraq but is still legal in the rest of the country. There is also no specific anti-FGM law in Iran although the Islamic Penal Code prohibits bodily mutilation and could be used to combat FGM. (EIGE, 2018,)
Indonesia previously had a ban prohibiting health care professionals from performing FGM. However, due to opposition from the highest Indonesian Islamic advisory body the ban was repealed in 2010 and a new regulation concerning FGM was issued by the Ministry of Health, authorising certain medical professionals, such as doctors, midwives and nurses, to perform types Ib or IV “without hurting the clitoris”.
FGM is forbidden in all 27 European Union (EU) member states as well as in other countries in Europe. It is also criminalized in the USA, in Australia and in New Zealand (Rashid A., Iguchi Y., 2019; Australian Human Rights Commission, 2016). Some countries have laws specifically criminalising FGM, while others prosecute cases under existing criminal law (causing bodily injury, mutilation, removal of organs/body tissue).
Child protection laws are applicable to FGM in Europe as it is considered a form of child abuse. In the US FGM is illegal in all States, either by targeted anti-FGM laws (33 states), or by general laws against child abuse and assault. Up to this day there have been few prosecutions in low-prevalence countries. (Aha Foundation, 2019; Berer M., 2015; Australian Human Rights Commission, 2016; Johnsdotter S., Mestre R. M., 2015; Johnsdotter S., 2019)
What do the laws say
Several African countries where FGM is illegal are lacking a clear definition of what constitutes FGM (Cameroon, Ethiopia, Nigeria and Tanzania). Two countries only prohibit the performance of FGM if the girl is under 18 years of age (Mauritania and Tanzania). In 18 countries it is illegal not only to perform FGM but also to arrange and/or assist in the act of FGM.
Moreover, in half of the 22 countries with anti-FGM laws in place, there is a legal requirement to report knowledge of FGM. The NGO argues that all countries should widen the responsibility to report FGM so that those who fail to do so could be persecuted. Concerning medicalized FGM it is only specifically criminalized in 9 African countries while some laws, on the contrary, provide “loop holes” for FGM practiced by medical professionals (ex Egypt). (Aha Foundation, 2019 )
The penalties for performing FGM vary from one country to another, from a few months’ imprisonment, to monetary fines, to a life sentence in prison. The African countries with the longest maximum prison sentences are Cameroon (20 years) and Tanzania (15 years), while those with the highest fines are Benin, Côte d’Ivoire and Kenya. African countries with the lowest penalties overall are Ethiopia, Guinea, Niger, and Sudan. (Aha Foundation, 2019 )
In Europe and other low-prevalence regions, girls are considered particularly at risk of being cut when travelling to their country of origin or the country of origin of their parents. Therefore, most European countries as well as Australia and some US states, have a “principle of extraterritoriality” in their law, meaning it is possible to prosecute acts of FGM committed outside a country’s borders. The application of this principle differs from country to country: the offender and/or the victim must often be a citizen or resident of the country concerned. In some cases FGM must also be illegal in the country where it took place. (Johnsdotter S. 2019)
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