LAW & FGM

Even if international treaties can be criticized and their implementation contains limits, they are still very useful and important tools in the fight against FGM.

Flavia Mwangovya emphasizes the benefits of international treaties for national legislation as they can mitigate their shortcomings and incite States to adopt national measures:

“International instruments relating to human rights (treaties, covenants, etc) have an essential role to play in triggering or catalysing actions at the national level. Where they are ratified by States, these legal instruments impose legally binding obligations on them that they have to respect on the national level. They also often contain monitoring and accountability mechanisms (treaty monitoring organs), that we should, especially in civil society, be conscious of, capitalize and make good use of. Keeping in mind that, in some contexts, international treaties and covenants, once ratified, depend on national legal orders and are part of domestic law.”

“Where national efforts are not producing the desired results, international human rights instruments can provide a basis for strategic impact, litigation at the regional or international level and argue for the accountability of states in accordance with their obligations, which in turn could lead to systemic change – this process can be long and tortuous, but it is worthwhile. Mali is a party to the Maputo Protocol (ratified in 2005) and should therefore be held accountable if it does not take action at the national level to implement its commitments under the Maputo Protocol. We hope to be able, through the ECOWAS tribunal, to urge the government of Mali to take the necessary steps to enact and implement a law on FGM.”

Brenda Dora reports that in Kenya the ratification and transposition of the Maputo Protocol has been perfectly ensured by the government and has been accompanied by measures to combat FGM which contribute to the success of the law:

“In the Kenyan context, our government signed the Protocol in 2003 and ratified it in 2010 and it is therefore part of Kenyan law under the 2010 Constitution, in accordance with Article 2. In addition, the government has taken deliberate and systematic steps to address gender discrimination and inequality through the enactment of gender friendly legislation since 2010. As a result, Kenyan women and girls are able to assert their rights in the national courts, invoking provisions of the Protocol in support of their legal claims.”

Fatou Janssen further insists on the importance of international treaties as tools for advocacy and sensitization and on the opportunity offered by the litigations brought before the international Courts to open the debate on FGM and apply pressure to governments:

“When governments fail in their legal obligations, women / girls and CSOs can hold them accountable before the Courts. For instance, strategic litigations are a means to use the law in order to hold governments accountable and to raise public awareness on FGM and can support public debate in favor of a wider governmental accountability to fight efficiently against FGM. Although strategic litigation has its pitfalls, I believe it also has the potential to open a public discourse on FGM, which does not frequently occur but that is a prerequisite for the transformation of social norms and attitudes ”

Key concept to remember: Strategic litigation (or impact litigation) consists in using a lawsuit as a tool to bring about a broader societal change. It is a way to hold governments accountable, as well as raising public attention of FGM and governments’ responsibilities on this matter, and encourage public debate on the issue.

Fiona Coyle then reported on a breakthrough brought about by the Istanbul Convention thanks to the concept of due diligence imposing on States an obligation in the implementation of the Convention and thus the fight against violence against women, which includes FGM:

“When we talk about law, we should not only look at the perpetrator and the victim (the legislative element), but also at the legal obligations of the State, especially under international law and treaties. In this regard, it is interesting to look at due diligence. It is a concept that is recognized in existing international law standards and is central to the Istanbul Convention. The Istanbul Convention requires State Parties to organize their response to violence against women, including FGM, in a manner that enables competent authorities to prevent, investigate, punish and redress such acts in a timely manner, as well as to protect women and girls at risk (Article 5). In this regard, States have a legal obligation to prevent FGM, protect victims and prosecute perpetrators by adopting a comprehensive approach involving all relevant actors and bodies in their actions. This is a recognition that legislation alone is not the solution.”

Key concept to remember : Due diligence (in the context of the Istanbul Convention) imposes on States an obligation not of results but of means, i.e. States must act in good faith and their willingness to respect their commitments and combat all forms of violence against women must be visible. Their actions must not hinder the implementation of the Istanbul Convention and they must take the necessary measures for its implementation, monitoring and evaluation within their means.