LAW & FGM
Limits & strenghts of international treaties (2019)
Limits to international treaties
Governments have signed international treaties obliging them to take action against Female Genital Mutilation. Laws have been designed to be important tools to hold governments accountable for their obligations and duties under international law.
However, members pointed out that although many African states have ratified international and regional human rights treaties addressing violence against women and girls, they do not always transpose them into national law and policy.
Fatou Janssen witnesses the limits in the application of the Maputo Protocol in Tanzania which has not taken the necessary measures to integrate it into national law:
“While I think it’s great that many countries have adopted international and regional human rights treaties addressing violence against women and girls, I must point out that, unfortunately, in some cases, states ratify (legally commit to uphold, respect and promote the rights and obligations under a specific convention/treaty) but do not internalize (translate them into national legislation). This is the case of the Maputo Protocol in Tanzania. Tanzania ratified the protocol in 2007 and has so far failed to incorporate it’s provisions into national laws. This is for obvious reasons that undermine the realization of women’s rights in the country, including the fight against FGM. All the more so as the Maputo Protocol contains specific provisions prohibiting FGM and supporting the victims. So, on paper, it is great, but in reality, women and girls are not able to assert their rights before the national courts in Tanzania.”
Anne Marie Middelburg agreed with Fatou Janssen’s statements, underlining the existing gap between States’ apparent commitments and the measures effectively taken:
“I agree with Fatou that many treaties, including the Maputo Protocol, are not domesticated. You gave the example of Tanzania. This also corresponds to my experience. If you look at the archives of many African states, it often looks very promising. Most states have signed CEDAW, CRC, ACHPR and ACHPR. These human rights instruments contain provisions stating that FGM/C is a violation of human rights and oblige states to take measures to prevent and eliminate the practice.
States have the obligation to prevent, protect, investigate, pursue and punish those responsible, including individuals, for violations to human rights. Even if individuals practice FGM/C (rather than State’s agents), States stay accountable for these private acts if they omit to act with the required diligence to prevent, investigate and, in accordance with national legislation, punish cases of FGM/C committed by individuals. Nevertheless, in the end, what matters is the fieldwork. And the conformity gap is huge.”
Flavia Mwangovya further highlighted gaps in monitoring the implementation of the Maputo Protocol. The signatory States of the Protocol, which are normally required to submit regular reports attesting to their progress in transposing the Protocol into national law, do little to fulfil their duty:
“Signatory States of the Protocol are required to report regularly to the African Commission on Human and Peoples’ Rights on the legislative and other measures (including administrative measures) they have taken to implement this principle (in accordance with Article 26 of the Maputo Protocol). To facilitate the task of States in this process, the African Commission on Human and Peoples’ Rights, under the mandate of the Special Rapporteur on the Rights of Women in Africa, has developed reporting guidelines to enable States to fulfil this obligation. Despite these efforts, the rate of participation has been quite low. States are not reporting on the protocol at the level we had hoped for. Even when reporting on the African Charter on Human and Peoples’ Rights (the mother treaty), they often neglect or fail to report on the Maputo Protocol (Part B) specifically on women’s rights. This makes it very difficult to hold states accountable and to understand the steps they are taking to implement the Maputo Protocol and, in particular, to end FGM. Out of the 42 States that have ratified the Protocol, only 10 States (Nigeria, Rwanda, Lesotho, Burkina Faso, The Gambia, Malawi, Mauritania, Namibia, Senegal and South Africa) have reported on part B (the Maputo Protocol) thus far.”
In addition, there are still countries that haven’t signed and ratified treaties condemning FGM. Thus, they are not bound by any obligation to take steps to prohibit the practice and take perpetrators to courts.
- For Africa : the Maputo Protocol has been signed and ratified by 40 out of 55 AU Member States. Countries that haven’t ratified the protocol include CAR, Chad, Egypt, Eritrea, Ethiopia, Somalia, South Sudan and Sudan. – This means that these countries are not legally bound by the provisions in protocol.
- For Europe : countries that haven’t ratified the Istanbul Convention (which is the first legally binding treaty in Europe that criminalizes FGM/C), are not bound by it. (See the End FGM Eu Network guide)
Strength of international treaties
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.
Solutions to overcome the weaknesses of international treaties
Brenda Dora shared with the members a regional draft bill in East Africa aiming to mitigate issues in the implementation of the Maputo Protocol and harmonize its application by its signatories.
“The Prohibition of Female Genital Mutilation in East Africa Bill 2016 is a proposed regional law that was formulated and presented to the Assembly in 2016 to promote cooperation in the prosecution of perpetrators of FGM through the harmonization of laws, policies and strategies to end FGM in Kenya, Uganda,Tanzania and Southern Sudan. The bill is very similar to Kenya’s anti-FGM law and draws heavily on Kenyan legislation – an indicator of the progressive nature of the anti-FGM law in Kenya – particularly with regard to the penalties provided for in the law.
(…) Among the objectives of the Bill :
- the prohibition of FGM as a trans-national crime across the Member States
- setting out the minimum penalties for the FGM across the region
- establishment of institutions to foster cooperation towards ending FGM
- facilitating the development and harmonization of policies, laws, strategies and programmes to prosecute offenders.
Delays in the agreement on the regional Anti-FGM law has dealt a big blow to having a specific regional law that deals with FGM.”
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