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 is “by far the most common response adopted by African governments to address FGM/C”. (9)
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 to contribute to the decrease and eventually the elimination of FGM. The NGO also published 29 individual country reports. (1)
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:
- Sierra Leone
- Somalia (mentioned in the Constitution but no national legislation)
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) (1).
Asia and Middle-East
There is no law on FGM in Malaysia (11). 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 central Iraq. There is also no specific anti-FGM law in Iran but the Islamic Penal Code prohibits bodily mutilation and could be used to combat FGM. (13)
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. 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. (1, 6, 7, 11, 14)
What do the laws says?
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 persons 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). (1)
The penalties for performing FGM vary from one country to another, from a few months’ imprisonment, monetary fines, to life time 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. (1)
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. (14)
The question of Consent in anti-FGM laws
In Africa, many anti-FGM laws imply that if consent is given by a woman or girl herself, FGM is not a criminal offence (as she has ‘chosen’ to be cut). (1, 17)
On the contrary, in most countries in Europe, as well as in Australia, whether a girl or woman consented or not to the FGM does not affect the legal status of the act. Nevertheless, in some European countries consent may reduce the severity of the sentence. (14)
The fact that FGM is not a criminal offence if a woman consents to it is often considered to be a serious weakness of laws. Critics argue that women and girls are put under considerable social pressure to undergo FGM by their families, friends and communities. Consent should therefore not impact on the illegality of FGM and should not be permitted as a defence for the practice. (1, 17)
However, in Europe and the US, the rise in aesthetical genital surgeries, such as ‘labia reductions’ which became particularly popular in the 2010s, raise important questions on why a woman or teenage girl can consent to her labia being ‘trimmed’ or even removed, despite FGM being illegal. The “double-standard” created by the criminalization of all forms of (what is seen as “traditional”) FGM on the one hand, and the acceptance of other similar types of medicalized genital alterations is the object of increasing discussions among academics and NGOs in Europe and the US. (4)