LAW & FGM
What is the situation in Burkina Faso?
In November 1996, the government passed a law prohibiting and sanctioning the practice of female genital mutilation (article 380 of the Criminal Code). The Constitution of Burkina Faso (adopted in 1991) does not, however, explicitly refer to violence against women and girls, harmful practices or Female Genital Mutilation. In 2018, the Parliament adopted a new bill, further criminalizing the constitutive acts of violence against women and girls and providing for penalties for performing FGM.
Article 380 of the Penal Code clearly defines FGM and criminalizes and punishes any person who “violates or attempts to violate the integrity of the female genital organ by total ablation, excision, infibulation, by desensitisation or any other means”. (i.e. performing FGM). It also provides for penalties if the mutilation of female genitalia results in death. However, the law does not explicitly reference those who buy, help or encourage the practice.
Medicalised FGM is illegal in Burkina Faso but does not appear to be significant in the country (less than 1% of women aged 15–49 years are reported to be cut by a health professional).
Anti-FGM laws seem to have been more strongly enforced in Burkina Faso compared to neighbouring countries. There is, however, growing concern that families are taking their daughters across borders to avoid prosecution in countries where laws do not exist or are weakly enforced (including Mali, Niger, Ghana and Ivory Coast).
In fact, Burkina Faso is recognized as one of few countries in Africa where FGM legislation is effectively and systematically enforced. This can be attributed to: strong political will, translation of laws into local languages, involvement of members of the community.
“An innovative approach to legal proceedings in Burkina Faso is the use of mobile community courts, which entrust law enforcement directly to practicing communities. These have been very successful in raising public awareness of the law and involving all community members and the local media in the sentencing process for FGM cases.” (Nabaneh S., Muula S. A., 2019)
Burkina Faso has a law enforcement monitoring system criminalizing FGM. Given the situation in other countries, Burkina Faso appears to be a good example in terms of the implementation of the anti-FGM law.
History of the anti-FGM movement in Burkina Faso (contribution of Annemarie Middelburgh)
“The current favourable environment in Burkina Faso for the elimination of FGM at both the institutional and community level has been achieved through sustained efforts over a long period of time. These efforts began during colonization, when the Catholic missionaries tried to put an end to FGM by threatening to excommunicate those who practised it.” (UNFPA Regional Office for West and Central Africa, 2018) says Anne-Marie Middleburg.
Since the 1960s, there have been awareness raising campaigns against FGM in the country, but back then they faced fierce resistance from the traditional chieftainship. In 1975, during a national radio broadcast, FGM was condemned for the first time. In the 1980s, government support for the campaign to eliminate FGM took off and seminars were organized about the practice. The National Committee to Fight the Practice of FGM was established in 1990, before the law was adopted. It was later converted to a National Council and plays a very important role, as it liaises with 13 ministries, women’s rights and other NGOs, religious and community leaders, law enforcement officials and the judiciary. In 1992, a first National Action Plan (NAP) was developed, the law was adopted in 1996, a second NAP was adopted in 1999 and a third NAP in 2009. Since the law has been in place, many convictions have resulted in the imprisonment or fining of cutters and accomplices.
Some statistics: between 1997 and 2005, 95 cutters and parents were sentenced for practicing FGM. Between 2005 and 2009, 40 cutters and 648 parents were prosecuted. Between 2009 and 2015, 384 people (including 31 cutters) were sentenced. Remarkably, as these numbers show, it is mainly the accomplices rather than the cutters that are being prosecuted. The most common sentence for FGM is just over three months in prison. (UNFPA Regional Office for West and Central Africa, 2018)
A long process
Annemarie Middelburg began by stressing the initial reticence of the Burkinabe society with regard to the law, the measures taken in this context and the fight to abandon FGM in general.
“It is important to realize that, although Burkina Faso is known and recognized for this effective approach to law enforcement, this goal was not achieved overnight, as illustrated in a 2009 report (UNFPA, 2009) which noted:
“In Burkina Faso, as in many developing countries, the wheels of justice turn slowly; the enforcement of laws against deeply rooted cultural practices such as FGM/C poses many challenges. “
I would like to give a concrete example. When I interviewed Burkinabe police officers some years ago, they explained to me that during the adoption of the SOS hotline (used for anonymous denunciation of cases of FGM to the police), people called to complain about it’s existence and asked the policemen to stop fighting against FGM. There was also a strong resistance against the law’s implementation. As a matter of fact, Burkina Faso’s success shows us how progress can be accelerated thanks to the involvement and collaboration between different sectors.”
Moreover, from a judicial perspective, after the law was passed, many conditional sentences were imposed. The main reason for this, according to Annemarie Middelburg, was that the judges felt that putting both parents in jail was not in the best interests of the child. In addition, most prisons did not have specific sections for women, thus creating insecurity and hygiene problems for women. However, it was found that the public had a poor understanding of the concept of conditional sentencing. When convicts did not go to prison, they felt that they had done nothing wrong.
“To this day, it is a great dilemma for officials working in the justice system and there are different opinions as to whether or not conditional sentences are a good alternative. Nevertheless, when I was analyzing the statistics on prison sentences over time, it was clear to me that judges are now more frequently choosing to impose sentences of a few weeks to a month in prison rather than conditional sentences.”
Josephine Wouango also invited us to relativise the success of the law’s implementation in Burkina Faso as the process was slow and very progressive. The content of the law has evolved over time to become tougher and the decrease in the FGM prevalence rate was not immediately obvious.
“The 1996 anti-FGM law was revised in 2018 to make it tougher and more punitive (what is new: those who promote FGM on social networks will be prosecuted; in the event of death, the penalty is now 21 years in prison as opposed to 11 years in the 1996 law; if a health worker performs excision, this is the maximum penalty, etc.). In the statistics, there is a SLOW decrease (from 13.3% in 2010 to 11.3% in 2015 among 0-14 year olds according to the Continuous Multisectoral Survey).”
What has been done?
Annemarie Middelburg states that the innovative methods adopted by the country were strongly linked to the National Committee’s conviction that the law alone will not be enough to put an end to FGM.
“What is certain is that the SP / CNLPE (National committee) is aware that law alone cannot be the only solution. That is why this department has done (and still does) a big job of raising awareness, it communicates a lot in the different national languages to reach rural areas; but at the same time the SP / CNLPE enforces the law, and justice sanctions when cases are proven.”
Thus, new solutions have been designed and implemented in Burkina Faso:
- Innovative approaches such as the free telephone line, mobile court hearings, dissuasive patrols by security forces in villages remain at the heart of the SP/CNLPE’s action
- The purpose of mobile court hearings is twofold:
- first raise awareness, explain the reasons for the ban and the harms of the practice
- to punish to show that we are not joking, to warn all those who would be tempted to excise their daughters
Claudine Ouedraogo Kiswendsida, from Burkina Faso, gave an overview of the level of knowledge by the population of the law:
Concerning the amnesty period to educate the population, we first had to run an extensive campaign (TV, radio, general public, educational talks, mobile courts, etc.) to make the Burkinabe population aware of the law. Indeed, for years, there were plenty of suspended sentences. We supposed there were still areas unreached by the awareness raising campaigns , and those transgressing the law were saying they did not know about it. For us, it seems that the perpetrators are well and truly aware of the law’s provisions now.
What is still at stake today?
The fight against FGM in Burkina is not yet won and there are still points of tension and efforts to be made to achieve the full abandonment of FGM in the country.
First of all, Josephine Wouango reports that the practice still persists. Increasingly clandestine, as Claudine Ouedraogo Kiswendsida puts it, and more often practiced across national borders, the law is not uniformly respected on the territory and the practice of FGM is becoming more difficult to detect.
“The law is known, people can even recite articles from it, but why does the practice continue? Why do families cross the border to cut their daughters in Mali? Since 2018, there have been cases of groups of girls who have been excised, several times in different parts of the country. The SP/CNLPE is holding a series of mobile court hearings … This means that the circumvention of the law persists!”
Moreover, the measures to implement and maintain the law are costly, and finding the necessary funds to sustain the work already done is still an important issue today.
“All these innovative actions in Burkina Faso (mobile courts, dissuasive patrols, etc) have a cost and we need permanent financial resources to sustain them, which is still a challenge for the department in charge of the fight against cutting in the country.”
Finally, Joséphine Wouago and Annemarie Middelburg pointed out another problem related to the lack of data and serious studies on the acceptance of the law by the communities:
“The SP/CNLPE and its partners have the same need today: to have very in-depth studies, with immersion in the communities to understand what works and how it works.”
“Given that these statistics come from surveys based on personal declarations, it is not clear whether the decline is due solely and effectively to law enforcement or whether there is misrepresentation (of non-excision), the effect of “social desirability”, since people know that the practice is prohibited. More research is therefore needed to document this slight decrease, confirm that it is effective and find out the reasons for it.”
On the same topic
LAW & FGM Absence of law: the case of Mali In Mali, one of the 6 African countries that currently have no law prohibiting Female Genital Mutilation, work is ongoing in order to produce a document for the ECOWAS (Economic Community of West African States)...
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...
LAW & FGM Examples of national and regional anti-FGM laws and cases in some low-prevalence areas (2019) EUROPE Fiona Coyle, director of the European Network End FGM shared their vision of legislation and prosecutions. “Legislation and prosecutions are...
Law & FGM National laws on FGM 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...
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...
Loi & MGF International and regional legal frameworks on FGM 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...
LAW & FGM FGM: a deeply embedded social norm Maryam Sheikh shared her personal experience to highlight the dilemma faced by parents who want to both protect their daughters from Female Genital Mutilation and to ensure their belonging and integration into...
LAW & FGM Strengths and good practices of anti-FGM laws The very existence of the law produces effects that go beyond the mere application of sanctions and the prosecution of those practising Female Genital Mutilation. It serves as a deterrent and therefore...
LAW & FGM Issues & critiques linked to anti-FGM laws Criticisms of legal measures to combat Female Genital Mutilation vary depending on the context in the country of implementation and the prevalence rate. Despite criminalization in many African...
LAW & FGM The issue of Consent in anti-FGM laws In Africa, many anti-Female Genital Mutilation laws imply that if consent is given by a woman or girl, FGM is not a criminal offence (because she has “chosen” to be cut). (28 Too Many, 2013) On the contrary,...