Last week, officials from 27 African states, United Nations envoys and international activists assembled in Dakar, Senegal, for a conference on female circumcision. The aim of the meeting was to encourage the adoption of a universal resolution that explicitly prohibits female genital mutilation as a practice that violates human rights.
According to the World Health Organisation, between 120 and 140 million girls and women in about 28 countries are the victims of female circumcision – being the partial or total removal of the external female genitalia or other injury to the female genital organs. The practice is carried out most widely in Africa and the Middle East. As a result of globalisation, it now also increasingly occurs in Western countries among migrant and refugee communities. While cultural and religious elements lie at the root of the practice, the girls’ and women’s health is often seriously affected by it.
A question that comes to my mind when reading about this harmful practice, is whether this problem is related to the legal framework (i.e. is there a lack of prohibition by law?), or related to enforcement of the law. If we take the African continent as a case study, we find first of all the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also called the Maputo Protocol. You can find the text of the Protocol here. This Protocol guarantees comprehensive rights to women, and obliges states parties, amongst other things, to prohibit the practice of female genital mutilation (article 5):
States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including:
b) prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them;
The Maputo Protocol was adopted by the African Union on 11 July 2003 and entered into force on 25 November 2005 after having been ratified by the required 15 member states of the African Union. Of the 53 African Union member states, 46 states signed the Protocol and 27 states ratified it – among those that ratified are several states in which the practice is carried out. Botswana, Egypt, Eritrea and Tunisia are the only states that have neither signed nor ratified the Maputo Protocol.
On the international level, the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) imposes on states parties the duty to prevent, investigate and punish violence against women. Of all African states, only Sudan and Somalia have not ratified the Convention. On the national level, most of the African states in which the practice of female circumcision is prevalent have prohibited the practice in their national legislations. Finally, the international, regional and national legal standards against torture and other cruel, inhuman and degrading treatment serve as legal prohibitions on female genital mutilation.
It can thus be concluded that the problem of female circumcision is not (or no longer) a problem related to the lack of legal instruments prohibiting and punishing the practice, but that the real problem is a lack of enforcement of the relevant law. It seems that states often lack the political will to effectively try and punish those carrying out the practice.
Thank you for an excellent post. Surely, primary obligations here rest with states. However, it seems this is an area where the law cannot provide all the answers. It is hard to impose the prohibition of female circumcision upon an African rural community where such act is considered as coming of age by which a woman is accepted as full-fledged member of a community. In most rural communities in Africa, a women which refuses to undergo this procedure, is excluded from the social environment of such small communities. Alas, international human rights law cannot and does not here provide the right answer. The solution may be sought beyond the law in education and development.
Thank you for the interesting comment. I fully agree, education and development are crucial to tackle this problem. And I think it’s primarily the state that should take appropriate initiatives in this regard. Isn’t it there that it often goes wrong? National governments might be afraid that they lose the political support of communities if they interfere with their traditional practices like female circumcision (whether by enforcing the law or by ‘imposing’ new ideas).
Then the subsidiary role of the international community comes into play.
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