As the media’s focus is currently largely on the coronavirus outbreak, some of you might have missed some very good news in the international legal environment. On 22 April, Sudan’s new government has finally outlawed the practice of female genital mutilation. This amendment to Sudan’s criminal code now entails a possible three-year prison term and a fine for anyone performing FGM in the country. This ban on FGM is nevertheless unlikely to be enough to completely eradicate this harmful practice. With this article, we will bring you through an explanation of this phenomenon, which is still culturally deeply enshrined in several African countries. What are the reasons behind this tradition? What are the consequences of it for women? How is it done, where and at which age? All those points will be addressed in order to give you, at the very least, a basic understanding of the many factors that come into play in the process of abolishing such a traditional practice, making a legal prohibition a first step to attain this goal, but certainly not a sufficient and inherent one.
The most widely used definition of FGM states that female genital mutilation comprises all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. It has been classified into four categories. Type I refers to the partial or total removal of the clitoris and/or the prepuce. Type II is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision). Type III is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and apositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation), while type IV refers to all harmful procedures to the female genitalia for non-medical purposes, such as piercing, incising, pricking, etc. FGM is carried out mostly on young to teenage girls, but it can also be performed on adult, married women, depending on the cultural and regional setting. It is mostly done by traditional circumcisers, but medical settings are increasingly provided in order to reduce the various risks of the procedure. These risks are many, including but not restricted to severe pain, excessive bleeding, infections, as well as urinary, vaginal, menstrual, sexual and psychological problems, increased risk of childbirth complications, and even death. To give a bit of an overview, the number of girls and women on which types I, II and III of FGM has been carried out has been estimated to be around 100 to 140 million, reported in 28 countries in Africa, as well as in a few countries of Asia, Middle East and Central and South America. Why is it the case that FGM is still so widely practiced in the world?
The reasons are explained through various socio-cultural factors, which may vary over time and from one region to another. Probably the most obvious one is that FGM in these countries is so deeply enshrined culturally speaking that it has become a social convention and norm. It means that not perpetuating the practice which has been universally unquestioned since, in some countries, the Antiquity, could lead to social rejection, and it is specifically this fear of not being socially accepted which lead to the continuity of the tradition. This is why FGM, where it is widely practiced, is often also supported by women. The social benefits of perpetuating the norm outweighs the harm it inflicts. Next to the social norm incentive, culturally speaking, FGM is very often considered as a necessary rite to raise a girl and prepare her for the transition from childhood to adulthood and marriage. Sexual and purity reasons may be found as well, notably with FGM of type III where the vaginal opening is covered or narrowed, as a means to ensure premarital virginity and marital fidelity. Indeed, this type of FGM will make sexual intercourse hurtful and impossible to hide. It can also be associated with cultural ideals of femininity, as the girl is considered ‘cleaner’ after removal of genital parts seen as ‘unfeminine’. Interestingly, the practice can also be carried out for religious reasons, even though no religious support for FGM can be found in religious scripts. FGM also persists through the various figures of authority (political, religious, medical, family, etc) promoting the practice.
From a legal point of view, FGM has been recognized by several international and regional legal instruments, as well as consensus documents, as a harmful practice and a violation of various human rights of girls and women. They include the principles of equality and non-discrimination on the basis of sex, the right to life (in case the procedure results in death of the girl/women), the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, and the right to the highest attainable standard of health. Specific attention shall be given to the violation of the child’s fundamental rights. As their status make them more vulnerable and in need of the care and support of their parents, special protection is afforded to children through human rights law by demanding the parents, when making a decision on behalf of their child, to take into consideration the best interests of the child. In the specific case of FGM, the parents therefore perceive that the benefits of the practice outweighs the negative consequences and risks it entails for their girl. However, the practice is an irreversible one, meaning that it does not only deprive the child to be genitally intact, but it also deprives the future adult of the same opportunity. The temporary lack of capacity to give an informed consent cannot, in the eyes of human rights law, gives the right for the parents to make a decision on a permanent alteration of their child’s body. The Convention on the Rights of the Child, consequently, will never consider FGM as being in the best interests of the child, even when the girl actually consented to it, as it considers the child’s judgment being biased by the social pressure of the tradition, the family, and all other reasons lying behind the procedure mentioned above. The fundamental right to participate in cultural life and freedom of religion cannot therefore be invoked as a justification for FGM, as these rights can still be limited in case they violate fundamental rights and freedoms of others, which has been demonstrated here. In this regard, many human rights treaty monitoring bodies have called upon states to take appropriate and effective measures, as well as reporting information about these measures taken to the Committee on the Elimination of All Forms of Discrimination against Women, with a view to eradicating FGM.
However, even if some countries such as Sudan have outlawed FMG, and that international legal instruments have recognized FMG as a violation of fundamental rights and freedoms of girls and women, this is far to be enough for the practice to be abandoned. Of course, legal measures are important in order to make known of the government’s disapproval, especially if sentences such as a prison-term or a fine are attached to it. In that way, the ban on FMG could act as a deterrent, meaning that it would deter people from practicing FMG primarily by fear of the punishment. But for a law to be effectively enforced when it comes to eradicating a social norm, it will need to be applied in combination with a revision of the various socio-cultural factors described above. These multi-sectoral interventions can be carried out in various ways. In Mali, the practice has shown a declining trend, even if it is not yet outlawed by the government. Instead, FGM has been challenged at the family and community levels. Challenging the discriminatory reasons (need to control female sexuality) and the traditions, with the support of older generations, has been a useful solution in Mali. One significant step as well is educating the girls on their rights, including the right to decide what happens to their body as change can only occur by raising awareness throughout empowering education. In the same line, we need to speak directly about the risks of the practice, and the sometimes-false beliefs behind it, such as the belief that religion demands and supports FGM. Many other solutions have been proposed and have been proved to be effective. What truly matters in this process of social change and eradication is that the action taken must be multi-sectoral, involving different sectors (justice, health, education, etc) and actors (government, nongovernmental organizations, community groups, etc). The action must also be sustained in order to have a lasting impact, and community-led by encouraging a collective choice to eradicate the practice. Only by taking into account the various socio-cultural factors behind FMG and by challenging those, instead of focusing only on a prohibition of the practice, could FMG be ultimately abandoned.
We hope that with this new article, you learnt something that deserves to be known and that you better understand why criminalization of a certain type of behavior is not sufficient in itself to eradicate it. Don’t hesitate to share your insights with us!
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