Female Genital Mutilation: A review of legislation

Female genital mutilation (FGM) has been conducted for over 4000 years in various parts of the world. Due to the deeply entrenched cultural importance of FGM to those societies practising it, there has not only been a reluctance in many countries to legislate against it, but attempts at implementing legislation have met firm resistance.

In addition, any legislation passed seeking to restrict or ban FGM is relatively recent, as the practice itself has only attracted the attention of the international community in the last 25 years.

The scale of the problem facing those attempting to ban FGM is vast. According to the UN Children’s Fund, UNICEF, between 100 and 130 million women have had the procedure performed on them, while every year a further 2 million girls are at risk of some form of FGM.

It is practised predominantly in Africa, where the practice originated, but can also be found in parts of the Middle East and Asia, and owing to immigration, is today found in Europe and North America.

Twenty-eight out of 53 countries in Africa practise FGM in one form or another. FGM is an integral part of certain communities’ cultures, but is totally foreign to others. In Sierra Leone, for example, approximately 90 percent of all women have been circumcised as part of their initiation into womanhood. In Kenya, approximately 37 percent of females have been cut. With certain groups, such as some Maasai communities, the average is raised to over 80 percent. In Rwanda and Burundi, however, as well as among the Luo and Luhya communities of Kenya, the practice is unheard of.

FGM: A human rights violation

FGM is considered to be a fundamental violation of human rights, according to various international and regional organisations. In their book, "Female Genital Mutilation: A Guide to Laws and Policies Worldwide", authors Anika Rahman and Nahid Toubia hold that the following human rights are violated by the practice of FGM:

The right to be free from all forms of discrimination against women.
The right to life and physical integrity, including freedom from violence.
The right to health.
The rights of the child.

The Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) are examples of international instruments, ratified after WWII, which officially address and uphold the notion of female rights as a separate aspect requiring particular attention.

More recently, three international conventions and declarations, namely the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Convention on the Rights of the Child (1989), and the Declaration on the Elimination of Violence against Women (1993), all represent the legal framework, which campaigners and legal experts consider significant in detailing how FGM transgresses agreed norms and why it needs to be outlawed.

Any campaign to eliminate or outlaw FGM soon realises that it is dealing with a deeply rooted cultural tradition, and legislation is only acceptable when it originates from host governments. Even the national government may not provide sufficient legitimacy for many ethnic groups, who may already feel they have been marginalised. In most cases, FGM-practising communities take great exception to the intervention of the international community, which is often attempting to criminalise a vital part of their culture. This resistance extends to the national level, with resentment developing against members of other ethnic communities attempting to eradicate the practice.

Legal measures, if they are to be effective, have to be combined with widespread backing of the policies among practising communities, which requires raising public awareness, as well as government strategies that support the empowerment of women. Governments must also be prepared to support the institutions through which the laws are implemented.

Decades of increasing pressure

Efforts to eradicate FGM go as far back as the 1950s, with colonial governments attempting to stop the practice in their territories. In Kenya, for example, the British colonial government outlawed FGM in 1954, only to have pressure from practising communities force it to revoke the laws.

The 1980s, however, saw the growth of a network of NGOs concerned with wiping out the practice of FGM. They realised that to do this, they needed international backing and went about conducting a series of campaigns that resulted in the ratification of several international conventions against it.

Specifically, the Committee on the Elimination of Discrimination against Women (CEDAW) (1981), which oversees the Convention on the Elimination of All Forms of Discrimination Against Women, identified FGM as a form of discrimination and declared female circumcision to be a clear violation of human rights.

The convention advocated that "all appropriate measures [be taken] to modify or abolish customs and practices which constitute discrimination against women", and "the elimination of prejudices, and customary and all other practices, which are based on the idea of the inferiority or the superiority of either of the sexes".

Other conventions ratified during the 1980s which dealt with the practice of FGM included The Convention on the Rights of the Child (1989), which outlawed harmful traditional practices, and The African charter on Human and People’s Rights (1989).

The 1990s saw the Fourth UN World Conference on Women (1995) take place in Beijing. It specifically identified FGM as a form of discrimination against young girls and underscored the obligations of governments to ban the practice. In Beijing, the most vociferous and unequivocal statements to date were made against what conference participants called "the global menace of FGM". Following this conference, major women’s organisations and hundreds of grass-roots civil society organisations throughout the world recognised FGM as a cause of great concern and began organising their various campaigns to eradicate the practice.


Women receiving information about the health consequences of FGM. Education is another pillar in the campaign to ultimately abolish harmful traditional practices.
Credit: IRIN

African countries also began to make progress in legislating against FGM in the 1990s, with 16 African countries passing national laws prohibiting FGM over the course of the decade. Those countries have since incorporated the concept into national criminal legislation, developing policies and programmes to eliminate this specific form of unfairness against females.

There are still over 28 countries around the world where FGM is practised, concentrated across the center of Africa, north of the equator. The African Charter on the Rights and Welfare of the Child, signed by countries still practising FGM in 1999, reiterated the aspect of children’s rights that ensures the right of physical, mental and spiritual health.

Of particular note, is Article 21 of the charter, which states that signatories “shall take all appropriate measures to eliminate harmful social and cultural practises - those customs and practices [which are] prejudicial to the health or life of the child on the grounds of sex or other status”.

In the same year, signatories to the Ouagadougou Declaration of the West African Economic and Monetary Union also committed to develop specific legislation against the practice of FGM.

At the regional level, the declaration made in Cairo in 2003 by the Afro-Arab Expert Consultation on the “Legal Tools for the Prevention of Female Genital Mutilation”, offers an example of recommendations made to integrate the prohibition of FGM into broader legislation addressing other issues, such as gender equality, protection from all forms of violence against women and children, women’s reproductive health and rights, and children’s rights.

More recently, the Maputo Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2003) calls on governments to integrate laws taking corrective and positive action against the practice. The Maputo Protocol, which will come into force once 15 African countries become signatories, would be an important opportunity to develop a legal framework for the abandonment of FGM.

Article 5 of the protocol document prohibits “all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them”. To date, however, just seven African nations have ratified the protocol, namely: Libya, Comoros, Rwanda, Namibia, Lesotho, Kenya and Djibouti.

Rather than seeking an outright ban, some countries have explored the prohibition of certain types of cutting, while allowing other forms to continue. In Sudan, where 89 percent of women are infibulated, steps have been taken to prohibit only the most drastic types of circumcision. The 1946 Sudanese Penal Code prohibited infibulation, but allowed the practice of “Sunnah” circumcision (the removal of the clitoral hood) to continue.

Using a multidisciplinary approach, the United Nations Population Fund (UNFPA), United Nations Children’s Fund (UNICEF) and the World Health Organisation (WHO) formed a joint initiative in 1997 and developed a Plan of Action whose main objective was to effect a major decline in the prevalence of FGM within ten years and eliminate the practice within three generations.

Criminalisation of Female Genital Mutilation: Crossing Borders

FGM is a phenomenon that crosses international borders through global immigration. In recent years, it has increasingly been the subject of legislative action in western countries. In France, US, UK and Sweden, where many migrants from Africa, the Middle East and southwestern Asia have settled and practise FGM, legislation prohibiting it has been passed. European Union [EU]-member states, for example, have gone as far as applying an extraterritorial law, approving a resolution allowing for prosecution of European residents “even if the offence was committed outside EU frontiers” and instituting criminal sanctions.


FGM is practised predominantly in Africa, 28 out of 53 countries carry out FGM although 16 countries have passed national laws prohibiting the practice.
Credit: IRIN

French criminal law, under Article 312 of the Penal Code, punishes those guilty of violence against children and mutilation, even though there is no specific law against FGM.

The Federal Female Genital Mutilation Bill, passed in the US in 1996, offers asylum to any woman forced to undergo FGM or any woman fleeing from fear of forced circumcision. The Council of Europe similarly qualified the threat of genital mutilation as a factor that must be considered in asylum applications.

A major sub-regional conference took place in Djibouti on the elimination of FGM in February 2005.

Most recently, one of the objectives of the 49th session of the Commission on the Status of Women, held at the UN Headquarters in New York from 28 February to 11 March 2005, is to review the implementation of the Beijing Platform for Action in relation to FGM.

Embedded in cultural tradition

The practice of FGM is normally accompanied by, or is part of, an initiation ceremony, which invariably symbolises the transition from childhood to womanhood in some African and Asian cultures. It is practised in societies that adhere to a range of religious beliefs based on Islam, Christianity and Judaism. No religion has a monopoly on the practice of FGM, which is more closely linked to cultural rather than religious traditions.

According to the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief protects (1981), no religious ideology expressly justifies or promotes FGM, even if devotees of different religions operate with the belief that they do.

FGM is a procedure involving partial or total removal of the external genitalia of young girls and women. The WHO classifies the practice into four different types: clitoridectomy, excision, infibulation, and a final category, which covers a broad range of procedures such as pricking, piercing, cauterisation or even pouring corrosive chemicals into the vagina.

The WHO considers FGM to be a major public health problem, which causes irreparable damage to the physical and mental health of girls and women subjected to it, and in some cases, even results in death. Normally conducted with rudimentary instruments and in the absence of any antiseptic precautions, FGM can also lead to the transmission of various infections, including HIV. In many cases, the FGM ceremony involves the circumcision of several girls at once, with the practitioner often using the same instrument for all the procedures.

Despite the well-known, adverse health effects of female circumcision, mothers continue to allow, or coerce, their daughters to be circumcised in a seemingly unshakable adherence to time-honoured cultural traditions. In most societies where FGM is practised, women who have not undergone the ritual are explicitly discriminated against and ostracised, and men may consider them to be undesirable or ineligible for marriage.

In patriarchal and patri-lineal societies, circumcision subsequently becomes a requirement not only for social acceptance, but also for economic survival. The cutting of sexual organs not only sexually objectifies women by preparing their bodies to increase male sexual pleasure, but is also perceived as a way to control women’s sexuality. Beyond these reasons for the continuation of FGM, some protagonists argue, erroneously, that it enhances the fertility and health of girls.

The role of education

Despite the evidence that FGM has serious health consequences, the fact that the practice is so deeply entrenched makes the fight against it that much harder. It is a fight in which legislation plays an important role, but cannot in and of itself bring about change unless the communities themselves initiate a change in their customs.

Another pillar in the campaign to ultimately abolish harmful traditional practices is education.

If certain educational and informational opportunities are not provided for within communities where FGM is practised, girls may not acquire the knowledge enabling them to appropriately respond to societal demands placed on them. Many girls are already circumcised before they reach school.

Campaigners know that the real target for education and persuasion has to be the parents, and in particular, the male population, who indirectly and directly cause FGM to continue.