Drafting Laws on Female Genital Mutilation
Last updated May 2010
 
In partnership with UNIFEM, The Advocates for Human Rights created the following section for UNIFEM’s Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
 
Throughout this section on Drafting Laws on Female Genital Mutilation, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.
 
Some of the laws cited herein may contain provisions which authorize the death penalty. In light of United Nations General Assembly resolutions 62/149 and 63/168 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls. 

Use of Term “Female Genital Mutilation”
 
This portion of the Legislation Module of www.endvawnow.org will use the term “female genital mutilation” (FGM) and explicitly rejects often substituted terms, “female genital cutting” or “female genital circumcision.” To use the terms female genital cutting or circumcision downplays the pain and suffering inflicted on women and girls subjected to this practice, as well as the severe physical and psychological health consequences. The terms “cutting” or “circumcision” also cause confusion between female genital mutilation and the common practice of male circumcision. Such use invites the argument that because both women and men are circumcised, often as children below the age of consent, female genital mutilation is not a discriminatory practice against women and hence not a human rights violation. This argument, however, is without merit. While both traditional male circumcision and female genital mutilation involve the removal of healthy tissue, FGM is distinguished by the severity of the practice, the devastating consequences of the practice, as well as the social message associated with the practice. See: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Anika Rahman and Nahid Toubia, p. 21
 
Almost all those who are subjected to FGM experience extreme pain and bleeding. Other health complications include psychological trauma, infections, urine retention, damage to the urethra and anus, and even death. … The consequences of FGM do not stop with the initial procedure. The girl or woman is permanently mutilated and can suffer other long-term physical and mental consequences. See:  UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009
 
In addition to increased risk during childbirth for both the mother and the baby, the Special Rapporteur on Torture has stated:
Depending on the type and severity of the procedure performed, women may experience long-term consequences such as chronic infections, tumors, abscesses, cysts, infertility, excessive growth of scar tissue, increased risk of HIV/AIDS infection, hepatitis and other blood-borne diseases, damage to the urethra resulting in urinary incontinence, [fistula], painful menstruation, painful sexual intercourse and other sexual dysfunctions. See: Human Rights Council, Report of the Special Rapporteur on Torture and other cruel, inhumane or degrading treatment or punishment, 15 January 2008.  
 
Even at its least invasive level (see Clear and Precise Definition of FGM below), the practice of FGM involves a much more extensive removal of a woman’s sexual organ. In addition, the common justifications for the practice of female genital mutilation are generally mired in the fundamental belief of the subordination of women and girls as well as the need to control women’s sexuality. See: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Chapter 1. Only the term “female genital mutilation” accurately reflects and distinguishes the severity of this harmful practice as a human rights violation. 
 
The term female genital mutilation was adopted at the 1990 third conference of the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, in Ethiopia. It is also used regularly by the United Nations in their documents and is consistently employed by WHO. See: Eliminating Female Genital Mutilation: An Interagency Statement.
 
As such, legislation created to eliminate this practice and provide services to women and girls subjected to this practice should also use the more accurate term “female genital mutilation.”
 
 
Guiding Principles for Drafting Legislation on Female Genital Mutilation

Legislation should specifically define, prosecute and punish FGM. Although female genital mutilation may be prosecuted under general criminal legislation such as assault, or constitutional measures such as equality and protection from violence, for the most effective implementation, drafters should create legislation specific to FGM. See: European Parliament Resolution of 20/09/2001 A5-0285/2001 ; European Parliament Resolution 16/01/2008, INI/2007/2093, European Parliament Resolution of 24 March 2009 (2008/2071(INI)) P6_TA(2009)0161; Council of Europe Resolution 1247, and Eliminating Female Genital Mutilation: An Interagency Statement.

Legislation should be carefully drafted to protect actual and potential victims, many of whom are very young girls. The practice of FGM is mired in issues of gender, women’s status and women’s own self-identity. While the practice of FGM is a recognized human rights violation, not undergoing the practice can subject women to other forms of discrimination and harm. Therefore, while laws are a critical means to eliminating the practice of FGM, stopping the practice involves deeper changes to societal norms and individual beliefs. 

Government action and legislation must take multiple forms and include various groups, including educational, legal, health services, cultural and religious leaders to effect true change and an end to the practice of FGM. “While use of legal measures needs to be carefully considered and used in conjunction with other education efforts, laws can be a useful tool for change, giving NGOs and individuals greater leverage in persuading communities to abandon the practice.” Female Genital Mutilation: A Guide to Laws and Policies Worldwide, p. 13. 

Governments should pay particular attention to implementing and monitoring legislation against FGM. See: Implementation and Monitoringwww.endvawnow.org.

 

Sources of International Human Rights Law on Female Genital Mutilation
 
Categories of Fundamental Human Rights and Duties
 
FGM is a violation of the human rights of women and girls as recognized in numerous international and regional human rights instruments. While early human rights instruments do not specifically refer to FGM, they provide a foundation for the right of women to be free from various forms of violence, including FGM.  In addition to the specific human rights instruments included in this section below, there is an increasingly accepted interpretation that the practice of FGM is an infringement upon broader categories of identified rights into which those instruments may fit. See: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Chapter 2 for full discussion. 
 
 
The right to be free from all forms of discrimination against women
 
Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 defines discrimination against women broadly as:
“any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
 
The practice of FGM fits within the definition of discrimination against women as set forth in various human rights instruments as it a practice exclusively directed towards women and girls with the effect of interfering with their enjoyment of their fundamental rights. Furthermore, FGM causes great short-term and long-term physical and mental harm to its victims and perpetuates the fundamental discriminatory belief of the subordinate role of women and girls. Article 2 of the Universal Declaration of Human Rights states: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex.”
 
The practice of FGM is often a deeply rooted custom and in areas where the practice is required or prevalent, there is substantial pressure to undergo FGM. Often it is a prerequisite to marriage and required for acceptance within the community.  Governments enacting legislation to prohibit the practice must acknowledge that not undergoing FGM may also subject women to further discrimination as they are ostracized or not able to marry. As such, governments must address the larger issues of women’s status in the family and economy, their access to education and health services, and the overall social norms and customs that support the practice of FGM. 
 
 
The right to life and physical integrity, including freedom from violence
 
The right to physical integrity includes the right to freedom from torture, inherent dignity of the person, the right to liberty and security of the person, and the right to privacy. This category of rights is protected by various human rights instruments including: The Universal Declaration of Human Rights, Articles 1 and 3; International Covenant on Economic, Social and Cultural Rights, Preamble; International Covenant on Civil and Political Rights (ICCPR), Preamble and Article 9(1); and The Convention on the Rights of the Child (CRC), Article 19.  FGM causes severe physical and mental damage, sometimes resulting in death. As such, it interferes with a woman’s right to physical integrity, privacy, and freedom from violence.
 
 
The right to health  
 
Because FGM can result in severe physical and mental harm and because it constitutes an invasive procedure on otherwise healthy tissue without any medical necessity, it is seen as a violation of the right to health. The International Covenant on Economic, Social and Cultural Rights recognizes the right of all human beings to the “highest attainable standard of physical and mental health.” The World Health Organization includes physical, mental and social well-being in its definition of health and recognizes that health is “not merely the absence of disease or infirmity.” The Programme of Action of the International Conference on Population and Development in Cairo, Egypt, includes “sexual health, the purpose of which is the enhancement of life and personal relations” in its discussion of reproductive health. Para. 7.2. Furthermore, the Committee on the Elimination of Discrimination against Women (CEDAW), General Recommendation No. 24 (20th Session, 1999) has specifically “recommended that governments devise health policies that take into account the needs of girls and adolescents who may be vulnerable to traditional practices such as FGM.” 
 
 
The rights of the child
 
Because FGM predominantly affects girls under the age of 18, the issue is fundamentally one of protection of the rights of children.  The Convention on the Rights of the Child (CRC), 1989, acknowledges the role of parents and family in making decisions for children, but places the ultimate responsibility for protecting the rights of a child in the hands of the government. Article 5. The CRC also established the “best interests of the child” standard in addressing the rights of children. Article 3. FGM is recognized as a violation of that best interest standard and a violation of children’s rights. The CRC mandates governments to abolish “traditional practices prejudicial to the health of children.” Article 24(3). The Concluding Observations of the Committee on the Rights of the Child (CRC): Togo (1997) explicitly directs governments to enact legislation that will abolish the practice of FGM as it is a violation of the rights of children.    
 
In addition to recognizing that FGM violates these fundamental rights, numerous instruments establish that governments have a duty to prohibit the practice and protect women and girls vulnerable to the practice. This duty is fulfilled by enacting legislation and implementing other methods of social and cultural education. Legislation should be enacted that encompasses these fundamental rights and governmental duties related to the practice of FGM:
  • the duty to modify customs that discriminate against women;
  • the duty to abolish practices that are harmful to children;
  • the duty to ensure health care and access to health information; and
  • the duty to ensure a social order in which rights can be realized. 
 
 
Specific Human Rights Instruments
 
More recently, human rights instruments are explicitly referencing the practice of FGM as an act of violence against women and mandating state parties to prohibit the practice. Some examples are set forth below.  
 
 
International Instruments
 
The Universal Declaration of Human Rights, 1948, provides a broad foundation for the protection of women against the practice of FGM. Article 3 states that “Everyone has the right to life, liberty and security of person.” Under Article 5, “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment. Article 7 states thatAll are equal before the law and are entitled without any discrimination to equal protection of the law.”  Article 8 declares that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Article 12 protects an individual’s privacy while Article 25 addresses motherhood and childhood. More generally, Article 28 states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” 
 
Similarly, the International Covenant on Civil and Political Rights (ICCPR) (1966) prohibits discrimination on the basis of sex, and mandates states parties to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” Article 2. In addition, the ICCPR protects individuals from “torture or cruel, inhuman or degrading treatment” and arbitrary or unlawful interference with his or her privacy. Articles 7 and 17. The ICCPR states that everyone has the “right to liberty and security of person” and that “[e]very child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Articles 9 and 24. 
 
The preamble to the International Covenant on Economic, Social and Cultural Rights (1976) acknowledges that human rights “derive from the inherent dignity of the human person.” Article 3 declares that the state parties must “ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” Article 12 protects the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” 
 
More recently, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979, and the Convention on the Rights of the Child (CRC), 1989, focus on the rights of women and girls and also provide a basis for the elimination of FGM as a human rights violation. 
 
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 defines discrimination against women as:
“any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Article 1.
 
Although not explicitly mentioned, the practice of FGM fits within the definition of discrimination against women as set forth in CEDAW. It is a practice exclusively directed towards women and girls with the effect of “nullifying their enjoyment of fundamental rights.” Female Genital Mutilation: A Guide to Laws and Policies Worldwide by Anika Rahman and Nahid Toubia. Whatever the common justifications for the practice of FGM, cultural or religious, FGM causes great short-term and long-term physical and mental harm to its victims and perpetuates the fundamental discriminatory belief of the subordinate role of women and girls.  
 
State parties to CEDAW must eliminate this discrimination by undertaking: 
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women. Article 2.
 
In addition, state parties to CEDAW are required to: “modify the social and cultural patterns of conduct … with a view to achieving 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 or on stereotyped roles for men and women.” Article 5.
 
Further support for the principle that FGM is a form of gender discrimination pursuant to CEDAW can be found in the General Recommendation Nos. 14, 19 and 24 from the Committee on the Elimination of Discrimination against Women (CEDAW). These recommendations note the severe health and other consequences for women and girls subjected to FGM, identify FGM as a form of violence against women, and recommend that state parties take measures to eliminate the practice of FGM. See below: UN Treaty Monitoring Committees.
 
The Convention on the Rights of the Child (CRC), (1989), places in the government the ultimate responsibility for ensuring that the fundamental rights of children are recognized and protected. The guiding standard established by the CRC is “the best interests of the child.” Article 3. 
 
Article 16 protects a child’s right to privacy. 
 
Article 19 requires states parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence …while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” Article 19(1). It also requires states parties to create “social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Article 19(2). 
 
Article 24 requires states to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” Article 24(3).   
 
The country reports of the Committee on the Rights of the Child consistently recognize FGM as a harmful traditional practice that is against the best interests of the child and repeatedly call for its elimination. See: Concluding Observations of the Committee on the Rights of the Child: Ethiopia (1997), Para. 6; Concluding Observations of the Committee on the Rights of the Child: Sudan (1993), Para. 13; Concluding Observations of the Committee on the Rights of the Child: Togo (1997), Para. 24. 
 
 
Declarations and Resolutions
 
Article 1 of the UN General Assembly Declaration on the Elimination of Violence Against Women, defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” Article 1. Article 2 explicitly identifies FGM as such a form of violence against women. Article 2(a).
 
Furthermore, the United Nations General Assembly has repeatedly called for more attention to the practice of FGM and more efforts by states for its elimination and protection of women and girls from the practice. See: United Nations, General Assembly Resolutions and Secretary-General Reports on Traditional or Customary Practices Affecting the Health of Women and Girls; Report of the Secretary-General (Fifty-third Session, 10 September 1998) A/53/354, paras. 17-18); United Nations, General Assembly Resolution on Traditional or Customary Practices Affecting the Health of Women and Girls; Report of the Third Committee (30 January 2002) A/56/128; United Nations, General Assembly Resolution on Traditional or Customary Practices Affecting the Health of Women and Girls, Report of the Third Committee (7 February 2000) A/54/133
 
Recently, the Commission on the Status of Women adopted a resolution entitled Ending Female Genital Mutilation. This resolution recognizes that female genital mutilation is a human rights violation that results in irreparable harm and constitutes a serious threat to the health of women and girls. The resolution sets forth specific multi-level State recommendations in order to eliminate FGM. The resolution calls on States to condemn the practice, enact and enforce legislation prohibiting FGM as well as penalties for violations of prohibitions.  In addition, the resolution:
  • 13. Also urges States to review and, where appropriate, revise, amend or abolish all laws, regulations, policies, practices and customs, in particular female genital mutilation, that discriminate against women and girls or have a discriminatory impact on women and girls and to ensure that provisions of multiple legal systems, where they exist, comply with international human rights obligations, commitments and principles, including the principle of non-discrimination.
  • 15. Calls upon States to develop policies, protocols and rules to ensure the effective implementation of national legislative frameworks on eliminating discrimination and violence against women and girls, in particular female genital mutilation, and to put in place adequate accountability mechanisms at the national and local levels to monitor adherence to and implementation of these legislative frameworks. 
  • The resolution also emphasizes the need for education and training of families, community and religious leaders, and members of all professions relevant to the protection and empowerment of women and girls, including health-care providers, social workers, police officers, legal and judicial personnel and prosecutors. 
 
Regional
 
The African Charter on Human and People’s Rights (the Banjul Charter), (1981), generally addresses the protection of the fundamental human rights of women and girls. Articles 4 and 5 recognize the respect for life, integrity of person, and the “right to the respect of the dignity inherent in” every individual. Article 16 ensures the right of every individual “to enjoy the best attainable state of physical and mental health.” Article 18(3) requires the government to “ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.”  Article 28 acknowledges the duty to respect and consider others without discrimination. 
 
The African Charter on the Rights and Welfare of the Child (African Charter) (1990) follows the standard established by the CRC, that the “best interests of the child shall be the primary consideration” by an individual or authority in addressing issues related to children. Article 4(1). The Charter protects against discrimination and children’s rights to survival, protection, privacy, and physical, mental, and spiritual health. Articles 3, 5(2), 10, 14(1). 
 
Furthermore, the African Charter requires member states of the Organization of African Unity to:
 
take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular:
(a)     those customs prejudicial to the health or life of the child; and
(b)    those customs and practices discriminatory to the child on the grounds of sex or other status.” Article 21(1). 
 
The more recent Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) (The Maputo Protocol) mandates states parties to “…adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women.” Article 4. This Protocol also specifically directs states parties to prohibit and eliminate harmful practices, explicitly including FGM: 
 
Article 5 - Elimination of Harmful Practices
States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognized international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including:
  • creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes;
  • 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;
  • provision of necessary support to victims of harmful practices through basic services such as health services, legal and judicial support, emotional and psychological counseling as well as vocational training to make them self-supporting;
  • protection of women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance.” Article 5. 
The Cairo Declaration for the Elimination of FGM, 2003, explicitly calls for governments to recognize and protect the human rights of women and girls in accordance with the aforementioned human rights documents and implement legislation to criminalize and prohibit FGM. The Declaration acknowledges that “the prevention and the abandonment of FGM can be achieved only through a comprehensive approach promoting behaviour change, and using legislative measures as a pivotal tool.” Laws against FGM should be “integrated into broader legislation” including “gender equality, protection from all forms of violence against women and children, women’s reproductive health and rights, and children’s rights.” Para. 1. The declaration also recognizes that the “use of law should be one component of a multi-disciplinary approach to stopping the practice of FGM.” Para. 2.

The 1999 Ouagadougou Declaration of the Regional Workshop on the Fight against Female Genital Mutilation calls for members of the West African Economic and Monetary Union region to serve as a “network for dialogue, harmonization, implementation and follow-up of joint activities to combat FGM.” The Declaration recommends:
  • The effective implementation of the Addis Ababa Declaration through the adoption of national legislation condemning the practice of FGM;
  • The ratification of all United Nations and International Labour Organization conventions and recommendations pertaining to women's rights, particularly the United Nations Convention on the Elimination of All Forms of Discrimination Against Women;
  • The creation of national networks of religious and customary leaders as well as networks of traditional and modern communicators with a view of setting up subregional networks;
  • The establishment of a mechanism of collaboration with and support to IAC [Inter-African Committee on Traditional Practices] national committees through groups such as parliamentarians, jurists, media personnel, police forces and health professionals;
  • The establishment of special services in charge of controlling the migratory flow of circumcisers;
  • The creation of a subregional follow-up mechanism in collaboration with IAC national committees within the UEMOA region.
The 1998 Banjul Declaration on Violence against Women - Inter-African Committee on Traditional Practices and the Gambia Committee on Traditional Practices Affecting the Health of Women and Children (GAMCOTRAP) strongly condemns the practice of FGM and the misuse of religious argument to promote the practice. In addition to seeking legislation “against the continuation of the practice of FGM, stipulating penalties for offenders,” the Declaration recommends setting up networks of religious and scholarly leaders to campaign against harmful traditional practices, establishing family tribunals to settle disputes, and reviewing family laws “in light of Christian and Islamic principles and human rights.”
 
The Council of Europe Resolution 1247 on Female Genital Mutilation (2001) calls on member states to enact “specific legislation prohibiting genital mutilation and declaring genital mutilation to be a violation of human rights and bodily integrity” and to prosecute the perpetrators “including family members and health personnel, on criminal charges of violence leading to mutilation, including cases where such mutilation is committed abroad.” The Resolution also calls for member states to be more flexible in granting asylum to mothers and children who fear being subjected to FGM, and to allow victims to prosecute perpetrators of the practice upon reaching the age of majority.
 
The 2001 European Parliament Resolution A5-0285/2001 on Female Genital Mutilation condemns FGM as a “violation of fundamental human rights” and urges Member States to enact legislation specifically banning the practice and pursue educational programs and publicity campaigns highlighting the harmful nature of the practice. The Resolution also:
  • Calls on the Council, Commission and Member States to carry out an in-depth enquiry to ascertain the extent of this phenomenon in the Member States.
  • Calls on the Commission to draw up a complete strategy in order to eliminate the practice of female genital mutilation in the European Union, which should go beyond merely denouncing these acts and establish both legal and administrative and also preventative, educational and social mechanisms to enable women who are or are likely to be victims to obtain real protection.
Member states are encouraged to “regard any form of female genital mutilation as a specific crime,” regardless of whether a woman has given consent, and regardless of whether the offence was committed extraterritorially. The Resolution also encourages preventative measures, including:
  • Legislative measures to a