Law and Policy

Female genital mutilation violates a series of long-standing declarations, conventions, and treaties, including the following:

 

            Universal Declaration on Human Rights

            International Covenant on Civil and Political Rights

            Convention on the Elimination of All Forms of Discrimination against Women

            Convention on the Rights of the Child

 

In 1997, the U.N. General Assembly passed Resolution 52/99 emphasizing the need for national legislation and measures to end harmful or customary practices, including female genital mutilation. The following year, the U.N. General Assembly issued a more strongly-worded recommendation: that Member States should “develop and implement national legislation and policies prohibiting traditional or customary practices affecting the health of women and girls, including female genital mutilation, inter alia, through appropriate measures against those responsible, and to establish, if they have not done so, a concrete national mechanism for the implementation and monitoring of legislation, law enforcement and national policies.” Traditional or customary practices affecting the health of women and girls, U.N. General Assembly, 3 (A/RES/53/117) (9 December 1998) (PDF, 5 pages). In 2001, the U.N. General Assembly further underscored its commitment to the issue through Resolution 56/128, reaffirming that female genital mutilation is a “serious threat to the health of women and girls.” Member States were called upon to collect and disseminate information about female genital mutilation; develop, adopt and implement national legislation, policies, plans and programs that prohibit female genital mutilation; prosecute those who engage in the practice; increase efforts to raise awareness of female genital mutilation; promote men’s understanding of their role in eliminating the practice; and continue assisting communities that practice female genital mutilation in preventing and eliminating the practice.

 

In June 2009, the U.N. Division for the Advancement of Women released papers from their expert group meeting on good practices in legislation to address harmful practices against women. See: Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices Against Women Convenes in Ethiopia, www.stopvaw.org, 16 June 2009; Final Report of the Expert Group Meeting on Good Practices in Legislation to Address "Harmful Practices" Against Women, U.N. Division for the Advancement of Women (2009) (PDF, 45 pages). Nine of the sixteen expert papers addressed the status of current international, regional, and individual countries’ laws addressing female genital mutilation and policies and proposed strategies to address female genital mutilation in the future.

·         Background paper for the Expert Group Meeting on good practices in legislation to address harmful practices against women, U.N. Division for the Advancement of Women (EGM/GPLVAW/2009/BP) (10 June 2009) (PDF, 14 pages)

·         Legislation to address the issue of female genital mutilation, Berhane Ras-Work (EGM/GPLHP/2009/EP.01) (21 May 2009) (PDF, 18 pages)

·         The CEDAW convention and harmful practices against women: The work of the CEDAW Committee, Dorcas Coker-Appiah (EGM/GPLVAW/2009/EP.05) (11 May 2009) (PDF, 10 pages)

·         Harmful traditional practices against women and legislation, Morissanda Kouyaté (EGM/GPLHP/2009/EP.07) (11 May 2009) (PDF, 9 pages)

·         Overview of legislation in the European Union to address female genital mutilation, challenges and recommendations for the implementation of laws, Els Leye and Alexia Sabbe (EGM/GPLHP/2009/EP.09) (11 May 2009) (PDF, 12 pages)

·         Effectiveness of legislation enacted to address harmful practices against women in Uganda, including maltreatment of widows and female genital mutilation, Dora C. Kanabahita Byamukama (EGM/GPLHP/2009/EP.10) (11 May 2009) (PDF, 14 pages)

·         Considerations of domestic or family violence in selected Arab Nations, Sherifa Zuhur (EGM/GPLHP/2009/EP.11a) (11 May 2009) (PDF, 17 pages)

·         Considerations of honor crimes, female genital mutilation, kidnapping/rape, and early marriage in selected Arab nations, Sherifa Zuhur (EGM/GPLHP/2009/EP.11b) (11 May 2009) (PDF, 32 pages)

·         Harmful traditional practices in Europe: Judicial interventions, Carole Ageng’o (EGM/GPLHP/2009/EP.12) (21 May 2009) (PDF, 13 pages).

 

Regional Responses

            Africa

            The African Union has addressed female genital mutilation for many years. The Organization for African Unity (predecessor of the African Union) adopted the Addis Ababa Declaration of Violence against Women in 1998, which called upon African governments to create national laws against female genital mutilation and ensure that the practice would be completely eradicated or the practice dramatically reduced by 2005. In 1999, the Ouagadougou Declaration was adopted by the Western African Economic and Monetary Union, which supported the Addis Ababa Declaration by calling for national legislation ending female genital mutilation. In 2003, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) was passed, containing a specific article requiring Member States to create legislation that would prohibit all forms of female genital mutilation. The Maputo Protocol needed fifteen countries for ratification. Twenty-seven of 53 African countries have ratified the Protocol. Five countries--Botswana, Egypt, Eritrea, São Tomé and Príncipe, and Tunisia--chose not to participate in the Maputo Protocol, neither signing nor ratifying it. See: List of Countries which have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, African Union (2 March 2010) (PDF, 2 pages). In 2009, the African Union Gender Policy called for an acceleration of the implementation of the Maputo Protocol.

 

            Europe

            The European Parliament adopted a resolution in 2001 that strongly recommended that Member States enact legislation against female genital mutilation. In the same year, the Council of Europe adopted Resolution 1247, calling upon Member States to introduce specific legislation forbidding genital mutilation and declaring genital mutilation to be a human rights violation. In 2009, the European Union passed a resolution stating that all forms of female genital mutilation are illegal and that those who perform the practice must be prosecuted, and urging Member States to develop a plan of action to end female genital mutilation in the European Union through laws, prevention, education, and evaluation. See: European Parliament Passes Resolution Combating Female Genital Mutilation in the European Union, www.stopvaw.org, 27 May 2009.

 

FGM-related Asylum Claims

 

            Asylum is intended to provide safe refuge for people who have been persecuted and/or fear persecution in their home country. Because female genital mutilation is a severe form of gender discrimination and violence it may provide a basis for refugees to seek asylum or related remedies to prevent women or girls from being returned to their home country. According to the U.N. High Commissioner for Refugees, female genital mutilation is a human rights violation and a woman can be considered a refugee if she or her daughters/dependents fear female genital mutilation against their will or fear persecution for refusing the practice. On a regional level, the European Parliament passed a resolution in 2001 that requested its Member States to grant asylum to women and girls who were at risk of being subjected to female genital mutilation. In the United States, persecution in the form of female genital mutilation can be the basis for asylum. See: Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Past infliction of female genital mutilation may, depending on the circumstances, be a basis for asylum, or withholding of removal from the country, in the US.

 

Status of Anti-FGM Laws and Policies in Countries Where FGM is Practiced – as of August 2009

 

Benin

Law banning all forms of FGM since 2003. Harsher penalties apply for performing FGM on minors or if the victim dies due to the procedure. Accomplices are punished in the same manner as actual circumcisers. According to UNDAW, Benin has only enforced this law once in 2003.

Burkina Faso

Law banning FGM since 1996. Harsher penalties apply if the victim dies due to the procedure.  Accomplices are liable. Maximum punishment applies to medical and paramedical professionals who perform FGM. Government actively campaigns against FGM through the media and provides 24-hour SOS hotline on FGM. Law has been enforced. Sixty convictions of circumcisers and accomplices thus far.

Cameroon

No law. Draft law has been pending for over 10 years.

Central African Republic

Law banning FGM since 1966. Government adopted a policy to better the position of women, which includes prohibiting FGM, in 1989. However, according to UNDAW, this law has never been enforced. 

Chad

Law banning FGM since 2003; however, according to UNDAW, no known case of arrest or prosecution.

Cote d’Ivoire

Law banning FGM since 1998. Harsher penalties apply if the victim dies due to the procedure or if medical or paramedical professionals perform FGM. Attempts to perform FGM are punishable.  Parents and relatives involved in FGM are also subject to punishment. According to UNDAW, only four circumcisers were imprisoned in 2000 and no arrests have been made since then.

Democratic Republic of Congo

No law.

Djibouti

Law banning FGM since 1995. According to UNDAW, law is not enforced.

Egypt

Law banning FGM since 2007.

Eritrea

Law banning FGM since 2007. Accomplices are liable. Harsher penalties apply if the victim dies due to the procedure or if medical or health personnel perform FGM.

Ethiopia

Law banning FGM since 2005, focusing with on infibulation.

Gambia

No law. In 1999, the President committed to not banning the practice because it is part of the country’s culture. 

Ghana

Law banning FGM since 1994. Gaps in the law were addressed in 2007 when Parliament amended criminal code to include FGM as an offense. Law is enforced.

Guinea

Penal Code has banned FGM since 1965 and, in 2000, Supreme Court created a Constitutional clause forbidding FGM. Harsher penalties apply if the victim dies due to the procedure or if medical or health personnel perform FGM.

Guinea-Bissau

No law. Proposed law prohibiting FGM was defeated in 1995.

Indonesia

No law.

Iraq

Legislation criminalizing FGM proposed. See: New Law Criminalizing Female Genital Mutilation in Iraq, www.stopvaw.org, 8 January 2008.

Jordan

No law.

Kenya

Law banning FGM for minors since 2001. Parliament currently reviewing the law to include protection of women over 18 years of age.

Liberia

No law.

Mali

No law. Ministerial Decree against medicalization of FGM bans doctors and other health professionals from performing FGM on girls; however, medical professionals have not stopped FGM.

Mauritania

Law banning FGM on minors since 2005.

Niger

Law banning FGM since 2003. Harsher penalties apply if the victim dies due to the procedure or if medical or health personnel perform FGM. Attempts to perform FGM are punishable.  Accomplices are liable. According to UNDAW, no enforcement of the law.

Nigeria

No federal laws forbidding FGM but Constitution has been used instead.  State laws (Abia, Bayelsa, Cross River, Delta, Edo, Ogun, Osun, and Rivers) against the practice. Accomplices are liable.

Saudi Arabia

No law.

Senegal

Law banning FGM since 1999. Harsher penalties apply if the victim dies due to the procedure or if medical or paramedical professionals perform FGM. First conviction under this law in 2009. See: Criminal Sentence for Perpetrators of FGM Raises Awareness in Senegal, www.stopvaw.org, 2 June 2009. Abandonment of FGM has been more effective through community action rather than enforcement of the law.

Sierra Leone

No law. Village chiefs in Northern Kambia district formally signed agreement to ban FGM for minors. See: Chiefs in Sierra Leone District Ban FGM for Girls under 18, www.stopvaw.org, 24 April 2009.

Somalia

No federal law forbidding FGM but Puntland passed law against the practice in 1999.

South Africa

Law banning FGM since 2005.

Northern Sudan

Law banning infibulation since 1946, but allowed less severe forms of FGM. Law banning FGM passed in 2003, but Sudanese Cabinet dropped article prohibiting all forms of FGM from the Children’s Act 2009. National government committed to eliminating FGM by 2018. A Sudanese state, Southern Kordofan, passed law criminalizing FGM in 2008. See: Sudanese State Passes New Law on Female Genital Mutilation, www.stopvaw.org, 12 January 2009.

Tanzania

Law banning FGM for minors since 1998. According to UNDAW, enforcement is moderate, as fifty-two cases of violations have been reported, filed and prosecuted, but only ten cases resulted in convictions.

Togo

Law banning FGM since 1998. Harsher penalties apply if the victim dies due to the procedure.  Accomplices are liable. According to UNDAW, only one person was arrested under this law in 2000 and there was no information on result of the case.

Uganda

Bill banning FGM introduced in 2009. See: Uganda: Bill Introduced in Parliament to Criminalize FGM, www.stopvaw.org, 3 June 2009.

Yemen

No law but in 2001, Ministry of Health banned the practice in governmental and private health facilities. While Supreme Council for Motherhood and Childhood included a section criminalizing FGM in the Safe Motherhood bill, the Cabinet removed the section. See: The Government of Yemen Moves to Stem Female Genital Mutilation, www.stopvaw.org, 18 July 2008; Anti-FGM legislation dropped in Yemenwww.waris-dirie-foundation.com, 16 June 2009.

 

Status of Anti-FGM Laws and Policies in Countries Where Immigrants Practice FGM

 

Australia

Six of eight Australian states and territories (Australian Capital Territory, Northern Territory, New South Wales, South Australia, Tasmania, and Victoria) have criminalized FGM. These laws prohibit the practice and the removal of children to another jurisdiction for the procedure. Consent is no defense. 

Austria

Law banning FGM since 2002. Doctors have a duty to report FGM.

Belgium

Law banning FGM since 2001. Doctors, teachers and social workers must report FGM.

Bulgaria

Teachers have a duty to report FGM.

Canada

Law banning FGM since 1997, categorizing FGM as aggravated assault. Consent is no defense. Law prohibits removing a child who is a Canadian resident out of Canada for the procedure. 

Cyprus

Law banning FGM since 2003. Doctors and social workers have a duty to report FGM.

Denmark

Law banning FGM since 2003. Doctors, teachers and social workers have a duty to report FGM.

Estonia

Doctors, teachers and social workers have a duty to report FGM.

Finland

No specific law addressing FGM, but general criminal law is applied. Doctors, teachers and social workers have a duty to report FGM.

France

No specific law banning FGM, but FGM prosecutions have successfully applied child protection laws. Doctors, teachers and social workers have a duty to report FGM.

Germany

No specific law addressing FGM, but general criminal law is applied. Doctors, teachers and social workers must report FGM.

Greece

Teachers have a duty to report FGM.

Hungary

Doctors have a duty to report FGM.

Ireland

Doctors, teachers and social workers must report FGM.

Italy

Law banning FGM since 2005. Doctors and social workers have a duty to report FGM.

The Netherlands

No specific law addressing FGM, but general criminal law is applicable. A criminal court case is currently being heard regarding charges for practicing FGM, which is a first in The Netherlands. The Interim Supplement to the Aliens Act Implementation Guidelines (TBV 2003/48) provides that if a girl is at risk for FGM, she and her family may apply for residence status.

New Zealand

Amendment to the Crimes Amendment Act of New Zealand banned FGM in 1995.

Norway

Law banning FGM since 1995, criminalizing FGM and aiding or abetting of FGM. Law applies when the procedure is done outside Norway. Norwegian Ministries has an Action Plan for Combating Female Genital Mutilation for 2008-2011Practitioners and public personnel/bodies have a duty to report FGM.

Poland

Doctors, teachers and social workers have a duty to report FGM.

Portugal

Law banning FGM since 2007. Doctors, teachers and social workers have a duty to report FGM.

Slovakia

Doctors, teachers and social workers have a duty to report FGM.

Slovenia

Doctors, teachers and social workers have a duty to report FGM.

Spain

Law banning FGM since 2003. Doctors, teachers and social workers have a duty to report FGM.

Sweden

In 1982, became first Western European country to ban FGM. In 1998, law was revised to make punishment harsher. A Swedish resident is liable if s/he arranges for the procedure in another country. Doctors, teachers and social workers have a duty to report FGM.

Switzerland

National Law Commission is currently drafting a bill to specifically address FGM in the criminal code, but FGM cases have been tried under general criminal law. State-employed social workers and teachers have a duty to report FGM.

United Kingdom

Female Genital Mutilation Act of 2003 bans FGM within the United Kingdom and prohibits removing a resident to another country for the procedure. National FGM Action Plan and Multi-Agency prevention and awareness campaign being implemented.

United States

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (18 U.S.C. § 116) criminalized FGM on minors. Nineteen states (Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Maryland, Minnesota, Missouri, Nevada, New York, North Dakota, Oregon, Rhode Island, Tennessee, Texas, West Virginia, and Wisconsin) have passed laws banning FGM.

 

Compiled from: Traditional or customary practices affecting the health of women and girls, U.N. General Assembly, 5 (A/RES/52/99) (12 December 1997) (PDF, 5 pages);  Traditional or customary practices affecting the health of women and girls, U.N. General Assembly, 3 (A/RES/53/117) (9 December 1998) (PDF, 5 pages); Traditional or customary practices affecting the health of women and girls, U.N. General Assembly (A/RES/56/128) (19 December 2001) (PDF, 5 pages); Expert Group Meeting: Good practices in legislation to address harmful practices against Women, Addis Ababa, Ethiopia, 25 to 28 May 2009, U.N. Division for the Advancement of Women and U.N. Economic Commission for Africa (June 2009); African Union Gender Policy, Assembly of African Union (10 February 2009) (Word, 35 pages); Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, African Commission on Human and Peoples' Rights (2003); List of Countries which have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, African Union (2 March 2010) (PDF, 2 pages); Female Genital Mutilation: Legal Prohibitions Worldwide, Center for Reproductive Rights (11 December 2008); Global Consultation on Female Genital Mutilation/Cutting: Technical Report, United Nations Population Fund (UNPFA) (2009) (PDF, 112 pages); Charlotte Feldman-Jacobs & Donna Clifton, Female Genital Mutilation/Cutting: Data and Trends, Population Reference Bureau (2008) (PDF, 9 pages).