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Female circumcision or Female genital cutting, FGM consists of non-therapeutic procedures, performed on young girls mostly under 15 years of age, of partial or complete removal of the external portion of female genitalia, sometimes occurring in the form of sewing the genitals shut. With absolutely no medical significance, it comes with repercussions such as chronic pain, bleeding, dysfunctions, infections, shock or possible death. To add to the cruelty of the act, it is often carried out under unsafe and unhygienic conditions by untrained older women or midwives.
The perpetuation of this archaic inhuman practice has met tremendous resistance over decades, internationally and locally which has, for many countries, translated into legislations. The blog analyses the role of international law and the implicit modern political context surrounding Sudan’s recent move to finally criminalise FGM while highlighting the insufficiency of legislative measures unsupported by efforts geared towards social change.
The primitive societies, for all their supposed crudeness, were far more liberal when it came to gender equality. But through the years, as women’s economic contributions contracted, they were relegated to property, not unlike the chattel men owned. This translated to innumerable social restrains put on them, one of them being the imposed notions of sexual morality. Sexual morality entailed the social construct of virginity and suppressed sexuality. This patriarchal oppression gradually acquired cultural and religious endorsements.
The origins of FGM are relatively uncertain but it is approximated to have originated in Egypt with evidences in Greece and Ethiopia as well. Over the course of centuries, it expanded geographically from the African region to Eastwards towards the Afghan region and Asia. Europe and further West also witnessed similar practices as part of mechanisms of sexual control over women or misguided attempts at curing medical issues. Conceptually, it probably ranged from being a compulsory social practice related to marriage, sexual constrain, chastity and femininity, to being connected to perpetuation of black slavery, crude contraception or protection from rape.
Regardless, a key factor is that FCM has been prevalent within many communities without a necessary underlying denominator unifying them such as socio-economic factors, ethnicity and even religion as the practise pre-dates Islam or Christianity.
It is now extensively concentrated in considerable parts of Africa, Middle-East and some parts of South-Asia as a religious requirement and in European and Western World primarily as part of immigrant culture. It has affected more than 200 million women alive today and a considerable number in millions is at risk of impending FGM even today. According to studies, the numbers get progressively alarming when we consider the fact that the regions where it is most prevalent will happen to inhabit the world’s considerable portion of female population in the coming decades, making the potentiality of persistence of FGM an enormous threat.
INTERNATIONAL LEGAL FRAMEWORK
Internationally, there has been a considerable vocal outrage against the abject cruelty of FGM and it grew exponentially with the burgeoning momentum gained by Human rights, especially women and child rights even when they did not specifically cater to the anti-FGM objectives. Given the inherent oppressive character and the torment innate to the act, FGM is vehemently opposed by earlier international instruments such as Universal Declarations of Human rights, 1942, Convention on the Elimination of All forms of Discrimination against Women, 1979, and Convention on the Rights of the Child,1989. It is irreconcilable with the propagated universal equality and call for protection of the key elements of human rights such as right to life, physical and mental health, and life with integrity and without violence.
Moreover instruments such as Declaration and Programme of Action of the International Conference on Population and Development, 1994 specifically vocalised prohibition of FGM. Regionally, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women, which mandates legislative action against FGM, was formalised by the African Union in 2003 with a considerable number of FGM affected countries in Africa signing or even ratifying.
Over the last two decades, various resolutions of UNGA and World Health Assembly have also been accompanied systematic groundwork by relevant organs of UN and other International societies geared at eliminating this inhuman custom through outreach programs. UNGA adopted a resolution in 2012, with considerable support especially from the African block, casting a worldwide ban on FGM practices which provided tremendous legal support to campaigns striving for national legislations. Similar resolutions have been adopted by the Human Rights Council starting with 2014 where the gravity of FGM as a human right violation was vehemently acknowledged based on established legal instruments. This was followed by the resolutions in 2016 and 2018 where emphasis had been laid on the necessity of urgent State legislative action and ground-level policies in eliminating FGM.
Furthermore, inclusion of eliminating FGM by 2030 within the folds of Sustainable Development Goals in 2015 has made tremendous headway in consolidating political wills of States around the world to take proactive measures against FGM.
The role of International law in a global concern that must be solved through local concerted efforts, because of State sovereignty, is reliant on the top-down approach. It posits that instead of law conforming to societal temperament, it has the power of functioning as an instrumentality of change by being reflective of ideal aspirations. FGM domestic laws, especially in countries where FGM has vigorous public support, work on this premise of domestic laws streamlining with internationally acknowledged rights. Sudan, as we’ll see, is an apt case-study for the same.
DOMESTIC FGM LAW
Over the last few decades, over 50 countries around the world have taken legislative measures against FGM including countries like UK, New Zealand and Canada where FGM is prevalent as part of the culture of immigrant communities from the susceptible regions like Africa. Moreover, 26 countries out of the total of approximately 30 FGM prone countries in Africa had adopted domestic laws criminalising the gruesome practice and incorporating penal provisions, Sudan now adding to the tally.
While this may be indeed true that the legal framework is mostly in place, law has been relatively unsuccessful in terms of enforcement, primarily in restraining the somewhat secluded or rural, often unlettered, conservative communities that continue to practice FGM in Africa.
SUDAN’S HISTORIC MOVE
Sudan has, very recently in May 2020, joined the league of Africans States progressively coming down harshly on FGM by including it into Article 141 of national Criminal Code, hence filling in the lacuna of a centralised law prohibiting all associated aspects of FGM from performance to assistance, incorporating the operating doctor and the parents into the penal folds. As opposed to the 1946 legal framework of Sudan which only prohibited one type of FGM i.e infibulations, the 2020 amendment is absolute in its approach and prescribes a 3 year imprisonment and fine as punishment. Not to say that the law was absolutely silent on the matter before. Certain sections of the Criminal Act 1991 the children protection legislation, Child Act of 2010 and the protectionist scheme of the Constitution of Sudan did provide the foundation for prosecution but the enforcement failed to be targeted at systematically prohibiting or eliminating FGM. Primarily, lack of legislative will as a consequence of political pressure to maintain status quo from conservative sections like tribal leaders had resulted only in failed or superficial measures.
So, this specific legislation is a momentous action coming from the brazen transitional government of Sudan amidst political instability and opposition in a country where statistics of FGM are as distressing as 9 out of 10 Sudanese women being affected.
What appears to be of tremendous significance is that for once, this law has been brought into the legal structure of Sudan with wholesome political will behind it and with the intent of embedding the anti-FGM stance into the social fabric of the country. Sudanese authorities are negating the religious sanction to the practice and spreading social awareness, with the help of UNICEF, against the practice so that the law can succeed. One such project, the Saleema Initiative (2008) born out of a collaboration of Sudan’s National Council for Child Welfare and UNICEF, is lauded for its extensive work in reversing the tide of social acceptance of FGM as a norm against the practice through its multifaceted campaigns aimed at engaging public sentiment against FGM with education, discourse and pledges. UK-funded Sudan Free of Female Genital Cutting programme targeting ‘medicalization’ of FGM, along with government education initiatives have also proven effective.
THE WAY FORWARD
However, the concerned civil societies and NGOs have voiced their scepticism when it comes to the viability of the law in stopping FGM in Sudan. This is further supported by the Egyptian case study where FGM had been criminalised back in 2008 but the prosecutions are low and this underutilisation of the law which is inadequate to begin with, translates into retarded rate of decrease in instances of FGM. So, they counter-propose a complete overhaul of the legal system which targets discrimination of all forms against women instead of a mere provision penalising the practice. While that may be true, the progress made still calls for appreciation as further government policies can have a legal framework to rely on in the form of this new criminal amendment. With the cooperation of the International community and the Sudanese activists, the State needs to comprehensively supplement the law by launching programs against FGM. It is imperative to bring all stakeholders, the perpetrators as well as the supporters such as the religious leaders into the discourse because social resistance to FGM is essential.
Furthermore, stringent penal provisions in isolation fail to bring around the public inclinations and in that context, incentives for eschewing such practices is a possible direction that State policy can gear itself towards. On similar grounds, we can observe the Indian policy of providing monetary incentives for having and educating girls as part of its agenda of eliminating rampant female foeticide and discrimination in India.
Holistically, this long awaited move of the Sudanese Government is commendable while it also puts further spotlight on the State to take the momentum forward with more proactive course of future action.
ABOUT THE AUTHOR
Ayushi Singh is a third-year student at Dr. RML National Law University, Lucknow. She currently work as a Junior contributing editor for SEAL, a budding arbitration law blog, and a member of IDIA, Dr. Shamnad Basheer’s non-profit organization.
In-content Picture Credits: njfon.org