By Sahajveer Baweja
Our guest contributor is currently a 3rd-year B.A.LL.B. student at Rajiv Gandhi National University of Law, Patiala, India.
Recently, Sudan has made a landmark move by amending its Criminal Code and penalising the archaic practice of Female Genital Mutilation (FGM) making it punishable by three years of imprisonment. FGM as a practice stems from the social customs of a girl’s tribe or ethnic group and aids to define her in the context of her community. The practice of FGM is widespread in 28 African countries especially in Sudan where 87% of the Sudanese women have been its victim. Statistically, almost 100 to 140 million women in Africa have undergone the ritual of FGM in the last 50 years. Moreover, such practice of FGM has been traced in a few minority groups in Asia and Middle East Countries as well, but the chances of occurrence there are less and very limited because of strong penal provisions.
The Practice of Female Genital Mutilation
As explained by WHO, the phrase ‘female genital mutilation’ is a practice in which there is partial or total removal of external female genitalia or other injuries to the female genital organs for non-medical reasons. The FGM is divided into four broad categories. The first category is known as clitoridectomy in which there is partial or total removal of the clitoris and/or its prepuce. This category is also termed as Sunna circumcision. The second category of FGM involves partial or complete removal of the clitoris and labia minora, with/without the excision of the labia majora.
The third category that is known as infibulation is the extremist form of mutilation in which the clitoridectomy is practiced followed by stitching up the vulva and narrowing down the vaginal opening with the intention to ensure that a girl remains a virgin until marriage. Only a small opening is left to allow menstrual blood and urine to pass. The last category involves all other harmful procedures to the genitalia performed mostly for non-medic purposes such as piercing, incising, etc. Precisely, more than 90 percent of the FGM cases belong to the first two categories and the third category being most prevalent in Sudan.
Elimination of FGM has been the issue of United Nations since 1948. This practice gained the global attention only after it was made a part of the United Nations sustainable development goal that tends to achieve “gender equality and empower all women and girls, with a target to eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation”. However, this widespread practice remains mostly unreported because of the unquestioning support given by men and women due to fear of heavy repercussions from those in denial to abandon such practice. The sheer abuse of rights of women is superseded by the religious and cultural beliefs of men in power.
Gross violation of human rights principle through the practice of FGM
Indisputably, the practice of FGM is in direct contradiction to the guaranteed right of one’s bodily integrity and violates a series of well-established human rights principles, norms and standards. The primacy of the right to bodily autonomy is the pillar of human rights and civil rights which are universally accepted. Article 12 and 16 of the Convention on the Elimination of all Forms of Discrimination Against women protects the right of the women to make free and informed decisions about her healthcare and medical treatment. The process of FGM impedes women and girls from making an independent decision about an intervention that has a long-lasting effect on their bodies and invades on their autonomy and control over their mind, soul, and body. Nothing can be a graver injustice if a woman is devoid of taking decisions for her own body and has to respond according to the whims and fancies of another human being.
External influence on the matters of self-governance is an intrusion to the privacy of a human body and certainly, FGM violates the right to dignity of girls and women. Human health has to be seen from the lens of human rights as Article 25 of UDHR glorifies the right to enjoy good health and well-being for everyone. Moreover, the UN Special Rapporteur on Violence against Women has evidently stated that the practice of FGM amounts to torture and cruelty against women which severely affects their health. The facet of human rights involves protecting the health and dignity of every individual and therefore, any practice contrary to such notions shall be termed as an epitome of a gross human rights violation. Further, these women, as per Article 18 of International Covenant on Civil and Political Rights, equally enjoy their own cultural rights and freedom of religion and therefore, social and cultural claims of others cannot be evoked to justify FGM and to suspend their right of equality.
Global precedent set by Sudan
Sudan through outlawing the practice of FGM has undoubtedly challenged the violative practices of discriminating against women which are predominant in Africa. However, criminalising FGM is not itself sufficient as this practice is highly intertwined with religion and custom. There is a fear of FGM going underground and beyond regular reporting unless proper dissemination and implementation of law takes place. A country like Egypt which has already criminalized FGM still reports a significant number of such operations taking place annually. It is not easy to eliminate a culturally significant practice overnight and therefore, more reformative measures are required in line of this criminal amendment. Nonetheless, this Sudanese move has been celebrated by women and girls in Sudan as they are now empowered with a penal remedy. It shows that the country is working on zero-tolerance for FGM and inequality between sexes. This move can be termed as a step forward in terminating socially-rooted discrimination and can act as a precedent for other countries to preach human rights and align their laws with the commitment to sermonise international human-rights agreements.