The Effective Criminalization of Female Genital Mutilation in South Africa

By: Sophie Goodman

While some four-year-olds wear tutus and others play with action figures, a few four-year-olds in South Africa are forced to undergo Female Genital Mutilation (FGM).[1] FGM is considered a form of gendered violence and “is one of the most significant of these rights violations in terms of its ubiquity and the severity of the harm.”[2] FGM, which many perceive as a rite of passage,[3] is a highly-debated issue because it is embedded in many cultures and societies.[4] Custom is one of the four justifications for FGM.[5] The other three justifications are the repression of women’s sexuality, religion, and social pressure.[6] Because FGM is deeply rooted in some cultures, it is no easy task to criminalize the practice of FGM.[7] However, FGM is condemned by international law,[8] as it is violates girls’ and women’s rights to their bodies.[9]

FGM is an ancient ritual[10] regarding the practice of cutting the female genitals and is usually performed between the ages of four and twelve.[11] However, FGM may occur just after birth or even as late as marriage.[12] The parts of the female genitalia usually removed, either partially or fully, include the clitoris, mons pubis, labia, the urethral, and vaginal openings.[13] The procedure is performed by community members, not licensed doctors,[14] usually with unsterilized knives or old razors and without anesthesia.[15] Some compare FGM to male circumcision; however, FGM involves “much more severe and extensive” cutting.[16] “FGM affects about 140 million girls and women worldwide.”[17] Despite these large statistics, FGM is not prevalent in South Africa;[18] however, the practice still exists.[19] In South Africa, FGM is mainly practiced in the Eastern Cape and KwaZulu-Natal.[20] Generally, FGM occurs in immigrant, refugee, and foreign national populations.[21]

There are both immediate and long-term consequences of FGM.[22] The most serious complication is death.[23] Immediate problems include infection, severe pain, urine retention,[24] and bleeding.[25] Long-term effects include both physical and mental health issues.[26] Physical complications include painful periods, infertility, increased risk of death during child labor, recurring urinary tract infections,[27] and difficulties during pregnancy.[28] Moreover, those who have undergone FGM are rarely able to enjoy sex,[29] as it may be a painful experience.[30]

There are many different justifications behind the performance of FGM. Some cultures “believe that external female genitalia are dirty and unattractive.”[31] In these societies, women who undergo FGM are admired, while those who refuse to be cut are scorned and ostracized.[32] While every society creates ideals of beauty, women are not forced to choose between a harmful procedure that meets societal expectations or being shunned from society.[33] A second motivation to have FGM performed is that some cultures view this procedure “as a rite of passage from childhood to womanhood.”[34]

South Africa has taken steps to ban FGM,[35] which includes the criminalization of FGM in the Protection of Equality of Unfair Discrimination Act (Equality Act).[36] The Equality Act aims to protect women and girls against unfair discrimination.[37] The Equality Act states that “no person may unfairly discriminate against any person on the ground of gender including[] female genital mutilation.”[38] This clause makes the performance of FGM illegal.[39] This outright ban on FGM falls within the goals of the Equality Act, as FGM prevents women from fully enjoying their human rights.[40] Aside from criminalizing FGM, South Africa has employed other initiatives to help eliminate FGM.[41] Some of these initiatives include national research, sensitization workshops, and education.[42]

South Africa is also a signatory to international laws that regulate and prohibit FGM. One such law that South Africa is a signatory to is the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).[43] CEDAW calls for equality for women by ending gender-based discrimination.[44] Moreover, CEDAW explicitly requires that signatory countries condemn any discrimination against women.[45] As a signatory to CEDAW, South Africa is bound by these provisions.[46] There are many crucial provisions that inherently prohibit FGM.[47] The first essential provision creates broad protections for discrimination against women.[48] These broad protections encompass “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.”[49] Furthermore, CEDAW places a duty on the signatory country to influence and change any current customs that may discriminate against women.[50] CEDAW also requires the elimination of discrimination against women in health care.[51] This allows women access to proper health care, free of any discrimination.[52] Moreover, CEDAW specifically recognizes women’s needs for access to health care regarding family planning.[53] Thus, CEDAW contains imperative provisions that encourage the elimination of FGM.

Although FGM is criminalized in South Africa,[54] there are other facets to consider. Some argue that laws prohibiting FGM violate freedom of religion laws, the rights of minorities, and the right to practice one’s culture; therefore, this practice should not be regulated by governments.[55] However, these potential applicable arguments are not “supported by international human rights law.”[56] If these arguments were to become law, the individual rights of women – especially those who are forced to undergo FGM – would be violated.[57] These violations would systematically occur in the areas of human rights, health, and safety.[58] This issue might be resolved through consenting to FGM.[59] Some countries follow this rule of consent.[60] However, issues arise with this “consent” because it does not disallow inducing or threatening a girl or woman into undergoing FGM.[61] Thus, while the criminalization of FGM may end up violating rights, it “is up to the government to decide how to put an end to FGM while respecting the rights of minorities and the rights to culture and freedom of religion.”[62]

Although FGM may not be prevalent in South Africa,[63] politicians continue to support women in any challenges that they may face.[64] However, there are cultures and societies in other countries that continuously allow women and girls to undergo FGM.[65] For example, in Gambia, 56% of girls aged between zero and fourteen have undergone FGM, while 49% girls in this same age group have experienced FGM in Indonesia.[66] Countries with extensive participation in FGM should look to South Africa for guidance on how to eradicate and effectively criminalize FGM.

[1] See Sophie Lescure, Female Genital Mutilation a Matter of Human Rights: An Advocate’s Guide to Action, Center for Reproductive Rights 7 (2006), https://www.reproductiverights.org/sites/default/files/documents/FGM_final.pdf.

[2] Deborah Anker, Law of Asylum in the United States, 282 (2015).

[3] Barbra Kitui, Female Genital Mutilation in South Africa, AfricLaw (June 7, 2012), https://africlaw.com/2012/06/07/female-genital-mutilation-in-south-africa/.

[4] See Lescure, supra note 1, at 5.

[5] Id. at 7–8.

[6] Id.

[7] Kitui, supra note 4.

[8] Id.

[9] Lescure, supra note 1, at 7.

[10] L.W. Makundi, Harmful Cultural Practices as Violations of Girls’ Human Rights: Female Genital Mutilation in Tanzania and South Africa, Open Access Theses and Dissertations 1 (Dec. 2009), https://repository.nwu.ac.za/bitstream/handle/10394/5100/makundi_lw.pdf?sequence=1&isAllowed=y.

[11] Lescure, supra note 1, at 7.

[12] Id.

[13] Leigh Trueblood, Female Genital Mutilation: A Discussion of International Human Rights Instruments, Cultural Sovereignty and Dominance Theory, 28 Denv. J. Int’l L. & Pol’y 437, 441 (2000).

[14] See Makundi, supra note 10, at 5.

[15] Anker, supra note 2, at 283.

[16] Trueblood, supra note 13, at 441.

[17] Anker, supra note 2, at 282.

[18] Makundi, supra note 10, at 9.

[19] Id. at 27.

[20] Id. at 9.

[21] Id.

[22] Lescure, supra note 1, at 9.

[23] Trueblood, supra note 13, at 442.

[24] Id. at 443.

[25] Lescure, supra note 1, at 9.

[26] Id. at 15.

[27] Trueblood, supra note 13, at 443–44.

[28] Lescure, supra note 1, at 9.

[29] Trueblood, supra note 13, at 445.

[30] Lescure, supra note 1, at 9.

[31] Trueblood, supra note 13, at 448.

[32] Id.

[33] Id. at 463. For example, in the United States, many women undergo painful cosmetic surgery to meet societies expectations. Id. However, they are not forced by mothers or friends to undergo these procedures, but rather volunteer to go under the blade. Id.

[34] Makundi, supra note 10, at 7.

[35] Id. at 28.

[36] See Prohibition of Female Genital Mutilation (FGM): International and Regional Framework, African Child Pol’y Forum (Dec. 2013), http://www.africanchildforum.org/clr/Harmonisation%20of%20Laws%20in%20Africa/other-documents-harmonisation_11_en.pdf.

[37] Makundi, supra note 10, at 30.

[38] Promotion of Equality and Prevention of Unfair Discrimination Act 20876 of 2000 § 8 (S. Afr.).

[39] Kitui, supra note 4.

[40] See Makundi, supra note 10, at 30.

[41] Kitui, supra note 4.

[42] Id.

[43] Makundi, supra note 10, at 18.

[44] Id.

[45] Id.

[46] Id.

[47] Lescure, supra note 1, at 13; see also Convention on the Elimination of All Forms of Discrimination Against Women art. 1, 2, 5, 12, Sept. 3, 1981, 19 I.L.M. 33 [hereinafter CEDAW].

[48] Lescure, supra note 1, at 13; see also CEDAW, supra note 47, at art. 1.

[49] CEDAW, supra note 47, at art. 1.

[50] Lescure, supra note 1, at 17; see also CEDAW, supra note 47, at art. 2, 5.

[51] Makundi, supra note 10, at 17.

[52] CEDAW, supra note 47, at art. 12.

[53] Id.

[54] See Prohibition of Female Genital Mutilation (FGM): International and Regional Framework, supra note 36.

[55] Lescure, supra note 1, at 16.

[56] Id.

[57] See id.

[58] See id.

[59] See id. at 25

[60] See id.

[61] See id.

[62] See id. at 16.

[63] See Makundi, supra note 10, at 31.

[64] See Minister Nosiviwe Mapisa-Nqakula: International Women’s Day Commemoration, S. Afr. Gov’t (Mar. 8, 2014), https://www.gov.za/speech-hon-nosiviwe-mapisa-nqakula-occasion-international-women’s-day-commemoration-women-military.

[65] See UNICEF’s Data Work on FGM/C, UNICEF, https://www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf (last visited Aug. 30, 2017).

[66] Id.