WANDIA: When consent is abused to justify FGM


WANDIA: When consent is abused to justify FGM
Article 19 (6) of The Kenya Prohibition of FGM Act 2011 indicates that consent to FGM is no defense. PHOTO: Equality Now

By Mary Wandia, FGM Program Manager, Equality Now

5,307 kilometers and eight hours by air is what separates Kenya from Liberia, however regardless of physical distance on one issue, they remain close – Female Genital Mutilation (FGM).

According to the 2016 UNICEF Global report, 50 percent of girls and women aged between 15 to 49 years have undergone FGM in Liberia and 21 percent in Kenya. While Kenya has an anti-FGM law, whose full enforcement remains a hurdle, Liberia is in the process of formulating a domestic violence law which also includes on its surface, is supposed to address the extreme human rights violation of FGM.

However, “consent”, one word which can easily be overlooked, is providing a gateway to FGM in the wording of the draft bill. Hidden among the extremely weak wording on FGM within the Domestic Violence Bill, it  regards FGM as an offence only in situations where it is performed on a person under the age of 18 years, or a person 18 years old or over without their consent.

If the bill is passed, the Liberian government would effectively fail to seize the opportunity to criminalize FGM as it will retain the status quo as parents or legal guardians will continue to grant consent for their daughters to undergo FGM.

By including consent, the proposed bill legitimizes the practice and leaves girls under the age of 18, the age group at highest risk of FGM in Liberia unprotected.  Consent should not be used as a defense to violate women and girls’ human rights.

Consent is acceptance.  To women living in FGM prevalent communities, consent has largely been used to curtail girls’ and women rights’ as most of the youngsters are coerced or forced to undergo FGM. Can a woman in labor consent to FGM? Can an infant or toddler consent?

Kenya’s prohibition of Female Genital Mutilation Act 2011, for instance, states clearly that consent to FGM is no defense.  The apparent consent of a girl, or even a woman, to undergo FGM does not negate the violation of human rights constituted by the practice of FGM.

In Liberia, the Sande female secret society promotes and carries out FGM as part of an initiation rite into womanhood.  FGM is still a taboo subject and it is forbidden to talk about secret societies and their practices with non-initiated people.

Punishment for violations includes physical abuse, forceful initiation (for non-initiates), and in some cases, death threats. How can we talk of consent to FGM in such an environment? Compelling a girl or woman to undergo bodily mutilation in order to maintain social and economic status is itself part of the human rights violation.

The proposed bill also bears ineffective penalties for perpetrators considering that counselling and fines are determined by the judge.  The proposed bill requires the accused, if found guilty of performing FGM without consent, to attend a domestic violence counseling or rehabilitation program or to be fined  US$ 50.9  translating to 5,090 Kenyan shillings or 4,309 Liberian Dollars, of which 25% would l go to the victim’s fund or be ordered to  pay compensation as provided in the Penal law. The sanctions are too weak to deter would be perpetrators of FGM from the practice and is therefore tantamount to promoting FGM.

The underlying reasons for the practice of FGM vary across cultures, between and within communities; however, under the cultural, religious and social surface, it is clear that they are all rooted in gender-based discrimination and harmful gender stereotypes about the role of women and girls in society.

In September last year, during the 2015 Global Meeting on Gender Equality and Women’s Empowerment, President Ellen Johnson Sirleaf pledged to pass a bill into law banning the practice of FGM before the end of her tenure.

The 26th African Union summit to be held in Addis Ababa Ethiopia, has declared 2016 as the African year of human rights, with particular focus on the rights of Women. International Women’s Day is nearly upon us. Will this be the year that women and girls will finally be freed from the FGM bondage?

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