A midwife examines an expectant mother by torchlight. Julien Behal/PA Archive/PA Images. All rights reserved.Female genital mutilation (FGM) is still
a common practice in Sudan. Nine out of ten women have been subjected to this
practice.
In 2009, a proposed ban on FGM in the
National Child Act miserably failed to materialize. In spite of the failure of
a national law against FGM, with extensive funding from UNICEF and UNFPA,
several of Sudan’s eighteen states have criminalized this harmful traditional
practice.
One of these states is Red Sea, located
in eastern Sudan. Red Sea is known for being extremely conservative when it
comes to women’s rights, and FGM is widely practiced. We chose to investigate
the criminalization process in Red Sea out of a genuine desire to study a
positive example of a state that had managed to introduce a ban on FGM against
all odds. Instead, we found a “paper
tiger” law that does not
protect girls against FGM.
Criminalizing
FGM in Sudan
FGM includes any procedure involving
partial or total removal of the female external genitalia or other injury to
the female genital organs for non-medical reasons. It is a harmful traditional
practice, which reflects deep-rooted inequality between the sexes and
constitutes an extreme form of discrimination against women. Numerous
international and regional human rights treaties and conventions condemn the
practice.
Eliminating FGM is part of the United Nations sustainable development
goal 5 – to achieve gender equality and empower all
women and girls. One of this goal's targets is to “eliminate all harmful practices,
such as child, early and forced marriage and female genital mutilation”. The
World Health Organization estimates
that more than 200 million girls and women worldwide have been subjected to FGM
and that approximately three million girls are at risk each year.
FGM is mostly concentrated around 29
countries in Africa and the Middle East: Egypt, Ethiopia, Kenya, Nigeria, Somalia,
and Sudan account for 75 percent of all cases worldwide, according to a 2013 UNICEF report.
Since the 1995 Beijing platform of
action, criminalizing FGM has been high on the international agenda. Of the 29
countries where FGM is common, Sudan is one of the few that has not yet
nationally criminalized the practice.
The least extensive form of FGM in Sudan
is called “Sunna,” which is an Islamic term referring to Prophet Mohammed’s
teachings and actions and it typically involves partial or total removal of the
clitoris. The most serious – infibulation – is referred to in Sudan as pharaonic circumcision and it involves
cutting and bringing together the labia minora and/or the labia majora to
create a type of seal and then stitching together the cut edges of the labia.
Sudan was actually the first African
country to introduce legislation against genital mutilation. This happened in
1946 under British colonial rule, when infibulation was prohibited through a
supplement to the Criminal Act.
However, in 1983, when Sharia law was
introduced, the article prohibiting FGM was removed from the Criminal Act. With
funding from (in particular) the UNFPA and UNICEF’s joint program “Female Genital Mutilation/Cutting
(FGM/C): Accelerating Change”
(UNFPA and UNICEF’s anti-FGM program) an initiative was taken to criminalize
all forms of FGM in Sudan as part of the promulgation of a new National Child
Act in 2008, according to a 2013 UNFPA-UNICEF report.
UNFPA and UNICEF’s joint FGM program is
the largest global program with an aim of eradicating the practice. The program
seeks to protect women and girls from FGM using a rights-based and culturally
sensitive approach in Sudan and sixteen other countries. The joint program has
pushed for and funded initiatives both at national and regional levels to
criminalize FGM in Sudan.
Under the guidance of Sudan’s Ministry of
Social Welfare, Sudan’s National Child Welfare Council took the lead in
drafting a new National Child Act; a process that started in 2007. Article 13
of the draft law proposed in 2009 criminalized FGM in all its forms, according
to the 2013 UNFPA-UNICEF report. Advocates for criminalization used
Islamic arguments that had support from some religious leaders such as Abdel
Galil Al Karruri.
During our fieldwork in Khartoum in 2015,
several individuals explained in interviews (i) that Islam
forbids doing harm to a female’s body and (ii) that medical evidence shows that
FGM causes extensive damage to women’s bodies and minds.
All the required committees approved the
draft law before it was presented to the Council of Ministers. However, prior
to this meeting, religious leaders convinced President al-Bashir that article
13 was against Sharia, and he subsequently ordered its removal.
According to a report by Nafisa Bedri at Ahfad University for Women, “this
decision followed a fatwa of the Islamic Jurisprudence Council which called for
a distinction to be made between the various forms of FGM”. The fatwa called
for a distinction to be made between pharaonic
circumcision and the Sunna type.
Even though the conservative religious
leaders and Salafists support the eradication of pharaonic circumcision, which
they regard as backwards and un-Islamic, they simultaneously claim that the
Sunna version is Islamic and that criminalizing it would be in opposition to
Sharia.
When the National Child Act reached the National Assembly, it was
without an article criminalizing FGM. Women and
child rights activists protested the annulment of article
13 in vain.
In spite of the religious conservatives’
success in stalling the passage of anti-FGM legislation at the national level,
several states have passed laws prohibiting FGM, including South Kordofan,
South Darfur, Gedaref, and Red Sea.
Criminalizing
FGM in Red Sea, eastern Sudan
We have followed efforts to criminalize
FGM at Sudan’s national level for several years, and we have conducted
fieldwork in Sudan on multiple occasions since the proposal to ban FGM was
first introduced in 2008.
Numerous representatives of UN agencies,
the National Child Welfare Council, and Sudanese government institutions, as
well as women’s rights activists in Khartoum have told us that, despite failure
to pass anti-FGM legislation at the national level, they have succeeded in
criminalizing FGM at the state level.
The 2015 annual report for UNFPA and
UNICEF’s anti-FGM program
claims that six states have criminalized FGM. However, our interview data
suggests not only that this number is exaggerated, but also that the law in Red
Sea is a “paper tiger” – that is, a law on paper that does little in practice
to change the lives of girls in Red Sea.
Criminalization of FGM in the Red Sea
started in parallel with the national process. In 2007, the Red Sea managed,
surprisingly enough, to criminalize all forms of FGM without any visible
opposition in its regional parliament. However, after the law was adopted, tribal
leaders of the Beja group – by far the largest ethnic group in Red Sea – protested
against it.
The Beja group practices infibulation, but
refer to it as kushabi, which the group believes preserves honor, keeps
away evil spirits and diseases and is compatible with Islam. The group conducts
the procedure before the end of a girl’s first birth year. The Beja group’s
tribal mobilization against the law culminated in a repeal of the article of
the 2007 law that had criminalized all types of FGM.
The fight for criminalization of FGM did
not stop, however. In 2009, local media reported that a 40-day-old girl died
after being cut. The case was reported to the police, but the girl’s family
refused to give the name of the responsible midwife. This case fueled another
attempt to criminalize FGM in Red Sea.
With pressure and financing (particularly
from the UNFPA and UNICEF anti-FGM program), a new attempt to criminalize the
practice was made in 2011, and activists and international actors interviewed
in Khartoum described this attempt successful.
According to a representative of UNICEF we
interviewed in Khartoum in 2012:
“We
began in earnest to work for criminalization at the state level after the
attempt failed nationally. And we have succeeded in several states. South
Kordofan introduced a law to criminalize FGM in 2008. In
Gedaref, FGM was criminalized as part of the Children Act 2010 and the same
happened in South Darfur and the Red Sea in 2011.”
However, based on interviews we conducted
in Red Sea during the summer and autumn of 2016, we find that FGM has not been
criminalized as a matter of fact because the 2011 law has major shortcomings
that prevent its application to all occurrences of FGM.
First, the law forbids pharaonic
circumcision only, which sends a strong signal that Sunna circumcision is still
legitimate.
Further, “pharaonic circumcision” is not
defined as “infibulation,” and the Beja practice of kushabi is not
mentioned at all in the law. This makes it easy to circumvent the law.
In addition, the law states that in order
for the law to take effect, the Red Sea Minister of Health must issue a decree,
something he still has not done six years after the law was enacted.
Finally, the law does not stipulate any
penalty for offenders. Against this backdrop, it is not surprising that Beja
tribal leaders did not take the trouble to protest the law in 2011, as they did
in 2007.
A
political compromise without content
On the surface, Red Sea appears to be a
success story for girl's and women’s rights, but the 2011 law that supposedly
criminalizes FGM is merely a paper tiger.
The law seems to be a perfect political
compromise: the local tribes are satisfied because they can continue their
traditional practices, for some government employees it is a step forward while
international donors have the sense that they have gotten value in return for
their investments.
An FGM advocate in the Red Sea explained in
a 2016 interview:
“When
the child law was tabled, it included criminalization of the pharaonic type
only. There were some supporters for the criminalization of all types but they were
not able to convince the session as many of the parliamentarians were there in
2007 during tribal opposition to the law. Forbidding pharaonic circumcision is a
compromise satisfying the international organizations who supported the
initiatives and who are supporting the education and other services in the
state, and at the same time it avoids provoking the tribal leaders.”
In short, as a political compromise, the
2011 law satisfies both external and internal actors. International donors who
put tremendous effort into the law celebrate it as a victory, even whilst it
enables the continued practice of FGM in tribal communities.
Certainly, a law that de facto
criminalizes FGM would be near impossible to obtain in the Red Sea because of
strong opposition from tribal leaders.
Nonetheless, while the resultant law is a
political compromise cleverly designed to please stakeholders, girls at risk of
undergoing FGM remain unprotected by the law.