FGC and the Law: Why Criminalization Isn’t Enough

Voices from the Field features contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article is authored by Molly Melching, founder and CEO of Tostan, to mark the Feb. 6, 2016 International Day of Zero Tolerance for Female Genital Mutilation. Learn more about the practice of female genital mutilation/cutting, and join the conversation on social media to #EndFGM/#EndFGC.

In December of 2015, Gambia passed a law banning the practice of female genital cutting (FGC), with strict penalties. Many organizations and activists who have long campaigned to end FGC applaud this development, as did many who supported Egypt’s recent moves to more aggressively enforce their existing laws by mobilizing doctors and judges to prevent and prosecute wherever possible.

While attention to this crucial issue and efforts to prevent further harm to women and girls are important, we must remember that, to address a deeply embedded social norm such as FGC, we cannot become overly reliant on the law. The judicial system has a role to play. However, if it is widespread and sustainable change we are after, a grassroots and community-led approach that examines the underlying social norms and beliefs perpetuating the practice, should be equally as important.

In 2014, Dr. Bettina Shell-Duncan—well known for her extensive research on FGC in Africa—published a study on the effectiveness of legislation banning FGC in communities in rural Senegal. The study found that, while there is widespread knowledge of the existence of a national law banning FGC, local rules most often take preference over rule of law, and customary dispute resolution remains the primary means of accessing justice for rural African communities.

The study concludes that when a law is not accompanied by other effective, grassroots means of addressing the broader cultural context, outside prosecutions do not appear to be an effective way to change behavior.

Dr. Gerry Mackie—an academic authority on the practice of FGC who first published on the topic in 1996 and has served as an advisor to governments and NGOs around the world on FGC policy—also says that legal coercion alone is insufficient as a change agent. He believes that an approach that appeals first to a community’s moral and social motivations would have the best results in bringing about abandonment of FGC. “[This] approach, through public education and community discussions, appeals first to people’s moral motivations to do the right thing for their children, and second to communities and other groups to socially regulate their peers in support of the change,” he says. “The law should be part of the much larger public deliberations and actions…”

Tostan, an international organization that has been working (primarily) in West Africa for twenty-five years, has demonstrated the impact of a community-based approach to the issue. The core of Tostan’s model is the Community Empowerment Program (CEP), a three-year educational program grounded in human rights information-sharing and discussion (in local languages and context), which then moves into skill-based training in literacy, numeracy, and project and financial management. After spending three years in dialogue and discussion, our partner communities emerge with an understanding of, and a deep appreciation for, the meaning and importance of human rights for all. This understanding becomes the fodder for a new collective vision that is the basis for making critical decisions about long-standing practices such as FGC.

As a direct result of Tostan’s program, to date, over 7,600 communities in eight countries across Africa have publicly declared their intention to abandon FGC and child and forced marriage. This means that three million people now live in communities that have chosen—collectively and of their own volition—to end these harmful practices.

In 1991, when Tostan was officially incorporated, our organization and community partners were not necessarily aware of “social norm theory.” But we had seen the transformative effect of a human rights-based education, taught using traditional methods of learning and sharing. We had responded when women asked for more information about “the tradition” (FGC) to be included in the health module of the program. And we had listened when community elders, such as Imam Demba Diawara, explained that one village could never successfully abandon such an ancient tradition on its own—that it would take many villages, together.

Since then, Tostan has found that there are five key elements to supporting the end of the practice: 1) community education on health and human rights; 2) dialogue and discussion that unearths the consequences of the practice and hidden opposition to it; 3) engagement of all those involved, including religious leaders, grandmothers, cutters, fathers, the girls themselves, as well as the government; 4) public declarations that give communities agency, allowing them to say publicly that they are the ones who have decided to end this practice; and 5) a supportive enabling environment—including laws—that are designed to build on these other components.

In 2010, the government of Senegal based its National Action Plan for the Abandonment of FGC largely on the Tostan program, advocating a human rights-based approach to ending the practice across the country. While FGC has been illegal in Senegal since 1999, the government has recognized that legal action alone cannot create lasting change. “Criminalization is a frequent remedy for harmful social practices,” Mackie says. “But using criminalization as the metric of success also creates the illusion that a difficult social challenge has been met, and thus inadvertently discourages allocation of resources to nonlegal methods more likely to achieve the goal of harm reduction.”

However, Dr. Shell-Duncan’s study found that in communities where FGC is already being questioned and contested, and the process of change is already underway, legal sanctions can help support those in favor of abandonment.

In the end, once laws are passed—even those passed prematurely—they can become a part of positive change. Tostan has seen an increase in local awareness when laws are passed. But what is critical in places like Gambia is to complement those efforts with education, information and community engagement.

Ultimately, laws work well when they emerge from community demand and come into a context where there is local support to uphold them. They are much less likely to work when they come from the top-down. What Tostan has witnessed over the last two-plus decades is that real potential for widespread, social transformation lies among the individuals and communities collectively at the grassroots, who, through respect and information-sharing, chart a positive path forward.