Last week’s article on the Protocol on the Rights of Women and Female Genital Mutilation (FGM) provoked reaction from a number of quarters. Here we reproduce an article which argues that legislation aimed at protecting women’s rights should also include the right to practice a certain culture, even if that might include FGM. The author of last week’s editorial, Faiza Mohammed, takes issue with this argument, saying it is well understood that “many African cultural practices are prideful, but FGM is not one of them and must be ended without delay”.

DEBATING FGM: A VIEWPOINT FROM DOREEN LWANGA

I am glad to see that the campaign to get African states to sign the Protocol on the Rights of Women in Africa is still going on after a month away from my usual access to Pambazuka News. Myself, I have been meaning to add my voice to the traffic of letters and petitions on this topic for the last couple of months.

Once I used to be the first person to sign any petition concerning the protection of women's lives, dignity, equality and human rights. Now, it is taking me more than two-months of great difficulty to convince myself that I should add my signature to the petitions. Believe me you, I am a feminist and a human rights activist but let me reveal my fears regarding what seems to me as women legislating away our (women's) human rights.

I have had the privilege of reading on several occasions the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, once when I was preparing scholarly work. However, there are sections in the Act that are unsettling to me as an African woman, given their significant capacity to erode the human rights of women.

For example, Article 5 relating to the 'Elimination of Harmful Practices', defined in Article 1(g) as “….all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity.” Article 5(b) goes on by stipulating for “…prohibition, through legislative measures backed by sanctions, of ALL forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and ALL OTHER practices in order to eradicate them.”

What is not clear is what forms of female genital Mutilation (or cutting) fall under this category as 'harmful'? In different African cultures, there are different forms of female genital transformation, some of which have never been harmful to the girl child or woman.

I do not want to sound pretentious that there are no incidences where the FGM practices have produced harmful results, however, that does not make the norm harmful by itself. Malpractice could occur because of using an unsterilised instrument, conduct in uncertain locations for fear of subjective law enforcers and/or just like any other accident happens. The results may become harmful such as bleeding profusely, genital injury or death, although that does not make the norm harmful. Just like the death of a woman while delivering does not make the act of child-delivery harmful and nobody has advocated for an end to pregnancy.

But who are these women that find ALL forms of FGM/C harmful? This coalition includes many African women in positions of political, social, economic and cultural authority. The majority of these women are in the metropolis of their respective countries in Africa or abroad. Most of these women are educated, which in our society imparts on them a level of high intellectual ability and inalienable right to speak on behalf of the 'African woman'.

Thus, there is a need to emphasise that there is a difference between a 'norm' and a 'practice'. If women like us are given the chance to practice our culture without the threats of statutory law, law enforcers and the misguided pity of those who have no understanding and appreciation of our traditions, perhaps the case of harm could be minimized.

Secondly, what is the meaning behind 'Positive Cultural Context' in Art. 17 of the Protocol? How does it relate to the cultural rights of women as human beings? I have argued elsewhere that if any society is moving to codify people's cultural practices and label them harmful, it is wrong to assume that you can take a broad brush of one group (anti-FGM/C or pro-monogamous) and sweep away the aspirations and traditions. While one group of women can gain more legal protection, another group loses its cultural values and traditions.

Already the impacts of such 'legal criminalization' of women's cultural lives (as mentioned above) are felt worldwide. In countries of Europe and North America, African women are rewarded if they can claim that 'they hate their own culture. Anyone who can claim successfully that they run away from their countries for fear of genital cutting or widow inheritance will win themselves asylum under the category of 'Gender-Based Asylum Claims'. That is why I think that the text of the Protocol in Article 17 should be read together with the African Convention on Human and People's Rights in Art.17(b)&(c) on the right of every individual to freely take part in community life, moral and traditional values, Art.19 on equal respect and Art. 22 on the right to cultural development.

What is happening right now is that some mothers who want their daughters to have a chance to practice their culture have to 'steal' their daughters away from their locations in big cities of Africa or Europe and North America where the FGM practice is banned. They take them into rural hiding places where opportunities exist for their daughters to continue the customs that they themselves engaged in. Sometimes, the results from sneaky practices have ended up in fatal accidents. Unfortunately, the current text of the Protocol does not protect such women nor offer them a choice to continue the practice.

It is my submission, therefore, that we should include the choice to practice one's own culture and the choice of marital relationship. But it is wrong to argue that women's traditional practices are done to satisfy men. In most cases, when we were girls our mothers told us of the practices and guided us or connected us with girls our age. Even today very few mothers (especially in urban centres) want to tell their 12 or 13 year-olds about men and marriage. It is more 'fashionable', even in rural places, to tell your girl child that 'education is the key to success'. Thus, women activists should not be blind to the fact that whereas there work is highly applauded, there are girls for various reasons that will desire but never have the access to education. So, to deny them a chance of becoming women and/or their future marriages in their traditional ways is shameful. In my opinion, as long as women continue to imagine themselves in the image of men, they will keep themselves for ever subordinate.

This brings me to my final point about Art. 6(c) encouraging monogamy as the preferred form of marriage. Personally, I do not see the need to mention monogamy if indeed the same article goes on to mention protection for women in polygamous marital relationships. By doing so, this Protocol assumes that all African women have trouble with polygamous marital relationships and would prefer to be in a monogamous relationship. There are women who live their lives without trouble of polygamous relationships. I am an advocate for polygamous relationship if this is going to cater for the problems of prostitution, socio-economic stress, unmarried women, barren women, etc. Presently, there are countries that try to accommodate different marital relationships in statutory law. In Senegal, for example, statutory law provides for one to state at the time of marriage the preferred choice of marital relationship - whether monogamy or polygamy. A copy of the agreement is deposited at the registrar of marriages, and with this a man cannot legally marry a second wife, if he indicates monogamy as the preferred choice. In case of violation, his marital wife can file a complaint against him in court. Whereas one may say that this does not solve the ability to marry traditionally, it at least provides grounds for litigation, and is better than nothing.

Surely, we should not misrepresent human rights in the name of women’s emancipation. It is as human to me if I happen to be the second wife to have the protection under marital law as it is to the first wife to enjoy a marriage. I am confident that the only way we are going to remake our history and rewrite women's lives and experiences in Africa, is by critically re-reading our own lives and the lives of the communities with our African lenses. We need to positivise women's lives and livelihoods and celebrate the African woman. I would like to recommend a wonderful reading entitled, “Women in African Colonial Histories”, Edited by Jean Allman, Susan Geiger and Nakanyike Musisi. Funny enough that even in those countries where monogamy is the only accepted marital relationship, men - from men of the highest political class to the ordinary man on the streets - cheat on their wives with women the same age as their own children. If there should be statutory law, it should be to reinforce the unwritten existing regime but not to hurt those women that it is supposed to protect.

* Doreen Lwanga, The Fletcher School of Law and Diplomacy, Tufts University, Medford, Massachusetts, USA

DEBATING FGM: A RESPONSE FROM FAIZA JAMA MOHAMMED

This is a response to Doreen Lwanga's comment. To use Lwanga's own words, it was quite "unsettling" to see such a response from someone from a prestigious US university and who claims to be a human rights activist, to categorize female genital mutilation (FGM) as not harmful! First and foremost, I would suggest that Lwanga seek information about the work of grassroots and women's movements in Africa, where for the past two decades extraordinary human rights activists have been struggling within their communities across the continent to eradicate FGM. The following are some additional comments in response to Lwanga's letter:

1. First and foremost, FGM is a harmful traditional practice that violates the fundamental human rights of women and girls and deprives them of the recognized legal rights to bodily integrity, freedom from violence, and access to education, health, equality, to name a few of these inalienable rights. According to the World Health Organization (WHO), over 130 million women and girls are afflicted by FGM and 6,000 girls a day are still subjected to the practice, which causes devastating physical and psychological consequences, including death. The WHO has declared all types of FGM harmful and it is performed in violation of the Convention of the Rights of the Child, the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), other international covenants and many African constitutions and national laws, including those in 14 African countries that specifically prohibit FGM.

2. Equality Now manages the Fund for Grassroots Activism to End FGM, which supports the work of organizations on the ground in over a dozen countries in Africa that work within their communities and governments to end FGM. Without exception, these are outstanding human rights activists who take great pride in their respective traditional African culture, but understand firsthand that FGM harms girls and is a traditional culture that must end.

These grassroots organizations work for instance on alternative rites of passage without genital cutting, education of youth, religious leaders and circumcisers on the harmful effects of FGM and ways to end it; they lobby their governments to institute laws against it and use the media effectively to break the silence and spread the word about FGM in their countries and around the world. They support young girls in Kenya and Ethiopia who have run away from the practice and those who were not able to escape the mutilation despite their efforts or the law.

Equality Now recently convened an unprecedented meeting with former circumcisers, who have laid down their knives to become anti-FGM activists. These women are a far cry from belonging to the elite and educated "majority" to which Lwanga alludes. These women speak for themselves and to their commitment to prevent other circumcisers and parents to subject girls to the harmful practice. I would suggest Lwanga conduct research and obtain additional information about these local African efforts.

3. In communities where it is practiced, FGM is a social prerequisite to marriage, religious obligation, and the passport to social acceptance by the girl's community. In fact, whether or not FGM is medicalized, FGM is used as a tool to oppress women as women, to deny them of their sexual rights and access to equality. When FGM is practiced as a rite of passage, girls, anywhere from the ages of 8 to 18, are more often than not removed from school and forcibly married shortly thereafter. Lwanga's comment about "consent" is troubling since it is well understood that inalienable human rights can never be "consented" away and under any circumstance can a child freely and knowingly consent to a harmful practice mandated by the ones they love.

4. The African Protocol is unique in that it addresses the concerns of women in Africa. It is a document drafted by African people (men and women) who are extremely knowledgeable on the various injustices and human rights violations committed against African women. All understand that many African cultural practices are prideful, but FGM is not one of them and must be ended without delay.

Lwanga's comparison of the intentional removal of female genitalia to childbirth is shocking, whereby one is a natural process, and the other is imposed on girls in the name of culture and religion, inflicting lifelong and unnecessary suffering. Would Lwanga also support the castration of boys for their subjugation and acceptance as males in society? Slavery was also a cultural tradition in the United States that lasted many centuries; however its acceptance in the fabric of American society did not negate it as a human rights violation.

5. With respect to polygamy, Article 16 of CEDAW states that every woman has the right freely to choose a spouse and to enter into marriage only with their free and full consent. Women in polygamous relationships mostly have not been given the right to choose neither their husbands, nor a polygamous situation. Again this begs the question as to whether Lwanga would also support multiple husbands for a woman who would choose other men without her husband's consent? Polygamy is also a form of discrimination against women, that increasingly endangers the lives of women through the risk of contracting HIV/AIDS in situations where women have no control over their sexuality and their bodies.

6. We agree that prostitution and the commercial sale of sex objectifies and degrades women, furthering the exploitation of women and perpetuating gender inequality. We support the prosecution of commercial sex users, pimps and traffickers who are the perpetrators of the exploitation of women trapped in prostitution. States have an obligation to protect women from prostitution by providing adequate economic and educational opportunities and empowering women toward healthier means of income. Linking prostitution to monogamy in any way, shape or form is baseless. Dire poverty, histories of sexual or other abuse, and no other opportunities for income generation, are among factors that contribute to prostitution. In terms of the exploitation of women through prostitution, many men living in communities where FGM is practiced testify that they seek uncircumcised women because they were not getting sexual pleasure with their circumcised wives.

Our role is to bring forth the yet unheard voices across Africa that are working to end violence and discrimination and to support their work in protecting the fundamental rights of women and girls. Every woman and girl must know about her human rights and our duty, as activists, is to impart this outreach and education to ensure girls will make informed choices instead of being misled in the name of culture or a misinterpretation of religion.
Lwanga's pessimistic and defeatist view that since some girls and women would never "make it" anyway, therefore let the status quo perpetuate itself, has little purpose in our collective quest toward equality and justice.

* Faiza Jama Mohamed is Africa Regional Director of Equality Now.

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