Implementation of FGM/C laws

The relative ease, despite pockets of dissenting voices, with which anti-FGM/C laws were passed in both countries did translate into immediate implementation. In Kenya, by October 2011, the same year the law was passed, there had been five arrests of people charged under the anti-FGM Act and awaiting prosecution.1 As of 2024 the number of reported concluded prosecutions is less than 100 (Kenya Law Database). However, there is no information available on their conviction or otherwise (UNICEF 2021). Similarly, in Senegal in January 1999, the same month the law was passed, two arrests were made but did not result in conviction. In July 1999, a mother, grandmother, and excisor were charged for procuring FGM/C on a five-year-old girl, but public opposition led to the cases not being pursued; only the mother was later convicted for allowing her daughter to be cut (Kandala and Kombo 2015; UNFPA 1999). Kenya, in comparison to Senegal, has had more cases of arrests, charges, and convictions, which are also better documented. In Senegal, prosecutions have been very few, with many reports giving the total as few as eight (28 Too Many 2021; UNFPA 2017).

The laws in both countries have similar provisions, providing for a range of offences: performing, procuring, aiding and abetting FGM/C on another person, failure to report the commission of FGM/C, and medicalisation. Kenya’s law has extra provisions that prohibit cross-border FGM/C, allowing premises to be used for FGM/C, and the use of derogatory or abusive language towards those who have not undergone FGM/C. While implementing the law has been fraught with challenges in both countries, a clear distinction is seen in the approach. NGOs in Senegal have argued that the law should be used to complement other strategies, in particular education of communities on the effects of FGM/C. Gallo Kebe, coordinator of the UN Joint Programme in Senegal, said in 1999: ‘We have two main approaches to ending FGM/C. The law is there, but we focus primarily on raising awareness. The law alone won’t end FGM/C’ (UNFPA 1999:4). The law is seen as a tool to facilitate conversations and give credence to those working in communities to change people’s knowledge, attitudes, and behaviour towards FGM/C (Kandala and Kombo 2015; UNFPA 2017).

The two decades preceding the passing of the law in Senegal were characterised by extensive education and awareness raising across the country, with declarations of abandonment in several regions. For example, in July 1997 the village of Malicounda Bambara decided to abandon the practice after the villagers underwent Tostan’s non-formal education programme. A 2008 evaluation of the Action Plan noted that, of the 5,000 or so villages that previously practised FGM/C, 3,300 had foresworn the practice by 2008 in public declarations.2 Research has shown that public declarations do not always translate to people giving up FGM/C (see for example Hughes, Chapter 14, this volume). There are, however, areas in which the practice is still strongly defended (Kandala and Kombo 2015). The approach that sees the law as a last resort, as a strategy to be leveraged rather than the go-to solution, could account for the very few cases in the country. Nonetheless, there have been cases that have led to convictions. For example, in July 2009 the Kolda Regional Court, trying a case which involved the death of a child after FGM/C, sentenced the person who performed FGM/C and two accomplices to three-month suspended prison sentences. This decision was condemned, with concerns raised about whether such lenient sentences would be a deterrent. In May 2010, the Kaolack Court of Appeal sentenced a perpetrator who performed FGM/C to six months imprisonment, with the accomplices receiving three-month prison sentences. The use of law has reportedly driven the practice underground in some high-prevalence areas, and seen protests when arrests are made, leading to the perpetrators being pardoned, or lack of follow-up on charges. Enforcement has also encouraged people to cross borders to neighbouring countries like Mali, which do not have anti-FGM/C laws (Kandala and Kombo 2015; UNFPA 1999).

Kenya has used the law more frequently in a bid to stop the practice, and met defiance. Community members do not always report when FGM/C is taking place, as some still do not agree with the ban. Those who perform FGM/C take flight and are rarely apprehended or prosecuted due to lack of evidence. This is compounded by the fact that those on whom FGM/C is performed, and their families, are usually unwilling to give evidence, frustrating prosecution. It is also challenging to confirm if a person has undergone FGM/C without a medical examination, which most victims are unwilling to undergo, and some are forced to undergo, raising ethical issues around consent (UNICEF 2021). The lack of sufficient and continued sensitisation of communities on the law encourages pockets of resistance, though this has been remedied with civil society organisations and the Anti-FGM Board holding regular sensitisation campaigns across the country. Prosecution has also brought about a transformation of the practice, with FGM/C being performed in secret, at infancy or a much younger age, below ten years. Others cross borders from Kenya to Uganda, Tanzania, or Somalia, where enforcement of the law is seen to be more lax (UNICEF 2021; UNFPA 2022). All these challenges exist despite national government support for ending the practice, with a presidential decree in 2019 to eradicate FGM/C by 2022 in Kenya (Kmietowicz 2019). Notwithstanding these challenges, Kenya has among the highest rates of prosecution and convictions for FGM/C on the continent. For example, in 2019, seventy-six persons (fifty-nine females and seventeen males) were arrested in connection with the cutting of fifty girls (UNICEF 2021:32).

A recent study by the American Bar Association (ABA), which looked at prosecutions in three jurisdictions and high court cases in Kenya, confirmed the challenges noted above while also observing emerging issues. A majority of the cases coming before the courts were of survivors/victims of the practice charged with procuring FGM/C, with very few cases brought against those performing FGM/C. Of the 155 accused persons, seventy-seven were survivors/victims while only eight were cutters. Other concerns arose around re-victimisation, self-incrimination, misapplication of the failure to report Section 24 of the law3 Under Section 24 of the law, a person commits an offence if they fail to report FGM/C in process, intended, or previously committed. (where victims are charged under this provision), and the best interests of the child. This begs the question of whether, in these cases, the spirit of the law rather than the letter was being upheld. Did the law envision or intend to criminalise those who were already victims of the cut? (American Bar Association 2024; 28 Too Many 2018). Criminalising the victims of FGM/C contravenes obligations under international and national law to protect victims, and this has been expressed in various General Recommendations.4 Although General Recommendations are legally non-binding, they are extremely important for clarifying State Parties’ obligations. See the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and African Commission on Human and Peoples’ Rights (ACHPR) Joint General Comment on Female Genital Mutilation (June 2023:17). https://www.acerwc.africa/sites/default/files/2023-11/Joint%20General%20Comment_ACHPR-ACERWC_on%20FGM%20%282%29_0.pdf [Accessed 14 July 2025].

Even as implementation of the law has proved challenging as a prevention and protection strategy, it has not been without its successes. Evidence suggests that FGM/C legislation has had some effect in preventing FGM/C or accelerating its abandonment. In Senegal, where notable strides have been made towards abandonment, prosecution is rarely used but has successfully been used as leverage to deter the practice (Kandala and Komba 2015). In Kenya, the law has been a double-edged sword, working as a deterrent while also facing much defiance. In other countries, such as Burkina Faso, strict enforcement of the law has led to a decline in prevalence in some parts of the country (Diop et al. 2008). In Eritrea, compliance with the FGM/C law has been furthered by the creation of a community-level enforcement mechanism, and through setting up local anti-FGM/C committees in every community, which have reportedly been successful in preventing FGM/C (Muthumbi et al. 2015:36). These committees engage local law enforcement officials in monitoring violations of the law, educating families about FGM/C, and reporting FGM/C to the authorities when it occurs (UNFPA-UNICEF 2012). Research has shown that the criminalisation of FGM/C has deterred some people from the practice for fear of legal consequences (Matanda et al. 2023; Meroka-Mutua et al. 2020; UNICEF 2021). Therefore, can legislation be written off as an ineffective strategy or will rethinking its development, adoption, implementation, and enforcement address some concerns about its efficacy?