Discussion

Those who oppose the use of legislation cite several well-evidenced reasons associated with implementation and enforcement. There continues to be defiance of the law, which communities see as a coercive top-down directive that does not involve them in its conceptualisation, adoption, and implementation (PATH 2005; UNFPA n.d.). Response to implementation has in some cases been counterproductive, seeing the practice go underground and harder to contain (Boyle et al. 2010). There is under-reporting in surveys and studies for fear of legal consequences (UNFPA 2021), which arguably affects programming, advocacy, and service provision. Criminalisation of the practice has also discouraged girls and women from reporting to authorities (Plugge et al. 2019), or seeking treatment by trained healthcare professionals and institutions, especially for medical complications, for fear of being reported to the authorities under the mandatory reporting provisions stipulated in the law (Karlsen et al. 2020; UNICEF 2013). Several scholars have expressed concerns over the broader implications, in particular over the psychological effects on girls who have undergone the cut seeing the arrest and prosecution of their parents and guardians; the financial impact of imposing fines on already poor people; and the potential imprisonment of the initiators and practitioners of FGM/C, who are primarily women, thereby exacerbating the marginalisation of women (American Bar Association 2024; Katzive 2003; Shell-Duncan and Hernlund 2000). The most striking contradiction with regard to FGM/C, that continues to impede its abandonment, is that, unlike other forms of rights abuse, the perpetrators believe they are acting in the best interest of the victims and therefore any legal ban is subject to challenges and controversy in communities where it is enforced (Shell-Duncan et al. 2000).

For protagonists of the law, given the evidence of the life-threatening and long-term intersecting consequences of FGM/C, there is a need for strong messaging on zero tolerance towards the practice, to hasten its abandonment. (See ‘Axes of Difference’ in the Introduction, and the textbox, p. 204 of this volume.) Arguments have been put forth on the role of law in providing an enabling environment for other initiatives and supporting those who have abandoned or desire to abandon FGM/C (UNFPA n.d.; Shell-Duncan et al. 2013). The law is seen as giving legitimacy to civil society and other stakeholders to advocate abandonment. For example, Kandala and Komba (2015:845) argue that ‘national groups or NGOs would not have been engaged in the eradication campaign unless they believed their actions were legally justified under Senegal’s law …’. On this basis, the law offers protection for girls and women seeking safeguards, and provides a framework in which public officials have the power to ensure their legal protection. The law therefore is not just about prevention; it is also a basis for the adoption of national action plans, policies, and programmes that provide guidelines and standards on protection, response, and management of FGM/C (Muthumbi et al. 2015; UNFPA-UNICEF 2012).1 Both Kenya and Senegal, and several other African countries such as Sudan and Mauritania, have National Action Plans to address FGM/C. The issue is also integrated in health and reproductive rights policies and programmes.

Despite defiance in some quarters, studies have shown that the law does act as a deterrent, discouraging cutters and families who fear prosecution (Kandala and Kombo 2015; Katzive 2003; UNICEF 2021). A study by Shell-Duncan et al. (2013) on legislation in Senegal showed that 84 per cent of those surveyed, in comparison to 7 per cent, believed the law was powerful to stop FGM/C; 80 per cent, compared to 12 per cent, worried about punishment for breaking the law; while 78 per cent, compared to 16 per cent, believed that laws could be enforced in the community. This study, among others, shows that continued sensitisation and implementation of the law does have an effect, at the very least deterring the practice and playing a catalytic role in changing/communicating new norms and consequently behaviour (Matanda et al. 2023). The criminalisation of trends like medicalisation has helped to discourage healthcare professionals in some quarters, because of the fear of possible legal consequences affecting their professional practice (UNICEF 2021). Unfortunately, medicalisation continues to rise, with research attributing this to its perceived safety, exacerbated by the seeming unwillingness of medical regulatory bodies to take concrete action against medical professionals reported for performing FGM/C. Most crucially, the presence of the law reinforces women’s human rights and underscores that FGM/C is unjustified violence against girls and women (Shell-Duncan et al. 2013; UNFPA n.d.).

Of the numerous studies that have sought to understand the efficacy of legislation, most have concluded that the law on its own cannot address FGM/C but must be part of a larger medley of strategies. Studies show that legislation enacted without consideration of the local context may be counterproductive and even harmful for intended beneficiaries (Boyden et al. 2013; UNFPA n.d.), as it can lead to modification rather than elimination of the practice (Ako and Akweongo 2009; Buttia 2015; Matanda et al. 2018; Rasheed et al. 2011; Van Bavel et al. 2017). Therefore, legislation must aim to understand the community and the environment in which the practice takes place, making sure to bring the community along the journey of adopting laws, with conversations and sensitisation on its provisions and intended outcome as much as on the effects of the practice (Boyden et al. 2012; Rahman and Toubia 2000; UNFPA n.d.). Even in the face of unintended consequences, legislation has been shown to serve as a platform and channel for the implementation of other initiatives. On the back of legislative provisions, authorities and other stakeholders can protect girls by placing them in safe spaces and getting them medical attention when needed. On the other hand, enforcement of legislation has occasionally alienated the intended beneficiaries by lowering the number of users seeking services like reproductive healthcare, and thus jeopardising reporting (Karlsen et al. 2020; Plugge et al. 2019. For the diaspora, see also Chapter 8, Mogilnicka et al., this volume). Civil society players are able to organise and hold awareness-raising initiatives in a bid to change attitudes towards FGM/C (Kandala and Kombo 2015). In settings where community members are already doubting, or have given up, the practice and are looking for social approval, legislation may also help to hasten the transition in FGM/C practice towards abandonment by catalysing the change in social and cultural norms that hold the practice together (Matanda et al. 2023; UNICEF 2013). Legislation can be effective in an environment where it is uniformly applied across a jurisdiction, leaving little room for misinterpretation (Al-Nagar et al. 2017; Baillot et al. 2018). In most countries, legislation is followed by enforcement, with no effective mechanisms in place to report, refer, and protect girls and women at risk of FGM/C (Brown and Porter 2016; Dowuona-Hammond et al. 2020; Camilotti 2015; Hassanin et al. 2013), and this may mean that legislation takes a long time to end FGM/C. Consequently, the number of cases is usually low or mainly non-existent, which could suggest a lack of political will and readiness of the community to abandon the practice (Matanda et al. 2023).

Research indicates that in order to demonstrate an impact on the knowledge, attitudes, and norms that drive the practice (Boyle and Corl 2010; Van Bavel 2020; Alkhalaileh et al. 2018; Nabaneh and Muula 2019), legislation must be supported by political will (Ako and Akweongo 2009), locally-appropriate enforcement mechanisms (Nabaneh and Muula 2019), a combination of other interventions that the target community finds acceptable, adequate resources for implementation (Mehari et al. 2020), and sensitisation (Muthumbi et al. 2015). These studies conclude that law is a promising strategy as part of a multi-dimensional approach whose aim is to understand and address the root causes of the practice.

However, new challenges have emerged questioning not just the effectiveness and application of law, but the need to legislate against FGM/C. Recent legal challenges in Kenya and The Gambia demonstrate this. In Kenya, a court petition by Dr Tatu Kamau (see Chapter 12, also Van Bavel et al., Chapter 10 of this volume) argued that the anti-FGM Act infringed on women’s rights to culture, the best attainable health, and gender equality. Kamau supports the eventual eradication of FGM/C but believes that the practice should be discouraged through awareness-raising rather than legislation (Kenya Law 2017; also see Chapter 12, this volume). She argues that the prohibition of medicalisation denies ‘willing adult women’ access to safe and hygienic circumcisions and therefore infringes their right to ‘the highest attainable standard of health including the right to healthcare’ (Kenya Law 2017: paragraph 12). Her petition was not about children but addressed only the rights of women. Furthermore, she made the point that ‘female genital surgeries conducted for cosmetic purposes in developed countries are legal and yet female genital surgeries in Africa are criminalised’ (ibid.: paragraph 13). The issue of bodily autonomy and consent was central to the arguments averred and rebutted.

In The Gambia, a legal challenge came about in 2023 when a few religious leaders and legislators objected to the first prosecution and conviction of cutters based on the Women’s (Amendment) Act 2015.2 In August 2023, Kaur/Kuntaur Magistrates’ Court convicted three women for performing FGM/C on eight adolescent girls. This landmark judgment marked the first conviction of its kind since the enactment of the law banning FGM/C eight years earlier. See https://equalitynow.org/press_release/ngos-unite-to-urge-the-gambias-government-to-uphold-landmark-law-banning-female-genital-mutilation/ [Accessed 15 July 2025]. The legislators introduced the Women’s (Amendment) Act 2024 into parliament to repeal Sections 32A and 32B, which prohibit FGM/C. Similar arguments raised in the Kamau case surfaced, mainly that the banning of the practice was an imposition of Western values, and that it was of cultural and religious importance and therefore banning it was contrary to several provisions of the 1997 constitution.3 It was argued that the law was inconsistent with sections 17 (1&2), 25, 28, 32, and 33 of The Gambia Constitution 1997. On 15 July 2024, the Gambian parliament rejected the Women’s (Amendment) 2024 Bill, attempting to remove provisions criminalising FGM/C by voting against it.

Both cases highlighted the continued dissatisfaction around the use of the law. The question then is: can and should the law be used to change social behaviour? Human rights do not function in a vacuum; they are interdependent and interrelated. While allowing for freedom of culture and religion, the human rights regime also recognises that these rights can and have been used to violate other rights, especially of women and children who find themselves living in patriarchal and misogynistic societies. The human rights framework therefore allows for the limitation of rights where they infringe on other rights disproportionately. Cultural relativism should not be used to violate the rights of those who are in most cases the most marginalised and disempowered within communities (Donnelly 1984. See also the discussion of cultural relativism in ‘Axes of Difference’, in the Introduction to this volume).