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January 20, 2014

New study examines whether legislation is an effective tool to end the practice of female genital cutting

A newly published article Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal by Bettina Shell-Duncan, Katherine Wander, Ylva Hernlund and Amadou Moreau, shares the results of a study which has examined the effectiveness of legislation banning FGC in rural Senegal.

The process of legal reform against FGC began to take hold in Africa in the 1990s, with the exception of the Central African Republic and Guinea, where bans on FGC were put in place in the 1960s. Currently, there are 24 African countries where FGC is prohibited by the law or constitutional decree, however enforcement is variable and there have been many reports and studies on the complex and varied problems that surround enforcement of the law and concern about the broader ramifications – what is the psychological effect on a young, newly cut girl witnessing the arrest of her parents? What is the financial impact of imposing fines on people who are already poor? Given that women are the prime initiators and practitioners of FGC, would enforcement lead to the systematic imprisonment of women?

The new study looks particularly at the 1999 law banning the practice of FGC in Senegal.  It draws on data from a three-year mixed-methods study in Senegal and The Gambia, however as FGC is not illegal in The Gambia, the authors used the responses from the Senegalese portion of the study to answer their question.  The samples they chose were not nationally representative but were instead selected to capture a variation of abandonment in FGC – communities that were ethnically diverse, included a mixture of families that did and did not practice FGC in the past and varied as to whether they participated in Tostan’s program (which has been implemented in Senegal since 1991) or a public declaration for abandonment.

The study found that there was widespread knowledge of the existence of the Government law banning FGC with many people reporting to have heard about the law on public radio broadcasts or learning about it in public meetings or through word of mouth.  However, most people knew few details about the content of the law and its penalties, and many assumptions were made to its application, although many did view the law as potentially enforceable. 

The authors assert that in many communities, local rules take preference over rule of law and customary dispute resolution is often the primary means of accessing justice, particularly in developing countries, because it is usually procedurally available to local community members and geographically and financially accessible.  On this point and with regard to Senegal, the article says the following:

In Senegal, the local dispute resolution body is made up of the village leader (alkalo) and council of elders. In villages that participated in the Tostan program, there is also often an enforcement committee, formed to assure that families comply with the declaration to abandon FGM/C. During the course of our fieldwork, one recent conflict was fresh in the minds of residents of one village, and illustrates the interplay between the state legal system and local enforcement and dispute resolution bodies. Binta, a 35-year-old Mandinka woman, had been residing in this village for 19 years since marrying her husband and moving away from her family’s compound in a Gambian village just across the border. She stayed in close touch with her family, and visited for occasions such as weddings and naming ceremonies. Binta, we were told, had gone to visit her family some four months earlier, traveling with her seven-year-old daughter Awa. Upon returning from the trip, Awa apparently disclosed a “secret” to her friends: That during the visit, she had undergone FGM/C along with her female cousins. Once word got out, the matter was taken up by the enforcement committee. One former member of an enforcement committee explained: A: Tostan taught us how to identify people who do it in secret. That is why nobody does it in secret. If they do, it would be reported to me. . .. Once, the committee identified someone who circumcised their daughter across the border. And we went to the Alkalo (village leader), and we agreed, and in front of the whole village we said, “We will fine you, and you pay, or we will report you to the authority.” This family paid the fine. They were used as an example, and now people are afraid to take girls across the border.

Q: It is my understanding that it is not illegal to take girls to circumcision in The Gambia. Would the authorities still get involved?

A: Yes, they could. We have agreed [to stop circumcision].

Several things from this exchange are noteworthy. In actuality, Senegal’s anti-FGM law does not contain an extraterritoriality clause, and therefore having a girl cut in The Gambia is not illegal. However, since many residents of this village participated in the Tostan program and collectively agreed to stop practicing FGM/C, Binta violated the new agreement, thus violating a new and contested social norm. The enforcement committee used the law to bolster their authority and the weight of their decisions even though the law does not apply in this case. This illustrates that when there are contestations in local norms, formal law can strengthen the stance of those whose norms are most closely aligned with the legal rule (see also Merry 2006). (pg. 823)

The study determined that a small number of respondents reported having abandoned FGC following media broadcasts but for others, knowledge of the ban did not, on its own, motivate abandonment and in some cases, the practice was continued in secret with deep anxiety.  This led communities to welcome Tostan into their community as the Tostan program was positively viewed as a means of organizing change to comply with the law, as well as develop other areas around health, education and governance.

Consequently the authors found that legal norms ran counter to the social norms upholding the practice of FGC and had little influence in deterring the practice. The study concluded that when legislative reform is not accompanied by other effective means of addressing the broader cultural context, criminal sanctions do not appear to be an effective means of changing behavior.  However, when the practice is already being questioned and contested and the process of change is underway, legal sanctions can help to support those in favor of abandonment.

As laws have now been passed in 24 countries in Africa and 35 countries on other continents, it is important to consider the broader implications of the findings of this study, which support Tostan’s conclusions from experience in hundreds of villages  over the past 17 years: that the abandonment of FGC must start at the grassroots, with community members who have been educated in their national language and then reach out to their extended social network to abandon the practice collectively.   

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