Female Genital Mutilation around The World: PDF
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Ngianga-Bakwin Kandala Paul Nzinga Komba Female Genital Mutilation around The World: Analysis of Medical Aspects, Law and Practice Female Genital Mutilation around The World Ngianga-Bakwin Kandala • Paul Nzinga Komba Female Genital Mutilation around The World: Analysis of Medical Aspects, Law and Practice Ngianga-Bakwin Kandala Paul Nzinga Komba Department of Mathematics Wolfson College Physics and Electrical Engineering Cambridge Faculty of Engineering and Environment United Kingdom Northumbria University Newcastle upon Tyne NE1 8ST United Kingdom ISBN 978-3-319-78005-4 ISBN 978-3-319-78007-8 (eBook) https://doi.org/10.1007/978-3-319-78007-8 Library of Congress Control Number: 2018937991 © Springer International Publishing AG, part of Springer Nature 2018 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by Springer Nature, under the registered company Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland In loving memory of Hendrick Kandala who has left fingerprints of grace on our lives and will not be forgotten. This book is also dedicated to my daughters, Noella, Rose and Catherine Kandala, and to my wife, Diana Kandala, with love. P.N. Komba wishes to thank Nicole Baoba— She Who Must Be Obeyed—for her patience and exceptional love. Equally, special thanks are due to Christelle and Adrian Komba for their immense tenderness. Foreword What is the position of the victims who have been subjected to the practice of female genital mutilation (FGM)? Prior to the passage of the 2012 UN Resolution calling for a global ban on the practice of FGM, and thereafter, the dominant analysis on the issue has tended to focus on the debate between proponents of zero tolerance and advocates of the medicalisation of the practice. However, comparatively little atten- tion has been paid to the plight of the victims during the holding period to the eradi- cation of this practice. Answering the question posed above means addressing the medical and legal remedies that may be available to the present-day victims of such a practice. This book marks the first work, which reviews household data on FGM practice and provides an indication of medical interventions as well as legal reme- dies for victims. In some places these victims are described as ‘protected or intended party’. This is especially significant when to so is suitable to designate those victims who lack capacity within the meaning of any given legal instrument conferring pro- tection. As a matter of law, protected parties must act through litigation friends in the relevant proceedings, whether national, regional or international. Adopting a largely practical approach to the study of FGM, this book offers new analyses to quantify the global burden of FGM and fresh thinking into one of the greatest challenges in global public health and the law. We offer some insights into how health professionals approach this category of victims and into how legal prac- titioners can obtain relief for their clients in national, regional and international forums. Fundamental issues— such as state liability and defenses in enforcement proceedings for actions or omission by state and non-state actors as well as the standard of due diligence to prevent violations of human rights, investigate and pun- ish FGM offences as well as to provide relief for victims—lie at the core of this book. In essence, taking an essentially academic and practitioner’s perspective, the book identifies the main gateways for obtaining relief for victims who have suffered FGM. This is achieved through enquiries into the nature and suitability of reliefs available to the victims before various regional and international human rights jurisdictions. The medical aspects of the book show that corrective medical interventions and health care for victims can result in the vindication of their human right to health. In vii viii Foreword this respect, the authors argue that making states liable for actions of FGM perpetra- tors qua non-state actors and imposing penalties and monetary compensation could encourage states to assume a more robust and proactive role in enforcing the law and allowing more victims to obtain redress. In so doing, the state would deem it wise to create effective mechanisms to deter non-state actors wedded to FGM. The imposition of state liability in respect of the FGM perpetrators would also serve as a good opportunity for states to face up to the question why they have failed to com- ply with their own national laws against FGM and with international legal standards on this issue of concern to the community of nations. Put another way, the book demonstrates how international human rights law may be used effectively in order to make a difference to the life of FGM victims and enable their representatives to make arguable cases for civil remedies before the appropriate jurisdictions. The overall idea for writing this book emerged some years ago when we were employed by a team of publishers to conduct an initial study into the geographical variations of genital mutilation (FGM) and the extraterritorial reach of FGM legisla- tion in Senegal. It was a laborious and painstaking exercise, but one that produced a good result. Since then similar research efforts have been extended across world jurisdictions. We are aware that a well-researched document has huge potential not only to influence both policy and law reform but also to provide a well-argued and up-to-date guide to victims and their representatives in their quest for justice under existing municipal and international legal regimes. During the course of such research, it became increasingly clear that female circumcision remained one of the dominant and yet controversial topics in the contemporary debate on universal human rights and women’s health. Such a debate usually pits defenders of zero tolerance and medicalisation of the practice against each other. This book aimed to steer clear of such dualism and focuses on the position of the victims during the period leading to total elimination of the practice. Put another way, while not taking position in favour of either camp in the ongoing debate, this book is unabashedly biased in favour of an advocacy programme standing firmly behind the right of vic- tims to a remedy for harm caused by non-state actors. Yet, while appreciating that these non-state actors could be held personally or jointly liable in respect of victims, such a route has been marred with difficulties relating largely to a lack of political will to enforce the law. Despite arguments from some scholars that the law has sim- ply failed to assist or lack of evidence to build a successful case for prosecution in the fight against FGM, the authors believe that law can play a significant role in addressing the position of victims. Thus, in order for law to remain relevant to FGM victims, they developed an approach that could bring the full influence of laws to bear on the remedies for victims. This is the route of establishing state liability in respect of actions of private individuals and entities perpetrating FGM. Very few people have advanced knowledge of the statistical, medical and legal issues on FGM; we wrote this book from the conviction that many more of them would develop such knowledge and represent their clients’ interests more effec- tively, if only a suitably updated and practical reference book were available. If FGM is to become a regular subject of national and international interest for both academics and practitioners, as the authors believe it should be, then the way in Foreword ix which victims could access the appropriate medical and legal interventions should be rigorously scrutinized and made accessible to them and those responsible for administering to these victims in both clinical and legal contexts. In this sense, the authors firmly believe that the book will serve as one of the few existing invaluable guides to the complex and sensitive issue for health professionals, judges, lawyers and other related professionals in the field. This book is a result of years of intense collaboration between the two authors. The chapters on the global evidential synthesis and mapping of the prevalence of FGM were written by Professor Kandala while Dr Komba was responsible for writ- ing the introduction, conclusions as well as chapters on medical and legal aspects of FGM. Some earlier versions of the work have been published in peer-r eviewed jour- nals. Gratitude to other colleagues and medical and legal practitioners as well as other experts and institutions, who offered their experiences and thoughts on this book. But we owe particular thanks to Professor Bettina Shell-Duncan for her valu- able comments on the issue of FGM, the editorial members of Springer Press and their anonymous readers. The research process would have been much less enjoy- able for us without the assistance of Dr Martinsixtus C. Ezejimofor. We owe him our heartful thanks for his support. Many institutions have assisted us in writing this book. In particular, we wish to thank the University of Warwick for providing office space and accommodation which enabled us to discuss the ideas that form the basis of this book. The Universities of Cambridge and Johannesburg allowed us to access critical data, which resulted in the need to temper theory with sensitivity to practice. We finally offer our gratitude to Nafissatou J. Diop-Senior Advisor Coordinator at the UNFPA-UNICEF Joint Programme on FGM/C in New York (USA) -for her comments on the final draft of this book. Cambridge, UK Paul Komba April 2018 Newcastle upon Tyne, UK Ngangia-Bakwin Kandala April 2018 About the Book There is a vast body of knowledge about the prevalence of female genital mutilation practices around the world, and also about various initiatives designed to eliminate these practices. However, this is the first book to provide the global evidential syn- thesis on the prevalence of FGM in support of medical and legal aspects of FGM and to address the potential avenues open to the victims likely to bring legal actions against the state which has not kept them safe from the practices it has resolved to eliminate. It is clear from the insights Kandala and Komba present that this course has almost never been taken before. A coolheaded account of the laws of the world presented in this book shows that governments across the world, and Africa in par- ticular, have not been serious enough in stopping FGM. In order to compel states to enforce the law and provide effective remedies for victims, Kandala and Komba argue that a culture of bringing suits against states should prevail and such liability needs to be based on the doctrine of state liability with respect to actions of non- state actors. The idea is to encourage victims and their legal representatives to bring suits against the government before regional and international jurisdictions, which may then impose heavy fines upon the defendant state. Given the poor record of state compliance with regional and international court judgments, the case is made that failure to comply with FGM-related judicial orders should be followed by imposition of economic and political sanctions against governments found to be in breach of judicial orders in this area. The book offers a unique perspective that will assist victims and their representa- tives to secure remedies both against offenders and states for failure to enforce the relevant law—a failure which is construed as failure to protect FGM victims against violations of their human rights by non-state actors. The book promises to establish a reputation for itself in the foremost rank of classical books and will be frequently cited by medical and legal practitioners who are faced with the challenge of secur- ing appropriate remedies for the victims of this modern-day crime. Kandala and Komba have brought the classic account of the medical and legal aspects of FGM around the world. The discussion in this book is richly illustrated, where applicable, with some contemporary court cases across jurisdictions, and clarity of exposition and orientation towards practitioners and their clients make this book more acces- xi xii About the Book sible to those who are approaching the subject for the first time as well as those already well versed into the subject. Meanwhile its breadth of coverage and per- spective ensures its value to all interested in this field including academics, legal and medical practitioners and policy-makers.
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