JOINT GENERAL COMMENT ON FEMALE GENITAL MUTILATION
June 2023
A. Objective and Scope of the Joint General Comment
(i) Objectives
1. Female Genital Mutilation (FGM) is a pervasive abuse of the rights of girls and women that is as old as human civilization. The practice is present in all regions of the world, though it is more prevalent within certain cultures and regions.(1) In Africa, the practice ranges in prevalence from minimal in some countries, to nearly universal in some other countries.(2) FGM permeates most social, economic, religious and cultural stratification in the African region. The age at which girls and women are most at risk of FGM may vary from one culture or community to another. Predominantly, however, FGM is undertaken either in early childhood, or as a rite of passage for girls, to mark the transition to puberty.(3) Indeed, there is growing evidence that the age at which girls are subjected to FGM has continued to get lower in response to more restrictive laws aimed at eliminating the practice.(4) This makes FGM a child rights issue. In other cases, however, including in situations where there have been intense efforts to protect girls from the practice of FGM, adult women are subjected to the vice. For these reasons, it is important that FGM is addressed as both a child and women’s rights issue.
2. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) prohibits all forms of Female Genital Mutilation (FGM) and calls for their elimination.(5) The African Charter on the Rights and Welfare of the Child (African Children’s Charter) prohibits harmful social and cultural practices affecting the welfare, dignity, normal growth and development
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(1) UNFPA Bending the curve: FGM trends we aim to change, available at https://www.unfpa.org/ sites/default/files/resource-pdf/18-053_FGM-Infographic-2018-02-05-1804.pdf (accessed 31 January 2023).
(2) Saleema Initiative Africa Union Initiative On Eliminating Female Genital Mutilation Programme and Plan of Action 2019 – 2023, p5.
(3) Saleema Initiative Africa Union Initiative On Eliminating Female Genital Mutilation Programme and Plan of Action 2019 – 2023 p5.
(4) UNFPA Frequently asked questions available at https://www.unfpa.org/resources/female-genitalmutilation-fgm-frequently-asked-questions#age_performed (accessed 30 January 2023)
(5) Maputo Protocol, article 5(b).
of the child. In particular, the African Children’s Charter prohibits those customs and practices prejudicial to the health or life of the child; and those customs and practices discriminatory to the child on the grounds of sex or other status.(6) Such practices include FGM.(7) FGM is embedded in the culture and customs of the communities that practice it.
3. This joint General Comment therefore responds to a pertinent need to provide specific and contextualised guidance, and to clarify and elaborate the measures necessary to fulfil State responsibility for the elimination of FGM to African countries that are State parties to the African Charter on Human and Peoples’ Rights, The African Children’s Charter, and the Maputo Protocol. The standards set out in these instruments have been augmented with advocacy initiatives, such as the Saleema Initiative(8), hosted by the African Union. There is also other jurisprudence that seeks to interpret the respective protections and obligations, such as the Joint General Recommendation/Comment of the CEDAW and CRC Committees on harmful practices,(9) and ongoing engagement with States on the practice through the treaty reporting process.
4. This General Comment seeks to clarify the scope and nature of State party obligations to eliminate FGM. In particular, the Joint GC seeks to clarify the duties arising under article 5(b) of the Maputo Protocol, Article 21(1) of the African Children’s Charter, and other relevant provisions under both Instruments. This General Comment also elaborates the legislative, institutional, and other measures that State parties to the African Children’s Charter and the Maputo Protocol ought to take to protect girls and women from FGM and to eliminate the practice. Specifically, this Joint General Comment highlights the legislative, institutional and other measures that should be taken to prevent and eliminate FGM; articulates the measures for accountability (individual and state level) in the context of human rights violations and gender-based violence resulting from FGM; elaborates on
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(6) African Children’s Charter, Article 21(1).
(7) The Committee, Agenda 2040, Aspiration 7.
(8) See below, footnote 19.
(9) UN CRC and CEDAW, Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices (2014).
medical, psychosocial, and other support services that should be made available for survivors of FGM; articulates measures that should be taken to prevent and ensure accountability for the cross-border practice of FGM; and the particular considerations to be taken into account in respect of asylum seekers fleeing from their countries due to the threat of FGM, or those who are internally displaced for the same reason.
5. The development of this joint General Comment acknowledges that, while there is a general acceptance of the legal, normative, and policy frameworks that prohibit FGM at the global, pan-African and national levels, the domestication and implementation of these norms has neitherbeen sufficient, nor uniform across the African region. The disparity between principle and practice, and the failure of these measures to achieve the eradication of the practice testifies to the need for reflection on measures that are specific to the peculiar socio-cultural and economic context in Africa, which addresses both the causes and drivers of FGM in the African context. FGM is a multifaceted practice, with legal, social, cultural, economic, and religious dimensions. This General Comment underscores the need for comprehensive approach to effectively address FGM, beyond the law.
6. In this Joint General Comment,
“Female genital mutilation (FGM)” means ‘the practice of partially or wholly removing the external female genitalia or otherwise injuring the female genital organs for non-medical or non-health reasons.’(10)
“child” means a human being aged below 18 years of age, even if majority is attained earlier under national law.(11)
“Harmful practices” means all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health,
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(10) CEDAW and CRC Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices CEDAW/C/GC/31-CRC/C/GC/18, para 18.
(11) Article 2 of the African Children Charter.
dignity, education and physical integrity.”(12)
“Female Genital Cosmetic Surgeries (FGCS)” involve alteration and/or manipulation of the female genitalia. FGCSs refer to procedures taken to alter female genitalia for aesthetic reasons.
(ii) Scope of the General Comment
7. This General Comment elaborates the legislative, institutional, and other measures that State parties to the African Children’s Charter and the Maputo Protocol ought to take to protect girls and women from FGM and to eliminate the practice. Specifically, this Joint General Comment highlights the legislative, institutional and other measures that should be taken to prevent and eliminate FGM; articulates the measures for accountability (individual and state level) in the context of human rights violations and gender-based violence resulting from FGM; elaborates on medical, psychosocial, and other support services that should be made available for survivors of FGM; articulates measures that should be taken to prevent and ensure accountability for the cross-border practice of FGM; and the particular considerations to be taken into account in respect of asylum seekers fleeing from their countries due to the threat of FGM, or those who are internally displaced for the same reason. The Joint General Comment also clarifies how the four principles of children’s rights (the best interests of the child, life, survival and development, participation, and non-discrimination) as well as the principles of nondiscrimination and equality of women ought to be interpreted in the context of FGM.
B. Principles underlying the interpretation of FGM
8. The African Committee of Experts on the Rights and Welfare of the Child applies four (4) general principles through which interpretation of all provisions on the Rights and Welfare of the Child, and all issues relating to the protection of the rights and welfare of a child, are addressed. These principles are: (1) the best interest of the
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(12) Article 1(g) of the Maputo Protocol.
child; (2) the child’s right to freedom from discrimination; (3) the right to survival, development, and protection; and (4) the child’s right to participate in matters affecting them. The African Commission on Human and Peoples’ Rights aligns itself with these principles, in formulating this Joint General Comment.
(i) General principles of children’s rights
As indicated in its General Comment on Article 1 (13), the Committee has adopted general principles for the interpretation of all the rights under the African Children’s Charter. These general principles are:
i. Principle of the best interests of the child
9. Article 4(1) of the African Children’s Charter provides that the best interest of the child shall be the primary consideration in all actions undertaken by any person or authority concerning the child. There is a duty on the States to ensure that all actors, including parents and guardians, are aware and respect the principle when dealing with children. The best interests of the child overrides any other competing considerations, including cultural, social or religious norms. Mindful of the fact that FGM has harmful consequences to the health and wellbeing of affected girls, the application of this principle means that there can be no justifiable reason for the practice.
ii. Principle of non-discrimination
10. Both the Maputo Protocol and the African Children’s Charter make provision for the right to freedom from discrimination based on sex or gender. The principle of nondiscrimination requires states parties to ensure that children are not discriminated against in the context of access to rights on the basis of prohibited grounds. FGM is a form of gender discrimination and is rooted in gender inequality. Similarly, certain groups of girls are at higher risk of FGM, due to factors such as literacy, economic and social status, religious beliefs, ethnic identity, or rurality. In applying the principle
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(13) African Children’s Committee, General Comment No. 5 On “State Party obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and systems strengthening for child protection” available at https://www.acerwc.africa/sites/default/files/2022-09/GENERAL_COMMENT_ ON_STATE_PARTY_OBLIGATIONS_UNDER_ACRWC_%28ARTICLE%201%29_%26_SYSTEMS_ STRENGTHENING_FOR_CHILD_PROTECTION_0.pdf
of non-discrimination, states ought to actively identify individual and groups of children at higher risk of FGM, and pay particular attention to girls in particularly vulnerable situations. This also means that states must designate specific resources to meet the higher needs of some groups in order to effectively eradicate FGM.(14)
iii. Principle of life, survival, and development
11. The principle of life, survival, and development requires that all actions taken in the implementation of rights must guarantee their survival, life and optimal development.(15) FGM threatens the life of girls and women in some cases, and undermines their physical and psychological development. The Committee has previously noted that all rights contribute to the achievement of this principle. The Committee therefore reiterates a system approach to the protection of children, including in dealing with the practice of FGM. This approach calls for a coordinated approach to FGM, that is anchored in law,defined in a national strategy and accompanied by a clear action plan.(16) Measures proposed towards the eradication of FGM should be holistic and integrated into every aspect of girls’ wellbeing.
iv. Principle of child participation
12. The principle of participation protects the right of the child to freely express their opinions, and to be heard.(17) A child who is capable of forming an opinion about a matter must be availed the opportunity to express such opinion, and for their views to be taken into account in decision making. Children’s participation depends on access to relevant information and the availability of opportunities to express such opinions. Measures to address FGM should recognize the agency of girls against the backdrop of existing social and cultural contexts, facilitate their access to relevant information related to the practice, and take into account their views in defining measures to eradicate the practice.
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(14) Committee General Comment No. 5 on “State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection, para 4.1.
(15) African Children’s Charter article 5.
(16) Committee General Comment No.5 on “State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection, para 6.1.
(17) African Children’s Charter, article 7.
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