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OP-ED: FGM is Not Just Harmful, It is Unconstitutional

By: Saye Guinkpa

Speaking about or against Female Genital Mutilation, or FGM, appears to be a taboo in Liberia. This attitude extends to the National Legislature where members shy away from open debates on the subject, for fear of losing their seats in future elections. When passing the Domestic Violence Act in 2017, the legislature omitted any provision criminalizing and punishing perpetrators of FGM. The original draft of the bill had a provision amending the Penal Code so that performing FGM on girls below the age of 18, or women above 18-years-old without consent, would be a crime.

Though Liberia is a signatory to many regional and international conventions that forbid FGM, the practice is still prevalent amongst many groups in the country. Numerous articles and medical reports exposing the dangers and hazards associated with FGM have also failed to dissuade locals from engaging in this barbaric practice.

According to the 2013 Liberia Demography and Health Survey, the prevalence of FGM (unique to Sande society members) is higher among older women, increasing from 31 percent among women ages 15-19, to 72 percent among women ages 45-49. The report also puts Sande society membership to be more prevalent, at 65 percent, among rural women, compared to 41 percent among urban women.

Sande society membership is reportedly more prevalent among women in the North Central (73 percent) and North Western (72 percent) regions, as compared with the South Central (39 percent), South Eastern A (23 percent), and South Eastern B (5 percent) regions. Membership in the society, according to the report, is inversely correlated with both the level of education and wealth quintile, ranging from 71 percent of women with no education to 31 percent of women with a secondary education and higher; and from 70 percent of women in the lowest wealth quintile to 29 percent of women in the highest.

In 2016, President Ellen Johnson Sirleaf enacted Executive Order No. 92 to prohibit FGM for girls below 18 but to allow it for women above 18 who gave consent. However, there were no prosecutions under the order against violators and only a handful of arrests in December 2019 of a woman from Nimba who is yet to be indicted and prosecuted.

In this opinion piece, I set out the illegality of FGM, and emphasize the need to prosecute perpetrators in order to deter the continuation of this harmful and unlawful practice.

Most tribes in Liberia are known to have two secret societies. The Poro society is an exclusively male group, while the Sande society takes in only females. Induction into these societies is done by approval of the parents, with or without the consent of the individual girl or boy to be inducted. That is to say, as long as an individual’s parents agree for their induction, they are compelled to undergo to the process. It is during the induction process into the Sande society that FGM is performed.

Considering the taboo nature of this subject in Liberia, this discussion will focus simply on the reason why I believe the practice of FGM is unconstitutional and an illegal traditional practice. I do not criticize any other processes of the Sande society.

Liberia runs two legal systems in parallel. The formal civil system, which is based upon Anglo-American Law or Common Law Practice, and the Customary Law system, based upon traditional African practices. Article 2 of the constitution declares the constitution as the supreme and fundamental law of Liberia, stating that any laws, treaties, customs, statutes, decree, and regulation that conflicts with the constitution is void and has no legal effect. This means then, that any traditional practices or beliefs that conflict with the constitution must be denounced and discouraged. The practice of FGM clearly violates the constitution, as well as the Penal Code.

Conscripting persons into the Sande and forcibly performing FGM – a bodily injury –  against their will certainly violates their freedom of will and movement enshrined in Article 13 (b) of the constitution. The act also violates Section 14.50(1) of the Penal Code which states, “a person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for substantial period in a place of isolation… (e) to inflict bodily injury……”

The conditions of restraints under which the FGM is performed also violates section 14.51 (felonious restraint) of the penal code which states, “a person commits a felony of the third degree if he knowingly: (a) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or (b) restrains another with the purpose of holding him in a condition of involuntary servitude.

Furthermore, and most importantly, Article 14 of the constitution states, “All persons shall be entitled to freedom of thought and religion and no person shall be hindered in the enjoyment thereof except as may be required by law.” Therefore, subjecting any person(s) to customs and practices without their consent violates their constitutional rights to freedom of thought and religion.

The constitution explicitly bars compelling any person to join a particular religion or practice. All individuals of sufficient adult age, under the constitution, must be free within the confines of the law to decide their choice of religion.

FGM, from all indications, bears no positive impact on the victims. It has no proven medical or health benefits and is primarily a customary practice performed simply because it is the tradition in the society.

The need to curtail this dehumanizing act cannot be overemphasized. The application of the laws which bind all Liberians to a given code of conduct is, for me, the most appropriate course of action needed to achieving curtailment of the practice. We must stand strong in breaking this age-old hazardous practice and save the thousands of young girls affected by this malpractice.

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