sexual health and human rights in the african region - The ICHRP

way of inference, are even more readily applicable to female genital mutilation.
In this regard, article 35(4) of the Constitution of Ethiopia provides that ‘The
State shall enforce the rights of women to eliminate the influences of harmful
customs. Laws, customs and practices that oppress or cause bodily or mental
harm to women are prohibited.’ Article 33(6) of the Constitution of Uganda
prohibits ‘laws, cultures, customs or traditions which are against the dignity,
welfare or interest of women or which undermine their status.’ 692
[89] Furthermore, in the absence of female genital mutilation-specific legislation,
criminal provisions that proscribe assault and causing grievous bodily harm,
which are part of the criminal law of all the African jurisdictions should also be
regarded as applicable to the jurisprudence on female genital mutilation.
Provisions in laws that protect children from harm generally are also applicable
to female genital mutilation.
[90] Among the sampled countries, Eritrea, Ethiopia, Kenya, South Africa and
Tanzania have specifically proscribed female genital mutilation. 693 Eritrea has
criminalized female genital mutilation through the adoption of the Female
Circumcision Abolition Proclamation of 2007. However, the legal proscription is
predicated on a crime and punishment model. It is not accompanied by
imposition of duties on the state to fulfil especially the implicated human rights
through a holistic approach to the eradication of female genital mutilation. For
example, the proscription does not come with duties to educate, raise awareness
and involve democratic institutions, civil society in particular in the eradication
of the practice. 694
[91] Ethiopian legislation criminalizes female genital mutilation under the categories
of ‘female circumcision’ and ‘infibulation’. Article 565 of the Ethiopian Criminal
Code proscribes female circumcision (a less severe form of female genital
mutilation) and imposes a 3 months imprisonment or a fine. Article 566 of the
692 Female genital mutilation was specifically identified during the constitutional law making process as
one of the targets for constitutional proscription: Report of the Uganda Constitutional Commission (1992)
para 7. See also article 26(2) of the Constitution of Ghana which prohibits ‘all customary practices which
dehumanize or are injurious to the physical and mental well-being of a person’.
693 Outside of the sampled countries the following countries has passed laws prohibiting female genital
mutilation: Burkina Faso: Law No 43/96/ADP of 13 November 1996; Chad: Law No/6/PR/2002 on the
promotion of Reproductive Health (2002); Djibouti: Article 333 of the Penal Code of 1995; Egypt: Order
No 261 of the Minister of Health and Population of July 1996 and 2008; Ghana: Criminal Code
(Amendment) Act of 1994 inserting section 69A into the Criminal Code of 1960; Guinea: Decree No
D/96/205/PRG/SGG of 5 December 1996; Côte d’Ivoire: Law No 98-757 of 23 December 1998;
Madagascar: Decree No 98-945 of 4 December 1998; Mauritania: Ordinance No 2005-015 (2005); Niger:
Law No 2003-025; Senegal; Law No 99-05 of 29 January 1999 amending article 2 of the Penal Code; Togo:
Law No 98-016 (1998).
694 DR Mekonnen ‘The Abolition of Female Circumcision in Eritrea: Inadequacies of New Legislation’
(2007) 7 African Human Rights Law Journal 389.
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