Written statement on Item 12: Integration of the human rights of women and the gender perspective


Written statement submitted by the Transnational Radical Party (TRP), a non-governmental organization in general consultative status

E/CN.4/2005/NGO/268


10 March 2005

Despite ongoing efforts to end Female Genital Mutilations, data from Demographic Health Surveys indicate that across Africa there has been little, or no decrease, in the prevalence of this practice over the last decade.

There are different types of FGM, the removal of the clitoral hood, the removal of the clitoris with the inner vagina lips, excision of the entire external genitalia. The most extreme type involves pricking, cauterisation and introduction of corrosive substances, which cause bleeding. Estimates of the number of females who have been subjected to this practice range from 115 million to 130 million world-wide and an estimated 2 million girls are at risk each year. Currently, 28 African and Arab nations continue this harmful practice. Of particular concern is its prevalence throughout the continent of Africa.

Prevalence of FGM in the Horn of Africa Region for instance shows 98% Djibouti, 98% Somalia, 80%Ehiopia, 43-89% Kenya, 44% Eritrea. Different strategies have been employed to date to discourage or eradicate the practice, with varying degrees of success. Recently, some initiatives have demonstrated measurable progress and, in turn, have helped generate awareness of the elements that promote the abandonment of the practice. One of these initiatives, in Senegal, has successfully reached a population of 700,000 since 1997 and continues to expand.

National and international commitment to end the practice is growing. In fact, a number of international initiatives address FGM, including the UN Study on Violence against Children requested by the General Assembly in 2001, and the follow up to the goals established in a World Fit for Children - the outcome Document of the UN General Assembly Special Session on Children - to eliminate FGM by 2010, as well as activities derived from the Millennium Development Goals, particularly those relating to the promotion of gender equality and the empowerment of women, and the improvement of maternal health.

It needs to be noted that the in the summer of 2003, the African Union adopted a Protocol to the African Charter on People's and Human Rights in Maputo, Mozambique. The so-called Maputo Protocol covers a broad range of women’s rights, including the elimination of discrimination against women, the right to dignity, the right to life, the integrity and security of the person, the protection of women in armed conflicts, the right to education and training, economic and social welfare rights and health and reproductive rights. Article 5 of the Protocol requires that all forms of female genital mutilation be condemned and prohibited. The adoption of this important document and the positive benefits it could have for the African Continent has encouraged several international NGOs to work closely with our national partners in Africa and the Arab world to create consensus around the Protocol, which requires ratification by 15 countries to enter into force.

There are diverse legal traditions across the member States of the African Union, the majority of which apply civil law, common law or Islamic law. It is true that a misunderstanding of the Muslim religion, as well as a poor interpretation of the Hadiths (religious texts) which make reference to excision, have constituted and continue to constitute an alibi for the maintenance of this practice.

Some States apply a mixture of either civil or common law with Islamic law, and there are a number of States in which customary law is also applied in some circumstances. In addition, in some States that do apply Islamic law, it is sometimes limited in its application to those practicing the Muslim faith or to those residing in certain areas. Moreover, it has in practice E/CN.4/2005/NGO/268 page 3 often been modified by customary practices or as a matter of State policy, therefore there is no “one Islamic law”.

Where Islamic law does apply, for the most part it applies to family law situations, namely marriage, divorce, spousal and child maintenance, paternity and custody of children. It also applies to succession law, namely inheritance rights and obligations. Of the 53 member States of the African Union, 14 apply some form of Islamic law, including Shari’ah and Koranic law, namely: Algeria, Comoros, Djibouti, Egypt, Eritrea, Gambia, Kenya, Libya, Mauritania, Nigeria, Senegal, Somalia, Sudan and Tunisia.

The Maputo Protocol covers all of the areas outlined above, in some cases representing progressive development of the law and in other cases simply re-stating what already exists in other international and regional instruments, as well as in some domestic law. While further in-depth study would be required to ascertain whether the Maputo Protocol contradicts specific aspects of Islamic law as it is applicable in any AU country, certain conclusions can be drawn from this initial exploration of the applicable family law in certain member States of the AU.

Islamic law in AU countries has changed over the last decades and the Maputo Protocol itself reflects sustained trends in political will to accord greater equality to women, even when this has meant altering or reinterpreting their applicable (Islamic) law. The provisions of the Maputo Protocol that appear to be at odds with what may be thought of as Islamic law, largely correspond to changes that have already taken place in the Islamic law and practice within those States. In these cases, the Maputo Protocol does not go beyond applicable Islamic Law, but simply codifies innovations in the Islamic law of AU members of the last decades.

This is not surprising, since the text of the Maputo Protocol itself was arrived at after negotiations in which African countries that apply Islamic law took part and this is reflected in the Protocol’s provisions and in its adoption by consensus of all AU members.
While the entry into force of the Maputo Protocol still requires considerable work, it is clear that countries that apply some form of Islamic Law have been ratifying at a much faster rate than non-Islamic countries.

According to No Peace Without Justice there has been a positive response from governments as well as civil societies in the concerned regions, which has led the groups to organize conferences in Egypt, Kenya and Djibouti to promote the early entry into force of the Maputo Protocol, which have been instrumental in securing the ratification of Djibouti.

In fact, in the Republic of Djibouti, FGM both infibulation and excision, is still widely practised (98% of the female population between 15 and 45 years of age). Beyond the very physical and moral violation this act represents, it constitutes a subject which is still taboo in local society, despite the irreparable damage it causes on health and despite the fact it attacks the basic rights of the individual.

Government policy has been mainly led by the Health Ministry through the “Reproductive Health” project that has centred around many actions at different levels, most notably at the community level.

With the decision of Djibouti, 3 out of 6 ratifications come from countries that apply Islamic laws, even though they represent only about one quarter of AU membership.

The Laotian Constitution, adopted in 1991 and amended in 2003, provides for equal rights for women; the Government also set up the Lao Women's Union, which is the only organization that is allowed to operate nationally to promote the position of women in society. The Family Code prohibits legal discrimination in marriage and inheritance. Discrimination against women was not generalized; however, varying degrees of traditional, culturally based discrimination persisted, with greater discrimination practiced by some hill tribes.

The 2004 Laos Opium Survey issued by UNODC presents the success of the eradication programs in the country, it would be crucial to understand if the relocation that resulted from those programs is to be considered temporary or if, given that problem seems to have been “solved”, those groups will be allowed to go back to their ancestral lands. In all those forced displacements, women become an easy target for harassment, exploitation if not abduction and maltreatment.

In their new book published in November 2004 entitled “Planned Resettlement, Unexpected Migrations and Cultural Trauma in Laos” Olivier Evrard and Yves Goudineau address the issue of relocation. “Though not officially considered a ‘policy’ by the Lao government” states the presentation of the book “resettlement of ethnic minorities has become a central feature of the rural development strategy in Laos. Over the past ten years, a majority of highland villages have been resettled downhill, and the local administrations are planning to move the remaining villages in the coming years”. Women are the target of exploitation and abuse in the process of relocation

A foreign development worker in Laos, speaking on condition of anonymity, described the reality of life in the focal zones as “in too many cases the economic alternatives for those relocated are nothing more than modern indentured servitude. Young girls end up in brothels and the men end up exploited as illegal immigrant labourers in neighbouring Thailand.

The Laotian Penal Code prohibits abduction and trade in persons as well as the constraint, procuring, and prostitution; however, according to the U.S. State Department “trafficking in persons, particularly women and children, was a problem. Laos was primarily a country of origin for trafficking in persons and to a lesser extent, a country of transit. There was almost no effective border control. There was little reliable data available on the scope and severity of the problem until recently, when studies indicated that the scale of economic migration out of the country, mostly young people between the ages of 15 and 30, was far greater than had previously been supposed. About 7% of the total sample population in three southern provinces migrated, either seasonally or permanently. Approximately 45% of them were male and 55% female, and an unknown number of these persons were actually trafficked in some sense of the term”.

According to the United Nations Programme on HIV/AIDS, LPDR is faced by many risk factors that could lead to increased HIV transmission in the near future if appropriate prevention measures are not taken. Below the Country HIV and AIDS estimates as at the end of 2003.

While there are also independent reports that warn of a growing number of HIV/AIDS infections reported in LPDR, official definitive figures have not been produced. The secretive nature of the Laotian Government on the one hand, and the almost total closeness of certain regions of the country to outsiders on the other, have so far been instrumental in keeping the infection rate low, but the situation is changing rapidly.

The TRP urges the LPDR to allow some international presence in the concerned regions to assess the situation and to launch the necessary outreach, prevention and treatment campaigns.