Wrestling with Contradictions: Human Rights
and Traditional Practices Affecting Women
Kristin Louise Savell”
In this article, the author examines the role of in-
ternational human-rights norms as a means of criticizing
traditional cultural practices and, in particular, the prac-
tice of female genital operations. This practice has re-
ceived considerable attention and criticism from com-
mentators outside practising cultures as well as from
commentators within practising communities. In order
to achieve an intelligent and informed debate, the author
stresses the need for cross-cultural dialogue that recog-
nizes cultural and historical differences. She suggests
that the typical culture-based arguments advanced to de-
fend, and the gender-based arguments put forth, to con-
demn female genital operations are, ultimately, lacking.
She explores the ways in which gender and culture may
influence the debate in order to demonstrate the com-
plexity of the issue.
The author suggests that human-rights norms can
play a critical role in the discussion and inform both in-
ternal and external criticisms of female genital opera-
tions. As the process has evolved, commentators have
adopted the language of rights to articulate their criti-
cism of the practice. While critics have largely relied
upon health-based arguments, the author suggests that
we should be aware of the social significance of the
practice and women’s experience of injustice. Recom-
mendations arising from the debate must strike a bal-
ance between cultural sensitivity and international hu-
man-rights standards. Thus, commentators involved in
the cross-cultural dialogue must be prepared
to re-
examine their criticism and strategies in view of chang-
ing cultural norms and conditions.
Dans cet article, l’auteure examine les normes du
droit international de la personne en tant que moyen de
critiquer les coutumes traditionnelles et, en particulier,
les operations genitales que subissent les femmes. Cette
pratique a dt6 l’objet de beaucoup d’attention et de criti-
ques de la part de commentateurs 6trangers a ces cultu-
res ainsi que de commentateurs originaires de ces com-
munautds. AMin de permettre au ddbat de se ddrouler de
mani~re intelligente et informde, l’auteure insiste sur le
besoin d’un dialogue inter-culturel capable de reconna-
tre les differences historiques et culturelles. Selon elle,
les arguments typiques fondes sur la culture et mis de
l’avant pour defendre ces interventions ainsi que les ar-
guments fondes sur la diffdrence des sexes et qui denon-
cent ces coutumes sont, en fin de compte, insuffisants.
L’auteure se penche sur les fagons dont la diffdrence des
sexes et la culture peuvent influencer le debat afin de
demontrer la complexit6 du problame.
L’auteure sugg~re que les normes des droits de la
personne peuvent jouer un rrle cl6 dans le ddbat et in-
former ceux, 6trangers ou non, qui critiquent ces inter-
ventions. Alors que le processus 6voluait, les commenta-
teurs ont adopt6 le langage des droits de la personne
pour articuler leurs critiques. Bien que celles-ci depen-
dent en grande partie d’arguments fondds sur le besoin
d’hygine, l’auteure souligne qu’il ne faudrait pas igno-
rer l’importance sociale de la coutume ni l’injustice que
subissent les femmes. Les recommandations ddcoulant
du debat doivent maintenir l’&quilibre entre la sensibilit6
culturelle et les normes du droit international de la per-
sonne. Les commentateurs engages dans ce dialogue
doivent 8tre prdts ‘a rd-examiner leurs critiques et leurs
strategies pour changer les normes et conditions cultu-
relies.
. Associate Lecturer, University of New South Wales; B.Sc., LL.B.(Hon.), Macquarie University
(1993). I would like to acknowledge the generous support of the Lionel Murphy Foundation in fund-
ing my LL.M. studies at McGill University, during which time this paper was written. I would also
like to thank E.A. EI-Obaid, for sharing his thoughts on many of the issues raised in this paper, as
well as Professor Ren6 Provost, Ms. Shauna Maguire and Professor Jeremy Webber who gave helpful
comments on earlier drafts.
McGill Law Journal 1996
Revue de droit de McGill
To be cited as: (1996) 41 McGill L.J. 781
Mode de rdfdrence : (1996) 41 R.D. McGill 781
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
Introduction
Synopsis
I. The Meaning of Culture and Cross-Cultural Dialogue
II. Female Genital Operations and the Many Faces of Culture
A. Culture as a Justification for Female Genital Operations
B. Rejection of Culture as a Basis for Female Genital Operations
C. Rethinking the Gender/Culture Dichotomy
III. Centring African Women Through Cross-Cultural Dialogue
A. Understanding Cultural and Historical Contexts
B. Hierarchical Relationships and Dialogue
1.
2.
3.
Men and Women Within Practising Cultures
Women from Outside and Women from Within Practising Com-
munities
Relationships between Cultural Groupings
C. Struggling with Contradictions – Engaging Women from Practising
Cultures
1.
2.
3.
Experiencing Female Genital Operations as Empowering
Experiencing Female Genital Operations as Disempowering
Situating Women’s Experiences of Female Genital Operations
IV. Internal Debate and External Critique – Applying International Human-
Rights Standards
A.
Internal Debate – The Transformative Potential of Human-Rights Norms
1.
2.
Discrimination Against Women and Children
Right to Health
B. Translating Principle into Action -Internal Initiatives and Strategies
C. The Role of External Criticism
D. An Assessment of the Participatory Role of International Bodies
Conclusion
1996]
KL SAVELL – WRESTLING WITH CONTRADICTIONS
Introduction
This article considers whether international human-rights norms can provide a
basis for legitimately criticizing traditional cultural practices and, if so, how such
criticism might be appropriately structured.’ Clearly, this question is premised on a
range of assumptions. The first assumption is that international human-rights norms
apply to the conduct of non-state actors, a question not yet fully resolved The sec-
ond is that certain traditional cultural practices violate one or more international
human-rights norms. Although contentions of this nature are frequently presented
as self-evident, I suggest that we may profit from a closer analysis of these claims.
At the very least, we should notice that they rest onjudgements about the content of
human-rights norms and whether particular cultural practices violate those norms.
If we accept that such judgements will be based on values that are culturally and
historically bound,’ then it should come as no surprise that interpretative disagree-
‘ I am conscious that this question is not neutral, since, as R. Panikkar suggests, “every question
conditions its possible answers” (R. Panikkar, “Is the Notion of Human Rights a Western Concept?”
(1982) 120 Diogenes 75 at 77). My primary concern is whether and, if so, how, commentators exter-
nal to a particular cultural tradition should respond to “human-rights concerns” within that cultural
tradition. To that extent, I do not pretend to be writing from anything other than a “Western” perspec-
tive.
2This question arises because traditional conceptions of human rights are based on liberal notions
of the individual and the state and, accordingly, strive to protect the individual against excesses of
state power. According to this view, violations that do not directly involve the state are excluded from
consideration. N. Kim points out:
Human rights laws generally come into play only when the State is involved. “Private”
acts, such as genital surgeries, are designated “cultural”, and are exempt from most
human rights laws. “Public” acts, however, are designated “political” and thus, suitable.
for international discussion or intervention. As a result of these designations, the pub-
lic/private distinction has entered into the dialogue on human rights as a justification
for state non-intervention into cultural practices that harm women. Because practices
that affect women generally fall into the “private” category, they are protected as part
of that society’s “culture” (N. Kim, “Towards a Feminist Theory of Human Rights:
Straddling the Fence between Western Imperialism and Uncritical Absolutism” (1993)
25 Colum. Hum. Rts. L. Rev. 49 at 67).
Feminists have argued persuasively for a revision of the public/private distinction in international
human-rights law to expand the ambit of state responsibility to include circumstances where the state
is complicit in the actions of non-state actors, and where state laws designed to protect against hu-
man-rights violations are not applied in a manner that provides equal protection for women and men
(see generally: A. Byrnes, “Women, Feminism and International Human Rights Law – Methodo-
logical Myopia, Fundamental Flaws or Meaningful Marginalisation?” (1990) 12 A. YB. Int’l L. 205;
R. Cook, “State Responsibility for Violations of Women’s Human Rights” (1994) 7 Harv. Hum. Rts.
J. 125 at 127; H. Charlesworth, “The Public/Private Distinction and the Right to Development in In-
ternational Law” (1990) 12 A. YB. Int’l L. 190; K. Engle, “International Human Rights and Femi-
nism: When Discourses Meet” (1992) 13 Mich. J. Int’l L. 517).
3Panikkar suggests: “[Tihere are no trans-cultural values, for the simple reason that a value exists
as such only in a given cultural context” (Panikkar, supra note 1 at 87). Consequently, Geertz cautions
that we should be wary of judging cultural practices to be distasteful (too quickly) on the basis that we
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
ment exists between, and perhaps within, different groups regarding these matters.
The question for this article is how this dissent might be harnessed in a positive
way in order to expand cross-cultural understandings of human rights and, if neces-
sary, to legitimate criticisms of cultural practices within a human-rights framework.
It is suggested that cross-cultural dialogue may be one way of achieving this pur-
pose.’
I have chosen the practice of female genital operations’ to situate this discus-
sion for three reasons. First, extant cross-cultural dialogue on this issue can illumi-
nate the benefits and limitations of that dialogue as a strategy. Secondly, these tra-
ditional practices implicate both gender and culture, thus, bringing together femi-
nist and relativist critiques of human-rights theory. Finally, these theoretical per-
spectives may be challenged and enriched by the insights gleaned from cross-
cultural dialogue.
Part I will examine the meaning of culture and explore the relationship between
culture and cross-cultural dialogue. Part II will consider and critique the various
ways in which “culture” has been used to both defend and condemn female genital
operations. It also suggests that while each set of arguments offers important in-
sights, neither fully captures nor explains the complexity and significance of these
operations for women in practising communities.
Part III will reconsider the dichotomy between cultural integrity and gender
oppression by applying the principles of cross-cultural dialogue to the concrete is-
sue of female genital operations. This approach endeavours to sensitize us to the
contingent nature of moral judgements and the patterns of dominance that may in-
fluence the structure, content and possibility of dialogue. Importantly, this approach
can only partially or contingently understand them, grounded as we are in our own beliefs (see C.
Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books,
1983) at 234).
‘See text accompanying notes 6-23, below.
‘The custom of excising, to varying degrees, the external genitalia of women has been called cir-
cumcision, excision, infibulation, pharoanic circumcision, genital surgeries, ritual surgeries, genital
mutilation, sunna and genital excision. Many writers have expressed concern over which term should
be used to describe the practice. The sources of difficulty seem to fall into two categories: either the
term is not inclusive enough to cover all forms of the practice (sunna, excision, pharoanic circumci-
sion and infibulation refer to particular types of the custom) or certain terms mis-describe the custom
(this has been alleged in relation to the term “female circumcision”, which, it is argued, falsely
equates the custom with male circumcision, and “female genital mutilation”, which, it is argued, is
explicitly pejorative and entails a judgement of the custom). Isabelle Gunning has used the term
“female genital surgeries” in an effort to use a more or less neutral term (I. Gunning, “Arrogant Per-
ception, World Travelling and Multicultural Feminism: The Case of Female Genital Surgeries”
(1992) 23 Colum. Hum. Rts. L. Rev. 189). I will use the term “female genital operations” on the basis
that “operation” seems less likely to connote hospital surroundings and medical supervision than
“surgery”. For a discussion of the difficulties associated with naming, see H. Lewis, “Between Irua
and ‘Female Genital Mutilation’: Feminist Human Rights Discourse and the Cultural Divide” (1995)
8 Harv. Hum. Rts. J. 1 at 4-8.
1996]
KL SAVELL – WRESTLING WITH CONTRADICTIONS
addresses the need for creating an opportunity for women from practising com-
munities to articulate their experiences on their own terms. Together, these factors
may facilitate a deeper understanding of how culture and gender shape the experi-
ences, concerns and priorities of women in these practising cultures.
Part IV examines the role that international human-rights norms and processes
play in nurturing and invigorating cross-cultural dialogue, both in terms of animat-
ing internal interpretative debates and in facilitating and structuring external criti-
cism. It also considers how the knowledge acquired through cross-cultural dialogue
about female genital operations has been used as a basis for informing the work of
international and regional human-rights bodies.
I. The Meaning of Culture and Cross-Cultural Dialogue
Although an exhaustive definition of “culture” is difficult to articulate,’ A.A.
An-Na’im offers the following analysis:
Culture … is the source of the individual and communal world view: it provides
both the individual and the community with the values and interests to be pur-
sued in life, as well as the legitimate means for pursuing them. It stipulates the
norms and values that contribute to people’s perception of their self-interest
and the goals and methods of individual and collective struggles for power
within a society and between societies.7
It has been suggested that “cultures are dynamic and changing, both internally
and in response to external forces and influences.”‘ It has also been suggested that
this dynamism is an inherent part of the way cultures or traditions are determined.”
According to this view, traditions define themselves and are defined through two
kinds of debate or dialogue: first, “internal, interpretative debates through which
the meaning and rationale”” of the tradition is expressed; and secondly, debates
with those critics external to the tradition.” In this sense, the very existence of
“traditions” is contingent on some measure of cross-cultural dialogue.
6 Kim states that “despite the multitude of definitions for the concept, anthropologists seem to agree
that culture is undefinable yet identifiable, constantly in flux yet traditional by nature” (Kim, supra
note 2 at 86).
‘A.A. An-Na’im, ed., “Toward a Cross-Cultural Approach to Defining International Standards of
Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment” in Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsyl-
vania Press, 1992) 19 at 23 [hereinafter “Toward a Cross-Cultural Approach”].
” A.A. An-Na’im, “Conclusion” in An-Na’im, ed., ibid., 427 at 432.
9 See A. McIntyre, Whose Justice? Which Rationality? (New York: Oxford University Press, 1988)
at 12.
“o Ibid
” See ibid. Both types of debate hold the potential for change, although, as An-Na’im points out,
such change “must be justified through culturally approved mechanisms and adapted to preexisting
norms and institutions” (“Toward a Cross-Cultural Approach”, supra note 7 at 27).
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The sense in which I use the term “cross-cultural dialogue” draws upon this
inter-normative potential. In the human-rights arena, this means enhancing the
cross-cultural legitimacy of human-rights norms through an appropriately framed
cross-cultural dialogue, which both informs and is informed by internal re-
interpretation of human-rights norms.’2 In other words, the inevitable processes of
cultural change and the evolution of cultural norms may be facilitated by cross-
cultural dialogue. This approach recognizes that external criticism occupies an im-
portant role in the process of cultural change. 3 At the same time, it avoids the for-
mulation and expression of judgement or criticism reached by “evaluating one cul-
tural construct with the categories of another”.” Rather,
[c]ross-cultural dialogue should be aimed at broadening and deepening inter-
national (or rather intercultural) consensus. This direction may include support
for the proponents of enlightened perceptions and interpretations within a cul-
ture. This effort, however, must be sensitive to the internal nature of the strug-
gle, endeavouring to emphasize internal values and norms rather than external
ones.”
In this sense, cross-cultural dialogue necessitates a certain level of self-awareness
and introspection. This is critical for several reasons. First, it facilitates an aware-
ness that the “formulation of the problem is already culturally bound”.” This
awareness, in tum, encourages us to observe and criticize a particular human prob-
lem with the “tools of understanding” of the other culture,’ a process that requires
an appreciation of the content and tenor of internal debates, in addition to the de-
bate with outsiders.” It may also contribute to our understanding of how relation-
ships of dominance shape discourse within and between groups, both inside and
outside the culture. It is critical to identify these hierarchies” in order to determine
“See “Toward a Cross-Cultural Approach”, ibid
‘3 An-Na’im states:
I would emphasize that, in this age of self-determination, sensitivity to cultural relativ-
ity is vital for the international protection and promotion of human rights. This point
does not preclude cross-cultural moral judgment and action, but it prescribes the best
ways of formulating and expressing judgment and of undertaking action (“Toward a
Cross-Cultural Approach”, ibid. at 26).
1 Panikkar, supra note I at 88.
” “Toward a Cross-Cultural Approach”, supra note 7 at 27.
‘6 Panikkar, supra note 1 at 88.
‘7 Ibi
” On this point, An-Na’im suggests: “[W]e should not only distinguish between criticism corre-
sponding to standards internal to a culture and that corresponding to external ones, but also stress that
the former is likely to be more effective than the latter” (“Toward a Cross-Cultural Approach”, supra
note 7 at 26).
” To do this we need to be aware of the fact that particular groups can be simultaneously the minor-
ity and dominant with respect to other groups. This issue has been raised in the female genital opera-
tions debate where, it has been suggested, Western feminists have misrepresented the concerns of
women from practising cultures. Interestingly, whilst Western women might see themselves as a mi-
1996]
K.L. SA VELL – WRESTLING WITH CONTRADICTIONS
whether the claims and ideologies expressed by particular groups reflect true con-
sensus rather than assertions of internal power.”
Most importantly, cross-cultural dialogue is –
as the term “dialogue” suggests
–
a two-way process. This means that we must be prepared to submit our own
cultural systems and practices to similar scrutiny by those outside our cultural con-
text.2′ One hopes that by confronting the reality of cultural difference, rather than
subsuming it under dubious claims to universality,22 human-rights norms might
achieve greater cross-cultural legitimacy.’ At the very least, this approach should
promote a foundation of understanding from which justifiable comment and criti-
cism can be made, as opposed to criticism that is perceived as ignorant and disre-
spectful and which consequently impedes dialogue.
H. Female Genital Operations and the Many Faces of Culture
This Part will critique the manner in which culture has been used by two
groups: first, it will address those who argue that female genital operations are a
cultural tradition that cannot be legitimately challenged; and secondly, it will re-
spond to outsiders who argue that “culture” is merely invoked as a defence to mask
a practice that is a manifestation of patriarchal oppression.
nority group in relation to a Western state, non-Western women may see Western women as dominant
in relation to them (see generally A. Bunting, “Theorising Women’s Cultural Diversity in Feminist
International Human Rights Strategies” (1993) 20 J. L. & Soc’y 6).
20 For example, An-Na’im suggests:
In the normal course of events, powerful individuals and groups tend to monopolize
the interpretation of cultural norms and manipulate them to their own advantage. Given
the extreme importance of cultural legitimacy, it is vital for disadvantaged individuals
and groups to challenge this monopoly and manipulation (“Toward a Cross-Cultural
Approach”, supra note 7 at 27-28).
21 C. Harries makes this point in the following passage:
I suggest that the dialogue may be more productive if conceived as a clash of univer-
sals for which no space is perceived as safe or remote. The Western woman engaged in
the debate must be aware of and acknowledge the threat to her own world view im-
plicit in the critique offered by Third World women. Out of this clash of universals, a
relatively shared system may or may not emerge. It may emerge only if both sides are
willing to reexamine the presumptions upon which their world views are based. Be-
cause of the existing power differential, such reexamination is generally expected only
of Third World women, who are ironically least able to afford it (C. Harries,
“Daughters of our Peoples: International Feminism Meets Ugandan Law & Custom”
(1994) 25 Colum. Hum. Rts. L. Rev. 493 at 532).
22See Geertz, supra note 3 at 234.
23See “Toward a Cross-Cultural Approach”, supra note 7 at 27.
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A. Culture as a Justificationfor Female Genital Operations
Although several forms of female genital operations have been documented,
commentators generally identify three types, which are differentiated according to
the quantity of tissue removed. ‘ There are, however, obvious difficulties with gen-
eralizing about the nature, scope and reasons for the practices since they exist in a
wide variety of geographic, cultural, religious and socio-economic contexts.” Many
reasons overlap, and different communities may emphasize different explanations,
or combinations of them, including the protection of women’s chastity and honour,6
religious obligation,” beliefs about female genitalia and fertility28 and tradition.
24 These three types are: sunna, intermediate (or excision) and infibulation. Sunna (meaning tradi-
tion) involves removal of the clitoral prepuce. Intermediate involves the removal of the entire clitoris
and often part or all of the labia minora as well. Infibulation is the most invasive procedure. The
clitoris is excised with a razor and the infibulation follows: the small lip is cut from top to bottom and
the flesh scraped from the inside of the large lip. These steps are repeated on the other side of the
vulva, leaving a miniscule opening for urine and menstrual blood. The adhesion of the large lips is
ensured by a paste and an acacia thorn, which pierces through both lips. Three or four thorns are stuck
down into the vulva and held in place with sewing threads or horsehair. Because this is not sufficient
to ensure the coalescence of the large lips, the little girl’s legs are immobilized by strips of material
rolled up into a rope from her pelvis to her feet (see M.A.S. Mustafa, reproduced in Dr. A. David, hi-
fibulation en Rdpublique de Djibouti (Bordeaux: Amicale des ttudiants en Mrdecine de Bordeaux,
1978), reproduced in A. Walker & P. Parmar, Warrior Marks – Female Genital Mutilation and the
Sexual Blinding of Women (New York: Harcourt Brace, 1993) at 308-309).
‘ According to Efua Dorkenoo and Scilla Elworthy,
[t]he countries where one or more forms of female genital mutilation are practised
number more than 20 in Africa, from the Atlantic to the Red Sea, the Indian Ocean and
the eastern Mediterranean [including but not limited to Sudan, Somalia, Egypt, Kenya,
Nigeria, Ethiopia, Mali, Burkina Faso. Senegal, Guinea, Ivory Coast, Gambia, Sierra
Leone and Djibouti]. Outside Africa, excision is also practised in Oman, South Yemen
and in the United Arab Emirates … Circumcision is practised by the Muslim popula-
tions of Indonesia and Malaysia and Bohra Muslims in India, Pakistan and East Africa
(E. Dorkenoo & S. Elworthy, Female Genital Mutilation: Proposals For Change
(London: Manchester Free Press, 1992) at 11).
In general, the material used in this paper is drawn from a multiplicity of African contexts.
26 It has been suggested that one of the primary functions of infibulation is to ensure a bride’s vir-
ginity, the corollary being that uncircumcised women are considered to be promiscuous. In some
communities, the preservation of virginity is essential for determining a woman’s social (and, there-
fore, economic) position and for preserving family honour (see A. Slack, “Female Circumcision: A
Critical Appraisal” (1988) 10 Hum. Rts. Q. 437 at 446). R.H.D. Abdalla suggests that “Islam regards
female sexuality as active and as a lustful instinct which … must be controlled,” particularly since
family honour is contingent upon women’s chastity (R.H.D. Abdalla, Sisters in Affliction: Circtunci-
sion and Infibulation of Women in Africa (London: Zed Press, 1982) at 35). R. Cerny Smith adds that
many Islamic tribes believe that “if women’s sexuality is not controlled, the family will be disgraced
and the social structure of the tribe will disintegrate, causing social disorder” (R. Cerny Smith,
“Female Circumcision: Bringing Women’s Perspectives into the International Debate” (1992) 65 S.
Cal. L. Rev. 2449 at 2471).
2 There is a belief among certain Muslim communities that the practice is scripturally mandated by
the Qur’an (see Slack, ibid.). However, according to Baba Lee, an Islamic scholar from Gambia:
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KIL SAVELL – WRESTLING WITH CONTRADICTIONS
According to Slack, “the most widely held justification for the continuation of the
practice is the need to maintain tradition.”’29 In some communities, genital operations
constitute a rite of passage through which initiates are taught the lessons of “tribal unity
and their specific position in maintaining tribal cohesion”.” On this basis, it has been ar-
gued that the practice is of great importance to both the individuals and the continued
survival of the group.’ It permits individuals to identify with their heritage and to enjoy
recognition as full social members of the group.” In a similar vein, female initiation
rituals have been credited with establishing strong networks of lifelong friendship, sup-
port and reciprocal obligation between women initiated together.”
Some commentators have argued that in many societies, essential aspects of
human dignity are ensured through membership in the community, rather than
through inherent rights that attach to the individual.’ This approach forms the basis
of the argument that international human-rights norms are based on a social organi-
zation derived from liberal philosophy, which does not accommodate unique Afri-
can perspectives:
[W]ithin the organisation of African social life one can discern various organis-
ing principles. As a people, Africans emphasise groupness, sameness, and
commonality. Rather than survival of the fittest and control over nature, the
African worldview is tempered with the general guiding principle of the sur-
vival of the entire community and a sense of co-operation, interdependence,
and collective responsibility.3′
“Some Islamic scholars are trying to make a link between Islam and female circumci-
sion, which is wrong. It’s a tradition that had been practiced [sic] long before Islam
came to this continent. It has nothing to do with Islam. It is not mentioned in the Holy
Koran … The majority, 93 percent, of people in Gambia are Muslims. And some schol-
ars say you cannot be a proper Muslim woman if you are not circumcised. This is not
true, but it is something which is psychologically imposed on women by some schol-
ars” (quoted in Walker & Parmar, supra note 24 at 325).
20 For example: (1) the clitoris represents the male sex organ and, if not excised, will grow to the
size of a penis; (2) females are sterile until they have been excised; (3) genital excision enhances fer-
tility; and (4) genital operations are necessary to cleanse and purify the women (see Slack, ibid at
447).
9 Ibid at 448. According to A. Van der Kwaak, the concepts of “tradition” and “religious obliga-
tion” are clearly connected in some Muslim communities: “Somalis themselves generally answer the
question why infibulation is practised: ‘It is our tradition’. Somalia is an Islamic country and many
people –
including many Somalis – are under the impression that female circumcision is required by
the Quran” (A. Van der Kwaak, “Female Circumcision and Gender Identity: A Questionable Alli-
ance?” (1992) 35 Soc. Sci. & Med. 777 at 780).
30Cemy Smith, supra note 26 at 2470.
“For a discussion of these arguments, see ibid. at 2466-70.
See ibid.
“See text accompanying note 87, below.
‘ See Kim, supra note 2 at 58.
“J. Cobbah, “African Values and the Human Rights Debate: An African Perspective” (1987) 9
Hum. Rts. Q. 309 at 320.
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[Vol. 41
This perspective suggests that international human-rights standards, as presently
articulated, are only one way (the Western way) of protecting human dignity.” It is
argued that the communitarian ideal to which African cultures adhere emphasizes
the fulfilment of one’s role in the community as a means of attaining one’s iden-
tity.” Accordingly, group considerations may have greater cultural legitimacy than
individual rights. The irua” initiation ceremony of the Gikuyu tribe has been used
to illustrate this point:
The main purpose of the irua ceremony is to persuade the initiates that
they must give up their duty-free childhood individuality and become members
of the community, where collective needs come first … Once an initiate be-
comes an adult member of the tribe, any conflict between the individual’s own
and family needs and the community’s needs should be reconciled for the gen-
eral good of society. 9
This being so, it might be argued that outsiders’ condemnations of the practices
not only fail to appreciate their cultural and communal significance, but are tanta-
mount to imposing external cultural values on practising cultures.
The overwhelming majority of [Gikuyu] believe that it is the secret aim of
those who attack this centuries-old custom to disintegrate their social order and
thereby hasten their Europeanisation. The abolition of irua will destroy the
tribal symbol which identifies the age-groups, and prevent the Gikuyu from
perpetuating that spirit of collectivism and national solidarity which they have
been able to maintain since time immemorial.’
Even those who do not support the practices in light of changing social and eco-
nomic conditions caution against condemnation from outsiders:
36 Panikkar notes: “[S]elf-understanding, belongs equally to this human nature. Thus to single out
one particular interpretation of it may be valid, but it is not universal and may not apply to the entirety
of human nature” (Panikkar, supra note I at 89-90).
” See R. Howard, “Evaluating Human Rights in Africa: Some Problems of Implicit Comparisons”
(1984) 6 Hum. Rts. Q. 160 at 174.
“‘ Irua is the Gikuyu name for the custom of circumcising male and female children (see J. Ken-
yatta, Facing Mount Kenya: The Tribal Life of the Gikuyu (London: Mercury Books, 1961) at 134).
For female children this custom involves the removal of the tip of the clitoris (ibid. at 146).
39Cemy Smith, supra note 26 at 2467. Kenyatta explains:
It is important to note that the moral code of the tribe is bound up with this custom and
that it symbolises the unification of the whole tribal organisation …
The irua marks the commencement of participation in various goveming groups in
the tribal administration … (Kenyatta, ibid. at 134).
40 Kenyatta, ibiel at 135.
” In a statement issued in 1985, President Abdou Diouf of Senegal made it clear that genital opera-
tions were problematic in the context of the social and economic transformations that had taken place
in African society. These transformations, he suggested, meant that genital operations were beginning
to “have no place or appear to be relics of the past” (UN ESC, Commission on Human Rights, 42d
Sess., Report of the Working Group on Traditional Practices Affecting the Health of Women and Chil-
1996]
KL. SAVELL – WRESTLING WITH CONTRADICTIONS
Female mutilation is a subject that is taboo … But let us not rush into the error
of condemning [genital mutilations] as uncivilized and sanguinary practices.
One must beware of describing what is merely an aspect of difference in cul-
ture as barbarous. In traditional Africa, sexual mutilations evolved out of a co-
herent system, with its own values, beliefs, cultural and ritual conduct. They
were a necessary ordeal in life because they completed the process of incorpo-
rating the child in society. 2
B. Rejection of Culture as a Basis for Female Genital Operations
While evidence exists to support the view that female genital operations enjoy
wide community acceptance in practising cultures,’ 3 the relativist position presented
above has been questioned extensively. First, African culture has been influenced
significantly by colonialism and modernization. According to Howard, this has
fundamentally changed the nature of relationships both within communities and
between individuals and the state.” Paradoxically, the process of modernization in
the public sphere may have actually intensified the importance attached to those
traditional practices that occupy the private sphere. A. Funder suggests: “In the face
of rapid industrialization, global interdependence, and the modernization they
bring, many countries cling to traditional practices as living symbols of the auton-
omy and continuity of their culture.”4 Moreover,
the most frequent arguments made in order to preserve culture mandate a strict
separation between an increasingly global, high technology free marketplace,
which is the public sphere of almost all countries, and a private sphere in which
traditions and cultural practices may continue.’6
Indeed, Dorkenoo and Elworthy suggest that female genital operations continue to
occur notwithstanding that
today in many of these societies the ceremonial has fallen away; both excision
and infibulation are performed at a much younger age that cannot be construed
as having anything to do with entry into adulthood or marriage, and the child’s
role in society does not change at all after the mutilation.”
Some feminist human-rights scholars advocate a cautious acceptance of the
claim that female genital operations are a legitimate expression of cultural values. It
dren, UN Doc. E/CN.4/1986/42 (February 1986) (Mimeo., Limited) Annex 1 at 1 [hereinafter Report
oftthe Working Group]). See also L.P. Sanderson, Female Genital Mutilation – Excision and Infibula-
tion: A Bibliography (London: Anti-Slavery Society for the Protection of Human Rights, 1986) at 71.
42 Ibid.
’13 See text accompanying notes 68-69, below.
44 See Howard, supra note 37 at 179.
‘A. Funder, “De Mininis Non Curat Lex: The Clitoris, Culture and the Law” (1993) 3 Transnat’l
L. & Contemp. Probs. 417 at 427.
4Ibid.
4’7 Dorkenoo & Elworthy, supra note 25 at 14.
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has been argued that such claims are generally favourable to the powerful members
within groups and, consequently, tend to mask the role of gender in shaping the in-
terests, ideologies and practices of the group.’ Put simply, these claims may be ex-
pressions of internal power, used as a subterfuge for reinforcing oppressive gender
roles. In an impassioned articulation of this position, F.P. Hosken states:
This report makes it clear that these operations are more than sexual assault,
more than physical torture and abuse. They represent a deliberate means to en-
slave women and a systematic attempt by men to subjugate women absolutely
and life-long to physically control women’s bodies, reproduction and sexual-
ity.49
On these bases, it has been argued that the continuation of female genital op-
erations is as concerned with providing the means for a male-dominated power 61ite
to control women’s sexuality as it is with preserving cultural identity and cohesion.
This argument rests on the assertion that female genital operations engender sub-
ordination by ensuring “female virginity before marriage, female fidelity through-
out marriage, and … heterosexuality”.’ In this way, it has been argued that female
genital operations serve the purpose of
forcing women to submit to males and accept their socially prescribed gender
roles. Through traumatic experiences of painful operations, childbirth and in-
tercourse, women learn to submit to the males of their families and accept their
secondary positions’
The patriarchal social organization and attendant social norms of some practising
communities may lend support to these analyses. Dorkenoo, for instance, observes that
matrilineal African societies do not practise female genital operations, unlike many of
their patrilineal counterparts.?
In a 1975 study of ethnically diverse infibulation-
practising communities in North-Eastern Africa, Hayes concluded that despite differ-
ences in economic and political organization, the traditional organizing principles of
each group were patrilineal, patrilocal and patriarchal.3 Van der Kwaak observes that
genital operations can also assume economic significance, particularly in communities
where the bride-price is only paid to the father of a gabar gudban (“closed woman”).’
Referring to Hayes’s work, Van der Kwaak surmises:
4 See Cemy Smith, supra note 26 at 2480.
49 RP. Hosken, ed., “A Personal View” in The Hosken Report: Genital and Sexual Mutilation of
Females (Lexington, Mass.: Women’s International Network News, 1979) at 1.
Cemy Smith, supra note 26 at 2482 [references omitted].
5′ Ibid. at 2482-83.
32 See E. Dorkenoo, Cutting the Rose-Female Genital Mutilation: the Practice and Its Prevention
-‘ See Van der Kwaak, supra note 29 at 781-82.
(London: Minority Rights Group, 1994) at 44.
3 See R.O. Hayes, “Female Genital Mutilation, Fertility Control, Women’s Roles, and the Patriline-
age in Modem Sudan: A Functional Analysis” (1975) 2 Am. Ethnol. 617 at 633.
1996]
K.L. SAVELL – WRESTLING WITH CONTRADICTIONS
[Ihe practice is so resistant because of its important role for the continuity of
the patrilinear kinship structure, articulated in a system of proclamations and
prohibitions inserted in marriage practices, modesty code, family honour,
women’s social roles etc.55
In these and similar circumstances, it is argued that women internalize the
norms of their cultural milieu and, in turn, accept the practice because the ramifica-
tions of breaking with tradition can be severe.’ Uncircumcised women may bring
disgrace on their families, are considered unmarriageable and promiscuous and risk
ostracism from their group.7 Former Kenyan President Jomo Kenyatta, for exam-
ple, insisted that female genital operations were crucial to the viability of Kenyan
society and stated that “no proper Gikuyu would dream of marrying a girl who has
not been circumcised, and vice versa”d
C. Rethinking the Gender/Culture Dichotomy
The analyses that reject cultural explanations for female genital operations,
while offering a useful critique of those arguments that favour preserving the cus-
tom, are weakened by the absence of substantial input from those women and men
who may be engaged, and struggling for recognition, in the internal discourse on
the subject. Without this input, outsiders are not only unable to support and influ-
ence the processes of internal discourse, but are incapable of accurately identifying
and understanding the critical internal processes at work. This ostensibly allows
outsiders to dictate the terms of the debate, an ultimately counter-productive situa-
tion, which can provoke allegations of imposing extra-cultural values and norms: 9
Western efforts to eliminate the practice, on the part of missionaries or colonial
administrators, have simply served to confirm in people’s minds that colonial
destruction of traditional customs weakens their societies and exposes them to
the ill-effects of Western influence.?
15 Ibid. at 784.
5′ For example, Dorkenoo and Elworthy note:
If she is found not to be a virgin, the husband-to-be has the right to reject her and refuse
to go along with the marriage. A row ensues and a refund of the dowry has to be made.
The disgraced family is stigmatized, and the girl may have to leave home to find a hus-
band outside of her community (Dorkenoo & Elworthy, supra note 25 at 14).
51 See Cerny Smith, supra note 26 at 2485.
5 Kenyatta, supra note 38 at 132.
See A.A. An-Na’im, “State Responsibility Under International Human Rights Law to Change
Religious and Customary Laws” in R.J. Cook, ed., Human Rights of Women: National and Interna-
tional Perspectives (Philadelphia: University of Pennsylvania Press, 1994) 167 at 179 [hereinafter
“State Responsibility”].
6 Dorkenoo & Elworthy, supra note 25 at 15. Dorkenoo also documents male reactions to outsider
criticism: “My wife, mother, and grandmother have had it done, and they are not complaining. When
these foreigners talk about female circumcision, I asked them what do they know? I tell them to go
and ask my grandmother” (Dorkenoo, supra note 52 at 53).
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This result is also reflected in the accusations of essentialism and cultural im-
perialism which have been levelled at Western feminist commentators:”2
Whatever the good intentions of Western feminists in expressing solidarity or
“helping their sisters of color”, Western articulations of concern over the con-
temporary practice of genital surgery in Third World nations are often per-
ceived as only thinly disguised expressions of racial and cultural superiority
and imperialism.”2
Western responses to this kind of criticism, however, have not always been posi-
tive:
I have chosen to name these practices for what they are: barbaric ritu-
als/atrocities. Critics from Western countries are constantly being intimidated
by accusations of “racism”, to the point of misnaming, non-naming, and not
seeing these sado-rituals. The accusations of “racism” may come from igno-
rance, but they serve only the interests of males, not of women.’
In the same way that the relativist view can be criticized for glossing over the im-
portance of gender, some feminist analyses can be criticized for failing to ade-
quately appreciate the importance of culture in defining women’s experiences and
priorities. Accordingly, these analyses are deficient in three important ways. First,
they fail to convincingly explain why some women vehemently defend and per-
petuate the practice. Secondly, by defining the issue exclusively along gender
lines, these theories seem to overlook the potentially critical connections between
adherence to tradition, colonialism and nationalism. Thirdly, they seem to presume
that it is possible (or desirable) to universalize the female experience, thus, obviat-
ing the need for considering the specific perceptions, experiences and agendas of
women in practising cultures. This tends to deny those women the opportunity to
articulate their experiences and priorities. Moreover, it denies that women are
“agents of knowledge” and ignores the force of the internal debates and struggles in
which these women may be engaged.’
M. Centring African Women Through Cross-Cultural Dialogue
The purpose of this section is to extend the insights offered by relativist and
feminist commentators by applying the principles of cross-cultural dialogue. I will
62 This is a criticism to which feminism is particularly sensitive, given its professed commitment to
liberating all women.
62 Gunning, supra note 5 at 212.
6’M. Daly, GynEcology: The Metaethics of Radical Feninisn (Boston: Beacon Press, 1978) at
154.
6 See text accompanying notes 68-69, 83-89, below.
64See generally Gunning, supra note 5 at 226.
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KL. SAVELL – WRESTLING WITH CONTRADICTIONS
proceed by adopting the following methodological approach:” first, respecting dif-
ferences between the cultural and historical contexts of those participating in the
dialogue; secondly, recognizing the patterns of domination that exist (or have ex-
isted) between the cultures of respective participants, in addition to identifying the
patterns of dominance that shape discussions within cultures; and, finally, engaging
women from practising cultures in the dialogue in an effort to discern an accurate
picture of the struggles, priorities, concerns and hopes of those who may have been
less prominent in the discussion. This approach is particularly important for outsid-
ers who have concerns about the custom and who wish to assist women within
practising cultures because, as An-Na’im points out:
Mheir claiming to know what is the valid view of the culture of that society
will not accomplish this effectively. Such a claim would not help the groups the
outsiders wish to support because it portrays them as agents of an alien culture,
thereby frustrating their efforts to attain legitimacy for their view of the values
and norms of their society67
A. Understanding Cultural and Historical Contexts
The idea that cultural and historical contexts are specific and extremely influ-
ential in structuring dialogue challenges us to be somewhat introspective. At the
very least, participants in the dialogue need to consider how the social meanings
attached to concepts like “individual”, “group” and “harmful practices” are con-
structed within particular cultural and historical contexts. This, for instance, may
require an appreciation of the different perspectives that liberal and communitarian
philosophies bring to bear on particular issues like female genital operations. For
example, many Westerners have responded to the practices with a sense of “moral
outrage”, perceiving the custom as a brutal violation of an individual’s rights by the
group. This, however, is not necessarily the response of women and men within
practising communities. In 1983, Asma El Dareer interviewed over 4,500 adults in
Sudan to gauge their responses to female genital operations. Dareer found that 82.6
percent of women and 87.7 percent of men interviewed approved of female genital
operations regardless of type (that is, sunna, intermediate or pharaonic).’ More re-
cent studies indicate that approval rates among Sudanese women have declined,
although they remain significant. A 1989-1990 Demographic and Health Survey
found that seventy-nine percent of the respondents supported continuation of the
practice, although strong opposition was recorded among urban women and women
with secondary level education.’
“This is an adaptation of the methodology proposed by Gunning, ibid. at 205-27, and is substan-
tially based on the works of An-Na’im (see especially: An-Na’im, ed., supra note 7; “State Respon-
sibility”, supra note 59) and Pannikar, supra note 1.
6″ “Toward a Cross-Cultural Approach”, supra note 7 at 20.
“See A. Dareer, “Attitudes of Sudanese People to the Practice of Female Circumcision” (1983) 12
“See “Female Genital Mutilation in Kenya and Sudan” (1995) 67 African Population Newsletter 6
Int’l J. Epidemiology 138 at 143.
at 6-7.
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By contrast, “moral outrage” does not always accompany Western perceptions
of “self-imposed” health problems facing women, such as self-starvation practices.
As Gunning points out, however, the idea of women starving themselves for cos-
metic purposes in societies where food is often scarce might be considered
“morally outrageous”. ‘ The relevant point is that because culture is a primary
source of normative systems, it inevitably influences the processes of moral reason-
ing’ and perception.”
Female genital operations and self-starvation have been the subject of compari-
son because in each case women participate in practices that may be harmful to
them in response to broader social pressures (for instance, to emulate socially con-
structed ideals of beauty or womanhood).” It might be argued that such a compari-
son is invalid because the community actually mandates the relevant practice in the
former case, but it does not in the latter. In other words, female genital operations
are accorded community acceptance and are mandatory in many circumstances (a
group-imposed practice), whereas self-starvation is generally acknowledged as a
“problem” and is considered to result from aberrant individual behaviour (a self-
imposed practice). Could it be, however, that the participatory role of the commu-
nity is simply less direct, and therefore less visible, in the latter case? Does the
Western cultural emphasis on “individual freedom” (and therefore individual re-
sponsibility) obscure the role of the community in contributing to the problematic
behaviour? Even if Westerners see self-starvation as a problem which requires re-
dress, there may be less general support for the idea that factors that may contribute
to the practice (such as, patterns of systemic discrimination which dis-empower
women, together with advertising images which stereotype women’s roles and
bodies) should be radically revised or curtailed.
Clearly, a particular social practice might not be accorded the same priority
when viewed from different cultural standpoints. It is possible that many women
within practising cultures see genital operations as part of a continuum of issues af-
fecting women (including restricted access to land ownership, restricted travel, do-
mestic violence, child marriages and short birth spacing)” in the same way that
many Western women may perceive self-starvation as part of a continuum of issues
,oGunning, supra note 5 at 212.
See “State Responsibility”, supra note 59 at 171.
72This point is echoed by Van der Kwaak who reflects that:
A Dutch friend with whom I discussed this paper said that what struck her about the
practice of infibulation was the fact that it was so unnatural. But a friend of mine in
Somalia thought that it was Western women who were unnatural: unpleasant to see and
touch. First, they had hair on their arms and legs; second, they did not cover their hair
… and thirdly, she showed great disbelief concerning the fact that Western women still
had their ugly genitalia and pubic hair (Van der Kwaak, supra note 29 at 781).
73 See Gunning, supra note 5 at 212.
7 See Walker & Parmar, supra note 24 at 297, 338.
1996]
KL. SAVELL – WRESTLING WITH CONTRADICTIONS
affecting women in Western cultures.” This is not to say that either cultural practice
is beyond scrutiny but, rather, to suggest that recognizing local contexts may
deepen understanding about the way in which culture can influence our respective
perceptions and priorities.
B. Hierarchical Relationships and Dialogue
As already suggested, it is probable that the contours of the debate about female
genital operations have been influenced by power relations among and between a
number of groups. Accordingly, any comprehensive analysis of the issues must
identify and assess the impact of the relevant power imbalances on the nature of
claims being made (or silenced) by these groups. Although the following list of re-
lationships that may influence dialogue is not intended to be exhaustive, it summa-
rises those described elsewhere in this article.
1.
Men and Women Within Practising Cultures
The relationship between men and women within practising cultures requires
careful consideration. The particular patterns of social and economic dependence
which characterize the lives of many women in practising cultures may undermine
their ability to challenge cultural assumptions.” This may be particularly evident
where the price attached to power and status within the community is participating
in the practice, a price which may, in these circumstances, be paid gladly.” This,
however, may be complicated by more subtle and complex factors. The symbolic
in particular its connection to personal and
meanings attached to the practice –
communal identity – may also animate women’s willingness to participate. In an
attempt to incorporate this idea into a broader gender-based analysis, Cerny Smith
suggests that “the ritual may actually prevent the tribal group from addressing the
fact that in reality its members are not actually achieving the ritual norms; instead,
one group is being oppressed by another.”‘
2.
Women from Outside and Women from Within Practising Com-
munities
It has also been suggested that the relationship between Western and non-
Western women has been influential in determining the parameters of the discus-
7- On this point, Gunning remarks:
[]n dealing with my culture and my custom, it is easier for me to recognise the practice
[breast implants] as “wrong” or “a problem” in the context of larger concerns and more
complex agendas. Someone outside my culture can be oblivious to the context and its
complexities and view this one practice as a single horror (Gunning, supra note 5 at
215).
76See text accompanying notes 52-58, above, and notes 90-94, below.
77 See Van der Kwaak, supra note 29 at 783.
7
1 Cemy Smith, supra note 26 at 2487.
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sion.1 Harries suggests that “when Third World and Western women meet in all but
the most informal of contexts, power differentials implicitly affect that relationship
and shape their interaction.””0 Outside commentators have been criticized for as-
suming, constructing and interpreting the experiences of women within practising
communities. Accordingly, outsiders have, in large measure, failed to fully com-
prehend both the complexity of meanings associated with the practices and the re-
actions of African women to Western criticisms of them.’
3.
Relationships between Cultural Groupings
Finally, any analysis should also consider the relationship between imperial
powers and practising communities and, in particular, the way this historical con-
text influences the internal dynamics of practising cultures. 2
The difficulty here lies in determining the precise role that each of these hierar-
chies plays in influencing the dialogue and obfuscating the reasons for the con-
tinuation of the practice. It is suggested that these contradictory claims, and the
distortions engendered by these power imbalances, may be clarified by creating a
space for women within practising cultures to articulate their own experiences.
C. Struggling with Contradictions – Engaging Women from Practising
Cultures
The paradox faced by outsiders essentially amounts to this: Why do women
continue to participate in a practice that threatens their health and sometimes their
lives? If the practice is so horrible, why do older women who have experienced its
ill-effects often insist that their daughters and granddaughters follow the tradition?
By listening to the experiences and voices of women living in practising communi-
ties, we may enrich our understanding of the multiple and overlapping ways in
which different aspects of women’s identities intersect. This richer understanding
may, in turn, illuminate these important questions.
1.
Experiencing Female Genital Operations as Empowering
Walker and Parmar document the following responses from recently circum-
cised women:
“It’s a very happy day for us … It has been done to our mothers, and our moth-
ers did it to us, and we will do it to our children … I don’t know anything about
those children and those women who haven’t been circumcised. It’s our tradi-
7’See Haries, supra note 21 at 530.
so IbiL
s, See text accompanying notes 59-63 above, and notes 144-49, below.
82See text accompanying notes 44-46, above, and notes 98-101, below.
1996]
KL. SAVELL – WRESTLING WITH CONTRADICTIONS
tion; maybe its not their tradition –
But our tradition we will practice and we will see that it continues.”‘
that’s why they’re not practicing [sic] it.
Accordingly, the practice may be experienced by women within practising cultures
as a source of empowerment, in an individual as well as a communal sense: “[I]t
can serve as a power that helps to bind the community together and provide a
source of cultural identity that is often crucial in small rural communities.”8 ‘ This
attachment to the custom is consistent with Van der Kwaak’s conclusion that
through infibulation, Somali women acquire dignity and power “by becoming a
virgin, by becoming an ‘object’ for which bridewealth should be paid, by being a
wife, by being opened by her husband and bearing his children”.” Dorkenoo ex-
plains that “[i]n many communities women’s access to land and to economic re-
sources is through the male members of the family and husbands, which implies
that they cannot directly inherit land or be in control of major resources.” 6
Even internal activists seeking to eliminate the custom are quick to point out
the positive aspects of female genital operations:
“We have to learn to understand that women in a male-dominated society still
come together. Through rituals, they build sisterhood –
sisterhood which lasts
for a long time. And these rituals are mixed with the magical, so it could be
said that they are part of the control of women, that the women can be seen as
custodians of male power because they prepare young women to fit into par-
ticular roles in society which are acceptable to men. But the involvement of
women in organizing these magical rituals is very complex … Instead of just
teaching how to be a good wife, they could be teaching women about their
whole being. There is great potential in the powerful networks of women
which exist in Africa. Because when girls are initiated together, they are sisters
for life. Wherever you are in the world and you are in trouble, one of those
sisters will come to your aid.”‘ 7
In some practising communities, it is believed that “an uncircumcised woman’s
thoughts would constantly turn to sex and that she would do anything necessary to
satisfy her lust, a behaviour completely unacceptable for a woman …”” Accord-
ingly, this might explain why some women may feel empowered by the attenuation
of their sexual desire: “‘This demonstrates the function of excision: it permits a
woman to be mistress of her body. This is why I don’t see it as a mutilation at
all. ,,,89
“Quoted in Walker & Parmar, supra note 24 at 313.
Slack, supra note 26 at 449.
“Van der Kwaak, supra note 29 at 783.
16 Dorkenoo, supra note 52 at 47.
7 Interview with E. Dorkenoo, quoted in Walker & Parmar, supra note 24 at 252-53.
“E. Oram, “Zainaba” in M. Badran & M. Cooke, eds., Opening The Gates: A Century of Arab
Feminist Writing (London: Virago Press, 1990) 63 at 64 [hereinafter “Zainaba”].
Quoted in Dorkenoo & Elworthy, supra note 25 at 25.
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2.
Experiencing Female Genital Operations as Disempowering
Voices of dissent and despair also exist. Some women are acutely aware of the
difficulties in putting an end to the custom: “‘I don’t know exactly how, but it does
not seem to me to be impossible. At what price, I don’t know. But nothing can be
done towards abolition of these customs if the women concerned do not get to-
gether …”” Others express uncertainty about how this might be achieved: “‘I can’t
imagine that we would have the power to stop it. I don’t have the power to stop it,
but if I did, I would make it stop … [b]ecause of the pain.'”” Still others cannot
conceive of change, but explicitly articulate their experiences in terms of the disas-
trous consequences that could befall them or their children should they break with
tradition:
“We can’t afford being different We found our mothers circumcised; we
learned that our grandmothers and great-grandmothers were circumcised, and
we have to carry the tradition to our children and grandchildren. We can’t think
of anyone who is not circumcised. Once a man divorced his wife as soon as he
discovered that, out of negligence, one of her two leaves was not cut off. This
man told his wife: ‘What have I married? A man or a woman?’ News of this
incident spread and the woman did not did not know where to hide because of
the scandal.” ‘
This sentiment is echoed in the words of Mary, a Gambian woman interviewed
by Walker. When asked how she felt about the recent circumcision of her daughter
she replied: “‘I felt sorry for her, but I couldn’t keep her, because it’s the tradition
and the child had to go … Here there are many events and places where a child
can’t go if she isn’t circumcised.””
Awa Thiam sees the practice as irrefutably harmful, notwithstanding commu-
nity acceptance:
“The little girl who is excised, even if she wants it because all the little girls of
her age are done and because she has been persuaded, doesn’t feel any less
the terrifying pain. Moreover, she feels deeply the hurt done to her body. She is
conscious of being wounded, diminished specifically. Whatever else may be
suggested, she experiences a mutilation.”‘
3.
Situating Women’s Experiences of Female Genital Operations
It is imperative to recognize that women in many practising cultures are situ-
ated in a post-colonial context within which nationalist struggles persist. This has
two important consequences. First, the impact of colonialism, particularly efforts
9 Quoted in ibid at 24.
9″ Quoted in Walker & Parmar, supra note 24 at 323.
92 Quoted in Dorkenoo & Elworthy, supra note 25 at 27.
‘9 Quoted in Walker & Parmar, supra note 24 at 322.
94 Quoted in Dorkenoo & Elworthy, supra note 25 at 25 [emphasis added].
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K.L. SAVELL – WRESTLING WITH CONTRADICTIONS
directed at eradicating the practice,” may have intensified the desire to preserve
traditional rituals in order to maintain tribal identities in the face of the emergence
of nation-states created by colonial powers.’ The desire to assert a distinct “cultural
identity” in the face of undesired external intrusions may also be a factor that has
contributed to a spread of the practice. In an interview with a member of the
Commission for the Abolition of Sexual Mutilation in Senegal, the following ob-
servation was made:
“In Senegal in 1993, sexual mutilations are still being performed, even in cir-
cles which traditionally did not practice them previously. I have also been told
that in the town of Nbour … young girls were freely offering themselves to be
circumcised –
even without asking their parents … Before, this mutilation was
imposed on children. Now young girls offer themselves for mutilation –
that is
frightening.””
Secondly, contemporary nationalist struggles may influence African women’s
perceptions of the importance and timeliness of their concerns in relation to other
issues facing their communities. In the words of Dorkenoo:
“[O]ur women are often confused, because we are told that the most important
issue to focus on is the nationalist struggle and that once we free ourselves
from colonial domination, everything will be OK, and then we can address the
women’s question. When you delve into the subject, it’s not just the cutting of a
woman’s genitals; it’s also the symbolic power of it: it has implications for her
psychology and character development. And therefore male-dominated society
sees any attempt to change it as a threat.””
The galvanizing of communities around the struggle to end imperialism is ex-
tremely important in circumstances where women who take up what is perceived to
betrayal of man,
be the feminist struggle may “qualify for three ‘betrayals”‘ –
woman and community.” In contexts where women are economically and socially
dependent on their community, the difficulties involved in “breaking ranks” is ob-
vious. Thus, “whilst a woman may tell an interviewer … that she believes a practice
is wrong or ought to be different, nonetheless, she may feel her participation in the
practice is necessary at least for the moment.””‘ For these reasons, Dorkenoo insists
“In 1946, the British colonial government in the Sudan prohibited infibulation. The practice did
not stop, however but, rather, induced families to have the procedure done secretly. Brennan suggests
that “this attempt to outlaw circumcision was unsuccessful because it was imposed by a colonial re-
gime and there was no attempt to educate the Sudanese as to why they should abandon a long stand-
ing cultural tradition at the behest of a foreign power” (K. Brennan, “The Influence of Cultural Rela-
tivism on International Human Rights Law: Female Circumcision as a Case Study” (1989) 7 L. &
Inequality 367 at 376).
See Cemy Smith, supra note 26 at 2452.
“Quoted in Walker & Parmar, supra note 24 at 339-40.
“Quoted in ibid. at 249.
“T. Minh-ha Trinh, Woman, Native, Other: Writing Postcoloniality and Feminism (Bloomington,
Ind.: Indiana University Press, 1989) at 104, cited in Harries, supra note 21 at 511.
“0 Harries, ibid. at 516.
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that “to be successful, campaigns on female genital mutilation should consider
carefully not only eliminating but replacing the custom.””
The purpose of this section has been to demonstrate two points. First, we need
to acknowledge that external sources –
such as colonialism – may have contrib-
uted to the practice in its current dimensions. This might be critical to furthering
our understanding of the social meanings currently assigned to female genital op-
erations by practising communities, as well as the likely success of prevention
strategies perceived as Western in origin or orientation. The second point is that
women in practising cultures may experience their culture and gender intersecting
in multifarious ways, so that female genital operations can be experienced as being
simultaneously empowering and oppressive. Framing appropriate solutions, there-
fore, “requires an acknowledgement of, and co-operation with, the different sources
of power which affect women in different ways”.”
IV. Internal Debate and External Critique – Applying International Human-
Rights Standards
Developing a deeper understanding of the significance and complexities of fe-
male genital operations is critical to the process of uncovering shared values and
norms. I will turn now to the role of international human-rights norms and proce-
dures in this process.
A.
Internal Debate- The Transformative Potential of Human-Rights Nonns
Despite the limitations of human-rights norms as embodiments of universal
morality, many states have expressed their commitment to the standards of conduct
outlined by them.” International human-rights norms also provide the advantage of
a common language through which minority voices can articulate their concerns to
their local communities and to the international community.”‘ Accordingly, the in-
ter-penetration of ideas between cultures may be facilitated by international instru-
ments that have the potential to spark or animate internal debates. Harries suggests:
“[T]hrough this process, internationally defined rights are given a certain localized,
ideological context.”‘”5
While female genital operations have been variously analyzed by outsider
scholars as a violation of the right to be free from discriminatory practices,”‘ the
01 Dorkenoo & Elworthy, supra note 25 at 16.
“2Haries, supra note 21 at 519.
“3 See ibid. at 507.
,o”See ibid.
1o5 Ibid.
“O’The Universal Declaration of Human Rights, GA Res. 217(m), UN GAOR, 3d Sess., Supp. No.
13, UN Doe. A/3/810 (1948) provides that “Everyone is entitled to all the rights and freedoms set
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KL. SAVELL – WRESTLING WITH CONTRADICTIONS
right to be free from torture or cruel, inhuman or degrading treatment,’ 7 the right to
sexual and corporeal integrity'” and the right to health,'” vigorous internal debates
surrounding the practices have also adopted the language of rights. The next section
deals with the use of international human-rights standards in internal discussions
about female genital operations.
1.
Discrimination Against Women and Children
Article 5(a) of C.E.D.A.W. obliges state parties to take all appropriate measures
[t]o modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or superiority of either
of the sexes or on stereotyped roles for men and women.””
Burkina Faso, Egypt, Ethiopia, Gambia, Guinea, Senegal, Nigeria, Mali and
Kenya have ratified the C.E.D.A.W., whilst Djibouti, Somalia and Sudan (where
forth in this Declaration, without distinction of… race, colour [or] sex …” (ibid. at art. 2). In a similar
vein, the Convention on the Elimination of All Forms of Discrimination Against Women, 18 Decem-
ber 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31 [hereinafter C.E.D.A.W.], states:
“[D]iscrimination against women” shall mean any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women … of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field
(C.E.D.A.W., ibid. at art. 1).
State Parties shall take … all appropriate measures … to ensure the full development
and advancement of women, for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on a basis of equality with men
(C.E.D.A.W., ibid. at art. 3).
See generally K. Boulware-Miller, “Female Circumcision: Challenges to the Practice as a Human
Rights Violation” (1985) 8 Harv. Women’s LJ. 155 at 162-63.
07 “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment’
(Universal Declaration of Human Rights, ibid. at art. 5). Traditionally, the right to be free from torture
has exclusively concerned the actions of state agents. The Convention Against Torture and Other
Cruel Inhuman and Degrading Treatment or Punishment, 9 March 1984, Can. T.S. 1987 No. 36, 23
I.L.M. 1027, specifically states that “‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person … at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity” (ibid. at art.
1). Recently, however, some human-rights scholars have challenged the legitimacy of this demarca-
tion between the acts of state and non-state actors (see: sources listed at supra note 2; R. Copelon,
“Recognising the Egregious in the Everyday: Domestic Violence as Torture’ (1994) 25 Colum. Hum.
Rts. L. Rev. 291).
..3 For a good summary of these arguments, see Boulware-Miller, supra note 106 at 169-72.
“9 The Universal Declaration of Human Rights provides: “Everyone has the right to a standard of
living adequate for … health and well-being …. Motherhood and childhood are entitled to special care
and assistance” (supra note 106 at art. 25).
“o C.E.D.A.W., supra note 106 at art. 5(a).
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some of the highest rates of female genital operations are recorded) have not.” All
of the above-mentioned states, however, have ratified the African Charter of Hu-
man and Peoples’ Rights,”2 which specifies that, “the State shall ensure the elimi-
nation of every discrimination against women and also censure the protection of the
rights of the woman and the child as stipulated in international declarations and
conventions.””
3
The applicability of article 5(a) of the C.E.D.A.W. to female genital operations
depends on the extent to which these practices are seen to be based on the belief
that women are inferior or on stereotyped roles for women. Thomas Sunkara, the
former President of Burkina Faso, has made this connection quite explicitly:
When a man takes his daughter or his daughters for excision, independently of
any cultural and mystical values he wishes and tries to impart to his act, there is
a clear difference in the care he shows for his small sons who go to be circum-
cised and the care, or rather the contempt, disdain and disregard he shows for
his daughters in handing them over to undergo a form of butchery.
It also shows an attempt to confer an inferior status on women by branding
them with this mark which diminishes them and is a constant reminder to them
that they are only women, inferior to men, that they do not even have any
rights over their own bodies or to fulfilment either bodily or personal. They
have limits imposed on them by men.
As we can view circumcision as being a measure of hygiene, in the same way
we can only see excision as a measure of inferiorization.”‘
As I will explain in the following section, however, the framing of the issues by
outsider critics in these terms (particularly regarding women’s rights over their own
bodies) has been controversial.”‘ At this stage, it is also important to note that the
practices have been challenged by internal critics in these terms.
.. This is not an exhaustive list of states where female genital operations are practised. This sam-
pling does, however, represent those states where, according to estimates, a high proportion of the
female population are engaged in these practices: Somalia (98%), Djibouti (98%), Sudan (80%),
Ethiopia (90%), Mali (75%), Burkina Faso (70%), Gambia (60%), Kenya (50%), Senegal (50%),
Guinea (60%), Nigeria (50%), Egypt (50%) (see ER Hosken, ed., The Hosken Report: Genital and
Sexual Mutilation of Females, 4th ed. (Lexington, Mass.: Women’s International Network News,
1993) at 14).
“‘ 26 June 1981, OAU Doc. CAB/LEG/6713/Rev. 5, 21 I.L.M. 59 (entered into force 21 October
1986) [hereinafter African Charter]. For ratifications as of January 1, 1995, see “International Instru-
ments Relating to Human Rights” (1995) 16 H.R.L.J. 75 at 88 [hereinafter “International Instru-
ments”].
… African Charter, ibid. at art. 18(3).
,’ Report of the Working Group, supra note 41, Annex 1 at 2.
115 See text accompanying notes 145-150, below.
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K.L. SAVELL – WRESTLING WITH CONTRADICTIONS
2.
Right to Health
The United Nations Convention on the Rights of the Child”6 states: “States Par-
ties shall take all effective and appropriate measures with a view to abolishing tra-
ditional practices prejudicial to the health of children.””7 Burkina Faso, Egypt,
Ethiopia, Gambia, Guinea, Senegal, Nigeria, Mali and Kenya have ratified the
Children ‘ Convention, although Somalia has not.”8 Again, all the above-mentioned
states have ratified the African Charter, which specifies:
1.
of physical and mental health.
Every individual shall have the right to enjoy the best attainable state
States parties to the present Charter shall take the necessary meas-
2.
ures to protect the health of their people and to ensure that they receive medical
attention when they are sick.”9
In terms of the health consequences of female genital operations, the immediate
physical effects of infibulation include “damage to the urethral meatus, Bartholin’s
glands, the perineum and possibly the rectum,”‘2 depending on the level of resis-
tance of the child. Additional complications include: hemorrhage (the clitoris has a
rich arterial blood supply), shock from pain and blood loss, septicamia, infection of
the wound and internal reproductive organs (tetanus is a real threat due to unsterile
instruments), urine retention due to occlusion, damage to and bleeding from adja-
cent tissues and organs and death.'”‘ H.I.V. transmission is also a possibility.'”
The long-term physical effects of infibulation have also been documented.
These include:
[U]rinary tract infections, menstruation difficulty, sterility, extensive malfor-
mation and scarring (including vulvar abscesses, epidermoid inclusion cysts,
and keloids), pain from reopening the infibulation with a knife on the wedding
night, and difficult penetration by the sexual partner. The circumcised female
may also experience difficulties giving birth, [including] prolonged labor, per-
,16GA Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, UN Doec. A/44/49 (1989) 166 [hereinafter
Children’s Convention].
“9African
“. Ibid. at art. 24.
,, See “International Instruments”, supra note 112 at 86.
20 Cemy Smith, supra note 26 at 2451 [references omitted].
2 See ibid.
‘2 Dr. Kouyate, a gynecologist based in Dakar, Senegal, cautions:
Charter, supra note 112 at art. 16.
“I am convinced that there is a connection between AIDS and female circumcision.
Look at the conditions in which circumcision is carried out. It is a communal circum-
cision: the circumciser has her own blade, she cuts and passes from one child to the
next with the same blade, soiled with blood” (quoted in Walker & Parmar, supra note
24 at 297-98).
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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ineal and deep trauma, and rupture of the uterus which may also result in fetal
death or brain damage.’
Dr. Kouyate describes the long-term complications based on her experience:
“The woman has been cut and traumatized, so intercourse is very painful and
there are a lot of problems giving birth. An area which is normally elastic has
become a cicatrix area. As a result, many women tear, at the top and at the
bottom. If they are in hospital, you can perform an episiotomy, you can enlarge
the opening. But just imagine these women who have to give birth at home …
[t]hey are just left with a tear at the top and bottom, at the top causing massive
hemorrhaging, at the bottom even worse –
the tear can enlarge to the anus, so
that women can no longer contain their feces. … Not only are women affected,
but babies are affected, too.” 24
Dorkenoo and Elworthy report that members of the medical profession in
Egypt, Somalia, Sudan, Kenya, Djibouti, Mali, Nigeria, Burkina Faso, Ghana and
the Ivory Coast have spoken out about the harmful consequences of female genital
operations.'” In reference to the results of a survey of forty-three Sudanese gyne-
cologists, they state:
[A]II agreed that any form of mutilation was bound to create medical compli-
cations. Every respondent believed that it was a harmful and unnecessary prac-
tice and that an effort should be put to end it. They were unanimous that a wide
campaign of publicity was needed, showing not only the dangers of mutilations
but also the erroneous belief that it was required by religion. 2
The Inter-African Committee on Traditional Practices Affecting the Health of
Women and Children was established in 1984 and has focused on the issue of fe-
male genital operations. Twenty-four affiliated African committees have since been
established to develop and co-ordinate strategies and plans to eradicate female
genital operations. The Sudan National Committee on Harmful Traditional Prac-
tices, for example, has been involved in activities ranging from the education and
training of health workers and traditional birth attendants (who commonly perform
the practice), establishing alternative employment programmes for traditional
practitioners and initiating consulting workshops with a broad range of community
group leaders.’
‘1 Cemy Smith, supra note 26 at 2451.
2 4 Quoted in Walker & Parmar, supra note 24 at 296.
‘ See Dorkenoo & Elworthy, supra note 25 at 15.
126 Ibid.
,2’ See A. Hassan, “Sudanese women’s struggle to eliminate harmful traditional practices” (1995)
International Planned Parenthood Federation Home Page.
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B. Translating Principle into Action -Internal Initiatives and Strategies
One example of how international human-rights norms might be incorporated
into strategies for change at the local level is illustrated in the following extract
from a lecture given by Zainaba (a local nurse) to the midwives of Touil, Maurita-
nia:
“The Way of the Prophet … tells us that women should be circumcised. It is not
a sin if it is not done, but it is better if it is. In any case it is said that the matter
in which it should be performed is that one third of the clitoris should be cut off
and two thirds should be left intact. Someone who practically attacks a girl
with a knife, cutting off everything … is, in any case, going directly against the
words of the Prophet … (Disturbed chatter, ‘I didn’t know …’ ) God created
woman to be with man. He created her to be his wife so that they could help
each other. It is not right if only the man has feeling and the women feels
nothing. That is a great sin. After all, a man and a wife are from the same tribe
aren’t they, and people from the same tribe should always work together and
help each other, shouldn’t they? … If a woman’s entire clitoris is cut off, it
leaves her cold, lazy, without interest, humourless. Doing that is like killing her,
it is a sin….
“You all must not, as is your custom, rush into a family’s tent when they call
you to circumcise their daughter saying, ‘Give me the child, give me the razor
blade and get my payment ready!’ First you must clean everything. Today we
are teaching you to be nurses – we will give each of you medication and ex-
plain how to use it all … When you go back to your villages, you have a duty.
You must be an example of cleanliness and health to everyone …,,
Significantly, Zainaba did not attempt to invalidate the practice, for to do so
may have been completely unacceptable to her and her audience. She does, how-
ever, challenge the midwives to use their power responsibly in the interests of
women. Oram observes that:
In light of the fact that Maures believe so strongly in female circumcision, Zai-
naba’s lecture presented the traditional midwives with a challenge. This chal-
lenge was made even more poignant because Zainaba is both a Maure and a
woman … As a Maure, Zainaba is part of the culture that she is trying to
change. She is a Muslim, herself circumcised. She is subject to the beliefs and
pressures of Maure society just as the midwives are.'”
Instead, Zainaba concentrated her efforts on ensuring that the physical intervention
was minimized, by invoking well-recognized and respected norms and authority
such as the word of the Prophet, community cooperation and duties to the com-
munity. By emphasizing critical connections between the way in which the opera-
tion is performed, the overall physical and mental health of women and children
Mauritania-
1987″ in Badran & Cooke, eds., supra note 88, 67 at 68-69.
s Translated from Arabic by E. Oram, “Lecture on Cliteridectomy to the Midwives of Touil,
‘ “Zainaba”, supra note 88 at 65.
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and God’s will, she was able to persuade the midwives of the seriousness and im-
portance of taking care in performing their operations.’ Her presentation not only
underscores the importance of women’s health, but also the “sinfulness” of dis-
criminatory treatment: “It is not right if only the man has feeling and the women
feels nothing.”‘”‘ She is engaging in what An-Na’im calls an “internal struggle for
control over the cultural sources and symbols of power within that society”.” It
may be that the traditional practitioners could accept her directions because she is
able to legitimize them by using powerful cultural symbols. By analyzing Zainaba’s
approach, outsiders may develop a sharper insight into the cross-cultural content of
human-rights standards relating to health and discrimination.
However, tension persists. For those internal critics who wish to see the prac-
tices completely eradicated, the strong focus on the health aspects insidiously ob-
scures the systemic factors that underlie the practices and prevents these from being
adequately addressed. Dorkenoo has observed:
“Genital mutilation is basically a social practice, with a health consequence.
Generally, people have been dealing with it on the health side, and my impres-
sion is that if you don’t get to the roots, which is the social meaning of it, we
will never be able to deal with it.”””
This dilemma is evident in the recent controversy over female genital opera-
tions in Egypt.” In 1994, the Egyptian Health Minister pledged the government’s
commitment to eradicating female genital operations at the International Confer-
ence on Population and Development.’3 This provoked a strong reaction from lead-
ers in the Muslim community, culminating in the promulgation of an edict by the
Grand Sheikh of Cairo’s A1-Azhar University which stipulated that female genital
130 See ibid.
‘ Ibid.
‘ “Toward a Cross-Cultural Approach”, supra note 7 at 20.
“1 Quoted in Walker & Parmar, supra note 24 at 244.
‘ Although Gunning, writing in 1992, refers to a pre-existing Egyptian law which prohibits female
genital operations (see Gunning, supra note 5 at 246), Dorkenoo and Elworthy, also writing in 1992,
state that “[m]any references have been made to legislation in Egypt, but after researching the avail-
able materials, all that has been traced is a resolution signed by the Minister of Health in 1959, rec-
ommending only partial cliteridectomy for those who want the operation, to be performed only by
doctors” (Dorkenoo & Elworthy, supra note 25 at 11). This is in contraposition to legislative action
taken by other states to prohibit the practice of female genital operations and, in particular, medical
involvement in the practice (see e.g.: Crimes (Female Genital Mutilation) Amendment Act 1994
(N.S.W.), 1994, No. 58; Prohibition of Female Circumcision Act 1985 (U.K.), 1985, c. 38; Act (1982:
316) Prohibiting the Circumcision of Women (Swed.), 1982, c. 316; in the United States, bills have
been introduced in both the House of Representatives (H.R. 941, 104th Cong., 1st Sess. (1995)) and
the Senate (S. 1030, 104th Cong., Ist Sess. (1995)) proposing legislation prohibiting the practice of
“female genital mutilation”).
“‘ See “Egypt: Conflicting Decree on FGM” (1995) 17 Inter-African Committee on Traditional
Practices Affecting the Health of Women and Children 17.
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KL. SAVELL – WRESTLING WITH CONTRADICTIONS
operations were a duty for all Muslim women.’36 In response, the Egyptian govern-
ment significantly relaxed its position on female genital operations by permitting
the practice in public hospitals.’ 7 This course was justified on the grounds that per-
forming the practice under medically controlled conditions would minimize the
health risk involved.3 8
On the question of medicalizing the practice, Dorkenoo and Elworthy state:
mhe tendency to “clean up” the gory aspects of the operations by either offer-
ing to perform them in hospitals, or by providing midwives and other operators
with anaesthetics and penicillin … [for the purpose of] … sanitizing the custom,
and thus effectively removing the health based objections, must be refused.’ 39
This is consistent with the approach adopted by the Inter-African Committee on
Traditional Practices Affecting the Health of Women and Children (“I.A.C.T.P.”).
The I.A.C.T.P. has established a task force for the purpose of developing strategies
for combating the practice in Egypt, which do not involve medicalization as an in-
termediate measure. ” The main question, in the face of these internal tensions, is
how to determine the appropriate role and form of external criticism.
C. The Role of External Criticism
As indicated in Part I, above, An-Na’im theorizes that external criticism of a
cultural practice or belief is most likely to be effective when made in support of the
“proponents of enlightened perceptions” within a culture and framed in a manner
consistent with internal values.'”‘ Statements made by a range of African spokes-
people support this view.
Like all other practices that oppress African women, genital mutilation must be
fought against. But the priorities and the weapons used in the battle must be
chosen by Africans themselves, and more especially by women. For these
practices will not disappear of their own accord for a very long time.. .Outside
support can only be effective and perceived as non-imperialist if it takes as its
starting point informational and educational activities necessarily carried out in
each country.”‘
,3 6 See D. Ezzat, “Female Genital Mutilation. Promise Compromised” (1995) 22 Populi 4.
‘ See ibid. Recent reports, however, indicate that Egypt has again reversed its position by reimpos-
ing the ban on the performance of female genital operations in public hospitals (see J. Mann, “A Wel-
come Reversal” The Washington Post (27 December 1995) F13) and by extending the ban to private
clinics (see “Female Circumcision Ban” Pittsburgh Post-Gazette (19 July 1996) A5). This fluctuating
situation reflects the nature of the internal struggles and disagreements surrounding the issue.
‘ See Ezzat, ibid
9 Dorkenoo & Elworthy, supra note 25 at 15.
See “Egypt: Conflicting Decree on FGM”, supra note 135 at 17.
‘4’ See text accompanying notes 12-15, above.
‘ M.A. Savan6, “Why We are Against the International Campaign” (1979) 40 Int’l Child Welfare
Rev. 37 at 39, quoted in Boulware-Miller, supra note 106 at 175-76.
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Similarly, Abdoul Diouf, in his capacity as President of Senegal, stated: “The
main part of this struggle will be waged by education rather than by anathema and
from the inside rather than from the outside.'” 3
This point has also been made in international fora. For example, paragraph 45
of the “Review and Evaluation of Progress Achieved in the Implementation of the
(1975) World Plan of Action: Health”, considered at the 1980 United Nations
Women’s Conference in Copenhagen, states:
Female circumcision and infibulation can lead to complications during preg-
nancy. The Second Regional Conference on the Integration of Women in De-
velopment … condemned sexual mutilation practices, but was also critical of
uninformed international campaigns against these practices, and called upon
Governments and women’s organizations to seek solutions to the problem.'”
These criticisms have focused, in particular, on Western characterizations of the
practice as a violation of the “right” of women to control their bodies and sexual-
ity.”‘ Some Western critics have contended that the practice violates the right to
sexual and corporeal integrity” on the grounds that it is performed for the purpose
of suppressing sexual drive and has the effect of degrading and impairing women’s
sexual organs and of subjugating women generally.M These approaches have, in
some circumstances, been met with antipathy and rejection by African women.
Boulware-Miller points out:
[O]ne response to the sexual and corporal integrity argument is that the term
“mutilation” is disrespectful of African women who have been circumcised.
While advocates … use the word “mutilation” to express their outrage at the
practice, in so describing an important part of African women’s cultural iden-
tity, they offend all Africans.”‘
Allegations of Western insensitivity and imperialism inevitably arise in this context:
The aggressive nature of the campaign, the insensitive attitude towards a dif-
ferent culture, the paternalism and activism displayed have left us shocked and
enraged. The campaign has been undertaken on the basis of Western prejudices
themselves founded uniquely on the morals
–
and culture of the Christian West. In their desire to stir the passions of the gen-
eral public in the West, the men and women responsible have forgotten that
the mentality of the “centre” –
“3 Sanderson, supra note 41 at 371.
‘UN Doc. A/CONF 94/9 (1980) at para. 45 [emphasis added].
See generally Boulware-Miller, supra note 106 at 169.
,’See Boulware-Miller who seems to suggest that this “right” can be derived from the principle of
non-discrimination, the right to be free from cruel, inhuman and degrading treatment, and the prohi-
bition on torture (see ibid. at 169).
‘ See ibid at 169-70.
“‘ Ibid. at 170 [references omitted].
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K.L SAVELL – WRESTLING WITH CONTRADICTIONS
they might be damaging the self-respect of every woman they are setting out to
“save!’, by destroying the foundations of their beliefs.’49
The force of these criticisms, together with the pragmatic belief that health-
based strategies are likely to be the most successful, has led some commentators to
conclude that health-based approaches are the most appropriate.’ By confining
criticism to principles, such as the right to health, and strategies, such as education,
the backlash against Western interference may be minimized. External agents are
not then seen to be imposing their will on unique cultural contexts. Moreover, this
approach can be more easily integrated into existing values and social and eco-
nomic priorities.”‘ Harries, for example, reports that local legislation mandating
female excision in the Kapchworo district of Uganda remained in effect, notwith-
standing condemnation by government officials.’52 Yet, subsequent educational
campaigns informing men about the dangers of the practice have reversed attitudes
in some cases, leading an increasing number of men to prevent their daughters from
being circumcised.’ 3 Most importantly, focusing on health and education ap-
proaches does not tend to place women in the position of having to “choose” be-
tween enforcing “substantively hollow rights”‘” and remaining part of an extant
social structure that rejects those rights.’
However, as recent proposals to medicalize the practice indicate, the health-
based objections may not adequately cover the field. Ironically, Egypt’s proposal
might be viewed as being consistent with health-based objectives. In this case, the
appropriate form of external criticism must not only draw attention to Egypt’s in-
ternational obligations under C.E.D.A.W., but must underscore the right of all
women to be free from discriminatory practices, in addition to their right to health.
This approach would lend support to the dissenting Egyptian groups that initiated
efforts to challenge the Egyptian government’s proposal to allow the practice to be
performed in public hospitals.”‘ The recent reversal in Egypt’s position’.7 implies
that this form of protest can be effective.
It is suggested that the health-based objections to the practices have had, and
continue to have, the effect of raising consciousness within practising communities
about the health dangers associated with the practice. Ongoing discussion holds the
potential to further inform the processes of changing local conditions and percep-
‘4 Savan6, supra note 142 at 37.
Ho See Boulware-Miller, supra note 106 at 172.
.’ See ibid.
‘” See Harries, supra note 21 at 535.
See ibid.
‘4Ibid. at 521.
55 See ibid.
‘
‘ 6Ezzat reports that 15 non-governmental organizations have filed suit against Egypt on the basis
that the performance of female genital operations in public hospitals violates international agreements
and Egyptian law (see Ezzat, supra note 136 at 4).
,S7 See: Mann, supra note 137; “Female Circumcision Ban”, supra note 137.
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tions, so that the practices may be effectively challenged on a variety of grounds. It
may be, for instance, that the impetus for challenging the practices as violent and
discriminatory may gain greater prominence after the health concerns have been
widely discussed and largely confirmed. The internal debate surrounding Egypt’s
proposals may be a case in point. This demonstrates that cross-cultural dialogue is a
process in constant flux and, accordingly, should be subject to constant revision as
cross-cultural understandings expand and internal re-interpretations of cultural
norms change local conditions.
D. An Assessment of the Participatory Role of International Bodies
An examination of the work of United Nations bodies and conferences evi-
dences the tensions discussed above. It also illustrates the way in which cross-
cultural dialogue on this issue has evolved in response to those tensions. For a long
time, United Nations agencies declined to examine the practice.’ In 1984, however,
amid growing international concern and pressure from women’s groups, the United
Nations Sub-Commission on the Prevention of Discrimination and the Protection of
Minorities established a working group to investigate and report on traditional
practices affecting the health of women and children.’
Significantly, the Working Group on Traditional Practices Affecting the Health of
Women and Children analyzed female genital operations “from a cultural and histori-
cal perspective as well as from a human rights perspective”.”
In particular, the
working group focused on how female genital operations, as a rite of passage and as a
test for women’s capacity to endure acute suffering, operate as cultural justifications
for the practice.”‘ This has led one commentator to conclude that the working group
perceived its task as a balancing act between the harmful health consequences of fe-
male genital operations and the cultural significance of the practice.’ 2
‘ In 1959, the Economic and Social Council requested the World Health Organisation (“W.H.O.”)
to study the practice. The W.H.O. declined on the basis that the practice is “based on social and cul-
tural backgrounds, the study of which is outside the competence of the World Health Organisation”
(quoted in Brennan, supra note 95 at 378). U.N.I.C.E.E also declined to examine the practice until
1980 (see ibid.). However, at the insistence of Western and African women, the W.H.O. sponsored a
series of educational conferences in 1979 and 1984 addressing the harmful health consequences of
female genital operations (see ibid.).
.59 It is noteworthy that the Sub-Commission discussed the issue for two years before reaching the
decision to establish the working group. In fact, that discussion was initiated by the report placed by
the Minority Rights Group before the Sub-Commission during its 1981 session (see Brennan, ibid. at
382). Brennan also reports that several Sub-Commission members from practising countries admon-
ished members to respect practising cultures, and many asked that the practice be considered as a
humanitarian concern rather than a human-rights violation (see ibid. at 382). Brennan also notes:
“Western members did not, for the most part, participate in these discussions” (ibid. at 382-83).
‘0 Ibid. at 381.
16, See ibi& at 389.
6 See ibid
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K.L SAVELL – WRESTLING WITH CONTRADICTIONS
This may explain the Working Group’s reticence on the question of whether the
practice constitutes a violation of human-rights. The Working Group concluded that
the custom had serious physical and psychological health consequences and was “at
variance” with human-rights standards.’63 It did not, however, specifically enumer-
ate which human-rights standards the practice contravenes.'” According to Bren-
nan, the Working Group’s conclusion was influenced by opposition to the practice
within practising communities, evidence that the initiatory aspects of the practice
were diminishing in significance and the ratification of international human-rights
instruments.’63
Although the Report of the Working Group failed to state which human-rights
standards prohibited the practice, the Sub-Commission subsequently adopted a
resolution that the practice was a violation of the “rights of women and children”.'”
According to Brennan, the Sub-Commission preferred to support internal efforts to
eradicate the practice – based on education and persuasion –
rather than coercing
governments into taking active steps to prohibit female genital operations.’67
On the one hand, the Report of the Working Group, the processes leading to its
creation and the Sub-Commission’s response, constitute a good example of how
cultural sensitivities can be incorporated into international discussions.” The ap-
proach adopted emphasized the importance of consultation with members from
practising countries in an effort to understand the cultural significance of the prac-
tices.'” It also recognized the importance of recommending action that underscores
the internal struggles surrounding the practice rather than concentrating on external
pressure.’6 This preference for broad education efforts has the added advantage of
placing female genital operations in an organic context, as one issue in a continuum
of health concerns for African women.”
On the other hand, the Report of the Working Group has been criticized for not
adequately addressing the gender dimension of female genital operations. The fo-
cus on cultural significance, at the expense of gender inequities, oversimplified the
analysis’2 and prevented the working group from addressing concerns about dis-
crimination and the control of women’s sexuality.'” It also circumvented the obvi-
ous need to examine other factors that may contribute to the continuation of the
’63Report of the Working Group, supra note 41 at 21, cited in Brennan, supra note 95 at 390.
‘”See Brennan, ibid. at 391.
‘”See ibid. at 391-92.
‘”6Sub-Commission Resolution: 1988/34, UN Doc. E/CN.4/Sub.2/1988/45 at 62, cited in Brennan,
ibid. at 392.
’67 See Brennan, ibid. at 382.
‘ See ibid at 382-87.
‘6 See ibid
70 See Gunning, supra note 5 at 245.
‘
“‘ See ibid
‘,See ibid. at 244.
.’. See ibid
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practice, such as the economic dependence of women,” nor did it address questions
about empowering women in practising communities so that their voices and pri-
orities may be heard.”‘
The international discussion, however, has continued to evolve in light of
greater participation from men and women from practising cultures, changing the
perceptions and the re-interpretation of internal norms. More recent international
efforts to address female genital operations are incorporated in the “Programme of
Action” adopted by the International Conference on Population and Development, 76
and the “Platform for Action” adopted by the Fourth World Conference on
Women.” Although neither document is legally binding, each, nonetheless, evi-
dences a commitment by participating governments to the principles and recom-
mendations enumerated therein.
The Cairo Programme of Action, focusing on the health and educational as-
pects of the practices, states:
Governments and communities should urgently take steps to stop the practice
of female genital mutilation and protect women and girls from all such similar
unnecessary and dangerous practices. Steps to eliminate the practice should
include strong community outreach programs involving village and religious
leaders, education and counselling about its impact on girls’ and women’s
health, and appropriate treatment and rehabilitation for girls and women who
have suffered mutilation. Services should include counselling for women and
men to discourage the practice.’
Elsewhere in the Programme, however, the violent and discriminatory nature of the
practice is addressed, and the following recommendation is made: “Governments
should take effective action to eliminate all forms of coercion and discrimination in
policies and practices. Measures should be adopted and enforced to eliminate …
female genital mutilation.””
The Beijing Platform for Action addresses female genital operations under the
categories of “Women and Health” and “Violence Against Women.’. While health
concerns and educational strategies remain important priorities, the document also
“‘ Evidence suggests that economic independence allows women to take risks in challenging cul-
tural practices. For example, Boulware-Miller reports that women joined the Eritrean People’s Lib-
eration Front “to avoid the knife” (supra note 106 at 167-68). See also Gunning, ibid. at 245.
75 See Gunning, ibid. at 245.
76 Report of the International Conference on Population and Development, UN Doc. A/CONF.171/13
(October 1994) (Mimeo.) c. 1 [hereinafter Cairo Programme of Action].
‘n Report of the Fourth World Conference on Women, UN Doc. A/CONF 177/20 (October 1995)
(Mimeo.) c. I [hereinafter Beijing Platform for Action].
“‘ Cairo Programme of Action, supra note 176 at para. 7.40.
‘ Ibid. at para. 5.5.
‘ Part C and Part D, respectively, of the Beijing Platform for Action, supra note 177 at 37-59.
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KL. SAVELL – WRESTLING WITH CONTRADICTIONS
regards the practice as a form of discrimination against women’8 ‘ and specifically
characterizes it as a form of violence against women:
The term “violence against women” means any act of gender-based violence
that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary depri-
vation of liberty, whether occurring in public or private life.
Accordingly, violence against women encompasses but is not limited to the
following: … female genital mutilation and other traditional practices harmful
to women…’
The Platform also includes substantive recommendations that aim to translate these
principles into action. In relation to health and education, the Platform recommends
that governments
[g]ive priority to formal and informal educational programmes that support and
enable women to develop self-esteem, acquire knowledge, make decisions on
and take responsibility for their own health, achieve mutual respect in matters
concerning sexuality and fertility and educate men regarding the importance of
women’s health and well-being, placing special focus on programmes for both
men and women that emphasise the elimination of harmful attitudes and prac-
tices, including female genital mutilation …
In addition, paragraph 124(i) recommends that governments
[e]nact and enforce legislation against the perpetrators of practices and acts of
violence against women, such as female genital mutilation, … and give vigor-
ous support to the efforts of non-governmental and community organizations to
eliminate such practices.’
On the one hand, these recommendations appropriately demonstrate an appre-
ciation of existing tensions between cultural sensitivity and international human-
rights standards. They support the efforts of some internal critics and activists who
are challenging the practice in their communities, by using strong language to
criticize the practices as a manifestation of violence and discrimination. At the
same time, the reaffirmation of the importance of health- and education-based
It states:
Discrimination against girls, often resulting from son preference, in access to nutrition
and health-care services endangers their current and future health and well-being.
Conditions that force girls into early marriage, pregnancy and child-bearing and subject
them to harmful practices, such as female genital mutilation, pose grave health risks.
(ibid. at para. 93).
“‘Ibid. at para. 113.
,8’ Ibid. at para. 107(a). The substance of this recommendation is reiterated in relation to the girl-
child (see ibid. at para. 277(d)).
‘8
1 Ibid. at para. 124(i). See also ibid. at para. 283(d) which relates to protecting the girl-child from
all forms of violence.
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strategies, together with the focus on encouraging the efforts of grass-roots organi-
zations, ensures that those who are best placed to incorporate the experiences of
women from practising cultures will be significant participants in program plan-
ning. This is fundamental to ensuring that the women most affected by the practices
are not alienated from the constantly evolving cross-cultural dialogue.
Conclusion
What I have attempted to demonstrate is that by taking a dynamic view of cul-
ture as a series of ongoing internal and external debates, the role of cross-cultural
dialogue in expanding cross-cultural understandings of human rights looks promis-
ing. I have argued that this approach opens up opportunities for discourse by orient-
ing us to the cultural and historical assumptions that inform human-rights debate.
The methodology proposed encourages us to re-evaluate theoretical positions and
strategies in light of the actual (rather than imagined or imposed) experiences and
priorities of those with the cultural tools to devise the best strategies for dealing
with human-rights concerns. At the same time, I have argued that cross-cultural
dialogue should not be used to silence external criticism. Such criticism, however,
should be supportive of and sensitive to the substance of internal debates and
norms.
The customary practice of female genital operations has attracted considerable
attention and criticism from commentators outside practising cultures. For a longer
time, internal commentators have been addressing the issues arising from these
practices within their communities. In response to these internal and external proc-
esses (sometimes reflective, sometimes ill-informed) a cross-cultural dialogue has
emerged. The centring of women’s experiences is a necessary part of this dialogue
for the following reasons. First, with this perspective, outsider assertions about the
nature and reasons for continuation of the practice can be tested and, perhaps,
challenged. Secondly, we can appreciate the form and content of the internal strug-
gles and debates surrounding the issue. Finally, we might subsequently engage in a
form of criticism that supports those internal agitators in culturally appropriate
ways.
International human-rights norms can play a critical role in facilitating and
animating both internal and external criticism of cultural practices. Both outsider
and insider commentators have adopted the language of rights to articulate their
criticisms of the practice. However, the particular “rights” relied upon and the reac-
tions to these claims have varied among and between outsiders and insiders. In re-
cent times, the health-based objections to the practice have been preferred because
the discrimination-based objections have been criticized for failing to appreciate lo-
cal norms and perceptions. Outsider criticism that is insensitive to local contexts
may indeed be ultimately counter-productive by undermining the efforts of internal
critics seeking to gain cultural legitimacy for their position; but this does not mean
that outsiders have no valuable contribution. From the perspective of an outsider, I
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KL. SAVELL – WRESTLING WITH CONTRADICTIONS
817
have argued that focusing exclusively on the health-based aspects of the practices is
undesirable. While health-based analyses of female genital operations are less
challenging to cultural (and patriarchal) sensitivities, they may also be less likely in
the long term to effectively integrate women’s experiences of injustice into human-
rights law. This focus may also have the undesired effect of displacing critical
questions about the social meaning of female genital operations and their role in
controlling female sexuality. These concerns have been raised by women within
practising cultures and require closer examination. I have suggested that the terms
of cross-cultural dialogue should be subject to constant revision as cross-cultural
understandings expand and internal re-interpretations of cultural norms change lo-
cal conditions. This means that criticism, comment and strategies that are inappro-
priate at one stage in the process of dialogue will not necessarily always be so.
