The Response of Human Rights Law to the Practice of Female Genital Mutilation in Nigeria

Female genital mutilation (FGM) or female circumcision is a traditional practice among various tribes in Africa including Nigeria. Under this paper I have highlighted the pros and cons in favour and those oppose to the practice. The practitioners argued for its continuation because it was an important cultural heritage that marks the transition of a girl from childhood to adulthood while the abolitionists wanted it to be abolished because it violates human rights. I have adopted a doctrinal method of research under this paper to look into the veracity of the arguments of both sides. The prevailing opinion is that FGM or female circumcision violated both constitutionally guaranteed rights like rights to life, health, physical integrity, dignity, etc and human rights treaties and Conventions like United Nations Charter, Universal Declaration of Human Rights, International Covenant on Civil and Political rights, the Maputo Protocol, etc. in view of this the practice should be abolished.    Keywords: Female, Genital, Mutilation, Circumcision, Cutting, Women’s Right. DOI: 10.7176/JLPG/94-14 Publication date: February 29 th 2020

In 1996, the United Nations Data system showed that 32.7 million Nigerian women have been infibulated . In 1997 the WHO study showed that 60% of Nigeria's female population are circumcised . Between 1997 and 2005 a study conducted by the Center for Gender and Social Policy Studies, Obafemi Awolowo University, Ile-Ife, Osun State showed that all the four types of FGM are practiced in Nigeria and nearly all the ethnic tribes in Nigeria practiced it except the Fulani . According to Macro International Incorporation, Washington DC, in a study conducted for USAID in 2003 the prevalence rate among women aged 15 to 49 is 19.0% while that of women aged 50+ is 59.6% and total number of women circumcised is 9,238,126 .

Factors Responsible for the Practice of Female Genital Mutilation
Several factors or reasons are responsible for the practice of female genital mutilation in several parts of Africa including Nigeria. Some of the reasons include: religions, obligation, and cultural requirement, symbol of purity, ignorance factors and so on. All members of all faith practiced female genital mutilation. To the practitioners it is a religious obligation ordained by God and this is traceable to the divine covenant and instruction given to Abraham by God. This covenant relates, however, to male circumcision and not to female circumcision. Female circumcision is not mentioned in the Bible or Koran. However, among Muslims it is a religious obligation. Infibulations the most dangerous form of circumcision is rampant in North Africa and East Africa among Muslims. Islamic clerics in Egypt have issued "Fatwa" against parents who refused to circumcised their daughters . FGM is a part of the culture and tradition of the people. It is not a hurting practice but rather a symbol of love that marks the transition of girls to puberty and womanhood, therefore, it is a cultural obligation . FGM is regarded by the practitioners as a symbol of purity, charity, family honour and identity and a symbol of virginity. In Africa there is a link between circumcision, virginity and marriageability. When a girl is circumcised this is evidence of virginity and she commands respect and a very high bride price . On the other hand a girl that is not circumcised is evidence of non-virginity and she cannot get married because men cherish virgins and no man in Africa traditional setting will marry a woman who is not circumcised. Even though the practitioners of the practice claim they are doing so on ground of culture and tradition, the practice is actually based on taboos, ignorance and unscientific reasons like: that if not cut the clitoris can become long to touch the legs, that the clitoris is dirty and smelling and that is why it should be cut, that if a man's penis touches the clitoris he will die, that during childbirth if the head of the baby touches the clitoris he/she dies, that circumcision makes conception easier, that it prevent vaginal discharges, vaginal parasites and prevents contamination of mother's milk .
Other reasons why it is practiced is that it provide source of income for those who performs the operation both traditional and medical practitioners . Other factors include cultural relativism. Each culture has intrinsic cultural values peculiar to it and one of it is female circumcision. Cultural anthropologists have argued for its retention and charges abolitionists with cultural imperialism and agents of western societies.

Female Genital Mutilation and Violations of Fundamental Human Rights
So far we have been able to indicate the various reasons why various tribes in Africa practiced female circumcision, however human rights advocates have also shown that the practice violates human rights. Female circumcision is a violation of human rights of women. Human rights is a badge of humanity. It is a universal moral entitlement. It is innate. A man is entitled to rights simply because he is a human being. When a right is violated this is an affront to justice and humanity. It is fundamental because it is sacred and it is codified by the supreme law of the land . What is women's rights? It is a proclamation that women are human beings and they are being denied their rights. Women deserve to be given dignity, honor, decency and respect which they deserve.

Right to Life and Physical Integrity
The Universal Declaration of Human Rights (UDHR) provides that all human beings are equal in dignity and that everyone has the right to life, liberty and security of person. The International Covenant on Civil and Political Rights (ICCPR) provides that every human being has the inherent right to life. Sections 34 and 35 of 1999 Constitution of Nigeria provides that everyone has the right to life and shall be entitled to his personal liberty. The right to life, dignity and integrity represents basic and core human values and without them a man/women is not a human being. Victims of FGM bleed to death. The human carnage of the practice is enormous. According to a report by Inter-African Committee on female Genital Mutilation over 114 million women and girls have died from the practice . Exposing the genitalia of women to mutilation is a violent and undignifying act which violates right to dignity and privacy.

Reproductive and Sexual Rights
Reproductive and sexual health and rights is an off short of sexuality. Sexuality is a central aspect of being human throughout life which encompasses sex, gender identity, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexual health is a state of physical, emotional, mental and social well-being in relation to sexuality. Sexual right is the right of all persons to the following: the highest attainable standard of sexual health, decision to be active sexually or not, etc. Reproductive rights encourage sexuality, sexual health and sexual rights. It must be freely exercised and must be free from coercion, discrimination and violence. FGM is an anti-thesis of reproductive right. It is in conflict with sexuality, sexual health and sexual rights. Its purpose is to control, direct and subdue the sexuality and virginity of women and enhance their marriageability to men and make sex more pleasurable for men. It prohibits eroticism, pleasure, intimacy and reproduction of women .

Right to Health
The UDHR provides that everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family. The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that States parties recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The 1999 Constitution provides that the health, safety and welfare of all person are safeguarded and not endangered or abused. The WHO defines health as "a state of complete, not merely the absence of disease or infirmity". The right to health is a fundamental human right. FGM violates the right to health and destroy the health of women. It has dangerous health and medical implications. The crude operation is painful and horrible. Victims are maimed and disfigured for life. Victims can be infected with HIV/AIDs and other obstetrical and gynecological diseases. According to WHO the health implications of FGM can be classified into two: short and long term consequences. The short term consequences include: hemorrhage, sepsis, shock, infection, damages to adjoining organs, severe pain and finally death. Longterm consequences include: bleeding and pain, keloid formations, calculus formation, difficult menstruation, reproductive tract infections, pelvic inflammatory diseases, HIV/AIDS infections, pregnancy and childbirth complications, etc.

Right to Private and Family Life
According to the 1999 Constitution, "The privacy of citizens, their homes … is hereby guaranteed and protected." The UDHR provides, "No one shall be subjected to arbitrary interference with his privacy, family, home …, nor attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attack". It also provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. FGM is an affront to dignity, decency, privacy and family life which is the natural and fundamental unit of society and humanity. FGM is a great threat to marriage and family instability and it is also a major factor responsible for maternal and infant mortality. Divorce which is a threat to family life and marriage is rampant among infibulated women. Mutilation of genital of girls and women without their consent and inability of couples to consummate marriage because of infibulations is a violation of private and family life.

Right to Culture
The African Charter on Human and Peoples Rights provides that individuals have a right to preserve and strengthen positive African culture values in their relations with other members of the Society. The Declaration of the Principles of International Co-operation provides that "Each culture has a dignity and value which must be respected and preserved … every people has the right and the duty to develop its culture." A human being is a product of the culture of the people where it is practiced. However, there are some cultural values that are inimical to the rights and values of women in Africa and FGM is one of them. FGM is bad culture. Where a culture is in conflict with human rights it has to give way. This fact is recognized by the UN, bad culture must bow down to human rights. FGM is a cultural practice that is rooted in taboos, lies and ignorance. It is also a harmful traditional practice endangering the lives of girls and women in Africa. The Declaration of the Principles of International Cultural Co-operation provides that "the principles of this declaration shall be applied with due regard for human rights and fundamental freedom". The implication of this is that any cultural practice that violates human rights and fundamental freedoms cannot stand. There are similar provisions in UDHR and ICESCR .

The Right to Peace and be let Alone
The right to live in peace and share in the common heritage of mankind is a new generation of human rights. Mutilation of genitals of girls and women without their consent in the name of culture is a harmful and injurious cultural and traditional practice. It violates women's rights to peace and be let alone. It prohibits women from enjoying sex and it is an alteration of the anatomy and physiology of women as created by God. FGM amounts to sexual violence. It is an affront and an attack on the bodies of women.

Right to Freedom From Discrimination
FGM is gender based violence against women and because of this it is discriminatory against women. UDHR provides that "everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind such as race, colour, sex." The 1999 constitution provides for rights to freedom from discrimination on ground of sex, birth, religion, ethnicity, etc. This right is also an international right recognized in UN Charter, ICCPR, ICESCR and most essentially in the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) . FGM confer inferior status on women. It is imposed on women against their will to dominate and control women's sexuality. In view of this it is in conflict with CEDAW. The clitoris is the most sensitive part of a woman's body and when it's amputated the woman is dead sexually and she can no longer enjoy sex nor attain orgasm during sex. No such sexual amputation is imposed on boys or men. 117 because of this, the UN has intervened to tackle the menace through the following human rights instruments.

The UN Charter
The UN was established in 1945 and it boldly proclaims respect for human rights in its Preamble "… to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women… to promote social progress and better standards of life in larger freedom … to employ international machinery for the promotion of the … social advancement of all people" . The Preamble strikes at the heart of FGM. It is a practice that violates women's right to dignity and worth of a human being. It debars the progress of women. It is a product of unequal power relations between men and women. The practice discriminates against women thus it violates the UN Charter.

Universal Declaration of Human Rights (UDHR)
The UDHR was adopted and proclaimed by the General Assembly in 1948. It is not a Treaty but it is binding in conscience of member States of the UN. Its Preamble provides for the recognition of inherent dignity and of the equal and inalienable rights of freedom, justice and peace in the world . The Preamble further states that respect for and enjoyment of right is the highest aspiration of the common people and disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. The UDHR can be used as a platform to eradicate FGM because it violates inherent dignity and inalienable rights of women. Its terrible obstetrical and gynecological disaster has jolted the conscience of mankind and advocates of feminism and human rights have labeled it an instrument of tyranny, oppression and dominance.

International Covenant on Economic, Social and Cultural Rights (ICESCR)
Its Preamble proclaims the Charter of the UN as well as ideals of the UDHR . The following rights adopted in ICESCR are violated by FGM: Article 1 protects the right to self-determination. Article 3 protects the right to the enjoyment of all social and cultural rights. The Covenant also provides for special protection for mothers before and after childbirth and special protection and assistance to be given children without discrimination. FGM violates all the above rights. It violates the right to bodily integrity and bodily self-determination. FGM is not a product of culture it is deeply rooted in ignorance and patriarchy. It ruins the lives of girls and women in terms of health, education and marital life.

International Covenant on Civil and Political rights (ICCPR)
The ICCPR provides that every human being has the inherent right to life, right to be free from torture, freedom from degrading treatment, right to liberty and security and right to be treated with humanness and with respect for the inherent dignity of human person . FGM is the anti-thesis and violates all the above rights. The Committee on ICCPR has recommended that FGM was both a domestic and sexual violence against women and girls and it denounced it as torture, cruel, inhuman and degrading treatment.

Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
CEDAW is a UN Treaty that specifically targets women and to affirm women's rights. It was promulgated by the UN to redress the issue of discrimination facing women in respect of women's dignity, equal rights, empowerment, etc. It defines discrimination against women to 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 irrespective of their marital status on a basis of equality of men and women of human rights and fundamental freedoms in the political, economic, social, fundamental, civil or any other field". The following CEDAW provisions are relevant to FGM: Article 5 provides that all states parties shall take appropriate measures to modify the social and cultural pattern with a view to achieving the elimination of customary prejudices based on inferiority of the sexes. Article 12 provides that states parties shall take all appropriate measures to eliminate discrimination against women in order to ensure on a basis of equality, access to health care services and safe motherhood. The Committee on CEDAW has on several occasions addressed the issue of FGM. It labeled FGM as violence to women and noted its dangerous health consequences. It calls on states parties to eliminate it by "enactment and effective enforcement of law."

Declaration on the Elimination of Violence Against Women (DEVAW)
The Declaration was adopted by the General Assembly in 1993. It recognizes the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human beings. It noted that violence against women (VAW) is an obstacle to the achievement of equality, development, peace and advancement of women. DEVAW defines violence against women as follows: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal and violence related to exploitation. (b) Physical, sexual and psychological violence occurring within the general community including rape, sexual abuse, sexual harassment and intimidation as work, in educational institutions and elsewhere, trafficking in women and forced prostitution. (c) Physical, sexual and psychological violence perpetuated or condoned by the state, wherever it occurs. The Declaration specifically mentions FGM as gender based violence against women. Its definition of VAW perfectly fits FGM . The Declaration call on all member States of the UN to take all appropriate measures to end violence against women.

Convention on the Rights of the Child (CRC)
The CRC is the most authoritative document or Treaty to codify children's rights. The Convention prohibits torture, cruel and inhuman treatment of children. It calls for the protection of right to education and health of children. It defines a child as a Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol. 94,2020 118 human being below the age of 18 years old . It recognizes that a child needs full and harmonious development of his/her personality and should grow up in a family environment in an atmosphere of love and understanding. States and parents must take all appropriate measures to protect the child's interest, privacy, protection against unlawful attacks on his/her honour and reputation. Article 19 provides that States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence or abuse. The Convention also provides that a child is entitled to the enjoyment of the highest attainable standard of health. Female children are the highest victims of FGM globally and the CRC directly addresses the problems of victims of the practice. Article 24(3) calls on States parties to take all effective measures with a view to abolishing traditional practices prejudicial to the enjoyment of the highest attainable standard of health. Female children are the highest victims of FGM globally and the CRC directly addresses the problems of victims of the practice. Article 24(3) calls on States parties to take all effective measures with a view to abolishing traditional practices prejudicial to the health of children. The Committee on CRC has labeled FGM "a dangerous and harmful practice inimical to the rights and survival of children" and calls for its abolition .

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
CAT defines torture to mean any act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes … or intimidating or coercing him/her . Even though the practitioners of FGM has no intention to inflict pain or torture in fact they see it as an act of love and a customary practice of transition to adulthood or womanhood. However, nobody can deny the fact that the crude operation inflicts pain on victims and this amount to "inhuman or degrading treatment". However, the Special Rapporteur on Torture has declared that FGM is torture and CAT is applicable to FGM . The Committee on CAT on several occasions in its reports have labeled FGM a "dangerous traditional practice" that must be eradicated .

UN Plan for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children
The UN Plan is a comprehensive Plan devised by the UN to eliminate harmful traditional practices affecting the health of women and children . The Plan mapped out two strategies for the elimination of harmful traditional practices (HTP): national action plan and international action plan. At the National level the plan calls for a clear expression of political will on the part of governments to put an end to FGM and also to promulgate legislations prohibiting it. At the international level the plan calls on States to ratify all international instruments including those relating to the protection of women and children. The UN Plan identified FGM as one of the HTPs militating against the interest of women and female children.

World Conference on Human Rights and the Vienna Declaration and Plan of Action (VDPA)
The World Conference on Human Rights was held in Austria in 1993 and the decisions reached are codified in the Vienna Declaration and Plan of Action (VDPA). The conference deals with human rights generally but the VDPA can be used to solve the problem of FGM. The VDPA is relevant to FGM in three ways. Firstly, it calls for equality of status and promotion and protection of human rights of women. Secondly, it calls for the protection of rights of children. Thirdly, it calls for freedom from torture. All these three issues are germane to FGM. Female circumcision affected female children and women negatively. It is a symbol of low status of women imposed on them by tradition and custom and culture. It also amount to an inhuman and degrading treatment and torture. The VDPA calls on all States to tackle the problems of gender discrimination, inequality and stop the exploitation and abuse of women and children .

Programme of Action of the International Conference on Population and Development (PAICPD)
The PAICPD was held in Cairo in 1994. It was the 5 th Population Conference of the United Nations. The conference highlights the importance of gender equality, elimination of violence against women, women's rights, elimination of all forms of discrimination against women and women's empowerment. The Conference calls for the empowerment of their political, social, economic and health status to achieve sustainable development. The PAICPD noted that FGM is against all the values identified above and call on Governments to eliminate the practice. The Conference noted as follow: "Governments are urged to prohibit female genital mutilation whenever it exists and to give vigorous support to efforts among non-governmental and community organizations and religious institutions to eliminate such practices. On the issue of Girl Child, the PAICPD noted discriminations against them on the basis of sex and other problems include higher rate of infant mortality, lower rates of school enrolment, lack of access to education and health care. It call for elimination of all forms of discrimination against the Girl-Child, to increase public awareness of her value and strengthen her self-image, self-esteem and status. The greatest casualty globally of FG M is the Girl-Child. FGM is responsible among female children for infant mortality, lower rates of female enrolment in schools and hinders their health. FGM destroys the image, esteem and status of the Girl-Child.

Beijing Declaration and Platform of Action of the 4 th World Conference on Women
The 4 th World's Conference on Women's Rights was held in Beijing, China in 1995. The Mission and Objective of the Conference is the promotion of human rights of girls and women, eradication of poverty among women, elimination of all forms of violence against women, to ensure equal access to education for Girl-Child and women, promote economic autonomy for women, advance the goals of equality, development for all women, advance the status of women empowerment and advancement of women's right etc. The conference specifically mentioned FGM as anti-women, harmful and dangerous traditional practices, violence against women and inimical to women's progress . The Declaration and Programme of Action of the Conference noted six critical areas which are relevant to tackling the problem of FGM: poverty, economy, health, violence against women, human rights and the girl-child. These six areas are powerful weapons that can be used by governments to solve the problem of FGM. The Conference call on all States and Governments to take all necessary steps to eradicate FGM. It calls on all governments to ratify the Convention on the Rights of the Child (CRC) and to take all other measures to eliminate all forms of discrimination against the girl-child: eliminate negative cultural attitudes and practices against girls, eliminate