Published online by Cambridge University Press: 13 February 2012
This article looks at three legal steps that have been taken in Uganda to abolish the practice of female genital mutilation: (1) a process during the drafting of the constitution that resulted in the enactment of different constitutional provisions that implicitly rendered female genital mutilation unconstitutional; (2) the declaration by the Constitutional Court in the case of Law and Advocacy for Women in Uganda v Attorney General in July 2010 that the practice is unconstitutional; and (3) the enactment in April 2010 of the Prohibition of Female Genital Mutilation Act. This article highlights some of the challenges that are likely to be encountered in enforcing both the Constitutional Court decision and the Prohibition of Female Genital Mutilation Act.
1 African Commission on Human and Peoples' Rights “Resolution on the situation of women and children in Africa”: ACHPR/Res.66(XXXV)04, preamble at para 6.
2 See CEDAW Committee “General recommendation no 14” on female circumcision (ninth session, 1990).
3 See list of countries that have signed, ratified or acceded to the protocol at: <http://www.africa-union.org/root/au/Documents/Treaties/List/Protocol%20on%20the%20Rights%20of%20Women.pdf> (last accessed 17 August 2010).
4 See “Periodic report of the Republic of Benin on the implementation of the rights and freedoms enshrined in the African Charter on Human and Peoples' Rights” (2008) at 5, 8 and 18, where Benin informs the African Commission that Benin's Act No 2003-04 of 3 March 2003 criminalizes FGM.
5 The Burkina Faso minister for the promotion of women's rights informed the African Commission that in Burkina Faso “there are laws against female genital mutilation which are supported by awareness creation campaigns”. See “Report of a promotion mission of Commissioner Rezag Bara to Burkina Faso” (26–30 March 2007) at para 36. See also “Periodic report of Burkina Faso to the African Commission on Human and Peoples' Rights on the implementation of the African Charter on Human and Peoples' Rights” (October 1998 – December 2002) at 57.
6 The deputy minister of women and children's affairs informed the African Commission delegation that FGM was outlawed in Ghana; see “Report on the promotion mission to the Republic of Ghana” (1–5 September 2008) at para 148.
7 See “Initial and periodic report of the Republic of Niger to the African Commission on Human and Peoples' Rights on the implementation of the African Charter on Human and Peoples' Rights” (1988–2002) at 74.
8 In its report, Nigeria informs the African Commission that Edo State Law on FGM 2000 bans the practice of FGM and prescribes the punishment of a fine or six months' imprisonment for its violation. Bills prohibiting FGM have been passed in eleven states. See Nigeria's “Third periodic country report (2005–08) on the implementation of the African Charter on Human and Peoples' Rights in Nigeria” (2008) at 20.
9 See Senegal's third, fourth, fifth, sixth and seventh periodic reports in “Application of article 62 of the African Charter on Human and Peoples' Rights on the implementation of the African Charter on Human and Peoples' Rights by the Republic of Senegal” (undated) at 14, available at: <http://www.achpr.org/english/state_reports/Senegal/Senegal_2nd%20report.pdf> (last accessed 17 August 2010).
10 Uganda's “Combined fourth, fifth, sixth and seventh periodic reports to the CEDAW Committee”: CEDAW/C/UGA/7 (25 May 2009) at paras 175–76.
11 See The Report of the Uganda Constitutional Commission: Analysis and Recommendations (1992, Uganda Printing and Publishing Corporation) at 1.
12 Id at para 7.132.
13 Id at para 7.69.
14 Id at para 7.69(d) (emphasis original).
15 Id at para 7.135(a).
16 Id at para 7.135(b).
17 Id at para 7.135(c).
18 Id at para 7.141(e).
19 Proceedings of the Constituent Assembly (Official Report) (1994, Uganda Printing and Publishing Corporation) at 2013 (emphasis original).
20 Id at 2012 (emphasis original).
21 Id at 2010 (emphasis original).
22 Id at 2009 (emphasis original).
23 Ibid. Another delegate submitted that he was aware that “the practice of circumcising women [in the eastern part of Uganda], at the present moment … even in the absence of express legislation prohibiting female circumcision, the practice is optional and … it is dying out fast. This is because of modernity, enlightenment and education but not because of express legislation.” See submission by Wagidoso Madibo, id at 2109.
24 Id at 2009.
25 Id at 2011.
26 Id at 2100.
27 Ugandan Constitution, art 137.
28 Law and Advocacy for Women in Uganda v Attorney General (constitutional petition no 8 of 2007)  UGCC 4 (28 July 2010) at 1.
29 Ugandan Constitution, art 2 provides that the constitution is the supreme law of Uganda and that any other law or any custom which is inconsistent with the constitution shall, to the extent of the inconsistency, be void.
30 Id, art 22(1) protects the right to life.
31 Id, art 24 protects the right to freedom from “torture or cruel, inhuman or degrading treatment or punishment”.
32 Id, art 27(2) protects the right to privacy.
33 Id, art 32(2) empowers Parliament to make relevant laws including laws for the establishment of an equal opportunities commission.
34 Id, art 33 is a separate article guaranteeing women's rights. Most importantly it provides under clause 6 that: “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.”
35 Law and Advocacy for Women in Uganda v Attorney General, above at note 28 at 1–2.
36 Id at 4.
37 WHO Department of Reproductive Health and Research Eliminating Female Genital Mutilation (2008, an interagency statement by OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO), available at: <http://www.who.int/reproductivehealth/publications/fgm/9789241596442/en/index.html> (last accessed 30 August 2010).
38 Law and Advocacy for Women in Uganda v Attorney General, above at note 28 at 8.
39 Id at 10.
40 Act 5 of 2010.
41 “Report of the Committee on Gender, Labour and Social Development on Female Genital Mutilation Bill 2009” (2009) at para 2.
42 Id at para 3.
43 Id at para 4(a).
44 Id at para 4(b).
45 Id at para 4(c)–(f).
46 Id at para 5.
47 Id at para 6.
48 PFGM Act, sec 1.
49 Id, sec 2.
50 Id, sec 3(1).
51 Id, sec 3(2).
52 Id, sec 4.
53 Id, sec 5.
54 Id, sec 6.
55 Id, sec 7.
56 Id, sec 9.
57 Id, sec 10.
58 Id, sec 11.
59 Id, sec 12.
60 Id, sec 13(1).
61 Id, sec 14(1).
62 Children Act 1997, chap 59.
63 Id, secs 22–32.
64 Id, secs 27–33.
65 Id, sec 34. The purpose of an exclusion order is to prohibit the named person or persons from having contact with the child or with persons looking after the child.
66 PFGM Act, sec 16(1).
67 Id, sec 16(2).
68 Id, sec 16(3).