This chapter has explored the extent to which FGM laws in some countries are consistent with numerous provisions of international and regional instruments on the protection of human rights (e.g. freedom of conscience, thought and religion, as well as the right to private and family life, cultural rights and minority rights).
On the one hand, therefore, FGM is viewed as a violation of the physical integrity of a person. On the other hand, FGM speaks to freedom of conscience and the right to private and family life, for example. Existing anti-FGM legal provisions around the world ignore the dilemma that participants in the practice face when seeking to comply with the law: compliance with customs and traditions, or adhering to the abandonment logic and the risk of being marginalized and ostracized from society.
The last point that would make national laws and international human rights instruments effective is perhaps to investigate further why these laws and human rights instruments are not enforced and the reasons behind poor enforcement rate and what if anything might be done to improve the rate and deliver justice to the victims (or witnesses) of this form of sexual violence.
As far as the issue of low rate or lack of prosecution is concerned, various studies have ascribed this to at least two factors. One is that there is a lack of trust in the criminal justice system itself, which does not serve the victims well. The problems are obvious. Many FGM or sexual violence victims lack the confidence to come forward to report crime, lack adequate support if they do so, and face an unaccept- able ordeal in the courtroom if their case reaches that far. All involved in the deliv- ery of criminal justice in countries of prevalence, including the police, prosecutors and judiciary, and all political elite agree that the situation need to improve. The only question, though, is how such an improvement ought to be achieved. There have been plenty of codes, and guidelines. These have nudged things on. But pain- fully slowly, with no real teeth, their effectiveness will always patchy. There have been many studies (Seelinger et al. 2011; Amnesty International 2014; Nainar 2012), which have explored how the police the courts should deal with witnesses to sexual violence crimes, into which FGM falls. Some of those studies have recom- mended a radical break with the old common law adversarial approach and where others have proposed the adoption of either a mixed or a reformed approach of the old. Other still have proposed that whatever the approach adopted the victims’ rights will only be taken seriously if they are enshrined into law (International Commission of Jurists 2016).
While traditional victims’ rights have been discussed only in the context of sen- tencing (See Braun 2014) the debate obscures something much more fundamental:
most victims of FGM have so little faith in their national criminal justice system that they do not access it at all. And the issue that deters them is simply the way in which
they are likely to be treated if they come forward. That this why a further research is needed at each jurisdictional level to set out terms of reference for review of the system and examine how best FGM victims can access justice effectively. While there are understandable concerns about how this can be made to work effectively, it cannot be left in the ‘too difficult’ box forever (Bowcott 2016).
When it comes to the journey of the victim through the process, it is time to rec- ognize that making FGM victims attend a police station to report personal or FGM violence puts many off from the start. It is possible to consider setting up clinics staffed by experts who can provide appropriate support and help the victims access the criminal and civil justice system. Making something like this the norm across all regions of prevalence has to be on the top of government and international commu- nity agenda.
The procedure in court also needs to be addressed. The idea that if the prosecu- tion and defence attack each other as fiercely as possible then the truth will some- how emerge has its own attractions. However, for particularly vulnerable FGM witnesses there are obvious disadvantages. One proposal to consider might be to encourage a combination of the adversarial and inquisitorial systems, with the judges being given the task of questioning the vulnerable FGM witnesses. This is important to make FGM laws work for the victims.
However, it may be objected that such suggestion risks harming the right of the defendant to a fair trial; a right, which involves entitling the defendant to have their case through their advocate. The suggestion is that adversarial approach must be maintained, subject to the judge discussing the case in court and ensuring that there is no repetitive questioning of the witness. An alternative could be to have pre-trial cross-examination so as to o move to a position where the cross-examination takes place by video link prior to the actual trial taking place. This may be successful and allow for the evidence to be properly structured so that we avoid repetitive question- ing of the vulnerable witnesses. The suggestion of having a mixed inquisitorial and adversarial system would prove difficult to have a fair trial system.
The difficulties of prosecution may make due to a number of factors including difficulties in collecting evidence for prosecution. These can, in turn, be explained by fear that those who did this are parents or relatives who might be antagonized and punished for doing what they too were taught to be part of their tradition and performed this tradition on their own daughters out of love rather than hatred. An additional reason might be overall fear that, if the matter proceeded to public trial, the witness (who may have been victims themselves) vulnerable to be cross- examined by several lawyers. These are challenges, which are common to crimes of sexual violence generally; and the overarching policy suggestion in the majority of world jurisdiction has been of two different orders. The first is to recommend that provision should be made especially in common law jurisdictions that inquisi- torial these particular witnesses are questioned by the judge. This it is thought may mitigate the harsh effect of common law adversarial system, which rests on the assumption that if the prosecution and defense attack each other as fiercely as pos- sible the truth will somehow come to light. Yet such an adversarial system, despite its attraction, might prove tricky for FGM and other sexual violence victims. Thus,
the second suggestion might be to be blending the adversarial and inquisitorial systems. Perhaps judges, rather than adversarial lawyers, should be given the task of questioning young and vulnerable witnesses while being sensitive to their needs.
The courts service developed the use of pre-recorded interviews in an attempt to reduce the number of times witnesses need to be questioned. If the courts service developed the use of pre-recorded interviews in an attempt to reduce the number of times witnesses need to be questioned.
Pending any reform within national system along either of the options proposed above, it is necessary for lawyers to continue to seek redress for the victims before national, regional and international forums. In what follows, we shall consider (1) the extent to which national laws designed to combat FGM are compatible with international human rights standard, and (2) the international legal regional legal frameworks, (3) litigation of FGM before international and regional judicial and quasi-judicial forums, and what remedies can the protected persons obtained before an rights law (4) how to ensure compliance with decisions by regional bodies award- ing relief to the victims and potential orders or direction on how the award should be managed.
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