By Rishav Devrani and Poojan Bulani
INTRODUCTION
The Sudanese government on April 22, 2020, made an announcement criminalizing the long-followed practice of Female Genital Mutilation/Cutting (hereinafter ‘FGM/C’) by amending its Criminal Law Article 141. A WHO report shows that more than 200 million women and girls alive today have undergone the practice of female genital mutilation. This amendment has been the product of numerous protests and concerns raised by various national and international agencies about the violation of human rights in Sudan in the form of multiple practices that are followed in the country which are accepted harmful practices in the rest of the world.
CRIMINALISATION OF FEMALE GENITAL MUTILATION IN SUDAN
The World Health Organization defines FMG/C as, “all procedures that involve partial or total removal of the external female genitalia, or other injuries to the female genital organs for non-medical reasons”.[i] Criminalizing FGM is touted to be one of the biggest criminal law advances by the country.The procedure has been dictated by tradition and religion; and the rationale behind it is that the removal of female genitalia ensures control over her sexuality. Some even reinforce the notion that it is necessary for cleanliness and the beauty of a female. Sudan is one of those countries where the rates of FGM/C had been very high in the past years. According to UNICEF’s Multiple Indicator Cluster Surveys (MICS), 86.6% of women in the age category of 15-49 years were subject to FGM/C in their lifetime.
The amended article makes FGM/C an offence with imprisonment for three years along with a fine or closure of the premises. Any person who removes or mutilates the female genitalia by cutting, mutilating, or modifying any part that leads to loss of its functions irrespective of the place of the mutilation comes under the purview of this offence.Before this amendment, the National Policy for the Eradication of FGM/C opposed the practice but there was no legislation enacted in furtherance of their recommendations and policies.
Female Genital Mutilation is one such practice considered to be devastatingly backward to be upheld by any society. All kinds of FGM/C are irreversible in nature and cause physical as well as mental setbacks to the victim. For example, depending on the degree of recollection, and the kind of coping mechanism of the girl, FMG/C can lead to an anxiety disorder or Post Traumatic Stress Disorder. This activity is reflective of all the unjust laws that prevail specifically for girls and women in any social, economic, or political structure which often originates from a deep-seated social norm that has existed for years. It is practised by the members of the society under the fear of being ostracized if they oppose it. The act not only hampers the physical development of a girl but also gravely impacts gender equality. Therefore, the amendment brings an opportunity to oust the existence of FGM/C by incorporating education in conjunction with the legislative measures in place.
The criminalization of FGM/C is a crucial part of the wave of Women Centric Criminal Law Amendments taking place in Sudan to incorporate women’s rights; as recognized at the international level. The legislature concerning women’s rights other than FGM/C like, rights of abortion of rape survivors coupled with a draconian definition of adultery and lack of protection of victims from gender-specific crimes like domestic violence or marital rape has always displayed a problematic picture in Sudan.
LAWS ON RAPE
It was only in 2015 that an amendment was brought in to clarify the definition of rape as per Article 149 of the Criminal Act. Erstwhile to the amendment ‘Rape’ and ‘Adultery’(Zina) were used interchangeably and often lead to cases wherein the victim was punished for adultery, in case, the offender was not found guilty of rape. The punishment for Zina, under Sudanese law, is one hundred lashes if she is unmarried and death by stoning in case she is married. This practice persists till date even though numerous international organizations have been protesting against the same.
Although the amendment is a tremendous step forward it has a multitude of drawbacks. The ambiguity regarding the age of consent or majority, which has not been defined for the offence of rape, has attracted a lot of criticism. Precisely, the lack of amendment in the Evidence Act corresponding to such rape laws renders it nugatory. Where The Criminal Act defines it as the age of puberty, the Child Act of 2010 defines a child as a person less than 18 years of age. On account of vagueness, an amendment to Article 151 of the Criminal Act was also enacted to criminalize sexual harassment but has been in the spotlight for all the wrong reasons. The article is controversial because it is vague and does not capture the essence of the offence. Article 151 states,
‘There shall be deemed to commit the offence of sexual harassment whoever commits an act or speaks or behaves in a way that causes seduction or temptation for another person to engage in illegal sex, or to commit indecent or inappropriate behaviour of a sexual nature that psychologically harms the victim or makes the victim feel unsafe, shall be punished with imprisonment for a term not exceeding three years and whipping’
It does not provide clarity between the harasser and the harassed. Moreover, it shifts the onus of sexual harassment upon women pivoting the notion of victim-blaming. The use of the phrase ‘causes seduction or temptation’ reinstates the belief that the country’s legislation is jaded with gender inequality as well as suffers from want of principles of equity and as a consequence, pins the wrongdoing on its women. It is widely speculated that the Amendment was brought into place in such ambiguous terms in order to appease potential investors and bankers that belong to countries such as Saudi Arabia; where such misogynistic and archaic laws still exist and thrive. Additionally, in Sudan, marital rape is not recognized as an offence as the common belief stands that the wife owes obedience and conjugal rights to the husband. The Criminal Act does not have any provision on the issue of Domestic Violence.
ABORTION FOR RAPE SURVIVORS
Another significant aspect of woman’s rights in Sudan has been the incorporation of the right of abortion in the case of rape. As Sudan already grapples with formulating concrete rape laws, abortion in cases of rape becomes controversial.
Aiding this controversy, the legislature allowed for abortion under The Criminal Act 1991 subject to following conditions:
- If the miscarriage is necessary to save the mother’s life, or
- If the pregnancy is the result of rape that occurred not more than 90 days before the pregnant woman has desired to have the abortion, or
- If it is proved that the unborn child has died in the mother’s womb.
Not only does this eliminate the consent or choice of the mother in doing so but also forbids the woman to eliminate unwanted pregnancy without any reasonable justification which is not covered under the provision. Apart from the lack of facilities and underfunding of the Sudanese health system and politicization of abortion in Islamic Sudan, there is also widespread disobedience of guidelines that are provided by the laws like The National Public Health Act of 2008. This law, in particular, only allows for abortion surgeries in hospitals and only for reasons that are identified by the Ministry of Health. Sudan has a high maternal mortality rate[ii]and unsafe abortion is a leading cause of the same keeping in view the restrictions on women’s access to induced abortion in the country.[iii]
CONCLUSION
The recent amendment is indicative of the possibility of a Sudan with more gender-equal laws and a better future for girls and women in the country. FMG/C is not only a practice that hinders the sexual, physical, and mental growth of a child but has also resulted in death in some cases endangering the human right to life. Interestingly, eradicating the existence of FMG/C is also a part of the Sustainable Development Goals 2030 of the United Nations.
Furthermore, the silver lining to this amendment is that it is reflective of the progressive future of Sudanese laws. In addition to criminalizing gender mutilation, the Sudanese government has also increased criminal responsibility from the age of seven years as it existed before to 12 years now. In addition to this, the law regarding pregnant women facing detention has been reduced to community service. The new government has also pledged to conduct reforms in the legal rights that exist for women and obliterate all such laws which are discriminatory and draconian in form or substance.
[The co-authors are third-year students at Rajiv Gandhi National University of Law, Punjab.]
[i]WHO (2008b), Eliminating Female Genital Mutilation: An Interagency Statement (UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCHR, UNHCR, UNICEF, UNIFEM, WHO), p.11, Geneva: World Health Organization.
[ii]World Health Organization, Trends in maternal mortality 2000–2017: Estimates by WHO, UNICEF, UNFPA, World Bank Group and the United Nations Population Division (Geneva: World Health Organization, 2019).
[iii]S. M. Latt, A. Milner, and A. Kavanagh, “Abortion laws reform may reduce maternal mortality: An ecological study in 162 countries,” BMC Women’s Health 19/1 (2019).
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