ختان الإناث في مصر… جريمة تعذيب ضد الإنسانية

تؤكد مؤسسة القاهرة للتنمية والقانون أن تلك التعديلات هي خطوة على الطريق السعي إلى إنهاء حالة العنف المبني على النوع الاجتماعي والذي يستوجب الإسراع في تعديل ووضع منظومة تشريعية تعترف وتعاقب على كافة أشكال العنف الممارس ضد النساء داخل المجتمع المصري.

1- من أجل ضمان نفاذ القانون يجب فتح نقاش مجتمعي لإقناع الأفراد والأسر بمضار ختان الفتيات على صحة وسلامة وكرامة الفتيات والنساء، حتى يتعامل المجتمع المصري مع ختان الإناث مما من شأنه أن يتحمل المجتمع مسئولية جماعية للإبلاغ عن ختان الفتيات والحد من وقوعه.

2- إنشاء مفوضية منع التمييز التي نص عليها الدستور المصري في المادة 53 لسنة 2014 من أجل ضمان تصدي أكثر عميقًا للتمييز.

3- يجب توفير وضمان حماية الشهود والمبلغين في وقائع ختان الإناث قبل وأثناء وبعد التحقيقات.

4- تشجيع النساء البالغات للتقدم ببلاغات ضد جريمة ختان البنات إعمالاً لنص المادة 99 من قانون العقوبات ، والتي ترسخ أن الحق في التقاضي في الجرائم المرتبطة بالاعتداء على حرمة الجسد لا يسقط بالتقادم .

5- صدور قانون موحد لتجريم العنف ضد النساء.

Introduction

Female Genital Mutilation is still widespread – but increasingly condemned – in most parts of North and East Africa. However, the recent history of the practice in Egypt presents particular challenges for those trying to stop it. In Egypt, 92% of women and girls who ages ranges from 15 to 49 years old have undergone some form of FGM, 72% of them are by doctors/physicians. Although there has been a positive change in women’s attitudes towards FGM, there is still widespread support for the continuation of FGM in Egypt. The Demographic and Health Survey of 2008 also showed that 63% of women whose age ranges

from15 to 49 years old believed that the practice should continue. FGM is considered part of the social structure of Egyptian society because it is more related to customs and traditions than anything else. There are several decisions, religious laws and advisory opinions (Fatwas) were issued before, but the popular cultural heritage is highly influential, because many Egyptian families are still, unfortunately, refusing to change because FGM is related to chastity.

In some cases, the matter is related to religion. Husbands’ preferences to get married from circumcised women and the prohibition of adultery were also among the most mentioned reasons by women aged from 15 to 49 years and which support the practice (60%, 39% respectively).In the context of the International Day of Zero Tolerance for Female Genital Mutilation (FGM), Cairo Foundation for Development and Law is publishing this paper.

Definition of FGM

The term Female Genital Mutilation (FGM) refers to all procedures involving the partial or total removal of the external female genitalia or other injury to the female genital organs for cultural or other non-medical reasons.

Facts about FGM Crime:

• FGM includes procedures that intentionally alter or cause injury to the female genitalia organs fornon-medical reasons.
• This practice does not have any health benefits for girls and women.
• FGM can cause severe bleeding and problems with urination, and later cysts,infection and infertilityas well as complications in childbirth and an increased risk of neonatal death.
• More than 125 million alive girls and women today are circumcised in 29 countries in Africa and the Middle East where FGM is concentrated.
• FGM is mostly performed for young girls in the age range between early childhood and 15 years old. FGM is considered a violation against human rights of girls and women.

FGM is classified to four main types:·

• Clitoral excision: partial or complete removal of the clitoris (the clitoris is a small and sensitive part of the female genitalia organs), and in very rare cases, only the foreskin (the fold of skin that surrounds the clitoris) is removed.

• Excision: the excision of the clitoris and the labia minora partially or totally, with or without excision of the labia majora (the labia is the outer skin fold of the vagina).

• Threaded circumcision: narrowing of the vaginal orifice by making a lid tampon. Obstruction is formed by cutting and repositioning the inner or outer labia, with or without excision of the clitoris.

• All other practices: All other harmful procedures performed on the female genitalia for non-medical reasons, such as pricking, piercing, incising, scraping and cauterizing the female genitals.

Before issuing the law

In 1997, FGM was banned by a decision by the Minister of Health, but this practice was not completely prohibited as it was allowed in some cases with the approval of a practitioner from the medical staff. In 2007, the Ministry of Health issued a ministerial decision which bans all health workers from performing operations of FGM in hospitals, governmental or non-governmental clinics. Also in 2007, the Mufti of the Republic, Ali Gomaa, issued Fatwa condemning FGM. In addition, the Supreme Council for Islamic Research in Al Azhar issued a statement which explained that FGM has no basis in basic Islamic law (Sharia) or any of its partial provisions.

Moreover, in 2007 the Egyptian Ministry of Health issued a ministerial decree (271) that filled the gap in the previous decree of 1996 prohibiting everyone, including health workers, from practicing FGM in governmental or non-governmental hospitals/clinics. In September 2012, the Egyptian Federation of Obstetricians and Gynecologists issued a statement declaring that FGM is not a medical procedure and is not included in any medical curriculum except as a practice that must be prohibited and therefore the law does not provide protection for physicians who practice it.

FGM Crime in Egyptian Constitution and Law

The Egyptian constitution includes articles prohibiting FGM and considered it a crime against girls. In Article 80, the state is obligated to take care of the child and protect him/her from all forms of violence, abuse, ill-treatment and sexual exploitation. Also article 11 states that the state is obligated to protect

women against all forms of violence and ensures that women are empowered to reconcile family duties and work requirements.

The first criminal texts related to protection against FGM were issued in June 2008 when the Egyptian parliament approved the criminalization of FGM in the Penal Code and set a minimum limit for provisional detention for a period of three months and a maximum of two years, or an alternative punishment of a minimum of 1000 Egyptian pounds and a maximum of 5000 pounds. Although the law has been issued since 2008, no one has been convicted under it.

The new Child Law also included the formation of Child Protection Committees at various national levels with duties to identify, support and monitor children at risk of neglect and abuse, including girls at risk of FGM. Furthermore, in 2008 Egypt hosted a regional meeting entitled “Cairo Declaration+5 for Legislation and Female Genital Mutilation” to help in the applying the legislation. This conference was a follow-up to the meeting of 2003 that was held in Cairo and resulted in an important legal document on FGM entitled “Cairo Declaration for the Elimination of Female Genital Mutilation.” The main objectives of the conference were to follow up on the recommendations of the previous conference and to launch an international campaign aimed at reviving global interest in combating FGM.

The amendments of 2016 re-defined FGM as a felony instead of a misdemeanor, and increase the penalty for practicing FGM with imprisonment for a period not less than five years and does not exceed seven years, and up to 15 years in hard labor if the act of FGM results in the victim’s death or permanent disability. The articles also state a prison sentence of from one to three years for anyone who requested female circumcision and the circumcision was performed at his request. Finally, in 2021, the Egyptian parliament agreed to make some amendments to the Penal Code no. 58 of 1937. The amendments came in articles 242 (bis) and 242 (bis A) related to the crimes of FGM.

The amendments which criminalize FGM state the following:

“Whoever performs FGM by removing part of female genitals or straightens, alters, mutilates or causes injuries to those organs shall be punished with imprisonment for a period not less than five years. If that act results in a permanent disability, the penalty shall be rigorous imprisonment for a period not less than 7 years, but if the act leads to death, the penalty shall be rigorous imprisonment for a period not less than 10 years”.

Also the amendments in article (242 bis A) stated that “Whoever requests the circumcision of a female and that she has been circumcised at his request, as stated in article 242 bis, shall be punished with imprisonment, and whoever promotes, encourages, or advocates by any of the methods showed in article 171 shall be punished with imprisonment. In accordance with this amendment, which criminalized all the means of preaching that some were using in order to support the practitioner of female circumcision against females, the law becomes punishable for anyone who promotes or advocates the importance of FGM even if it had no effect.

Cairo Foundation for Development and Law considers that these amendments, which included direct recognition of the right of women to a healthy body without violence, is one of the most important provisions of that article. The penalty before the amendment was subject to the state of necessity to perform circumcision or not, which was considered a legislative fault, as the text in the past did not fully recognize that circumcision is a crime practiced against women’s bodies in general, which opened the door to legal manipulation in order to prove that this crime, which is practiced for a medical necessity.

Recommendations:

Cairo Foundation for Development and Law assures that these amendments are a step on the way seeking to eliminate the state of gender-based violence; the matter which requires rapid amendment and putting legislative system which recognize and punish all forms of violence against women in the Egyptian society.

6- In order to ensure the enforcement of the law, a social discussion must be opened to convince individuals and families vulnerable to risks of FGM on the health, safety and dignity of girls and women, so that Egyptian society deals with FGM which would bear the collective responsibility of society to report FGM and decrease its occurrence.

7- Establish federation of banning discrimination which is stated in the Egyptian constitution of 2014 in article 53 to ensure more deep response against discrimination.

8- Protection for witnesses and reporters for FGM incidents should be protected and ensured before, during and after investigations.

9- Encourage adult women to report against FGM crime pursuant to article no. 99 of the Penal Code which establishes for that right to litigation in crimes related to assaulting sanctity of the body does not fall with obsolescence.

10- Issue a unified law to criminalize violence against women.