By Doreen Lwanga, The Fletcher School of Law and Diplomacy, Tufts University, Medford, Massachusetts, USA

Last week's article on the Protocol on the Rights of Women and Female Genital Mutilation (FGM) provoked reaction from a number of quarters. Here we reproduce an article, which argues that legislation aimed at protecting women's rights should also include the right to practice certain culture, even if that might include FGM. The author of last week's editorial, Faiza Mohammed, takes issue with this argument, saying it is well understood that "many African cultural practices are prideful, but FGM is not one of them and must be ended without delay".

DEBATING FGM: A VIEWPOINT FROM DOREEN LWANGA

I am glad to see that the campaign to get African states to sign the Protocol on the Rights of Women in Africa is still going on after a month away from my usual access to Pambazuka News. Myself, I have been meaning to add my voice to the traffic of letters and petitions on this topic for the last couple of months.

Once I used to be the first person to sign any petition concerning the protection of women's lives, dignity, equality and human rights. Now, it is taking me more than two-months of great difficulty to convince myself that I should add my signature to the petitions. Believe me you, I am a feminist and a human rights activist but let me reveal my fears regarding what seems to me as women legislating away our (women's) human rights.

I have had the privilege of reading on several occasions the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, once when I was preparing scholarly work. However, there are sections in the Act that are unsettling to me as an African woman, given their significant capacity to erode the human rights of women.

For example, Article 5 relating to the 'Elimination of Harmful Practices', defined in Article 1(g) as "all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity." Article 5(b) goes on by stipulating for "…prohibition, through legislative measures backed by sanctions, of ALL forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and ALL OTHER practices in order to eradicate them."

What is not clear is what forms of female genital Mutilation (or cutting) fall under this category as 'harmful'? In different African cultures, there are different forms of female genital transformation, some of which have never been harmful to the girl child or woman.

I do not want to sound pretentious that there are no incidences where the FGM practices have produced harmful results, however, that does not make the norm harmful by itself. Malpractice could occur because of using an unsterilised instrument, conduct in uncertain locations for fear of subjective law enforcers and/or just like any other accident happens. The results may become harmful such as bleeding profusely, genital injury or death, although that does not make the norm harmful. Just like the death of a woman while delivering does not make the act of child-delivery harmful and nobody has advocated for an end to pregnancy.

But who are these women that find ALL forms of FGM/C harmful? This coalition includes many African women in positions of political, social, economic and cultural authority. The majority of these women are in the metropolis of their respective countries in Africa or abroad. Most of these women are educated, which in our society imparts on them a level of high intellectual ability and inalienable right to speak on behalf of the 'African woman'.

Thus, there is a need to emphasise that there is a difference between a 'norm' and a 'practice'. If women like us are given the chance to practice our culture without the threats of statutory law, law enforcers and the misguided pity of those who have no understanding and appreciation of our traditions, perhaps the case of harm could be minimized.

Secondly, what is the meaning behind 'Positive Cultural Context' in Art.17 of the Protocol? How does it relate to the cultural rights of women as human beings? I have argued elsewhere that if any society is moving to codify people's cultural practices and label them harmful, it is wrong to assume that you can take a broad brush of one group (anti-FGM/C or pro-monogamous) and sweep away the aspirations and traditions. While one group of women can gain more legal protection, another group loses its cultural values and traditions.

Already the impacts of such 'legal criminalization' of women's cultural lives (as mentioned above) are felt worldwide. In countries of Europe and North America, African women are rewarded if they can claim that 'they hate their own culture. Anyone who can claim successfully that they run away from their countries for fear of genital cutting or widow inheritance will win themselves asylum under the category of 'Gender-Based Asylum Claims'. That is why I think that the text of the Protocol in Article 17 should be read together with the African Convention on Human and People's Rights in Art.17(b)&(c) on the right of every individual to freely take part in community life, moral and traditional values, Art.19 on equal respect and Art.22 on the right to cultural development.

What is happening right now is that some mothers who want their daughters to have a chance to practice their culture have to 'steal' their daughters away from their locations in big cities of Africa or Europe and North America where the FGM practice is banned. They take them into rural hiding places where opportunities exist for their daughters to continue the customs that they themselves engaged in. Sometimes, the results from sneaky practices have ended up in fatal accidents. Unfortunately, the current text of the Protocol does not protect such women nor offer them a choice to continue the practice.

It is my submission, therefore, that we should include the choice to practice one's own culture and the choice of marital relationship. But it is wrong to argue that women's traditional practices are done to satisfy men. In most cases, when we were girls our mothers told us of the practices and guided us or connected us with girls our age. Even today very few mothers (especially in urban centres) want to tell their 12 or 13 year-olds about men and marriage. It is more 'fashionable', even in rural places, to tell your girl child that 'education is the key to success'. Thus, women activists should not be blind to the fact that whereas there work is highly applauded, there are girls for various reasons that will desire but never have the access to education. So, to deny them a chance of becoming women and/or their future marriages in their traditional ways is shameful. In my opinion, as long as women continue to imagine themselves in the image of men, they will keep themselves forever subordinate.

This brings me to my final point about Art. 6(c)encouraging monogamy as the preferred form of marriage. Personally, I do not see the need to mention monogamy if indeed the same article goes on to mention protection for women in polygamous marital relationships. By doing so, this Protocol assumes that all African women have trouble with polygamous marital relationships and would prefer to be in a monogamous relationship. There are women who live their lives without trouble of polygamous relationships. I am an advocate for polygamous relationship if this is going to cater for the problems of prostitution, socio-economic stress, unmarried women, barren women, etc. Presently, there are countries that try to accommodate different marital relationships in statutory law. In Senegal, for example, statutory law provides for one to state at the time of marriage the preferred choice of marital relationship - whether monogamy or polygamy. A copy of the agreement is deposited at the registrar of marriages, and with this a man cannot legally marry a second wife, if he indicates monogamy as the preferred choice. In case of violation, his marital wife can file a complaint against him in court. Whereas one may say that this does not solve the ability to marry traditionally, it at least provides grounds for litigation, and is better than nothing.

Surely, we should not misrepresent human rights in the name of women's emancipation. It is as human to me if I happen to be the second wife to have the protection under marital law as it is to the first wife to enjoy a marriage. I am confident that the only way we are going to remake our history and rewrite women's lives and experiences in Africa, is by critically re-reading our own lives and the lives of the communities with our African lenses. We need to positivise women's lives and livelihoods and celebrate the African woman. I would like to recommend a wonderful reading entitled, "Women in African Colonial Histories", Edited by Jean Allman, Susan Geiger and Nakanyike Musisi. Funny enough that even in those countries where monogamy is the only accepted marital relationship, men - from men of the highest political class to the ordinary man on the streets - cheat on their wives with women the same age as their own children. If there should be statutory law, it should be to reinforce the unwritten existing regime but not to hurt those women that it is supposed to protect.

Mr. Abdulqadir Mohamed Walaayo in Mogadishu forwarded these two articles to us-The Webmaster www.banadir.com