What's Culture Got To Do With It? Harmful Tradition of Female Circumcision

What's Culture Got to Do with It?
Excising the Harmful Tradition of Female Circumcision

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Source: Harvard Law Review, Vol. 106, No. 8 (Jun., 1993), pp. 1944-1961
Published by: The Harvard Law Review Association
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WHAT'S CULTURE GOT TO DO WITH IT?
EXCISING THE HARMFUL TRADITION OF
FEMALE CIRCUMCISION*
The film was graphic and riveting. A baby girl was being admin-
istered to by a traditional medical practitioner. As he tattooed a lizard
on the abdomen of the child, the little girl wailed plaintively: "Maami,
maami, maami!"
But there was no 'maami' to rescue her. Marks had already been
engraved on her cheeks which were covered by a black substance. As
the traditional medical man worked, he would stop periodically to
wash the area of operation with water from a nearby basin and he
would inspect his work, oblivious to the wails of the child.
The tattoo completed to his satisfaction, the traditional practitioner
then turned to the next task. He sharpened a crude, circular blade
on a grinding stone which he had earlier washed
off
with water from
the same basin. The girl was thrust to him with her chubby legs
spreadeagled in front of him. He quickly grasped and excised her
clitoris, a part of the external female genitalia.
The wailing that had taken place earlier was mild compared to the
screams that erupted from the little girl's mouth at that point. Re-
ceiving the crying child, the mother looked at her baby apprehensively
but also with some measure of pride. Her child, it would appear, had
passed some milestone.1
This film of a traditional medicine man scarring and circumcising
an infant girl does not depict a fictional event or a birth ritual per-
formed centuries ago and long since discontinued. The videotaped
event took place recently in Ajegunle, an impoverished community in
Lagos, Nigeria.2 If all went "well" with the procedure, the little girl
in the film will grow up blissfully unaware of the trauma and pain
she experienced at such a tender age. She will be regarded in her
village as a "normal" girl and a 'virtuous woman. When she is old
enough, her parents will be offered the appropriate "bride price," and
she will marry a man who will expect that she has been circumcised
in accordance with this deeply entrenched tradition.3
If complications develop, however, the little girl might become one
of the thousands of African children who die annually from tetanus
infections as a result of such procedures.4 If she survives, she may
*
Field research in Nigeria for this Note was funded in part by a grant from the Harvard
Law School Reginald Lewis Fund and by the Civil Liberties Organization in Lagos, Nigeria.
1
Harriet Lawrence, Excising a HarmJful Tradition, GUARDIAN, June II, I992, at 9.
2 See id.
3
See OLAYINKA KOSO-THOMAS, THE CIRCUMCISION OF WOMEN: A STRATEGY FOR ERAD-
ICATION 9
(I987).
4
See Lawrence, supra note I, at 9.
I
944
I993] FEMALE CIRCUMCISION I945
suffer severe hemorrhaging or experience dysuria (painful urination)
and dysmenorrhoea (painful menstruation) due to pelvic congestion.5
By the time she is ready to bear children, scar tissue may block the
birth canal or cause other complications during labor, possibly result-
ing in an intrauterine fetal death.6
Despite the frequency and seriousness of these complications, the
traditional practice of female circumcision7 has received scant atten-
tion from the Nigerian government or from the governments of the
other twenty-five countries on the African continent where female
circumcision is practiced.8 Policymakers remain indifferent to this
"silent emergency that continues to menace at least eighty million
women and young girls."9 Although statistical data on morbidity and
mortality from female circumcision is difficult to procure, the known
side effects and complications are severe enough to merit government
intervention.10 Due to the lack of authoritative governmental inter-
vention, non-governmental organizations, such as the Inter-African
5
See EFUA DORKENOO & SCILLA ELWORTHY, FEMALE GENITAL MUTILATION: PROPOSALS
FOR CHANGE 8 (3d ed. I992).
6
See id. at 8-9. Although statistical verification of complications that result from female
circumcision in Nigeria is currently scarce, in Sierra Leone, where the practice is comparable
in many ways to female circumcision in Nigeria, a study indicates that 83% of circumcised
women are likely to require medical treatment at some time to alleviate a condition arising out
of the practice. See KOSO-THOMAS, supra note 3, at 29.
7
Throughout this Note, the term "female circumcision" refers to several different operations
performed on external female genitalia. Although for some of the procedures the term female
circumcision is medically inaccurate, this Note uses this term rather than make repeated refer-
ences to each specific procedure or adopt the alternative popular term, "female genital mutila-
tion." This latter term implies a deliberate intent to mutilate that has not been offered explicitly
by its proponents as one of the reasons for the practice and which may offend many readers,
thereby defeating the purpose of this Note, which is to communicate, not to alienate.
8
See Berhane Ras-Work, Traditional Practices That Inflict Disability, in WOMEN AND
DISABILITY 23, 23 (Esther Boylan ed., I99I). In addition to Nigeria, female circumcision is
practiced in countries on the west coast of Africa from Cameroon to Mauritania, as well as in
Chad, Egypt, Ethiopia, Kenya, Lesotho, Mali, Mozambique, Somali, Sudan, and Tanzania.
The practice is also prevalent among Muslim groups and some African and Asian immigrants
residing in Asia, Europe, and Latin America. See Koso-THOMAS, supra note 3, at I7.
Anti-circumcision campaigns have led to the criminalization of the practice in Sudan and in
at least one European country, France. See Boran Badri, Amna el Sadik Badri & Balghis
Badri, Female Circumcision: Attitudes and Practices, in WOMEN, LAW AND DEVELOPMENT IN
AFRICA 2I7, 22 2-23, 230-32 (Margaret Schuler ed., I990) (discussing laws in Sudan that prohibit
female circumcision and punish doctors and midwives who perform it); Marlise Simons, France
Jails Woman for Daughters' Circumcisions, N.Y. TIMES, Jan. II, 1993, at A8 (reporting on the
ruling of a French court that sentenced a Gambian woman to five years' imprisonment because
she had her infant daughters circumcised and thereby violated a law that prohibited the
wounding and mutilation of minors).
9
Ras-Work, supra note 8, at 23.
10 See O.M.T. Odujinrin, C.O. Akitoye & M.A. Oyediran, A Study on Female Circumcision
in Nigeria, 8 W. AFR. J. MED. I83, I83 (I989).
I946 HARVARD LAW REVIEW [Vol. I06:I944
Committee on Traditional Practices Affecting the Health of Women
and Children (IAC),11 have undertaken concrete efforts to abolish
female circumcision, as well as other harmful practices such as body
scarring, early-childhood marriage, and nutritional taboos.12
Informed by first-hand accounts of the personal experiences of
women in Nigeria, this Note presents the devastating health conse-
quences of female circumcision, but analyzes the practice primarily
from a human rights perspective. It argues that, although human
nature is necessarily defined by cultural contexts, the decisions re-
garding which customs will be preserved in the name of culture or
tradition must be oriented toward the promotion and protection of
universal human rights in order to have legitimacy in any contem-
porary society. Part I introduces the types of circumcision commonly
practiced and discusses their post-operative effects. Part II presents
and critiques the prevalent reasons for the continuation of the practice
among certain ethnic groups in Nigeria. Part III argues for the legal
eradication of female circumcision, and uses the Nigerian Constitution
and selected international human rights instruments as a foundation.
Part IV addresses the theory of cultural relativism as it applies to
female circumcision and concludes that the promotion of universal
human rights is not a mutually exclusive alternative to the mainte-
nance of cultural identity and tradition.
I. TYPES OF CIRCUMCISION AND THEIR EFFECTS
The term "female circumcision" refers to several genital operations
that entail incision, and usually removal, of part or all of the female
external genitalia, which is composed of the clitoris and the clitoral
prepuce, the labia majora (large lips of the vagina), and the labia
minora (small lips of the vagina). Clitoridectomy, the form of female
circumcision that is most comparable to its male counterpart, involves
removal of the clitoral prepuce or tip of the clitoris.13 In Muslim
countries, this "mild" form of circumcision is also known as "sunna,"
which means tradition. 14 In excision, the entire clitoris and the labia
minora are removed, which leaves the labia majora intact and the
11
The IAC was created in I984 at the Dakar African Regional Seminar. See Ras-Work,
supra note 8, at 23-24.
12 Nutritional taboos are customs prescribing that certain foods should or should not be
eaten. For example, in parts of Nigeria, it is taboo for children to eat certain meats or fish.
Because these foods are expensive, it is believed that if children eat them they will be inclined
to steal. See Skwaila P. Maigoge, Nutritional Taboos, YOUR TASK, Vol. i, No. 2, at 9, IO
(I99I). Similar taboos prevail regarding pregnant women and nursing mothers. See id. Al-
though there is no scientific explanation for most nutritional taboos, the taboos are so widely
embraced that any attempt to improve nutrition through their eradication is likely to be resisted.
See id.
13 See Odujinrin, Akitoye & Oyediran, supra note iO, at I84.
14
See DORKENOO & ELWORTHY, supra note 5, at 7.
I993] FEMALE CIRCUMCISION
I947
remainder of the vulva unsutured.15 In "pharonic circumcision" or
infibulation, the sides of the labia majora are sewn together with
thorns after the clitoris and the labia minora are removed. The
woman's legs are then bound together from thigh to ankle for several
weeks to allow scar tissue to form. 16 Complete occlusion is prevented
by inserting a splinter of wood or a matchstick, which preserves a
small orifice through which urine and menstrual fluid can pass.17
Introcision refers to a procedure in which the perineum is cut to
enlarge the vaginal opening. 18 These "gishiri" cuts, typically per-
formed in early childhood, are intended to facilitate sexual penetration
of young girls in communities where child marriage is widely prac-
ticed. 19
Female circumcision is usually performed by "traditional sur-
geons," or "traditional birth attendants."20 In parts of northern Ni-
geria, the procedure may also be performed by the village barber,
although typically the practitioner is a woman.21 The surgical instru-
ments used include razor blades, iron knives, and pieces of cut glass,
or similarly constructed home-made tools.22 Usually the operations
are performed without anaesthesia and under conditions that are not
sterile. Indeed, "[m]any of the traditional practitioners handle several
babies in succession using the same blade."23 After the operation, the
incision is treated daily with a native soap, palm oil, vaseline, kero-
sene, or even engine oil.24
In Nigeria, the over 250 ethnic groups differ in their use of the
methods described above.25 Similarly, there is widespread variation
in the age at which the operation is performed.26 Regardless of the
age at which circumcision is performed, the consequences of the op-
eration are often more severe than expected. The degree of hygiene
under which the operation is performed, the expertise of the practi-
15
See Odujinrin, Akitoye & Oyediran, supra note io, at I84.
16
17
See Odujinrin, Akitoye & Oyediran, supra note io, at I84.
18 See id.
19
See FRAN P. HOSKEN, THE HOSKEN REPORT: GENITAL AND SEXUAL MUTILATION OF
FEMALES I95 (3d ed. I982).
20
See Robert A. Myers, Francisca I. Omorodion, Anthony E. Isenalumhe & Gregory I.
Akenzua, Circumcision: Its Nature and Practice Among Some Ethnic Groups in Southern
Nigeria, 2I Soc. SCI. & MED. 58I, 585
(I985).
21
22
See Myers, Omorodion, Isenalumhe & Akenzua, supra note 20, at 586.
23
See Lawrence, supra note i, at 9.
24
See Myers, Omorodion, Isenalumhe & Akenzua, supra note 20, at 586.
25
See id. at 585-86.
26
In some groups, circumcision is performed on babies, and in others it is part of the
pubescent rites of passage. See id. at 584. Among the Esan, Etsako, and Ijaw groups of the
Bendel state, excision is a pre-marital ritual. See id. at 587. Among the Urhobo and Isoko of
the Delta state, circumcision is performed during a woman's first pregnancy. See Sam Eferaro,
Why We Circumcise Our Pregnant Women, VANGUARD, Jan. I9, I993, at io, I0.
tioner, the general health of the girl or woman being circumcised, and
the amount of struggling she does will all influence the outcome.27
Immediate effects can include intense pain, shock, hemorrhage, reten-
tion of urine and menstrual discharge, fever, tetanus, and genital
infection.28 The girl or woman may die if a major blood vessel is cut
and she cannot reach a medical facility equipped to deal with such
emergencies. 29
For many women, however, the detrimental effects of circumcision
do not immediately appear. Thus, the parents, patient, or medical
practitioner may see no causal connection between the procedure and
the post-operative ailments that can materialize intermittently during
later years. These include reproductive tract infections that sometimes
are severe enough to cause infertility,30 urinary tract infections, cysts,
and the formation of obstructive genital scar tissue.31
Inevitably, the consummation of marriage or the occasion of first
intercourse is a painful ordeal for an infibulated woman. If the va-
ginal opening is too small for penetration, another incision must be
made to enlarge the opening.32 The small opening and scar tissue
create even more difficulties during childbirth. Obstructed labor may
result in hemorrhaging, tearing of perineal tissue, and eventually a
prolapsed uterus.33 For the baby, such a prolonged and difficult
delivery is life-threatening; the infant may be stillborn, or if it sur-
vives, it may suffer brain damage from a lack of oxygen during the
difficult delivery.34
Female circumcision also inflicts psychological wounds.35 Indeed,
it is traumatizing to read about, let alone experience, the suffering of
a woman or young girl whose "life-giving canal is stitched up amid
blood and fear and secrecy, while she is forcibly held down, and told
that if she screams she will cause the death of her mother, or bring
shame on her family."36 Although ceremonial circumcision is typically
preceded by singing, dancing, and celebration,37 adolescent girls often
27
See Koso-THOMAS supra note 3, at 23, 25.
28
See id. at 25-26.
29
See Lawrence, supra note i, at 9.
30 See REPRODUCTIVE TRACT INFECTIONS: GLOBAL IMPACT AND PRIORITIES FOR WOMEN'S
REPRODUCTIVE HEALTH 307 (Adrienne German, King K. Holmes, Peter Piot & Judith N.
Wasserheit, eds., I992) [hereinafter REPRODUCTIVE TRACT INFECTIONS].
31
See KOSO-THOMAS, supra note 3, at 26.
32
See id. at 26.
33
See id. at 27.
34
See id.
35
See DORKENOO & ELWORTHY, supra note 5, at IO.
36
Id. at io. For a fictional account of the psychological and emotional effects of female
circumcision, see ALICE WALKER, POSSESSING THE SECRET OF JOY 3-5, I8-20 (I992).
37 See KOSO-THOMAS, supra note 3, at 22 (referring to the
"[l]oud drumming, singing, dancing
and shouting [that] . . . drown the cries of the initiates" during ceremonial circumcision among
the Mende of Sierra Leone); Robyn C. Smith, Female Circumcision: Bringing Women's Per-
I993] FEMALE CIRCUMCISION
I949
suffer severe pre-operative anxiety, experience traumatizing terror dur-
ing the procedure, and feel betrayed afterwards by the mother or
female relative who urged or forced them to undergo the operation.38
II. JUSTIFYING FEMALE CIRCUMCISION IN NIGERIA
Proponents of female circumcision in Nigeria offer several reasons
for the continuation of the practice.39 Such reasons include the main-
tenance of tradition, the promotion of social and political cohesion,
the enhancement of fertility, the fulfillment of religious requirements,
the prevention of promiscuity, the preservation of virginity, the main-
tenance of feminine hygiene, and the pursuit of aesthetics.40 Identical
or closely related justifications are offered by those who adhere to the
tradition throughout Africa.41
A. Tradition
In Nigeria, the practice of female circumcision has persisted for
numerous reasons, "not the least of which is the insistence by elderly
females in the various communities that the tradition must be contin-
ued."42 Tradition
-
the reluctance to break with age-old practices
that symbolize the shared heritage of a particular ethnic group
-
is
the most frequent reason that diverse ethnic groups cling fiercely to a
practice that inflicts significant pain and suffering on women and
children.43
In some communities, circumcision is the traditional ritual that
confers full social acceptability and integration into the community
upon the females.44 The ability to identify with one's heritage and to
enjoy recognition as a full member of one's ethnic group, with just
claim to its social privileges and benefits, is very important to most
African families.45 For many women and young girls, circumcision
satisfies this deep-seated need "to belong" and ensures that they will
not be ostracized.46 For example:
spectives Into The International Debate, 65 S. CAL. L. REV. 2449, 2460-64 (I992) (describing
the elaborate pre-circumcision rituals of the Kikuyu of Kenya).
38 See DORKENOO & ELWORTHY, supra note 5, at I0.
39
It is estimated that at least 50% of the women in Nigeria have undergone some form of
circumcision. See REPRODUCTIVE TRACT INFECTIONS, supra note 30, at 307.
40 See Myers, Omorodion, Isenalumhe & Akenzua, supra note 20, at 584-85; Odujinrin,
Akitoye & Oyediran, supra note io, at I84.
41
See HOSKEN, supra note I9, at 3I-32.
42
Lawrence, supra note i, at 9.
43
See, e.g., Odujinrin, Akitoye & Oyediran, supra note I0, at I87 (documenting statistical
responses among a sample of ethnic groups in Nigeria).
44 See KOSO-THOMAS, supra note 3, at 8.
45
See id.
46 See id.
I950 HARVARD LAW REVIEW [Vol. I06: I944
In Akwa Ibom [State] and in villages in the Calabar area of Cross
River State, uncircumcised women face derision when they quarrel
with their more numerous circumcised sisters. A woman will make a
particular clicking sound with her tongue during a disagreement, im-
plying that the woman she is arguing with is uncircumcised. If the
woman is indeed uncircumcised, she is shamed by the act. But so
serious is the insult that if a woman is circumcised then the woman
who insulted her would be fined.47
Thus, in some communities, female circumcision is a prerequisite for
women to be accepted as members of their ethnic group.
Although the maintenance of a group's cultural identity and the
promotion of social and political cohesion are legitimate objectives,
the right to belong
-
to contribute to and participate in one's com-
munity as a full member
-
should not be conditioned on a price of
human suffering. Such a requirement puts women and young girls in
the unjust position of having to jeopardize either their right to health
and bodily integrity or the esteemed privilege of social acceptance.
The entitlement of Nigerian women and girls to full social integration
in their ethnic communities should not be conditioned on the waiver
of their constitutionally guaranteed rights to life, health, and the
dignity of their person.48 If the people of Nigeria are to live up to
their constitutional ideals, women and girls cannot be required to
secure their honor at the price of becoming active or even acquiescent
instruments of their own impairment.
B. Enhancement of Fertility
In the Isoko and Urhobo communities of the Delta state, women
are circumcised during the advanced stages of their first pregnancy.49
The legend behind the tradition of circumcising pregnant women is
that if the first-born baby's head touches the clitoris during childbirth,
the child will die.50 A related myth is that, if left uncircumcised, the
clitoris will "cause symbolic or spiritual injury to the baby."'51
When confronted with the fact that uncircumcised women carry
their babies to term and have normal, unobstructed deliveries, tradi-
47
Lawrence, supra note i, at 9.
48 See infra p.
I954.
49
Circumcision is deferred until the woman is seven months pregnant, "'when the baby is
strong in the womb."' See Eferaro, supra note 26, at ii. Often, this rite of passage is performed
by the woman's husband, who can then "'boast to his mates that he not only disvirgined his
wife but that he also had the honour of circumcising her as well."' Id. at io.
50 In the Bini village of the Bendel state, female circumcision is said to have begun in the
fifteenth century, when it was decreed by an Oba (King) after consultation with an oracle
regarding his wives' stillbirths and infant deaths. See Myers, Omorodion, Isenalumhe & Ak-
enzua, supra note 20, at 587.
51 Id. at 584-85.
I993] FEMALE CIRCUMCISION I95I
tional birth attendants who perform clitoridectomies still insist that
these procedures are a prerequisite to a safe delivery.52 When they
are informed that medical reports confirm that circumcision often
causes infertility and is even more dangerous during pregnancy, some
traditional practitioners retort, "Modern doctors may say what they
like. We have never experienced any problem whatsoever with this
thing."53 Furthermore, they claim that "'this is what our culture
demands. It was handed over to us by our forefathers. We cannot
afford not to circumcise our women."'54
In light of the compelling veracity and force of the medical argu-
ments against female circumcision, the above responses from adher-
ents to the practice seem to be at odds with the facts. Moreover,
their responses lead to one question: can ethnic groups that are gen-
uinely concerned about cultural continuity afford to adhere to a tra-
dition that endangers the fertility of women and young girls, the life-
giving sources of society? Probably not.
C. Religion
Adherence to religious doctrine is another widely given but mis-
placed justification for female circumcision in Nigeria. The dominant
formal religions practiced in Nigeria are Christianity and Islam.55
Although the Bible discusses male circumcision,56 neither Christian
nor Islamic doctrine requires female circumcision.57 Religious leaders
who advocate the practice seem to adopt an ill-conceived transitive
rationale in which religious ideals are displaced onto the medical
procedure. The argument begins with the premise that modesty and
virginity are highly valued in traditional African societies and that the
same virtues are prescribed by the Bible and the Koran. Next, pro-
ponents argue that female circumcision is intended to prevent prom-
iscuity and to preserve the chastity of young girls until they marry by
removing an organ that is believed to cause women to become over-
sexed. Therefore, female circumcision is required by tradition, and
more importantly in this context, by religious doctrine.58 Not sur-
52
See Eferaro, supra note 26, at ii.
53
Id.
54
Id. at Io.
55
See HOSKEN, supra note I9, at I97. Indigenous religions are also practiced. See id.
56
Compare Genesis I7:IO (King James) ("This is my covenant, which ye shall keep, between
me and you and thy seed after thee; Every man child among you shall be circumcised.") with
Galatians 5:6 (King James) ("For in Jesus Christ neither circumcision availeth any thing, nor
uncircumcision; but faith which worketh by love.").
57 In fact, female circumcision is not required by any formal religious doctrine. See Alison
T. Slack, Female Circumcision: A Critical Appraisal, io HUM. RTS. Q. 437, 446, 457-59.
58 This argument typifies my discussions with some Nigerians on the subject of religious
justifications for female circumcision.
I952 HARVARD LAWREVIEW [Vol. I06:I944
prisingly, those who insist that the practice is a religious requirement
never cite textual verses that verify the alleged religious requirements.
Aside from the fact that the religious justification for female cir-
cumcision rests on an insufficient doctrinal foundation, the argument
ultimately misuses religion as an instrument of fear, oppression, and
exploitation. A religion that is authentic in the principles it represents
"aims at truth, equality, justice, love and a healthy wholesome life
for all people, whether men or women."59 In contrast, the argument
that circumcision is a religious requirement casts religion in the role
of mandating mutilation, amputation, and infirmity of otherwise
healthy female reproductive organs.60 The latter characterization is
the complete antithesis of the ideals that religion should promote.
D. Preventing Promiscuity
In addition to the religious arguments in favor of chastity, advo-
cates point to the prevention of promiscuity as a separate and distinct
reason to continue the practice of female circumcision.61 Because the
clitoris is believed to provoke women to make uncontrollable sexual
demands on their husbands
-
demands that will drive a woman to
seek extra-marital affairs if her husband does not meet them
-
re-
moval of the clitoris is presumed to be beneficial for women and for
society.62 This justification is flawed in that it incorrectly assumes
that the sexual control and subjugation of women is beneficial to them
and necessary for a harmonious society. It also implies that men have
no responsibility or control over their own sexual behavior. Although
the so-called promiscuous female certainly has multiple male partners
in any traditional African society, custom does not dictate varying
degrees of male circumcision, from circumcision in its mildest form to
castration, as a means of ensuring male fidelity.63
At best, the practice of circumcising women and young girls re-
inforces the mistaken notion that women should see their sexual im-
pulses in terms of what suits men. In reality, female circumcision is
a life-threatening form of subjugation when performed on women and
a form of child abuse when performed on an infant or child. Super-
stition regarding the elimination of sexually promiscuous behavior is
an unacceptable justification for subjugation and abuse.
59
NAWAL EL SAADAWI, THE HIDDEN FACE OF EVE: WOMEN IN THE ARAB WORLD 4I
(Sherif Hetata ed. & trans., 1980).
60 See id. at
4I-42.
61
See Koso-THOMAS, supra note 3, at 8.
62 See id.
63
Regarding the "need" to circumcise females in order to curb promiscuity, "[i]t must be
pointed out that the 'need' for sexual control of males is very much greater; rape and sexual
assault are increasing all over the world; male excision certainly would take care of that.
Furthermore, male excision would quite eliminate the 'need' for female excision." HOSKEN,
supra note I9, at 36.
I993] FEMALE CIRCUMCISION 1953
E. Cleanliness and Aesthetics
Supporters of female circumcision also offer feminine hygiene and
aesthetics as justifications for the practice.64 These arguments are no
more persuasive than those based on the enhancement of fertility.
Circumcision simply does not make women and young girls cleaner.
To the contrary, circumcision's post-operative health consequences
such as urine retention and the accumulation of menstrual blood in
the vagina lead to discomfort, infection, and odors more offensive
than those caused by normal hormonal secretions.65 Furthermore, the
idea that circumcision makes the vulva aesthetically more appealing
-
that circumcision should be performed as a type of cosmetic surgery
-
is at best arbitrary, and at worst absurd. If, as the saying goes,
"beauty is in the eye of the beholder," then the post-operative scari-
fication that results can hardly be perceived universally as beautiful.
The keloid stump that develops after the clitoris has been excised and
the long scar that seals the vagina after infibulation are in fact, in the
eyes of some individuals, extremely unattractive.66 This is not to say
that Western notions of physical beauty should be the standard for
the rest of the world,67 but instead to challenge the sincerity of those
who insist that "true" conceptions of beauty and femininity necessarily
exclude the woman who is not circumcised, excised, infibulated, or
introcised.
III. THE LEGAL MANDATE TO ERADICATE FEMALE CIRCUMCISION
In any argument against a practice as deeply embedded in a culture
as female circumcision is in Nigerian society, the strategic thrust of
the argument should be based on texts that Nigeria has adopted and
endorsed. Arguments and solutions based on such texts are likely to
be heeded and enforced, because these texts were affirmatively
-
and
in some instances democratically
-
approved by the Nigerian people.
In contrast, suggestions that local traditions should be abandoned in
order to comply with external norms are likely to be counterproductive
and to elicit indignation and resistance to change.68 Thus, the Con-
stitution of Nigeria,69 as well as international instruments endorsed
64
See Koso-THOMAS, supra note 3, at 7.
65
See id. at io.
66
See Koso-THOMAS, supra note 3, at io.
67
Such a standard can be particularly damaging for women of color in the Western world
and around the globe. For a fictional account of the potential psychological damages, see TONI
MORRISON, THE BLUEST EYE I50-58 (I970).
68 See, e.g., Badri, Badri & Badri, supra note 8, at 230 (noting that a law banning infibu-
lation enacted in Sudan during colonial times was "seen as a threat against national solidarity
and cultural and social values").
69
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIG. (ENACTMENT) ACT ch. IV (I979).
I954 HARVARD LAWREVIEW [Vol. I06:I944
by Nigeria, including the African Charter on Human and Peoples'
Rights70 and the Convention on the Elimination of All Forms of
Discrimination Against Women,71 can and should be drawn upon to
provide the basis for a legal mandate to eradicate female circumci-
sion.
72
A. The Constitution of Nigeria
Chapter IV of the Constitution of Nigeria delineates the "funda-
mental rights" of Nigerian citizens. It states that "[e]very person has
a right to life, and no one shall be deprived intentionally of his life."73
Further, "[e]very individual is entitled to respect for the dignity of his
person, and accordingly
-
no person shall be subjected to torture or
to inhuman or degrading treatment."74 In light of the explicit lan-
guage in these provisions, Nigerians need look no further than their
own constitution for an injunction against female circumcision as a
violation of women's and children's constitutional rights.
Female circumcision "should also be considered a violation of the
right to life from the perspective of reproduction. When the very
organs that allow human beings to reproduce and to give life to future
generations are mutilated, there has been a violation of one of the
fundamental human rights."75 A painful and traumatic surgical op-
eration that is performed without anaesthesia and that necessitates the
forcible restraint of the patient is precisely the kind of torture and
70 African Charter on Human and Peoples' Rights, June 27, i98i, 2I I.L.M. 58 [hereinafter
African Charter], reprinted in BASIc DOCUMENTS SUPPLEMENT TO INTERNATIONAL LAW 509
(Louis Henkin, Richard C. Pugh, Oscar Schachter & Hans Smit eds., I987) [hereinafter BASIC
DOCUMENTS].
71 Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res.
i8o, U.N. Doc. A/34/I80 (I980), i' I.L.M. 33 (entered into force Sept. 3, i98i) [hereinafter
CEDAW], reprinted in BASIC DOCUMENTS, supra note 70, at 425.
72 The African Charter on the Rights and Welfare of the African Child also contains language
that could be interpreted to mandate the eradication of female circumcision. See Charter on
the Rights and Welfare of the African Child, July ii, I990, OAU Doc. CAB/LEG/24.9/49
[hereinafter Charter on the African Child], reprinted in AFRICAN NETWORK FOR THE PREVEN-
TION AND PROTECTION AGAINST CHILD ABUSE AND NEGLECT, CHARTER ON THE RIGHTS AND
WELFARE OF THE AFRICAN CHILD I2 (Peter 0. Ebigbo ed., I99I) [hereinafter ANPPCAN
PUBLICATION]. Specifically, the Charter requires member states of the Organization of African
Unity (OAU) to "abolish customs and practices harmful to the welfare, normal growth and
development of the child and in particular: (a) those customs and practices prejudicial to the
health or life of the child, and (b) those customs and practices discriminatory to the child on
the grounds of sex or other status." Id. art. 2I (i), reprinted in ANPPCAN PUBLICATION,
supra, at 24. Unfortunately, Nigeria, which is an OAU member state, had not signed the
Charter on the African Child as of April 2, I993. See List of Countries Which Have Signed,
Ratified, Accepted to the African Charter on the Rights and Welfare of the Child, OAU Doc.
CAB/LEG/I53.
73
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIG. (ENACTMENT) ACT ch. IV, ? 30(I).
74
Id. ? 3I(I)(a).
75
Slack, supra note 57, at 466.
I993] FEMALE CIRCUMCISION I955
inhuman treatment proscribed by the provision guaranteeing respect
for human dignity. Moreover, the concept of controlling female sex-
uality by depriving a woman of her natural sexual desire and her
gender-identifying characteristics is both degrading and dehumaniz-
ing.76
B. The African Charter on Human and Peoples' Rights
The practice of female circumcision also contravenes the spirit and
substance of many international instruments to which Nigeria is a
signatory. In I983, Nigeria ratified the African Charter on Human
and Peoples' Rights,77 which contains several articles that can be
interpreted to proscribe female circumcision. Article 4 declares that
"[e]very human being shall be entitled to respect for his life and the
integrity of his person."78 Article 5 prohibits "[a]ll forms of exploita-
tion and degradation of man particularly . . . torture, cruel, inhuman
or degrading punishment and treatment."79 Article i6 proclaims that
"[e]very individual shall have the right to enjoy the best attainable
state of physical and mental health,"80 and article I8 requires the state
to "ensure the elimination of every discrimination against women and
also ensure the protection of the rights of the woman and the child
as stipulated in international declarations and conventions."'8'
Significantly, the African Charter also recognizes the importance
of African culture and tradition. Article I7 states that "[e]very indi-
vidual may freely take part in the cultural life of his community. The
promotion and protection of morals and traditional values recognized
by the community shall be the duty of the State."82 In addition,
article 29 establishes the duty "[t]o preserve and strengthen positive
African cultural values in . . . relations with other members of the
society."83 Although it is possible to construe these provisions as a
directive to respect the tradition of female circumcision, such an in-
terpretation flatly contradicts the tenor of the document's preamble.84
It strains logic to argue that, in the name of "tradition," a document
whose purpose is to "promote and protect human and peoples' rights"85
76 See id.
77 See INTERNATIONAL COMM'N OF JURISTS, HUMAN AND PEOPLES' RIGHTS IN AFRICA AND
THE AFRICAN CHARTER 94 (i986)
[hereinafter HUMAN AND PEOPLES' RIGHTS].
78 African Charter, supra note 70, art. 4, reprinted in BASIC DOCUMENTS, supra note 70, at
5II.
79
Id. art. 5, reprinted in BASIC DOCUMENTS, supra note 70, at 5II.
80
Id. art. i6(i), reprinted in BASIC DOCUMENTS, supra note 70, at 5I3.
81
Id. art. I8(3), reprinted in BASIC DOCUMENTS, supra note 7O, at 514.
82
Id. art. I7(2), (3),
reprinted in BASIC DOCUMENTS, supra note 70, at 5I4.
83
Id. art. 29(7), reprinted in BASIC DOCUMENTS, supra note 70, at 5I7.
84
Id. pmbl., reprinted in BASIC DOCUMENTS, supra note 70, at 509-IO.
85
Id., reprinted in BASIC DOCUMENTS, supra note 70, at 510.
would endorse a practice like female circumcision
-
a practice that
results in the torture and mutilation of half of the population that the
document aims to protect. Indeed, traditions to be preserved should
be limited to those that embody "positive African cultural values."86
C. The Convention on the Elimination of All Forms of
Discrimination Against Women
Nigeria has also ratified the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW).87 CEDAW is an
important human rights instrument in the international anticircumci-
sion campaign, because it calls for an end to both gender discrimi-
nation in general88 and to social and cultural customs based on the
idea of the inferiority or superiority of either of the sexes.89 A docu-
ment such as CEDAW, which aims to eliminate gender-based discrim-
ination in all societies, enables opponents of female circumcision to
contest the practice on gender equality grounds. Specifically, CEDAW
guarantees women the right to the protection of reproductive capac-
ity,90 the right to adequate care and nutrition during pregnancy,9' and
the right to access to health care.92 These rights are violated each
time a woman is circumcised, excised, introcised, or infibulated.
Arguments based on health-related rights notwithstanding, Profes-
sor Karen Engle insightfully points out that it is dangerous to frame
the opposition to female circumcision exclusively as a health issue.
The risk is that, "[i]f the practice could be done without negative
health consequences, international law might actually become com-
plicit in the practice, obligating states to ensure that it is performed
under better health conditions."93 Such an approach would overlook
the physical, emotional, and psychological pain that circumcision in-
flicts on women, and would ignore the fact that the sexual myths and
gender-based inequalities from which the practice derives its primary
justifications are outmoded and patently incorrect.
86
Id. art. 29(7), reprinted in BASIC DOCUMENTS, supra note 70, at 5I7 (emphasis added).
The African leaders who drafted the African Charter intended for it to "respect[] traditions and
customs that are judged to be worthwhile . . . in order to promote and protect individual and
collective rights." HUMAN AND PEOPLES' RIGHTS, supra note 77, at 25-26 (emphasis added).
87
Nigeria ratified CEDAW in I985. See UNITED NATIONS, MULTILATERAL TREATIES
DEPOSITED WITH THE SECRETARY-GENERAL, I990, at
i65, U.N. Doc. ST/LEG/SER.E/g, U.N.
Sales No. E.9I.V.8 (iggi).
88
See CEDAW, supra note 7I, art. 2, reprinted in BASIC DOCUMENTS, supra note 70, at
427.
89
See id. art. 5(a), reprinted in BASIC DOCUMENTS, supra note 70, at 428.
90
See id. art. ii(i)(f), reprinted in BASIC DOCUMENTS, supra note 70, at 430.
91
See id. art. I2(2), reprinted in BASIC DOCUMENTS, supra note 70, at 43I.
92
See id. art. 14(2)(b), reprinted in BASIC DOCUMENTS, supra note 70, at 432.
93 Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic
Other Female, 26 NEw ENG. L. REV. I509, I515 (I992).
993] FEMALE CIRCUMCISION I957
E. Domestic and International Law vs. Culture and Tradition
The law can be a powerful instrument of social and cultural
transformation.94 By their prescriptive and injunctive character, both
domestic and international laws have the potential to proscribe harm-
ful traditions such as female circumcision.95 In reality, however, in-
ternational human rights laws are difficult to enforce. Claims to
positive human rights are typically countered by arguments based on
cultural relativism, a theory which posits that rights violations in one
culture may be viewed as morally just in another culture.96
The foregoing interpretations of domestic and international legal
instruments obviously are not embraced by women who advocate,
acquiesce, and voluntarily participate in female circumcision in Ni-
geria or in other African societies. Recognizing this fact, Professor
Engle has coined the term "Exotic Other Female" to "signify collec-
tively those women within a culture that practice[] clitoridectomy,
who through their action (or inaction) condone the practice."97 Despite
the offensiveness of the terminology "Exotic Other Female"
-
a term
that invokes various images of female objectification - the fact re-
mains that there are women, in Nigeria and elsewhere (henceforth
referred to as "Traditionalist Females"), who zealously defend the
practice of female circumcision in the name of culture and tradition.98
Therefore, in an instance such as this in which the enforcement of
domestic and international legal instruments seems to be absent or
fading, it is imperative to examine the basis of the cultural arguments
offered by the Traditionalist Female.
IV. ENGAGING THE TRADITIONALIST FEMALE'S CULTURAL
ARGUMENT
In her critique of the ways in which women's human rights ad-
vocates have addressed the issue of female circumcision, Professor
Engle complains that "doctrinalists" (meaning those who use legal
doctrines to argue against circumcision in the foregoing manner) have
failed to engage, and in the process to understand, the Traditionalist
Female.99 Instead, Professor Engle argues, doctrinalists approach fe-
94
See Ayodele Oyajobi, "Women and Law Reform in Nigeria," in WOMEN, LAW AND
DEVELOPMENT IN AFRICA, supra note 8, at I67, I69.
95
See id.
96
See Engle, supra note 93, at I5I3-14.
97
Id. at I5I2.
98
See Badri, Badri & Badri, supra note 8, at 220; Eferaro, supra note 26, at ii.
99
See Engle, supra note 93, at I5I4-15.
I958 HARVARD LAW REVIEW [Vol. I06: I944
male circumcision primarily as a health issue in an attempt to avoid
taking an overtly "political" stance.100
Part of the difficulty in engaging the Traditionalist Female is that
she is not simply one woman who speaks with one voice. Instead,
the Traditionalist Female represents several women who speak with
myriad voices and who offer complex and sometimes conflicting ex-
planations for their shared viewpoints. In other words, once the
Traditionalist Female is engaged, "she will become they
-
many and
complex."'0' The task is further complicated when they becomes us,
and us is we, and we is the collective me, and me is I, an individual
who feels a sense of attachment and responsibility as her sister's
keeper. Based upon a belief in the persuasive power of global sister-
hood, this Note endorses the culture of resistance to the ongoing
practice of harmful traditions. It is from this perspective and this
political stance that this Note respectfully engages, and attempts to
understand, the Traditionalist Female. This Part addresses the pro-
ponents of female circumcision who invoke claims of cultural relativ-
ism and ethnocentrism in defense of the practice and is informed by
actual personal observations of and conversations with Traditionalist
Females in Nigeria (and their male counterparts).'02
The Nigerian Traditionalist Female argues that what is held to be
a fundamental right at a given time in one society may be regarded
as anti-social at a different time or in a different society. Moreover,
those persons who are opposed to a particular practice or custom have
no right to impose their value judgments on autonomous individuals
who have different viewpoints and values. This relativist argument,
however, is less convincing in the context of human rights.'03 The
premise that the morality and the personality of an individual are
shaped by the culture and the history of a given society does not
negate the philosophical theory that human rights, defined literally as
the rights to which one is entitled simply by virtue of being human,
are universal by definition.
104
So although human nature is necessarily
100 See id. at
I515.
101
Id. at I5I2.
102
The purpose of the critique that follows is not to manipulate the sexual subjugation of
women in Africa into a tool for opportunistic comparison by those who strongly advocate gender
equality in the Western part of the world. Nor is its objective to persuade those who question
the very need for a feminist movement to retreat from their position. Instead, this Part attempts
to inspire a dialect of resistance in which the voices and diverse views of African-American
women are respected as experientially and theoretically valid.
103 In response to the relativist argument, Rhoda Howard says the following:
The argument that different societies can have different concepts of rights is based
on an assumption that confuses human rights with human dignity. . .. Concepts of
human dignity do indeed vary. They are embedded in cultural views of the nature of
human beings, which in turn reflect the social organization of particular societies.
RHODA E. HOWARD, HUMAN RIGHTS IN COMMONWEALTH AFRICA 17 (I986).
104
See id. at i6.
I 993] FEMALE CIRCUMCISION
I959
culturally relative in that it is determined to some extent by social
rules and mores, human rights are universal entitlements that are
grounded in cross-culturally recognized moral values.
Incidentally, the cultural argument advanced by the Traditionalist
Female uncomfortably parallels the invocation of culture or ethnicity
as a "defense" or excuse for violence, injustice, and a host of other
social ills. When cast in this light, the cultural argument is patently
offensive, but this misrepresentation is directly analogous to the Tra-
ditionalist Female's use of African culture to defend human rights
abuses. There is nothing inherently "ethnic" or specifically Nigerian
about injustice or violence, and this is also true for human rights
abuses that are unjust or violent, whether they take the form of
arbitrary arrests and detention, torture, or the circumcision of girls
and women. Thus, "culture" and "ethnicity" should not be used as
defenses to human rights abuses, because "[c]ultural values and cul-
tural practice are as legitimately subject to criticism from a human
rights perspective as any structural aspect of a society."'105 Even well-
established and ongoing cultural practices are subject to universal
human rights limitations.
Of course, the cultural relativist will object to the theory of uni-
versal human rights, so it is important to examine what is meant by
"culture" when it is used as a defense for harmful traditions. Most
advocates of female circumcision appear to equate culture with history
and tradition, but they fail to recognize the many ways in which their
present actions and lifestyles reinforce a notion of culture that com-
prises not only the traditional, but the contemporary as well.106 This
concept of culture, which this Note adopts, is a dynamic notion, not
a static one.107 African culture incorporates things pre-colonial, co-
lonial, and contemporary, as well as things social, economic, and
political, and things both individual and collective.108 If culture is
the group identifier and cohesive element that ethnocentrists profess
it to be, culture must be inherently dynamic in order to bond several
generations of an ethnic group.
Due to the dynamic nature of culture, changes must be channeled
so that they do not result in the extinction of the traditional culture.
On the other hand, practices, beliefs, and lifestyles passed down
105 Id.
106
For example, although the Traditionalist Female professes allegiance to traditional com-
munities and customs, there is a paradoxical resemblance in her and in her male counterparts
to certain, albeit superficial, aspects of the Westernization that they are urging others not to
adopt. It is worth noting that many individuals who, instead of speaking in tribal languages
and wearing traditional headdresses and colorful robes, speak with British accents and wear
mini-skirts or double-breasted suits and suspenders, persistently assert claims to African tribal
identity and cherished traditional values.
107
See HOWARD, supra note 103, at 23-27.
108 See, e.g., id. at 23-25.
through several generations of an ethnic group need to be re-examined
periodically in light of contemporary values and knowledge, in order
to ascertain whether the customs deserve to be perpetuated. During
the discussions that preceded the drafting of the African Charter,
several African leaders commented on the ability to "find inspiration
in those . . . traditions that are good and positive" and the desire to
reflect "traditions which deserve to be preserved . . . in order to
complete the global international effort made to reinforce respect for
human rights."109 Perhaps the best reason to maintain a given tra-
ditional practice is that the original justifications for its existence
continue to validate its persistence today. This paradigm lends a sense
of contemporary legitimacy to those traditional practices that have
been preserved.
One custom that is still readily apparent in Nigerian society today
is the tendency of Yoruba women to kneel and men to prostrate as a
sign of respect when greeting an elder. Another custom involves
mothers suspending their babies on their backs in a pouch of wrapped
cloth in a manner which enables them to carry out their work routines
while they maintain constant physical- association with the child. Tra-
ditional engagement and wedding ceremonies, which frame the mar-
riage not only as a contract between the two individuals, but also as
a contract between the families of the marrying pair, are also custom-
ary. Each of these customs, although it manifests adherence to tra-
ditional beliefs and lifestyles, also has contemporary legitimacy be-
cause of its practical utility and because it reinforces shared values in
modern society in a manner that is neither physically nor mentally
injurious.
Conversely, those practices that have neither factual, historical
validity nor contemporary legitimacy in terms of societal values, and
that furthermore inflict harm and injury on their adherents, must be
abandoned. Consider for comparative purposes the racial and reli-
gious discrimination that has been widely practiced around the world
but that is not widely defended today."10 The reasons which may
have once justified these practices are no longer accepted as valid.
Specifically, the once widely held belief that Africans were brought to
America from an uncivilized continent and were sub-human savages
fit to be nothing more than slaves, as well as the belief that Jews in
Nazi Germany were less human and less deserving of the rights
109
HUMAN AND PEOPLES' RIGHTS, supra note 77, at 25 (emphasis added) (internal quotations
omitted).
110
Admittedly, there are fundamental differences between oppressive cross-cultural practices
such as slavery and anti-Semitism and arguably oppressive indigenous traditions such as female
circumcision. However, these distinctions do not negate the need for periodic evaluation of
both inter- and intra-cultural beliefs and practices to determine whether they have contemporary
legitimacy and are consistent with the universal values of human rights.
I993] FEMALE CIRCUMCISION I96I
endowed to all human beings than non-Jewish German citizens, are
and always have been myths. The depth of the tradition of chattel
slavery in American history or anti-Semitism in Nazi Germany would
be no defense for the maintenance of these atrocities today.
Similarly, the fact that female circumcision is an age-old custom
practiced for generations by several ethnic groups does not legitimate
its persistence today. Arguments based on the control of female sex-
uality, aesthetics, and cleanliness do not reinforce ideals and beliefs
that are widely held in modern society.11' The arguments that espouse
the adherence to religious requirements and the enhancement of fer-
tility are based on myths that cannot validate either the initial exis-
tence or the continued persistence of an undeniably harmful tradi-
tion.112 Thus, although in other contexts there are legitimate claims
to ethnicity and cultural continuity, arguments along these lines in
defense of female circumcision more likely cloak pretextual justifica-
tions based on manipulations of a dying, lost, or even mythical cul-
tural past.
Within a dynamic notion of culture, women's health is an integral
part of the society's well being. Moreover, women's reproductive
freedom is absolutely essential to cultural survival and continuity.
Now is the time for women to speak out on behalf of themselves and
to engage the Traditionalist Female:
Women Speak Out
Must I continue to suffer
And die in silence? No
I must speak out, and it is now.
I am a woman
Who suffers all the health consequences of:
Female circumcision
Child marriage
Teenage pregnancy . . .
Male child preference
and a host of other traditional practices.
I know what I go through as no man does.
I therefore have to speak for myself. . ..
And hate anything that will hurt me.
-
Anonymous"
3
I"
See supra pp. 1952-53.
112 See
supra pp. 1951-52.
113
Women Speak Out, YOUR
TASK,
Vol.
i,
No.
2,
at
9.

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