Law and Advocacy for Women in Uganda, an NGO working to protect women’s rights, filed a petition before Justice of Appeal Twinomujuni challenging several tribes’ custom and practice of female genital mutilation (FGM) as being inconsistent with the Constitution of the Republic of Uganda 1995 (the Constitution). Uganda’s Constitutional Court (the Court) determined that the petition raised matters that required constitutional interpretation and therefore took the case into consideration.
The Petitioner asked the Court to declare FGM unconstitutional in accordance with Article 2(2) of the Constitution, alleging that it violated the right to life guaranteed under Article 22(1); the right to dignity and protection from inhuman treatment, secured under Article 24; the rights of women recognized under Article 33; and the right to privacy guaranteed under Article 27(2) of the Constitution.
The Court analyzed whether the custom and practice of FGM is unconstitutional and should be prohibited. In this sense, the Court considered the evidence put forward by the Petitioner, which included affidavits stating that the practice of FGM is carried out crudely, causes excruciating pain for girls, and results in excessive bleeding and trauma. The potential consequences include permanent disfigurement or death; urinary incontinence, rendering the woman a social outcast because of the urine odor; and paralysis and/or other permanent disabilities. The affidavits also stated that the practice of FGM does not appear to have any medical or social benefits to the community or to the women and girls subjected to this practice.
The Court recognized Article 37 of Uganda’s Constitution, which recognizes every person’s right to enjoy and practice one’s culture and tradition. The Court compared this with Article 44 of the Constitution, which provides that there would be no derogation from certain rights including freedom from torture and cruel, inhuman, or degrading treatment, as recognized under Article 24 of the Constitution.
Moreover, the Court pointed out that Article 32(2) of the Constitution prohibits laws, cultures, customs, and traditions which are against the dignity, welfare, or interest of women. Article 33(1) and (3) provide that women shall be accorded equal dignity with men and the state shall protect women and their rights. Therefore, the Court concluded that any person is free to practice their culture, traditions, or customs as long as none of these infringe on the human dignity of any person or subject any person to any form of torture or cruel, inhuman, or degrading treatment.
The Court found that FGM takes place among some tribes in Uganda and the practice has harmful consequences on the health and dignity of women and girls. In this sense, the Court referred to the document Eliminating Female Genital Mutilation: An Interagency Statement (Interagency Statement), published in 2000 by the World Health Organization (WHO), which describes potential harmful consequences of FGM, including chronic pain, decreased sexual pleasure, and post-traumatic stress disorder. This publication also gives evidence of increased risk of childbirth complications and the negative consequences of FGM on newborn babies.
The Court therefore held that FGM violates the rights of women protected under Articles 21, 24, 32(2), 33, and 44 of the Constitution, and, to the extent that girls and women are known to die as a direct consequence of FGM, also Article 22 of the Constitution. Furthermore, the Court stated that FGM violates the rights of women, referencing a passage of the Interagency Statement that concluded that FGM violates well-established human rights principles, norms, and standards, including equality and nondiscrimination on the basis of sex, the right to life, and the right to be free from inhuman treatment. The Court also stated that FGM has been recognized to manifest discrimination on the basis of sex and is rooted in gender inequalities and power imbalances between men and women, and that FGM is a form of violence against women and girls. The Court therefore held that FGM must be prohibited in the jurisdiction, for being inconsistent with the Constitution.