This material is reproduced with permission from the copyright holder. Please cite as 65 Southern California Law Review 2449.

FEMALE CIRCUMCISION: BRINGING WOMEN'S
PERSPECTIVES INTO THE INTERNATIONAL DEBATE

Robyn Cerny Smith ^a1

I. INTRODUCTION

The terms of any debate are not neutrally or objectively determined. ¹ Instead, debate terms are framed by groups to serve their own best interests. ² And those in power define the dominant debate terms as objective and neutral truths. ³

Currently, the debate surrounding female circumcision is defined as the woman's individual right to be free of female circumcision versus the tribal group's right to maintain its tribal identity through the practice of female circumcision, free from state interference. ⁴ In this Note, I argue that these debate terms are framed by a dominant, white, Western male vision to serve this powerful group's best interests. I will deconstruct and reveal the nonneutrality of the current debate terms and suggest alternative debate terms that reveal, rather than silence and conceal, the oppressive experiences of women and girls who undergo circumcision. A new debate framed from the experiences of these women and girls may enable the international community to pressure nation-states to eradicate the practice [End of page 2449] Female circumcision has been and continues to be practiced on millions of women and girls ⁵ in more than twenty countries across the continent of Africa. ⁶ The term "female circumcision" ⁷ denotes three different surgical procedures that remove all or part of a woman's external genitalia. ⁸ The first operation, called circumcision, is the least severe. ⁹ It consists of the removal of the prepuce of the clitoris, preserving the clitoris itself and the larger parts of the labia minora (small lips of the vagina). ¹⁰ The second operation, called excision or clitoridectomy, consists of the partial or total removal of the clitoris together with the adjacent tissues of the labia minora. ¹¹ The labia majora (large lips of the vagina) remains intact and the vulva is not closed. ¹² The final and most severe operation, called infibulation, involves removing the clitoris, labia minora, and all or most of the labia majora. ¹³ After the operation, the two sides of the vulva are sutured together with catgut or thorns, leaving a tiny opening about the size of a matchstick or fingertip for the passage of menstrual blood and urine. ¹⁴ All three operations may be performed with knives, razor blades, or pieces of glass, all of which are rarely sterilized. ¹⁵ In addition, all three operations are usually performed without the use of [End of page 2450] anesthetics. ¹⁶ After each operation, the woman's or girl's legs are often tied together for an extended period to allow the wound to heal. ¹⁷

The operations can have many physically and psychologically debilitating effects on women and girls. Immediate physical complications include "damage to the urethral meatus, Bartholin's glands, and even the perineum and rectum (the latter usually from struggling on the part of the child and crude surgical technique)." ¹⁸ In addition, the female may suffer from hemorrhage; septicemia; shock from pain; infections of the external genitalia, vagina, ovaries, and uterus; difficult urination; urine retention due to occlusion; damage to and bleeding from adjacent organs and tissue; and even death. ¹⁹ Long-term physical complications include urinary tract infections, menstruation difficulty, sterility, extensive malformation and scarring (including vulvar abscesses, epidermoid inclusion cysts, and keloids), pain from reopening the infibulation with a knife on the wedding night, and difficult penetration by the sexual partner. ²⁰ The circumcised female may also experience difficulties during birth, which include prolonged labor, perineal and deep trauma, and rupture of the uterus. In addition, circumcision increases the likelihood of fetal death or brain damage to the baby during birth. ²¹ After each childbirth the two sides of the vulva are resutured together. ²² Circumcised females may also experience psychological traumas from the memories of the painful operation and the fear of sexual intercourse. ²³

Part II of this Note presents the arguments in defense of female circumcision. Defenders argue that the traditional practice is crucial to the continued survival of tribal groups as distinct cultural entities and thus should be free from state regulation. I will examine this argument in the context of the practices of the Kikuyu of Kenya and the Darod of Somalia. I will point out that this argument does not adequately take into consideration that the gender hierarchy within each tribe, in which women are subordinate to men, is maintained by the practice of female circumcision.

[End of page 2451] Part III presents the arguments against female circumcision. Western feminists argue that female circumcision is set up to maintain male control of women's sexuality and labor. Once again, I will assess these arguments in the context of the Kikuyu of Kenya and the Darod of Somalia. I will also present postmodernist criticisms of these arguments.

Part IV reviews the international human rights laws set up to protect both the tribal groups' right to sovereignty in maintaining tribal group practices and women's right to protection from female circumcision. Finally, Part V illustrates and criticizes the current debate and resolution of these conflicting rights and suggests an alternate debate that may lead to a different resolution.

II. THE DEFENSE OF FEMALE CIRCUMCISION: AN ANTHROPOLOGICAL ANALYSIS

Using an anthropological analysis, I first present the argument that female circumcision has a functional value in the preservation of tribal group identity and therefore should be free from state interference. I then describe postmodernist and feminist criticisms of this argument.

A. TRIBAL GROUP IDENTITY

Before colonization, tribal groups of Africa were sovereign in all matters; they governed themselves. ²⁴ However, with colonization the tribal groups lost most of their sovereignty ²⁵ as it became vested in new nation-states created by the colonial powers. ²⁶ The boundaries of new nation-states did not correspond to the boundaries of a single tribal group. ²⁷ As a result, sovereign powers became vested in nation-state arrangements that encompass many different tribal groups. ²⁸ Authorities concerned that tribal group identity might be lost in the nation-state organization argue that tribal groups must preserve remaining traditional [End of page 2452] rituals in order to maintain distinct village and tribal identities. ²⁹ They argue that female circumcision is one such ritual. ³⁰

1. Evaluation of a Ritual

This subsection discusses how to determine whether female circumcision is a ritual crucial to preserving a tribal group's distinct identity and what types of evidence can be used to make this determination.

a. Rites of passage: According to Victor Turner, a ritual is "prescribed formal behavior for occasions not given over to technological routine, having reference to beliefs in mystical beings or powers." ³¹ Arnold van Gennep terms the general class of rituals that "accompany ... change[s] of ... social position," or social "transition," as "rites of passage." ³² Van Gennep observes that every tribal group is made up of many subgroups, defined, for example, by age, sex, economic class, or occupation. ³³ Rites of passage are "ceremonies ... [that] enable the individual to pass from one defined position [or subgroup] to another which is equally well-defined." ³⁴ Rites of passage can be further "subdivided into rites of separation, transition rites, and rites of incorporation." ³⁵ Each subdivision is developed to different degrees in different rituals and in different tribal groups. ³⁶

Turner describes each phase of the rite of passage in greater depth. The separation phase is marked by "symbolic behavior signifying the detachment of the individual or group either from an earlier fixed point in the social structure, from a set of cultural conditions (a 'state'), or from both." ³⁷ In the transition phase, which Turner calls the "liminal period," the ritual subject "passes through a cultural realm that has few or none of the attributes of the past or coming state." ³⁸ In initiation [End of page 2453] rites, for example, the subject "may be represented as possessing nothing." ³⁹ The initiate might be forced to wear nothing, to exhibit passive and humble behavior, or to endure a long period of seclusion. ⁴⁰ Finally, in the reincorporation phase, the ritual subject is once again in a stable state. ⁴¹ The subject now has clearly defined "rights and obligations" associated with the new social group of which he or she has become a member. ⁴² The new group member "is expected to behave in accordance with certain customary norms and ethical standards binding on incumbents of [the individual's new] social position in a system of such positions." ⁴³

Thus, the following criteria can be used to determine whether a tribal group practice of female circumcision is a rite of passage. First, does the operation mark a transition for the ritual subject from one social position to another in the tribal group? Second, does the ritual accompanying the operation have a separation phase, a liminal phase, and a reincorporation phase?

b. Connecting ritual to tribal group identity: Now that the characteristics of the rite of passage have been described, the criteria used to assess a rite's function in preserving the identity of a tribal group will be discussed.

The ritual's function can be determined by looking at structure and property of a symbol, "the smallest unit of ritual which still retains specific properties of ritual behavior." ⁴⁴ The symbol may be "any object, act, event, quality, or relation which serves as a vehicle for a conception" that is the symbol's meaning. ⁴⁵ The symbol represents the conception "by possession of analogous qualities or by association in fact or thought." ⁴⁶

Turner believes that ritual symbols have three properties. The first property is called condensation, when different "things and actions" are represented by a single symbol. ⁴⁷ The second property is the "unification of disparate significata," which are different meanings "interconnected [End of Page 2454] by virtue of their common possession of analogous qualities or by association in fact or thought." ⁴⁸ The final and most important property is the "polarization of meaning." ⁴⁹ According to Turner, every symbol has two poles. The first is the "ideological pole," which contains the "significata that refer to components of the moral and social orders" or "norms and values that guide and control persons as members of social groups and categories." ⁵⁰ The other pole is the "sensory pole," which contains the significata that refer to desires, feelings, and the strong emotional impulses of the ritual participants. ⁵¹ While the sensory pole is "grossly physical," the ideological pole is "structurally normative." ⁵² According to Turner, the symbol functions by instigating social action and by making the norms appear desirable to the individual participants:

[T]he ... symbol brings the ethical and jural norms of society into close contact with strong emotional stimuli. In the action situation of ritual, with its social excitement and directly physiological stimuli, such as music, singing, [and] dancing ... the ritual symbol ... effects an interchange of qualities between its poles of meaning. Norms and values ... become saturated with emotion while the gross and basic emotions become ennobled through contact with social values. ⁵³

Thus, the ritual symbol is "a mechanism that periodically converts the obligatory into the desirable." ⁵⁴

Clifford Geertz also believes that the ritual symbol represents a normative "model for 'reality' " which at the same time shapes reality. ⁵⁵ The symbol shapes reality by inducing in the participants "moods," or intense emotions, and directional "motives" causing the participants to perform certain actions. ⁵⁶ At the same time, symbols represent "general ideas of order." ⁵⁷ Symbols do this by formulating "an image of a genuine order of the world which will account for ... paradoxes in human experience." ⁵⁸ The symbol fits inexplicable phenomena into an accepted order and makes suffering bearable by providing normative guides to action. ⁵⁹ Like Turner, Geertz suggests that the normative values become accepted [End of page 2455] and believed through a "ceremonial form" wherein the ritual symbols bring together the moods and motivations of the participants with the "general conceptions of the order of existence." ⁶⁰ "In a ritual, the world as lived and the world as imagined, fused under the agency of a single set of symbolic forms, turn out to be the same world...." ⁶¹ Thus, the moods and motivations reinforce and are reinforced by the norms of the tribal group. Geertz goes further than Turner by saying that the rituals "reflect back to color the individual's conception of the established world of bare fact." ⁶² Geertz observes that it is important to understand how the norms represented by the rituals "color" participants' "sense of the reasonable, the practical, the humane and the moral." ⁶³

Turner and Geertz thus provide a framework that can be used to determine whether female circumcision is central to a tribal group's distinct identity. ⁶⁴ This framework is reflected in a series of questions that can be asked in making this determination. First, for each specific tribe or village, is the practice a ritual symbol with an "ideological pole"? In other words, does it represent normative values or formulate general ideas of order? Second, does female circumcision have a "sensory pole"? Does it evoke moods and motivations, feelings and desires in the participants? Third, are the moods and motivations brought into contact with the normative values through some type of ritual ceremony? If so, does the ceremony cause the participants to act in certain ways and does it color their view of the world? If this is the case, the operation and accompanying ritual may be indispensable to tribal identity.

Rites of passage define the ritual subject's obligations and social position within the tribal subgroup and the subgroup's obligations in the whole tribal group. ⁶⁵ This definition of obligation and social position may be the means by which the rite of passage instigates social action and colors the participants' view of the world. This is particularly evident in the liminal phase of the rite of passage.

In the liminal phase, the ritual subject submits to the authority of the entire community, which "is the repository of the whole gamut of the culture's values, norms, attitudes, sentiments, and relationships." ⁶⁶[End of page 2456] Thus, the wisdom imparted in this phase "refashions the very being" of the ritual subject, as the subject is

a blank slate on which is inscribed the knowledge and wisdom of the group, in those respects that pertain to the new status. The ordeals and humiliations, often of a grossly physiological character, to which [subjects] are submitted represent partly a destruction of the previous status and partly a tempering of their essence in order to prepare them to cope with their new responsibilities and restrain them in advance from abusing their new privileges. ⁶⁷

Turner observes that the liminal phase exposes a dialectic between two dimensions of society. The first dimension is structured, differentiated, and hierarchical. The social structure is "an arrangement of positions or statuses" and "involve[s] the institutionalization ... of groups and relationships." ⁶⁸ The ritual subject is released from structure and a specific social position into the liminal phase, which represents an unstructured social dimension called "communitas," and then returns to social structure with a new role. ⁶⁹ Communitas is unstructured, and the ritual subject is a "blank slate" with no social position. Communitas is similar to a "communion of equal individuals who submit together to the general authority of the ritual elders." ⁷⁰ Communitas gives "recognition to an essential ... human bond, without which there could be no society." According to Turner, ⁷¹

[F]or individuals and groups, social life is a type of dialectical process that involves successive experience of ... communitas and structure, homogeneity and differentiation, equality and inequality. The passage from [one status to another] is through a limbo of statuslessness.... [E]ach individual's life experience contains alternating exposure to structure and communitas, and to states and transitions. ⁷²

Thus, Turner concludes that "no society can function without this dialectic" between social structure and communitas which is exposed in the liminal phase of a rite of passage. ⁷³

[End of page 2457] This conflict between communitas and structure of society is also manifested in the discrepancy between the norms represented by the ritual symbol and the behavior exhibited by the participants during the ritual. ⁷⁴ Turner suggests that this conflict occurs because different norms "govern different aspects or sectors of social behavior." ⁷⁵ Although these norms appear consistent at a high level of abstraction, in reality they often conflict and are inconsistent with each other. ⁷⁶ Thus, the "validity of ... [a norm] has to be reaffirmed in isolation from others and outside the contexts in which struggles and conflicts arise in connection with them." ⁷⁷ Although the tribal group believes that it reaffirms and isolates a norm through a symbol, in reality the participants act out the conflicts among themselves in contradiction to the norms represented by the symbol because they "assemble not as aggregates of individuals but as social personalities arrayed and organized by many principles and norms of grouping." ⁷⁸ Functionally, the ritual enables the tribal group to act out divisions and conflicts that might otherwise render the tribe violent. ⁷⁹

Thus, two final questions may be used to determine whether female circumcision is crucial to the identity of the tribal group and subgroups within the tribe or village. First, is the operation accompanied by a ritual with an extensive liminal phase that exposes the dialectic between communitas and structure and that emphasizes the community bond among tribal members absent the social structure? Second, are the norms represented by the ritual symbol contradicted by the participants' behavior, enabling participants to act out conflicts peacefully?

c. Evidence of rites of passage and tribal group identity: Turner identifies three classes of data from which the structure and properties of ritual symbols may be inferred: "(1) external form and observable characteristics; (2) interpretations offered by specialists and by laymen"; and (3) contradictions between the principles represented by the symbol and the way participants actually behave with respect to the symbol. ⁸⁰ Using all three classes of evidence, I will apply the above principles to case studies of two tribal groups: the Kikuyu of Kenya and the Darod of Somalia.

[End of page 2459] 2. The Kikuyu of Kenya

The Kikuyu practice of female circumcision today is mostly a "private ceremony for girls, with virtually no ritual accompaniments ... leaving only the residue of the physical operation." ⁸¹ However, the traditional Kikuyu rituals that previously surrounded female circumcision will be described in the present tense in order to complete the analysis of this Note.

The Kikuyu organize their social relationships into two types of groupings. The first type is based on family ties. ⁸² The smallest subgroup, called the mbari, consists of members related by blood--a man, his wife or wives, their children, and his grandchildren and great-grandchildren. ⁸³ The larger subgroup, called the moherega, consists of several mbari units "who have the same clan name and are believed to have been descended from one family group in the remote past." ⁸⁴

The second type of group, called the riika, is composed of age, status, and generation subgroups. ⁸⁵ The first subgroup, called the age-set, is a named group that is composed of men and women who were circumcised in the same year. ⁸⁶ It therefore unites members of different mbari. ⁸⁷ The age-sets release their members into the second subgroup, composed of a hierarchy of status grades. ⁸⁸ Membership in a status grade is determined by events in the individual's life. ⁸⁹ Each status grade has its own rights and duties within the community, and a descriptive term indicates the status of the individual. ⁹⁰ For example, when a woman has her first child, she is called Wabai. ⁹¹ When her first child is initiated, she becomes Mutumia and has a higher status within the community. ⁹² The third subgroup, the generation-set, determines which [End of page 2459] male members have political power within the tribal group. ⁹³ Generation-sets are composed of men from a span of different age-sets. ⁹⁴ Office is handed from one generation-set to the next every twenty to thirty years. ⁹⁵ This Note focuses on the age-set subgroup because it is directly related to female circumcision.

In order to understand the rite of passage associated with female circumcision, it is necessary to describe briefly the Kikuyu religion. The Kikuyu offer sacrifices to their god, called Ngai, and to the spirits of their ancestors. ⁹⁶ Ngai dwells on certain mountains in the sacred trees, and his power is manifested in the moon, sun, stars, rain, rainbows, lightning, and thunder. ⁹⁷ He is the creator of the world and is approached at every major crisis in an individual's life. ⁹⁸ When clearing a field, one tree is left standing in order to collect the spirits from all other trees that have been cut in the vicinity. ⁹⁹ This tree, called the mugumo fig tree, is the sacred shrine to Ngai. ¹⁰⁰

The Kikuyu also believe in the "continuity of life, in life after death and a community of interest between the living, the dead, and the generations yet unborn." ¹⁰¹ They believe that their ancestors established the pattern of life for all time, and if altered, the ancestors would become offended. ¹⁰² Thus, the Kikuyu recognize both Ngai and the spirits of their ancestors in their rite of passage ceremonies.

a. The irua ceremony: Among the Kikuyu, female circumcision is accompanied by an elaborate ritual ceremony, called the irua ceremony, representing a change of social position for the initiates within the tribal organization. ¹⁰³ "[I]nitiation rites [transform the initiates], in the eyes of the tribe, from children into young adults--full members of the tribe and of the clan with full responsibilities as well as benefits." ¹⁰⁴ The clitoridectomy and ritual ceremony are performed annually on uncircumcised [End of page 2460] girls between the ages of 10 and 15. ¹⁰⁵ Prior to reaching the age of circumcision, the children spend most of their time free from restraints and duties. ¹⁰⁶ At the age of 8 or 9, girls begin their education in preparation for the circumcision and entrance into adulthood. ¹⁰⁷ They "accompany their mothers on the daily round of household and agricultural duties [and, along with the boys, are instructed] on codes of behavior, tribal tradition and folklore." ¹⁰⁸ According to Jomo Kenyatta, "circumcision ... admits a ... girl to the full membership of the community.... [T]he difference in standing of the circumcised and the uncircumcised is tremendous." ¹⁰⁹ After the ritual has been performed, the initiates have new salutations, may eat only certain foods, perform specific tasks in the home, adopt different habits of dress and demeanor in the community, have different rights in exercising authority in the clan or family, and take part in certain ceremonial and religious proceedings. ¹¹⁰ In addition, they also possess the duty to marry and to procreate. ¹¹¹

The irua ceremony has a separation phase, liminal phase, and reincorporation phase. The preliminary ceremonies, which constitute the separation phase, symbolize the casting off of childhood values, thus signifying detachment from an earlier position in the social structure. ¹¹² Three or four days before the circumcision, the initiates (both females and males) go to the irua homestead where they are to be circumcised. ¹¹³ They are "adopted" by the homestead's elder and his wife. ¹¹⁴ These sponsors have certain rights over the adopted children. ¹¹⁵ The night is spent performing ritual songs and dances to prepare the initiates for their coming journey into adulthood by putting them in a close relationship with Ngai and asking for protection. ¹¹⁶

The next morning the initiates go through shaving and anointing ceremonies that "continue the process of separating the novices from society and placing them in a close relationship with [Ngai]." ¹¹⁷ They [End of page 2461] then undergo the ceremony called korathima ciana, which means "blessing the children." ¹¹⁸ One elder of the ceremonial council, the most senior status grade responsible for religious and ceremonial duties, marks the initiates as they pass before him in the order of adoption. ¹¹⁹ The elder marks them with white chalk called ira, representing snow from Mount Kenya, the abode of the gods. ¹²⁰ An old woman also from the ceremonial council then anoints each girl on the head, neck, and feet with oil carried in a bottle-shaped calabash. ¹²¹ The rest of the elders then join in chorus, uttering blessings as each child passes by. ¹²²

On the morning of matuumo, the ceremonial dance that occurs a few days later, the initiates' clothes are removed and their bodies are adorned with beads from women relatives and friends. ¹²³ The relatives and initiates then gather at the matuumo homestead. ¹²⁴ After the elders sprinkle njohi, a sugar cane liquor, on the ground to appease the ancestral spirits and bring them into harmony with those living, the initiates begin to dance. ¹²⁵ During the several hours of dancing, an arch of banana trees and sugar cane is built at the entrance of the homestead to keep out evil spirits and appease the ancestral spirits. ¹²⁶

The next part of the ceremony is "considered a ... fight between the spirit of childhood and that of adulthood." ¹²⁷ The boys run "pell-mell across the fields ... in search of the sacred mugumo tree, from which leaves [are] plucked for the [later ceremonies]. The boys [climb] the ... tree and [break] off the top branches, while the girls [assemble] below singing and gathering up the leaves and twigs." ¹²⁸

The first male to reach the tree and throw his spear over it is the leader of the age-set, while the first girl to arrive becomes the favorite and all try to win her affections with the hope of marrying her. ¹²⁹ Relatives and friends then sing about sexual knowledge and the rules governing social relationships between men and women to acquaint the initiates [End of page 2462] with their future adult roles. ¹³⁰ At this point it appears that the separation phase begins to overlap with the liminal phase. The initiates are now seen as "blank slates" on which the norms of the tribal group are being inscribed. Their childhood values are being destroyed to make way for the new adult values concerning adult relationships and sexuality.

Next, the initiates line up beforethe elders of the ceremonial council. ¹³¹ They take the tribal oath, promising

from this day onward they will in every respect deport themselves like adults and take all responsibilities in the welfare of the community, and that they will not lag behind whenever called upon to perform any service or duty in the protection and advancement of the tribe as a whole. ¹³²

The initiates then proceed back to the irua homestead without looking behind them. ¹³³ Looking back would recall the childhood misdeeds that they have thrown over the sacred tree. ¹³⁴ They also sing songs that denounce "all things that are not fit and proper for any adult member of the community." ¹³⁵

The initiates finally arrive at the homestead, where the final "ceremony of parting" is performed. ¹³⁶ As they enter under the arch, they are sprayed by the ceremonial council elders with a mixture of honey, milk, and medicines, which is supposed to impart bravery and endurance. ¹³⁷ This is the end of the separation phase--the initiates have departed from their childhood. They now enter the liminal phase by going to their respective homes to await the operation. ¹³⁸

At dawn the next day, the initiates undress, leaving only one string of beads across their shoulders. ¹³⁹ They possess nothing and do not have a social position in society--they are between childhood and adulthood. The beads are given to the sponsor "as a symbol of lasting friendship and as a bond of mutual help in all matters. [This] also signifies that [initiates are to] hide nothing from [their] sponsor nor deny ... anything [End of page 2464] demanded from [them], even if it be the last [they] possess[ ]." ¹⁴⁰ Together the initiates submit to the authority of their elders. ¹⁴¹ At the same time, community bonds and equality among the initiates are stressed. ¹⁴²

The initiates then proceed to the river, where they bathe for a half hour up to their waists in order to numb the sexual organs. ¹⁴³ They shake their wrists and drop leaves from the mugumo tree into the river as a sign of "drowning their childhood behavior and forgetting about it forever." ¹⁴⁴

Next, the initiates, exhibiting the humble and passive behavior of liminality, advance slowly toward the irua homestead, singing songs "in slow and gentle voices." ¹⁴⁵ At the same time, both hands are "raised upwards, elbows bent, pressed against their ribs, with the fists closed and thumbs inserted between their first and second fingers. This signifies that they are ready to stand the operation firmly and fearlessly." ¹⁴⁶ The initiates then reach the irua homestead.

A cowhide is spread on the ground and leaves of the mugumo are spread on it. ¹⁴⁷ Each girl sits on a hide, while female relatives and friends form a circle, several rows thick, around all of the girls. ¹⁴⁸ No males are allowed near. ¹⁴⁹

The sponsors, sitting behind, [hold] their legs interwoven with those of the initiates, so as to brace the initiates' legs and keep them separated. The initiates [lean] back against their sponsors, who [hold] them by the shoulders ... [the girls' faces] turned to the sky.... [T]he female operator ... armed with a small Kikuyu razor ... [w]ith a deft stroke [hacks] off ... the tip of the clitoris, and a bright patch of red immediately [appears], as the sponsors [hold] the [girl] more tightly. The labia minora of each girl [is] also trimmed.... ¹⁵⁰

[End of page 2464] The girls must not show any emotion "or even ... blink." ¹⁵¹ They must fearlessly withstand the ordeal, which may function both to represent a destruction of the childhood and to teach restraint in using adult privileges. ¹⁵²

The girls now enter a liminal period of seclusion. The sponsors, supporting the girls by the arms, slowly walk them to a special hut that only the sponsors may enter. ¹⁵³ The girls sleep on beds prepared with sweet-smelling leaves that keep away insects. ¹⁵⁴ A bandage made of antiseptic and healing leaves is placed on the wound between the labia majora to keep the two lips apart and prevent them from being drawn together while the wound heals. ¹⁵⁵ Whenever an initiate urinates, the nurse cleans the wound and puts on a new bandage. ¹⁵⁶ At this time, the initiates cannot touch food with their bare hands. ¹⁵⁷ Instead, they must eat with banana leaves. ¹⁵⁸ The statusless initiates also learn the importance of community bonds. ¹⁵⁹ They share the food collectively, they refer to each other as sisters, and their sponsors sing about how they will again appear in public as adult members of the community. ¹⁶⁰ The initiates are not yet full members of the tribal community; they still have no position within it. ¹⁶¹

The girls remain in the hut for eight or twelve days, until all the initiates can walk and their wounds have healed. ¹⁶² Then, the initiates leave the liminal phase and enter the reincorporation phase. All of the circumcised children's parents gather at the irua homestead. ¹⁶³ A sheep is killed, and the parents place strips of the sheep's skin on each child's wrist. ¹⁶⁴ The mother and father then go to bed in a separate room while the children remain seated. ¹⁶⁵ The mother and father act out a birth. The mother groans loudly, the father gets a midwife who arrives with the gut of the killed sheep and places it next to the mother, and another [End of page 2465] woman cuts the gut. ¹⁶⁶ The gut is cut into a long ribbon and is used to encircle the initiates, who stand together. ¹⁶⁷ It is tied to cover the navel of those on the outside of the circle. ¹⁶⁸ The midwife then cuts the ribbon, symbolizing the cutting of the umbilical cord at birth. ¹⁶⁹ The ribbon is similar to the afterbirth and is carried outside to be buried. ¹⁷⁰ The ceremony symbolizes the initiates' rebirth into the tribe as new adult members. ¹⁷¹

After a feast of the roasted sheep, the elder and his wife call each circumcised child, "My tribal son" or "My tribal daughter," and the children answer, "My tribal father" or "My tribal mother." ¹⁷² "This signifies that the children have now been born again, not as the children of an individual, but of the whole tribe." ¹⁷³ They then return home, where they are welcomed as new members of the community. ¹⁷⁴

However, the circumcised initiates are not considered adult members of the community. For three or four months the initiates are considered to be in an unclean, statusless state. ¹⁷⁵ "During this period the young initiates [wander] about in bands, practicing the dances of the tribe [and] testing each other ... on the laws and customs which they [have] been taught." ¹⁷⁶ At this time, the initiates do not have any duties--they are still regarded as newcomers. "Neither juvenile nor adult laws can be applied to them...." ¹⁷⁷

At the final cleansing and purification ceremony, the new initiates are introduced to the tribe as full adult members of the community during a feast and dance. ¹⁷⁸ The clothes and ornaments worn during the reincorporation period are discarded and the initiates are dressed in new clothes symbolizing their new social position in the tribe. ¹⁷⁹

b. Connecting the irua ceremony to Kikuyu tribal identity: The irua ceremony clearly has separation, liminal, and reincorporation [End of page 2466] phases. ¹⁸⁰ This subsection will assess the role the rite of passage plays in the maintenance of a distinct Kikuyu tribal identity.

The irua ceremony has an ideological pole; it establishes norms and "general ideas of order" that guide persons as members of specific social groups. ¹⁸¹ The irua ceremony also has a sensory pole; the various ceremonies evoke strong emotional impulses, or "moods and motives." ¹⁸² Thus, the irua ceremony most likely influences social action by making norms appear desirable to the participants by bringing the sensory and ideological poles together.

The main purpose of the irua ceremony is to persuade the initiates that they must give up their duty-free childhood individuality and become members of thecommunity, where collective needs come first; "Childhood [ties] the young to their family, their lineage or locality; adulthood, on the other hand, [flings] the adolescents into the willing arms of the community as a whole." ¹⁸³ Once an initiate becomes an adult member of the tribe, any conflict between the individual's own and family needs and the community's needs should be reconciled for the general good of society. ¹⁸⁴ Overall, the irua ceremony "symbolizes the unification of the whole tribal organization." ¹⁸⁵ How the different ceremonies unify the tribe is described below.

First, during the various ceremonies, the initiates learn to respect authority. In the "blessing of the children" ceremony, each initiate must pass before a man and a woman elder to be blessed. ¹⁸⁶ The initiates also line up before the elders to take their tribal oath, promising to serve the community first. ¹⁸⁷ At the "ceremony of parting," the elders have the power to impart bravery and endurance. ¹⁸⁸ During the liminal phase, the initiates must submit to the will of their sponsors. ¹⁸⁹ And finally, at the rebirth ceremony, the children adopt new kinship terminology. They pass before the elders, calling them tribal father or mother. ¹⁹⁰ In this way, the initiates learn to submit to the authority of the community at the expense of individual wishes. Indeed, "presumption, conceit, and [End of page 2467] disobedience to those above them are grave offenses." ¹⁹¹ Thus, the irua ceremony is crucial to maintaining tribal cohesion; by bringing an emotional ritual in contact with the value of submitting to authority, the children come to believe that they must serve the community first, even if their individual wishes conflict.

Second, initiates also learn new adult behavior and duties from the various songs in each ceremony. The songs at the mugumo tree impart knowledge about sexuality and how to comport oneself in sexual relationships. ¹⁹² The initiates are also taught the laws, customs, and religion of the tribe through the preinitiation songs and ceremonial dances. ¹⁹³ At the reincorporation phase, the initiates wander about the community, testing themselves on their new knowledge through songs and dances. ¹⁹⁴ After initiation, the girls become members of an age-set, which helps prepare them for marriage. ¹⁹⁵ They also learn their new duties by sharing in the women's work of "planting, hoeing, weeding, harvesting, and thatching and plastering houses." ¹⁹⁶ In addition, membership in the age-set reinforces the norm that the initiates no longer have a responsibility only to the family--now they have a responsibility to the age-set and therefore the whole society. In the absence of any formal centers of instruction, ¹⁹⁷ the initiation ceremony and age-set membership function to educate the initiates about their expected roles in society. Through the dancing, songs, and emotional drama of the ceremony, the tribe impresses upon the children the importance of conforming to their roles for the good of the tribal community. Thus, the ceremonies instigate social action both by inculcating the Kikuyu norms in children and by teaching them how they are to act in the Kikuyu social structure.

In addition, membership in an age-set provides the initiates "with a new focus of identification with the society, [and a new frame of reference through which they relate themselves to the total society and identify themselves with its values and symbols." ¹⁹⁸ In other words, the initiates' view of the world is now influenced by their new social position, and that social position mandates their future actions.

[End of page 2468] During the liminal phase the initiates are in a state of statuslessness--they are outside of the hierarchical structure of the tribe. At this time, they must submit completely to their sponsor and deny them nothing. ¹⁹⁹ The initiates are now "blank slates," as the physical operation is a symbol of destroying the initiates' past childhood values and making way for the wisdom imparted in the preinitiation ceremonies. ²⁰⁰ While they are in this blank state, the initiates learn to "act as one body in all tribal matters and have a very strong bond of brotherhood and sisterhood among themselves." ²⁰¹ They refer to each other as brother or sister and share the food. ²⁰² By acting as one collective unit and giving up individual wants for the wishes of the community, the initiates once again learn the importance of acting for the good of the community. Thus, although they will return to a hierarchically structured community, they recognize the bond among equal human beings, "without which there could be no society." ²⁰³

Finally, the irua ceremony serves a recording role. Each year the age- set is given a name that reflects some outstanding event of the year. ²⁰⁴ Thus, the Kikuyu kept an oral record of their history by naming each age-set after important events every year. This is especially important because the Kikuyu do not keep written records. ²⁰⁵

Although tribal cohesion is the main normative value associated with the irua ceremony, the behavior of participants shows that conflicts among different subgroups of the tribal hierarchy remain. For example, only one male wins the race to the mugumo tree. Thus, each initiate acts for his own interests, not for the interests of the collectivity. Another example is what occurs when the initiates are bathing in the river before the operation. The girls must bathe farther downstream than the boys, symbolizing that women must give up their individual wishes for the individual wishes of the men. ²⁰⁶ Thus, the irua ceremony represents unobtainable values of absolute tribal unity and of putting community before individual needs. The ceremony makes these norms appear [End of page 2469] obtainable by isolating them from the daily conflicts among different subgroups in the tribe: the mbari, the status grades, men and women, and children and adults.

Overall, according to an analysis using the theories of Turner, Van Gennep, and Geertz, the irua ceremony is crucial to the maintenance of the Kikuyu as a separate, distinct tribal entity. The ritual ceremonies teach the new initiates tribal unity and their specific position in maintaining tribal cohesion. At the same time, the ritual makes these norms and organization appear desirable by arousing emotional impulses. In addition, Kikuyu remember their tribal history with the institution of age-sets. According to this analysis, the Kikuyu tribe's distinct values and structure would probably disappear without the circumcision ceremony or age-sets.

3. The Darod of Somalia

The Darod are a Somalian nomadic tribal group who practice the most severe form of circumcision, infibulation. ²⁰⁷ The majority of tribal girls between the ages of 6 and 12 undergo infibulation. ²⁰⁸ A woman who earns a living by performing the infibulation operates either upon an individual girl or a group of girls from the same extended family. ²⁰⁹ In either case, the operation is performed in an isolated place "without fuss or feasts" in the "cool, early morning." ²¹⁰ No ritual ceremonies are associated with the infibulation. ²¹¹

Although no ritual surrounds female circumcision among the Darod, the practice may still have significance for the tribal group identity because it is related to the Darod religion of Islam. The nomadic social structure draws its content from Islamic beliefs. ²¹² The nomads derive many of their norms from the tenets and prophecies of Islam, set forth in the Shari'a, which is composed of the Koran and the Sunna, a set of traditions derived from the words of the Prophet Muhammad. ²¹³

[End of page 2470] The primary social unit of the Darod is the immediate family, which includes blood relatives of both spouses. ²¹⁴ The Darod depend on herding camels, sheep, goats, and cattle for their economic subsistence and therefore often migrate "to find sufficient food and water for their stock." ²¹⁵ The families that live and travel together are from the same lineage, called reer. ²¹⁶ The men are responsible for the "public" sphere of the tribe--the laws, the leadership, and the ownership of the family property. The women are responsible for the "private" sphere--the caretaking of the family and the animals. ²¹⁷

"Islam regards female sexuality as active and as a lustful instinct which ... must be controlled." ²¹⁸ In addition, family honor depends on the women members' chastity. ²¹⁹ Thus, the Darod, like many Islamic tribes, believe that if women's sexuality is not controlled, the family will be disgraced and the social structure of the tribe will disintegrate, causing social disorder.

Certain protections have been set up to prevent this chaos from occurring. Islam requires virginity before marriage, fidelity after marriage, and seclusion of the women from the men. ²²⁰ Because seclusion is not possible in a nomadic society, female circumcision is seen as way of protecting women's chastity in the presence of any man and of reducing a woman's sexual desires. ²²¹ Infibulation in particular protects women's virginity before marriage. ²²² Until a woman is married, the opening of her vagina is only as large as the tip of a finger. ²²³ Once she has been married, she must be cut open in order to allow penetration. ²²⁴ In addition, female circumcision, like the other protections, is a way of persuading women to adopt their secondary social position in the tribe. ²²⁵ Thus, female circumcision, in the view of the Darod, is important to maintaining tribal unity and organization.

[End of page 2471] There are two problems with the viewpoint that female circumcision is required by Islam. First, many Muslim women argue that female circumcision is not required by Islam. Infibulation is not mentioned in the Koran. ²²⁶ Many Islamic societies, such as those in Saudi Arabia, do not practice female circumcision. ²²⁷ Raqiya Abdalla argues that the Prophet Muhammad supported sexual fulfillment for both sexes. ²²⁸ She points out that he stated, "[t]ouch but do not destroy" and, in reference to female circumcision, "[d]o not go deep [because sexual activity and minimizing excision] is enjoyable to the woman and is preferable for the husband." ²²⁹

Second, female circumcision does not necessarily prevent a woman from losing her virginity prior to marriage, nor does it preserve fidelity during marriage. Although infibulation leaves only a small opening, making intercourse before marriage difficult, a woman can have herself cut open early and be reinfibulated before marriage. ²³⁰ Therefore, female circumcision does not necessarily preserve virginity. It also does not preserve fidelity. Sexual desire may be reduced in two ways by female circumcision. First, "most of the nerves in the external vaginal area of infibulated women [are] destroyed." ²³¹ Second, the pain experienced by circumcised women during intercourse reduces sexual pleasure. ²³² However, women may still retain the psychological desire for sexual activity. ²³³ Thus, a woman's sexual desire, although minimized, may still exist.

Therefore, given the above anthropological analysis, tribal unity of the Darod cannot depend on female circumcision. None of the rite of passage characteristics present in the Kikuyu practice of female circumcision are present in the practice of the Darod. Nevertheless, the practice of female circumcision may contribute to Darod tribal identity by contributing to the maintenance of a gender hierarchy, in which women are subordinate to men. ²³⁴ It is not clear, however, that tribal identity would disintegrate in the absence of hierarchy in the long term. ²³⁵ Thus, according to this anthropological analysis, the Darod are at one end of [End of page 2472] the spectrum-- female circumcision does not contribute to the preservation of tribal group identity. The Kikuyu are at the other end of the spectrum--female circumcision is crucial to maintaining tribal group identity.

B. POSTMODERNIST AND FEMINIST CRITICISMS OF THE ANTHROPOLOGICAL ANALYSIS

The anthropological analysis that concludes that the practice of female circumcision is needed to maintain tribal group identity is flawed. The main criticism of this analysis has been advanced by postmodernists and feminists, who question the purported objectivity of the methodologies and theories used and articulated by anthropologists and ethnographers.

1. Postmodern and Feminist Theories Underlying the Critique of the Anthropological Analysis

According to Jane Flax, postmodernists challenge several main "beliefs concerning truth, knowledge, power, the self, and language" that are the foundations of Western culture. ²³⁶ First, postmodernists argue that the self is not unitary and stable, but is fragmented and positioned in different discourses. ²³⁷ Second, postmodernists challenge the assumption that "reason ... can provide an objective, reliable, and universal foundation of knowledge." ²³⁸ Instead, postmodernists argue, reason does not exist "independently of the self's contingent existence ... [because] bodily, historical, and social experiences affect reason's structure." ²³⁹ Third, postmodernists doubt that knowledge gained from reason will be "true," "real," and "unchanging (universal)." ²⁴⁰ Fourth, postmodernists challenge the assumption that "[t]ruth can serve power without distortion" because knowledge utilized in the service of power cannot be neutral or objective. ²⁴¹ Postmodernists recognize that truth and falsity are situated. Finally, postmodernists argue that language is not a transparent medium through which objective representation occurs. ²⁴² Instead, language, like knowledge and truth, is contextual and situated.

[End of page 2473] Some feminists point out the implications of postmodern theory. If the self is fragmented, if a universal method of reason does not exist, if knowledge is not objective, if truth is situated, and if language is political, then no theory of knowledge can be "objective" or "neutral." Instead, theories of knowledge that are claimed to be universally true and objective "reflect and reify the experience of a few persons--mostly white Western males." ²⁴³ Those in power create the language and theories of knowledge according to their experience, thus silencing the experience of powerless groups and maintaining dominance over them. ²⁴⁴ Ultimately, truth is power.

Sandra Harding's feminist analysis is different from a purely postmodern analysis in one main respect. Where postmodernism claims that no theory can be truer than any other theory, ²⁴⁵ Harding claims that "[i]t is through feminist struggles against male domination that women's experience can be made to yield up a truer (or less false) image of social reality than that available only from the perspective of the social experience of men of the ruling classes and races." ²⁴⁶ Thus, according to Harding, theories produced from feminist methodologies and epistemologies are less distorted than traditional methodologies and epistemologies that exclude marginalized groups.

Harding defines methodology as "a theory and analysis of how research does or should proceed." ²⁴⁷ She states that feminist theorists have tried correcting distorted methodologies simply by adding women to research projects and applying traditional theories to women. ²⁴⁸ However, this feminist methodological approach misses the fact that the traditional theories themselves are distorted.

In order for theories to become less distorted, Harding argues, feminists must also formulate new epistemologies that legitimate women as [End of page 2474] knowers. ²⁴⁹ Harding defines an epistemology as "a theory of knowledge" that specifies who can know, what can be known, and "what tests beliefs must pass in order to be legitimated as knowledge." ²⁵⁰ Traditional epistemologies are formulated with the language and viewpoint of the dominant group--men with class, race, and national, colonial privilege. Thus,"feminists have argued that traditional epistemologies ... exclude the possibility that [people of different races, people of different nationalities, and] women could be 'knowers' or agents of knowledge." ²⁵¹ Traditional epistemologies incorrectly suggest "that only those activities that men have found it important to study are the ones which constitute and shape social life." ²⁵² This leads both theorists and researchers to ignore issues that are crucial for women and the effect that gender, race, or colonial relations have on any social theory.

In order to formulate a new, undistorted epistemology and methodology, Harding argues that the following criteria must be present. First, problematics must be generated from the perspectives of women and men of different nationalities, cultures, races, and classes. ²⁵³ In other words, the research and theory should be for women, not just for white, Western, upper- class men and their institutions. Second, because a researcher's "class, race, culture, and gender assumptions, beliefs, and behaviors" color her or his perceptions, these factors "must be placed within the frame of the picture that she/he attempts to paint." ²⁵⁴ This avoids the " 'objectivist' stance that attempts to make the researcher's cultural beliefs and practices invisible while simultaneously skewering the research objects [sic] beliefs and practices." ²⁵⁵ Third, women's experiences must also be used to "test [the] adequacy of the problems, concepts, hypotheses, research design, collection, and interpretation of data." ²⁵⁶ A theory is undistorted only if these factors are present in the epistemologies and methodologies used to formulate it.

[End of page 2475] 2. Application to the Anthropological Analysis

I will now apply this postmodern feminist criticism to the above anthropological analysis, which is the basis for the defense of female circumcision, in methodological and epistemological terms. First, I will present feminist criticisms of traditional anthropological and ethnographical research methods. Second, I will apply these criticisms to the Kikuyu and Darod cases. Finally, I will present feminist criticism of traditional anthropological theory by pointing out shortcomings in Victor Turner's and Clifford Geertz's theories as applied to rites surrounding female circumcision.

a. The bias of traditional anthropological research methods: Henrietta Moore points out that women have always been present in ethnographic accounts. ²⁵⁷ However, she argues that traditional anthropology has represented women of other cultures in a biased manner. ²⁵⁸ First, Moore argues that male biases are present in ethnographers' research in the form of assumptions about the relations between women and men and the "significance of those relationships for an understanding of the wider society." ²⁵⁹ For example, male ethnographers have often asked only men questions because they view them as better informants. As a result, ethnographers represent only men's perceptions of women's experiences and not women's experiences as perceived by women. ²⁶⁰ Overall, men may be less conscious of gender relations or gender hierarchies than women who come from a subordinated position. ²⁶¹ The only cure for this, Moore claims, is for women ethnographers to study women and men. ²⁶² Second, Moore argues that researchers from Western culture import their views about the relations between men and women in Western culture--expecting experiences of the men and women in the culture they are studying to be similar. ²⁶³ The only way this can be cured is by asking women of the cultures being studied questions about their specific experiences. ²⁶⁴ Finally, Moore argues that the subject tribal group's view that women are subordinate to [End of page 2476] men will be communicated to the ethnographer. ²⁶⁵ Thus, the ethnographer may characterize women as subordinate, when in fact women may have power in different realms of society. ²⁶⁶ Once again, this can only be cured by asking women about their perceptions of their actual experiences and positing questions in areas that are often ignored--for example, those concerning the domestic domain. ²⁶⁷

All of Moore's points coincide with Harding's idea that the researcher's historical context, gender, race, nationality, and class must be taken into account when evaluating research. ²⁶⁸ In addition, Moore's points coincide with Harding's idea that problematics must be articulated from the point of view of women of different nationalities, races, and classes and that data, hypotheses, and theories must be tested by asking women questions. Thus, women must also be recognized as "agents of knowledge." ²⁶⁹ Otherwise, research results will ignore women's experiences and validate the experiences of only half of the tribal group.

According to Moore's and Harding's criticisms, the aforementioned ethnographic studies of the Kikuyu are biased by the different characteristics of the ethnographers themselves. Except for the few cites to Carolyn Clark ²⁷⁰ and Lois Leakey, ²⁷¹ most of the information relied upon is the work of male ethnographers--Jomo Kenyatta, ²⁷² John Middleton and Greet Kershaw, ²⁷³ George Muruiki, ²⁷⁴ H.E. Lambert, ²⁷⁵ Ralph Bunche, ²⁷⁶ and S.N. Eisenstadt. ²⁷⁷ Thus, male ethnographers, who may be indifferent to gender hierarchy in their own societies, may not think of questioning the role gender plays in female circumcision. ²⁷⁸ The research does not indicate that these men were concerned with how the Kikuyu women felt about female circumcision and how it affected [End of page 2477] their lives and perceptions of themselves. ²⁷⁹ In addition, all of the ethnographers are Westerners except Jomo Kenyatta, who was a member of the Kikuyu tribe. ²⁸⁰ From the research it doesn't appear that either the male or female researchers ever asked Kikuyu women how they themselves felt about female circumcision. ²⁸¹ How do Kikuyu women who perform the operations and girls who undergo them feel at the time the circumcision is performed? Do the Kikuyu women believe that the operation is crucial in maintaining cultural identity? Even if they do, do they want to continue the practice or do they feel forced to do so? Finally, although Kenyatta was a native Kenyan, he was the leader of his new country, defending Kikuyu practices against Western imperialism in 1938. ²⁸² Because he was defending the practice, he was not about to write about the pain and death involved. Instead, he represented the practice in the best light he could in order to persuade Westerners that female circumcision, as barbaric as it may seem, is crucial to preserving the Kikuyu tribal identity. Therefore, although the ethnographic accounts of the irua ceremony appear objective and neutral, they are biased by the characteristics of the individual ethnographers. Indeed, these accounts ignore the experiences and perceptions of Kikuyu women.

The research concerning the Darod practice of female circumcision appears to be less biased. All of the ethnographers cited are women--Pia Grassivario Gallo and Marian Abdisamed, ²⁸³ and Raqiya Abdalla. ²⁸⁴ These women are aware of gender hierarchy and question the gender relations involved in the practice of female circumcision among the Darod. Moreover, although Gallo is Italian, she questioned the Darod women about their perceptions and experiences. ²⁸⁵ Both Abdisamed and Abdalla are Muslim, and Abdalla is also Somalian. ²⁸⁶ Furthermore, both Abdisamed and Abdalla questioned the Darod women about their experiences. ²⁸⁷ Therefore, these accounts of the Darod's practice of [End of page 2478] female circumcision are not as biased as the Kikuyu research since the ethnographers recognize that women are also "agents of knowledge."

b. The bias of the anthropological theories: In addition to biased research, the theories that the ethnographers are testing may themselves be biased. According to Moore, traditional anthropological theories were formulated from a Western male point of view. Like postmodernists, Moore argues that traditional theories are not neutral and objective; instead, they present the Western male view as "society's view." ²⁸⁸ Because the language and reasoning of these theories is produced by Western men, anthropologists are unable to hear or understand the views of women of other cultures. ²⁸⁹ Moore's argument is supported by Harding's and Flax's arguments. ²⁹⁰

Using the theories of Victor Turner and Clifford Geertz as a basis to defend female circumcision is problematic in two main respects. First, both theories are articulated by Westerners--outsiders who watched and observed the rites of passage. Both theorists claim to be "objective," but in fact they do not recognize that women may experience the rites of passage differently from the way they do. In addition to the functional value Turner and Geertz formulate, the irua ceremony may have intrinsic value for its participants. Opera and baseball are experienced by participants as beautiful and deeply meaningful. ²⁹¹ Perhaps opera and baseball give participants a deeper awareness of their being by evoking emotions and feelings not felt in their daily lives. ²⁹² Like opera and baseball, perhaps the irua ceremony also contributes to the participant's awareness of herself; perhaps the woman participant experiences the operation as deeply meaningful--evoking emotions and feelings that do not exist in her daily life. Just as a highly intelligent being from another [End of page 2479] planet could not understand the intrinsic value of baseball or opera, the Turner and Geertz theories as applied to female circumcision do not recognize that the practice may have intrinsic worth apart from the role it plays in preserving tribal identity. As a result, researchers testing Turner's and Geertz's theories fail to ask women how they experience circumcision. In the case of the Kikuyu, none of the researchers report asking these questions. The researchers of the Darod also fail to recognize the possibility that female circumcision may have intrinsic worth for the women involved.

Second, Turner's and Geertz's theories fail to recognize the oppressive gender relations and roles that are reinforced by rites of passage. Arnold van Gennep, as well as the two theorists who build on van Gennep's rites of passage theory, recognized that the rites serve to delineate differing duties among tribal subgroups. ²⁹³ Thus, both Turner and Geertz recognize that rituals play a role in maintaining different hierarchies within the tribe. In addition, Geertz, unlike Turner, states that rituals color participants' perceptions of their fellow tribe members and themselves. ²⁹⁴ Geertz therefore recognizes that the rituals serve to maintain the status quo by instilling the dominant group's views in tribe members. However, although both theorists recognize gender hierarchy within the tribal groups and the role rites of passage play in maintaining the hierarchy, neither theorist questions the validity of the gender hierarchy or the oppression women may experience as a result of these rites of passage. As a result, the theories of Turner and Geertz are biased in favor of the dominant group--men--and silence the subordinate group--women. They do not give women the tools or the language to articulate their oppression in the gender hierarchy of the tribe.

Moore argues that feminism has exposed the bias of traditional anthropological theories and contributed to anthropology by establishing the importance of "the study of gender, of the interrelations between women and men, and of the role of gender in structuring human societies, their histories, ideologies, economic systems and political structures." ²⁹⁵ In addition, Moore has pointed out that Westerners must be aware that there is no "universal woman" or "universal subordination of women." ²⁹⁶ Instead, anthropological theories that recognize different experiences of women based on race, class, and nationality must be [End of page 2480] articulated. ²⁹⁷ As I have shown, both Turner's and Geertz's theories as applied to female circumcision miss the oppressive aspects of gender relations that are reinforced by rites of passage, and they do not recognize a unique tribal experience that may be different from Western experience. Thus, women's voices must be heard before the argument that female circumcision should be maintained because it is important to preserving tribal identity can be accepted as valid.

III. ARGUMENTS AGAINST FEMALE CIRCUMCISION: TAKING GENDER INTO ACCOUNT

In this part, I supplement anthropological analysis by exploring how oppressive gender relations and hierarchies are maintained through the tribal group practice of female circumcision. First, I describe radical feminist and socialist feminist explanations of female circumcision. I then apply these explanations to the cases of the Kikuyu and the Darod. Finally, I conclude with criticisms of these various Western feminist analyses.

A. WESTERN FEMINIST ANALYSES OF FEMALE CIRCUMCISION

In addition to preserving tribal group identity, female circumcision has another main function. Certain tribal groups admit that they also perform the operation in order to reduce women's sexual desire. ²⁹⁸ They believe that women's sexual desires are minimized by the removal of parts of their external genitalia. ²⁹⁹ This section explores the motivations behind these particular tribal groups' determination to reduce women's sexual desire.

1. Radical Feminism

Radical feminists argue that male-dominant society ensures women's subordination by retaining complete control of women's sexuality. ³⁰⁰ They argue that female circumcision is one method by which the male-dominant tribal group controls women's sexuality, thereby ensuring women's subordination to men.

[End of page 2481] This argument is forwarded by Adrienne Rich, who argues that "violent strictures," such as female circumcision, are "necessary to enforce women's total emotional, erotic loyalty and subservience to men.... [Male power include[s the power of men ... to deny women (our own) sexuality [and force (male sexuality) upon them." ³⁰¹ By denying women control of their sexuality, tribal groups have convinced "women ... that marriage and sexual orientation toward men are inevitable, even if ... oppressive components of their lives." ³⁰² In this way, the male-dominant tribal group ensures female virginity before marriage, female fidelity throughout marriage, ³⁰³ and, as Rich points out, heterosexuality. ³⁰⁴

For example, the Darod regard "female sexuality ... as a lustful instinct which ... must be controlled.... [W]omen's sexuality is dangerous and needs to be curtailed." ³⁰⁵ Rich argues that

[i]t seems more probable that men really fear, not that they will have women's sexual appetites forced on them, or that women want to smother and devour them, but that women could be indifferent to them altogether, that men could be allowed sexual and emotional--therefore economic--access to women only on women's terms, otherwise being left on the periphery of the matrix. ³⁰⁶

Not only is the female turned into a marriageable woman after being circumcised, but the operation ensures that women, especially women in polygamous tribal groups, "will not form sexual relationships with each other; that--from a male ... perspective--female erotic connections ... will be literally excised." ³⁰⁷ Ultimately, the "enforcement of heterosexuality for women is a means of assuring male right of physical, economical, and emotional access" to women. ³⁰⁸

Therefore, radical feminists would argue that female circumcision was created to force women to submit to males and accept their socially [End of page 2482] prescribed gender roles. Through the traumatic experiences of painful operations, childbirth, and intercourse, women learn to submit to the males of their families and accept their secondary positions. Gender inequality between women and menis maintained by controlling women's sexuality through female circumcision, and men continue to dominate women in these tribal groups.

2. Socialist Feminism

Socialist feminists contend that the radical feminist perspective does not adequately account for men's material interest in women's continued oppression. ³⁰⁹ Marxist feminists argue that with the introduction of private property the primary resource became labor. ³¹⁰ By controlling reproduction with female circumcision, the patriarchal system ensures that males have control of production--that is, the labor of all children and wives. ³¹¹ In addition, the male-dominant tribal groups use circumcision as a way to impose monogamy on women to ensure that males' landed property goes only to their own heirs. ³¹²

Heidi Hartmann believes capitalism and patriarchy are related. "The material base" of patriarchy is "men's control over women's labor power." ³¹³ Men control women's labor by restricting their access to productive resources and controlling their sexuality. ³¹⁴ Men control women's labor power "for the purpose of serving men in many personal and sexual ways and for the purpose of rearing children" as well as for the purpose of "feeling powerful and being powerful." ³¹⁵ Patriarchal behaviors are taught by society, and the "inferior position of women is enforced and reinforced." ³¹⁶ Thus, capitalism aids patriarchy by creating male ownership of women's productive and reproductive labor.

Capitalism benefits from patriarchy, which prevents a unified working class from confronting capitalism. ³¹⁷ Patriarchy divides the working class, "allowing one part (men) to be bought off at the expense of the [End of page 2483] other (women)." ³¹⁸ Ultimately, patriarchy "establish[es] ... interdependence and solidarity among men that enable them to dominate women.... Those at higher levels can 'buy off' those at the lower levels by offering them power over those still lower." ³¹⁹

Thus, female circumcision, according to socialist feminism, results from a materially based patriarchy. Through circumcision, males are ensured control of women's productive and reproductive labor. Women become the property of their husbands such that husbands control their wives' productive labor and sexuality as well as the labor of their children. In addition, the patriarchal rituals surrounding female circumcision may serve to enforce and reinforce the secondary status of women.

B. THE KIKUYU OF KENYA

As radical and socialist feminists have argued, female circumcision among the Kikuyu exists for reasons other than maintaining tribal identity. The Kikuyu encourage polygamy, ³²⁰ require women to be virgins before marriage, ³²¹ and forbid women to masturbate, although males are encouraged to masturbate before marriage. ³²² Kenyatta states that "the motive of trimming the clitoris [is] to prevent girls from developing sexual feelings." ³²³ Thus, female circumcision maintains male dominance among the Kikuyu by violently enforcing heterosexuality and by giving men a right of sexual and emotional access to women.

The Kikuyu society is patrilineal, and the "father is the supreme ruler of the homestead [and] owner of practically everything." ³²⁴ In addition, women have a duty to the tribe to produce children. ³²⁵ Therefore, Kikuyu males control women's productive and reproductive labor and the labor of their children. Female circumcision aids male ownership of women and children by ensuring male control of female sexuality, encouraging marriage, and inculcating the patriarchal values of the tribe.

Female circumcision among the Kikuyu is used to persuade women to conform to their subordinated position in the tribe. Before and during [End of Page 2484] the irua ceremony, the female initiates are taught that a Kikuyu woman must "bear many children, ... behave like a gentlewoman, not ... raise her eyes or voice [while] talking to men in public, ... not eat in the presence of men other than those of her own age or kinsfolk [and] treat strangers with the proper mixture of courtesy and suspicion." ³²⁶ Thus, the irua ceremony may make Kikuyu gender stereotypes appear desirable for women. Through the ceremony, women learn to give up their individual needs for the needs of the community--which may in actuality be more the needs of dominant men than of women.

Indeed, the irua ceremony may be a way of coercing women to accept their subordinate position. Because the ancestors created the social organization of the Kikuyu set forth in the irua ceremony, a rejection of female circumcision would be "tantamount to rejecting the tribe's cultural tradition, or charter of life, which had been handed down from the ancestors throughout the generations." ³²⁷ Thus, girls who do not want to be circumcised may be characterized by the tribe as rejecting the tribe's cultural tradition. As a result, they would be ostracized by the tribe. Uncircumcised women would lose their economic support, as "no [Kikuyu] would dream of marrying a girl who has not been circumcised." ³²⁸ And uncircumcised women would lose their value in the eyes of the tribe as they would not produce children. Therefore, although the irua ceremony positively maintains tribal unity, it also controls women's sexuality, thereby forcing women to accept their subordinate, powerless position within the tribe.

C. THE DAROD OF SOMALIA

As noted above, the primary reason female circumcision is performed among the Darod is to control women's sexuality. ³²⁹ Among the Darod, "a ... woman is expected to constantly display an attitude of tenderness, spontaneous self-denial and self-sacrifice, not only towards her family, but also towards the whole tribe or clan of her husband." ³³⁰ Only men control the legal, social, and economic aspects of the tribe. ³³¹ The Shari'a suggests to men, "[a]s for those [women] from who [sic] you fear disobedience, admonish them and send them to beds apart and beat them. Then if they obey you, take no further action against them. Allah [End of Page 2485] is high, supreme." ³³² Thus, violence is recommended as a way to control women. Female circumcision is one such form of violent oppression and is meant to maintain female subservience to the Darod men. Through female circumcision, Darod men control women's sexuality and thus ensure women's heterosexuality and male access to the women's sexuality and emotional support.

Among the Darod, female circumcision is also a way for the males to control both the productive and reproductive labor of women and their children. The Darod are polygamous, ³³³ and the male is the head of the family and owner of the family property. ³³⁴ A woman's main value comes from the production of sons. ³³⁵

Social factors may force women to undergo or perform the operation. An uncircumcised woman would bring disgrace upon her family; she would be unable to marry and hence would bring no bride price to her family. ³³⁶ She would be ostracized from life with her tribal group, the only life she knows. ³³⁷ Also, Darod women are economically coerced into performing and undergoing infibulation. Midwives often derive all of their income from performing the operation. ³³⁸ Women are also economically dependent on the men of the tribe. ³³⁹ A woman without a husband would have no way to make a living in a small nomadic tribe where the men own the cattle, which are the main source of income. ³⁴⁰

Overall, female circumcision among the Darod is a method of ensuring women's subservience to men and of coercing women to accept the secondary social position in the tribe.

D. CRITICISMS OF THE FEMINIST POSITIONS

There are three main criticisms of the above feminist positions. First, critics point out that in both tribes, women often perform and insist on the operations. ³⁴¹ However, in both cases the operations are not necessarily voluntary because the women who perform and insist upon the operation are not fully informed. The Darod, for example, are not [End of Page 2484] aware that female circumcision is not required by Islam. ³⁴² In addition, the women of both tribes are poorly educated and unaware of the health consequences of circumcision. In Kenya and Somalia, there is little or no access to information about the health hazards of circumcision. ³⁴³ Moreover, women often defend female circumcision with arguments based on false information. For example, in the Sudan many believe that if the clitoris is not circumcised it will grow to the size of a man's penis. ³⁴⁴ If women had accurate information, they may choose to refuse to perform or allow circumcisions. Thus, their choice is not in fact "voluntary." If men in the tribal groups who advocate female circumcision had accurate information, they might also refuse to allow it.

Furthermore, women and girls do not voluntarily choose to undergo the operation. First of all, female circumcision is performed on children, from the ages of 8 days old to the teens. ³⁴⁵ Children cannot make a voluntary choice to undergo the operation--their parents make the choice for them. Second, women and girls often choose to undergo the operation in response to social pressure. Indeed, "[i]t is believed that any attempt to abandon such customs would be met by the disapproval of society manifested in ostracism and insults." ³⁴⁶ For example, male members of the tribal group may refuse to marry a woman who chooses not to undergo the operation. This argument is true in the case of the Kikuyu and the Darod, as noted above. ³⁴⁷ Third, the ritual surrounding circumcision may function to cover up painful experiences of members and the participants to accept [their] culturally prescribed destiny" under the guise of a desirable norm. ³⁴⁸ "The same qualities of a tradition that serve to bind a society together in a positive way, can also serve to intimidate members of that society into conforming to its mandates." ³⁴⁹ This argument is also true for the Darod and the Kikuyu. Thus, the ritual may actually prevent the tribal group from addressing the fact that in reality its members are not achieving the ritual norms; instead, one group is being oppressed by another. Finally, women may be forced to undergo circumcision for economic reasons. In many tribal groups, a woman's [End of Page 2484] value derives solely from marriage and having children. Without a husband to support her, she most likely would have no way to earn a living. Thus, it appears that women do not "voluntarily" choose to subject themselves to circumcision.

The second criticism of the feminist stance on female circumcision contends that these theories portray women as total victims of male dominance, with no agency at all. ³⁵⁰ The third criticism is again a point made by postmodernists: Feminist theories cannot be objective but are distorted in perspective. Just as Victor Turner's and Clifford Geertz's theories were developed from the perspective of Western white men, feminist theories were developed by Western white women and therefore "are insufficiently attentive to ... cultural diversity, and they falsely universalize features of the theorist's own era, society, culture, class, sexual orientation, and ethnic, or racial group." ³⁵¹ There is no universal concept of " 'the position of women,' the 'subordination of women' and 'male dominance.' " ³⁵² Instead, each woman experiences her gender and social relations differently from other women, depending on her race, nationality, class, ethnicity, and age.

Nancy Hartsock answers both these criticisms by pointing out that postmodernists criticize feminist theories without replacing them with a theory that will help oppressed and marginalized groups name their experiences and guide their actions in their fight against oppression. ³⁵³ Simply criticizing current male-biased theories is not enough. Unlike Turner and Geertz, Hartsock believes that marginalized groups, such as women, are "less likely to mistake themselves for the universal 'man.' " ³⁵⁴ She believes that theorists must build accounts describing how power relations work to subjugate women as well as other marginalized groups. ³⁵⁵ In addition, theories that begin from the experience of [End of Page 2484] marginalized groups and explain how to empower them must be formulated to help those groups alter the power structures. ³⁵⁶ Ultimately, the purpose of feminist theory is not to portray women as total victims, but instead to help women of different cultures, races, and classes name their experiences, speak their truths, and fight their daily oppressions. The purpose of naming female circumcision as a traditional tribal practice that oppresses women is to make the oppression visible (it is invisible in the male-biased theories of Geertz or Turner) and allow these women to speak their experiences and alter traditional practices.

IV. INTERNATIONAL HUMAN RIGHTS LAWS THAT ARTICULATE WOMEN'S RIGHT TO FREEDOM

FROM FEMALE CIRCUMCISION AND THE TRIBAL GROUP'S SOVEREIGN RIGHTS

I have presented two different viewpoints of female circumcision--that the practice is necessary for the preservation of tribal group identity and that female circumcision is also necessary to maintain male tribal group members' dominance. Both arguments appear to be "true." I will now describe the international positive laws that have been set up (1) to protect the woman's right to be free from oppressive tribal group practices such as female circumcision and (2) to protect the tribal group's right to maintain its tribal practices free from state interference.

The purpose of international human rights law is to establish positive laws, by means of treaties, conventions, or resolutions, that obligate states to protect specific "lower rights" corresponding to human rights norms. ³⁵⁷ Groups of people can pressure the state to take action by pointing to specific laws that are being violated. If the right to tribal sovereignty or the right to be free of female circumcision are the subject of a positive law, states are more likely to ensure that these rights are respected.

A. WOMEN'S RIGHT TO BE FREE FROM FEMALE CIRCUMCISION

The United Nations Charter itself provides protection for human rights, arguably even against tribal group practices such as female circumcision. Article 55 states that the "United Nations shall promote ... universal respect for, and observance of, human rights and fundamental [End of Page 2489] freedoms for all without distinction as to race, sex, language, or religion." ³⁵⁸ In addition, the Preamble "reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." ³⁵⁹ A main problem, however, is the Charter's lack of specificity or definition of these human rights. Presently, states have no obligation to protect women from circumcision under Article 55 and the Preamble alone.

As a reaction to this lack of specificity, documents have been created to supplement the Charter by giving more specific content to human rights. The rights that advocates claim should protect women from female circumcision include the right to health, the right to be free of cruel and degrading practices, the right to sexual and corporal integrity, and the right to reproduction. All of these rights are enunciated by U.N. documents created to supplement the Charter.

In 1981 the Organization of African Unity adopted the Banjul Charter on Human and Peoples' Rights. ³⁶⁰ Certain provisions of this document may also be interpreted to create a state duty to protect women from female circumcision. ³⁶¹ The Banjul Charter also includes the right to health, the right to be free of cruel and degrading practices, the right to sexual and corporal integrity, and the right to reproduction. ³⁶²

1. The Right to Health

Kikuyu and Darod women and girls suffer from health complications as a result of female circumcision. As noted above, both clitoridectomy and infibulation result in serious health complications for women and girls, including death from hemorrhage, infection, shock, and other complications. ³⁶³ In the case of clitoridectomy, if the girl struggles, the operation may result in a more severe form of circumcision. ³⁶⁴

[End of Page 2490] In the case of infibulation, the health of a newborn child is also jeopardized:

At childbirth: The infibulation opening, which had been widened for the consummation of marriage, is no longer sufficient to allow the passage of the infant at birth. Because of the rigidity and the inelasticity of the scar tissues surrounding the vulval outlet of the birth canal, it is necessary to perform an upward opening of the infibulation as well as lateral or bilateral episiotomies to be performed in order to deliver the infant. Damage to the newborn is increased due to the prolonged second stage of labour causing respiratory distress and even intra-cranial damage to the infant. Death of the baby may occur. ³⁶⁵

Female circumcision is a factor that leads to the high rate of infant mortality within Somalia, which has the world's fourth highest infant mortality rate. ³⁶⁶

Because the lives of Kikuyu and Darod women and children are threatened by female circumcision, the failure of the state to protect them from the practice may be seen as a violation of several positive U.N. laws. First, the Universal Declaration of Human Rights, adopted by the General Assembly in 1948, may encompass a woman's right to health. Article 25(2) states that "[m]otherhood and childhood are entitled to special care and assistance." ³⁶⁷ Second, because female circumcision endangers the health of Darod and Kikuyu children, ³⁶⁸ the Declaration of the Rights of the Child of 1959 may create a child's right to protection from the practice. Principle 2 of the Declaration of the Rights of the Child states: "The Child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him [sic] to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity." ³⁶⁹

A right to health is also provided for in Article 16 of the Banjul Charter, which states: "Every individual shall have the right to enjoy the [End of Page 2491] best attainable state of physical and mental health." ³⁷⁰ In addition, Article 18(3) declares that "[t]he state shall ensure the elimination of every discrimination against women and also censure the protection of the rights of the woman and the child as stipulated in international declarations and conventions." ³⁷¹

2. The Right to Be Free of Cruel and Degrading Practices

The practice of female circumcision may be cruel and degrading for Kikuyu and Darod women and girls. Both clitoridectomies and infibulation are unnecessarily painful and therefore cruel. The operations are often done without anesthesia and with blunt instruments. ³⁷² The pain lasts for weeks and, with infibulation, recurs throughout life--with menstruation, intercourse, and childbirth. ³⁷³

Both clitoridectomy and infibulation may be psychologically traumatic for the Kikuyu and Darod women and girls. The psychological trauma results from both the pain and the degrading experience of the operation. "In the case of infibulation, the girls are forced to ... [remain] with their legs bound together to ensure that the area is closed as it heals; the girls' excrement remains trapped within the bandage during this time." ³⁷⁴ The following description further indicates the traumatic nature of this operation:

The child, completely naked, is made to sit on a low stool. Several women, take hold of her and open her legs wide. After separating her outer and inner lips, the operator ... with her kitchen knife pierces and slices open the hood of the clitoris. Then she begins to cut it out. [T]he operator digs with her fingernail a hole in the length of the clitoris to detach and pull out the organ entirely. The little girl, held down by the helpers, screams in extreme pain; but no one pays the slightest attention.

The operator finishes ... by entirely pulling out the clitoris, and then cuts it to the bone with her knife. Her helpers wipe off the spurting blood with a rag. ³⁷⁵

[End of Page 2492] Over the years, emotional reactions to the pain, along with other complications, such as repeated infection and painful urination, may lead to chronic irritability, anxiety, and depression. ³⁷⁶

Many U.N. documents should be read as requiring states to protect the Kikuyu and Darod women's right to be free from the cruel and degrading practice of female circumcision. First, parts of the UDHR protect this right. Article 5 states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." ³⁷⁷ In addition, Article 22 states that "[e]veryone, as a member of society, has the right to ... social and cultural rights indispensable for his [sic] dignity and the free development of his [sic] personality." ³⁷⁸ The psychological consequences of female circumcision inhibit the development of the Kikuyu and Darod women's personalities, and therefore this right is applicable to the case of female circumcision. Second, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment may also imply a woman's right to be free of the cruel and degrading practice of female circumcision. ³⁷⁹ Article 1(2) of the Declaration states that "[t]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." ³⁸⁰ Finally, the Declaration of the Rights of the Child protects children from the cruel and degrading practice of female circumcision. Principle 9 declares that "[t]he child shall be protected against all forms of neglect, cruelty and exploitation." ³⁸¹

The Kikuyu and Darod women's and girls' right to protection from the cruel and degrading practice of female circumcision may also be inferred from the Banjul Charter. Article 5 declares, "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his [sic] legal status. All forms of exploitation and degradation of man [sic] particularly ... torture, cruel, inhuman or degrading punishment and treatment shall be prohibited." ³⁸²

[End of Page 2493] 3. The Right to Sexual and Corporal Integrity

Among both the Kikuyu and Darod, female circumcision is used to control women's sexuality. ³⁸³ In addition, it is an involuntary invasion of the body. Women and girls are not fully informed of the health consequences and often choose to undergo the operation as a result of social pressure to conform. ³⁸⁴

The United Nations has passed positive laws that may be interpreted to obligate states to protect the rights of Kikuyu and Darod women and girls to sexual and corporal integrity, which the practice of female circumcision violates. First, Article 3 of the UDHR states that "[e]veryone has the right to life, liberty and security of person." ³⁸⁵ Second, the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 may be interpreted to protect the right of women and girls to sexual and corporal integrity. Article 1 of CEDAW provides that " 'discrimination against women' shall mean any ... restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the ... enjoyment or exercise by women ... of human rights and fundamental freedoms in the political, economic, social, cultural ... or any other field." ³⁸⁶ Female circumcision prevents the Darod and Kikuyu women from freely enjoying and exercising their sexual integrity.

The Banjul Charter may also be interpreted to create an obligation on Kenya and Somalia to protect the rights of Kikuyu and Darod women and girls to sexual and corporal integrity. Article 4 of the Banjul Charter states: "Human beings are inviolable. Every human being shall be entitled to respect for his [sic] life and the integrity of his [sic] person." ³⁸⁷ In addition, Article 6 provides that "[e]very individual shall have the right to liberty and to the security of his [sic] person." ³⁸⁸

[End of Page 2494] 4. The Right to Reproduction

Finally, infibulation interferes with the Kikuyu and Darod women's right to reproduce. Many woman become sterile as a result of the operation. ³⁸⁹ In addition, many infants die during childbirth. ³⁹⁰ Article 1 of CEDAW may be interpreted as protecting the Kikuyu and Darod women's right to freely exercise their reproductive capacities. ³⁹¹

B. TRIBAL GROUPS' RIGHT TO BE FREE FROM STATE INTERFERENCE IN TRADITIONAL

PRACTICES

The U.N. Charter also provides protection for tribal group sovereignty rights. Article 1(2) states that one purpose of the United Nations is to "respect ... the principle of equal rights and self-determination of peoples." ³⁹²

In addition, one document of the United Nations may be interpreted to protect tribal groups' sovereignty in determining whether to maintain traditional tribal group practices. The International Covenant on Economic, Social and Cultural Rights provides that "[a]ll peoples have the right of self- determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." ³⁹³

Finally, the Banjul Charter has several provisions that may specifically protect tribal groups from state interference with their practices. Article 17(3), for example, states: "The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State." ³⁹⁴ Article 20 states that "[a]ll peoples shall have the right to ... self-determination. They shall freely ... pursue their ... social development according to the policy they have freely chosen." ³⁹⁵ In addition, family rights are protected by the Banjul Charter. Article 18(1) specifically protects the family: "The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral." ³⁹⁶ Article 18(2) states that [End of Page 2495] "[t]he State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community." ³⁹⁷ Thus, the state arguably may have a duty to protect certain cultural practices, such as female circumcision, that contribute to traditional values and the self- identities of tribal groups.

C. WHICH DOCUMENTS ARE BINDING UPON STATES?

Declarations adopted by the General Assembly are not binding upon the member states. "[O]nly conventions adopted by the United Nations and ratified by the legislature of each member state can convert that convention into international law.... United Nations declarations and resolutions have never been presented for ratification as legally binding instruments." ³⁹⁸ In addition, "treaties do not create direct rights and obligations for private individuals." ³⁹⁹

Although the UDHR "is frequently regarded as part of the 'law of the United Nations,' " ⁴⁰⁰ because it is a declaration, it is not legally binding upon the member states. Likewise, the Declaration on the Protection of All Persons from Being Subjected to Torture and the Declaration of the Rights of the Child are not binding upon member states.

CEDAW, however, is an "international law" that may be invoked to obligate member states to protect their own nationals from female circumcision. Because CEDAW is a convention, it is legally binding upon the states whose legislatures ratify it. ⁴⁰¹ Kenya is a party to CEDAW, and therefore the Convention can be used by states and international organs to pressure Kenya to protect Kikuyu women from female circumcision. ⁴⁰² Somalia, however, is not a party to CEDAW, and therefore Somalia cannot be pressured by international law or organs to protect Darod women from female circumcision. ⁴⁰³

[End of Page 2496] In addition, the U.N. Charter is binding upon all states that are members of the United Nations. ⁴⁰⁴ Both Somalia and Kenya are members. ⁴⁰⁵ The International Covenant on Economic, Social and Cultural Rights is also binding upon states that are parties to the Covenant. ⁴⁰⁶ Kenya is a party to the Covenant and Somalia is not. ⁴⁰⁷

The Banjul Charter is binding upon signatory states. ⁴⁰⁸ However, the Banjul Charter is not yet in force. ⁴⁰⁹

V. RESOLVING THE CONFLICT BETWEEN THE RIGHTS OF TRIBAL GROUPS AND THE RIGHTS OF

WOMEN

In Part IV, I described the positive international laws that may be read (1) to create the tribal groups' right to maintain traditional practices free from state interference and (2) to create women's right to protection by the state from the traditional practice of female circumcision. ⁴¹⁰ Both rights appear equally valid. Part V focuses on resolving the conflict between these two rights.

A. WHICH RIGHT CURRENTLY WINS THE CONFLICT?

The conflict between the rights of tribal groups and the rights of women in the female circumcision context is currently resolved in favor of the tribal groups. Women of the Kikuyu and Darod tribes still undergo circumcision. No states or international organs have pressured Kenya or Somalia to protect women in their countries from the practice. Instead, the tribal groups continue to practice female circumcision without interference from the state.

1. The United Nations

Three United Nations institutions exist that could consider complaints by or on behalf of women regarding violations of the rights guaranteed to them by international law. First, the U.N. Commission on Human Rights can receive complaints from states and nongovernmental [End of Page 2497] organizations. ⁴¹¹ In response to either a complaint or a situation where there is a specific pattern of human rights violations, the Commission may investigate the allegations and recommend action to the Economic and Social Council of the United Nations. ⁴¹² It may also invite states to reply to the allegations and draft new declarations and covenants for the United Nations. ⁴¹³ However, the Commission cannot ensure that its recommendations are implemented by member states or enforced by the United Nations. Therefore, the U.N. Commission on Human Rights is ineffective in dealing with women's issues.

Second, the U.N. Commission on the Status of Women is able to receive complaints from government and nongovernmental agencies. However, this Commission does not have the power to take action on filed complaints--it simply reports on the status of women in various situations. ⁴¹⁴

Third, the International Court of Justice may possibly address women's grievances. The ICJ is the arbiter of disputes between both members and nonmembers of the United Nations. ⁴¹⁵ According to Article 34(1) of the Statute of the ICJ, however, "[o]nly states may be parties in cases before the Court." ⁴¹⁶ "[I]nternational law still maintains the rule that it is the state that has the capacity to present international claims, even though in many cases the claim is substantially that of a private person." ⁴¹⁷ Thus, individual women do not have an international forum in which to bring claims against their own nation for failing to protect them from a human rights violation such as female circumcision. Nonetheless, a nongovernmental agency may sue a state on behalf of a class of women who have been subjected to female circumcision. ⁴¹⁸ However, agencies may take part only in advisory opinions, not contentious proceedings. ⁴¹⁹ Although advisory opinions are not binding upon the state, the opinions may serve to publicize the state's failure to act, thus pressuring the state to take measures to avoid international embarrassment.

[End of Page 2498] As an alternative to a specific international organization acting, the members of the United Nations may pass a resolution in accordance with Article 56 of the U.N. Charter to impose economic sanctions and embargoes against states that do not protect women's right to be free from female circumcision. ⁴²⁰ I believe this is unlikely to occur, however, since most states do not value women's rights as highly as they value the benefits they receive from maintaining relations with the countries where female circumcision is practiced.

Overall, even if a U.N. document or other international law existed that obligated member states to protect women from female circumcision, no effective forum exists in the United Nations system that would allow individual women to bring claims against their government. Therefore, the United Nations is presently unable to guarantee protection for women from female circumcision.

2. The Organization of African Unity

Articles 30 and 31 of the Banjul Charter establish an African Commission on Human and Peoples' Rights, which consists of eleven members from different states. ⁴²¹ Under Article 47, one state may submit a complaint to the Commission alleging that another state is violating certain provisions of the Charter. ⁴²² The Commission, after considering the argument from both sides, will submit an opinion on the matter. ⁴²³ It is unclear whether such an opinion or order would be binding on the states involved. Individuals, however, still do not have standing to bring claims against a state to the Commission. ⁴²⁴ Overall, the Organization of African Unity is not an effective means of imposing a duty upon states to protect women from female circumcision.

B. Analogy to Santa Clara Pueblo v. Martinez ⁴²⁵

In the previous sections, I have developed the current international debate surrounding female circumcision. In this debate, the tribal group's right to practice female circumcision free from state interference [End of Page 2499] is pitted against the woman's right to be protected from female circumcision. If the tribal group's right and the woman's right are equally valid, why is the conflict between them resolved in favor of the tribal group's right? A national conflict between women's rights and tribal group rights was similarly resolved in favor of tribal group rights in the United States case of Santa Clara Pueblo v. Martinez. ⁴²⁶ I will examine Santa Clara Pueblo to help determine the rationale for resolving the debate in this way.

The conflict between a tribal group's right to preserve a tradition central to its identity and the desire of the state to prevent the tradition from violating certain individual rights is one of the main issues in Santa Clara Pueblo. ⁴²⁷ An ordinance of the Pueblo "provided that children of female members who married outside the Pueblo would not be Santa Clarans, while children of male members who married outside the Pueblo would be members." ⁴²⁸ According to Catharine MacKinnon, the General Allotment Act divided up communal lands into individually held parcels. ⁴²⁹ Historically, this led to white men taking away communal lands by marrying native women:

The Santa Clara rule was passed to prevent women who married out from passing land out, in an attempt to secure the survival of a culture for which land is life.... When Native men married white women, the experience apparently had been that white women more often integrated with the tribe. ⁴³⁰

Thus, the rationale behind the rule was to preserve tribal identity.

In Santa Clara Pueblo, Julia Martinez, a member of Santa Clara Pueblo, and her daughter filed a lawsuit against the Pueblo maintaining that their rights were violated under title 1 of the Indian Civil Rights Act. ⁴³¹ Julia Martinez married outside of the tribe, and therefore her daughter was denied membership. ⁴³²

The District Court ruled for the Santa Clara Pueblo. It reasoned "that membership rules were 'no more or less than a mechanism of social ... self- definition,' and as such were basic tothe tribe's survival as a [End of Page 2500] cultural and economic entity." ⁴³³ Thus, the District Court concluded that when there is a conflict between the state's need to preserve individual rights and a tradition central to the identity of a tribe, the Pueblo is in a better position to determine the outcome of this conflict. ⁴³⁴ The Supreme Court affirmed the District Court's decision, saying that it must protect the Santa Clara Pueblo's "ability to maintain itself as a culturally and politically distinct entity." ⁴³⁵

In Santa Clara Pueblo and in the case of female circumcision, two abstract rights as defined by Western law come into conflict--the woman's individual right to equality and the tribal group's right to sovereignty in maintaining traditions central to tribal identity. In both cases, the tribal group's right takes priority over the woman's right. What overarching theory justifies the priority of the tribal group's right over the woman's right? No single theory is readily apparent.

In both cases two abstract rights are defined in opposition to one another. According to Joan Scott, the male-biased Western tradition "rests on binary oppositions: unity/diversity, identity/difference, presence/absence, and universality/specificity. The leading terms are accorded primacy; their partners are represented as weaker or derivative." ⁴³⁶ "[T]he interdependence [of the oppositional terms] is hierarchical with one term dominant or prior, the opposite term subordinate and secondary." ⁴³⁷ As in these examples, the conflicting rights in the case of Santa Clara Pueblo and in the case of female circumcision are defined in opposition to each other: tribal group unity/women's equality and freedom from subordination, community/individuality. The leading term is accorded primacy and the second term is weaker. When two abstract rights that are defined in opposition to each other conflict, the leading term, which aids male supremacy, is given priority over the secondary right. Western, white-male-dominated institutions of the United States and international governments favor the leading terms precisely because they aid Western male supremacy. The choice is characterized as objective and neutral--and is therefore almost invisible.

However, "the first terms depend on and derive their meaning from the second to such an extent that the secondary terms can be seen as [End of Page 2501] generative of the definition of the first terms." ⁴³⁸ MacKinnon makes this point when explaining Santa Clara Pueblo. She points out that survival of the tribal group rests on the equality of the men and women of the tribe. ⁴³⁹ Without equality the women are subordinate and unhappy, causing rifts within the tribal group between women and men, thus undermining the unity of the tribal group. ⁴⁴⁰ Likewise, the survival of the Kikuyu and Darod tribal identities depends not only on maintenance of important traditions, but also on the unity and equality of the tribal members. Women having the power to refuse female circumcision, the power to control their own sexuality, and the power to control their own lives will benefit, not destroy, the tribe. Tribal unity can exist without hierarchy.

Thus, because the current debate terms are defined in opposition to each other, the international organs and state governments do not hear women's voices--to these institutions, women's oppressive experience of female circumcision is invisible. These institutions formulate liberal abstract rights. When two rights defined in opposition to one another conflict, the right that aids the male-dominant institution wins out--precisely because the rights are defined so that only one of the two rights can win. In this way, the male-dominant institutions maintain power over marginalized groups. How can this blindness be remedied?

First, theorists must work to create a theory of justice that recognizes power relations involved in conflicts between different abstract rights. This theory should allow the oppressed groups, such as Darod and Kikuyu women, to speak of their oppressions and provide a solution for ending their oppression. Second, women and members of marginalized groups must gain power in these international organs and state governments. In this way, the problems of the marginalized groups will be addressed, and perhaps the structure of these institutions will be questioned and changed to better address their needs. Finally, the debate surrounding female circumcision must be restructured and the terms must be renamed so that women's rights are not defined in opposition to tribal group rights. A new debate must recognize that the health of women and the tribal group are interrelated and depend heavily on one another. In the absence of a theory that recognizes the male-dominated power structure presently used to define abstract rights, and in the absence of a theory that recognizes women's unique experiences and [End of Page 2502] oppressions, the leading right to tribal identity that aids male supremacy will always be given priority, and the victims of the protected oppressive practice will be silenced and invisible.

VI. CONCLUSION

I have pointed out the falsity inherent in defining a tribal group's identity and a woman's right to refuse female circumcision as being in opposition to each other. Tribal group identity may actually be strengthened if women have the power to refuse female circumcision. I have also tried to point out that when a decision is made between conflicting abstract rights at the international and the state levels, the choice of whom to protect actually benefits male-dominated institutions.

As a Western feminist, I can simply point out that women may actually experience female circumcision as an oppressive practice--a viewpoint which is often invisible in the current legal debate surrounding female circumcision. The purpose of this Note is to reshape the debate so that the international community can resolve the female circumcision issue in a way that reflects the true experiences, oppressions, and needs of women and girls subject to circumcision. The legal community must first start with the experiences of marginalized groups, here women and girls, in naming the terms of the debate. Only then will the constructed debate adequately address their oppressive experiences. Perhaps if these women and girls have the power to name their true oppressions and experiences in the international community, they may be able to work together to reevaluate the traditions that silence them. Then they may choose which traditions truly are necessary for tribal unity from their point of view and reject those traditions that continue to oppress them. I will end with the following poem, entitled The Future and the Ancestor, written by a Middle-Eastern Muslim woman, Andree Chedid:

The dead's right grain

is woven in our flesh

within the channels of our blood

Sometimes we bend

beneath the fullness of ancestors

But the present that shatters walls,

banishes boundaries

and invents the road to come,

rings on.

[End of Page 2503] Right in the center of our lives

liberty shines,

begets our race

and sows the salt of words.

let the memory of blood

be vigilant but never void the day.

Let us precede ourselves

across new thresholds. ⁴⁴¹

^a1. Class of 1992, University of Southern California Law Center; B.S.1989, Colorado State University. I would like to thank Prof. Ronald Garet for his enthusiasm, encouragement, and insights. I would also like to thank Joel Smith and Vera Cerny; without their support this Note would not have been possible.

¹. See Jane Flax, Postmodernism and Gender Relations in Feminist Theory, in FEMINISM/POSTMODERNISM 39, 41-43 (Linda J. Nicholson ed., 1990).

². Id.

³. Id. at 49.

⁴. See Alison T. Slack, Female Circumcision: A Critical Appraisal, 10 HUM.RTS.Q. 437 (1988).

⁵. In 1980 the number of living circumcised women was approximately 74 million. FEMALE CIRCUMCISION, EXCISION AND INFIBULATION 6 (Scilla McLean ed., 1980) [hereinafter FEMALE CIRCUMCISION].

⁶. See id. at 6. "The countries concerned number more than twenty in Africa, from the Atlantic to the Red Sea, the Indian Ocean and the Eastern Mediterranean.... On the map of Africa, an uninterrupted belt is formed across the centre of the continent, which then expands up the length the Nile." Such countries include Ethiopia, Sudan, Somalia, Kenya, Egypt, Nigeria, Burkina Faso, the Ivory Coast, Mali, Sierra Leone, Senegal, Ghana, Gambia and Djibouti. Id.

⁷. I use the term "female circumcision" throughout this Note. Many authorities, however, consider this an incorrect term because it insinuates that the operations it describes are equivalent to male circumcision. Male circumcision simply involves the removal of a small piece of skin from the penis, whereas the more extensive forms of female circumcision involve the removal of the external reproductive organs. See FRAN P. HOSKEN, Male Circumcision, in THE HOSKEN REPORT: GENITAL AND SEXUAL MUTILATION OF FEMALES 1 (1979). The term "genital mutilation" is also used to refer to the different forms of female circumcision. However, many authorities object to this term because it insinuates that the practice has no positive aspects, when in actuality it may positively contribute to a tribal group's identity. See infra part II.A.1. Therefore, I have chosen to use the only other available term, "female circumcision," to refer to the various operations.

⁸. The form of the operation varies from tribal group to tribal group. FEMALE CIRCUMCISION, supra note 5, at 6.

⁹. RAQIYA HAJI DUALEH ABDALLA, SISTERS IN AFFLICTION 8 (1982).

¹⁰. Id.; FEMALE CIRCUMCISION, supra note 5, at 3; Kay Boulware-Miller, Female Circumcision: Challenges to the Practice as a Human Rights Violation, 8 HARV. WOMEN'S L.J. 155, 156 (1985).

¹¹. FEMALE CIRCUMCISION, supra note 5, at 3.

¹². Id.

¹³. Id.

¹⁴. Id.

¹⁵. Id.

¹⁶. Id.

¹⁷. Id. For a more in-depth discussion of the various practices, see HOSKEN, supra note 7; LILIAN PASSMORE SANDERSON, AGAINST THE MUTILATION OF WOMEN (1981).

¹⁸. Virginia Lee Barnes-Dean, Clitoridectomy and Infibulation, 9 CULTURAL SURVIVAL Q. 26, 27 (1985).

¹⁹. Id.; Slack, supra note 4, at 451-54.

²⁰. See, e.g., Barnes-Dean, supra note 18, at 27; Slack, supra note 4, at 452-54.

²¹. See, e.g., Barnes-Dean, supra note 18, at 27.

²². See, e.g., Slack, supra note 4, at 454.

²³. Id. at 454-55. For a fictional account of how traumatic and psychologically debilitating female circumcision is for women, see ALICE WALKER, POSSESSING THE SECRET OF JOY (1992).

²⁴. See generally ROBERT W. JULY, A HISTORY OF THE AFRICAN PEOPLE (2d ed. 1974) (discussing the colonialization and independence of African nations).

²⁵. Id.

²⁶. Id.

²⁷. "During five centuries of contact between Africa and the Western world, social changes have been introduced that increasingly undermine any social-structural or cultural uniqueness Africa might once have possessed." RHODA E. HOWARD, HUMAN RIGHTS IN COMMONWEALTH AFRICA 16 (1986).

²⁸. Id. at 54-55.

²⁹. See infra part II.B.2.b.

³⁰. "[Female circumcision] is ... regarded as the very essence of an institution by [the Kikuyu tribe], which has enormous educational, social, moral, and religious implications...." JOMO KENYATTA, FACING MOUNT KENYA 133 (1938).

³¹. VICTOR TURNER, THE FOREST OF SYMBOLS 19 (1967).

³². VICTOR TURNER, THE RITUAL PROCESS 94 (1969) (citing ARNOLD VAN GENNEP, LES RITES DE PASSAGE 10-11 (1960)).

³³. VAN GENNEP, supra note 32, at 1.

³⁴. Id. at 3.

³⁵. Id. at 11.

³⁶. Id.

³⁷.TURNER, supra note 32, at 94.

³⁸. Id.

³⁹. Id. at 95.

⁴⁰. Id.

⁴¹. Id.

⁴². Id.

⁴³. Id.

⁴⁴. TURNER, supra note 31, at 19.

⁴⁵. Clifford Geertz, Religion as a Cultural System, in READER IN COMPARATIVE RELIGION 78, 80 (William A. Lessa & Evon Z. Vogt eds., 4th ed. 1979).

⁴⁶. TURNER, supra note 31, at 19 (citing The Concise Oxford Dictionary).

⁴⁷. Id. at 28.

⁴⁸. Id. (emphasis omitted).

⁴⁹. Id. (emphasis omitted).

⁵⁰. Id. (emphasis omitted).

⁵¹. Id.

⁵². Id. at 29.

⁵³. Id. at 30.

⁵⁴. Id.

⁵⁵. Geertz, supra note 45, at 81.

⁵⁶. Id. at 82.

⁵⁷. Id. at 83.

⁵⁸. Id. at 85.

⁵⁹. Id. at 84.

⁶⁰. Id. at 86.

⁶¹. Id. at 86-87.

⁶². Id. at 87.

⁶³. Id. at 88.

⁶⁴. Neither Turner nor Geertz specifically addresses the ritual surrounding female circumcision.

⁶⁵. See VAN GENNEP, supra note 32, at 3.

⁶⁶. TURNER, supra note 32, at 103.

⁶⁷. Id.

⁶⁸. Id. at 126.

⁶⁹. Id. at 129.

⁷⁰. Id. at 96.

⁷¹. Id. at 97.

⁷². Id.

⁷³. Id. at 129.

⁷⁴. TURNER, supra note 31, at 39.

⁷⁵. Id. at 40.

⁷⁶. Id.

⁷⁷. Id.

⁷⁸. Id.

⁷⁹. Interview with Ronald Garet, Professor of Law and Religion, University of Southern California Law Center (March 1991).

⁸⁰. TURNER, supra note 31, at 20.

⁸¹. HOSKEN, Kenya, in THE HOSKEN REPORT, supra note 7, at 17 (quoting Jocelyn Margaret Murray, The Kikuyu Female Circumcision Controversy (1974) (unpublished Ph.D. dissertation, University of California (Los Angeles)).

⁸². KENYATTA, supra note 30, at 1.

⁸³. Id.

⁸⁴. Id.

⁸⁵. Id. at 2.

⁸⁶. JOHN MIDDLETON & GREET KERSHAW, THE KIKUYU AND KAMBA OF KENYA 35 (1972).

⁸⁷. Id.

⁸⁸. Id.

⁸⁹. Id.

⁹⁰. Id. at 32.

⁹¹. Id. at 33.

⁹². Id.

⁹³. KENYATTA, supra note 30, at 1.

⁹⁴. MIDDLETON & KERSHAW, supra note 86, at 37.

⁹⁵. Id.

⁹⁶. Id. at 61.

⁹⁷. Id.

⁹⁸. Id. at 61-62.

⁹⁹. Id. at 62.

¹⁰⁰. Id.

¹⁰¹. GEORGE MURUIKI, A HISTORY OF THE KIKUYU: 1500-1900, at 134 (1974).

¹⁰². Id.

¹⁰³. MIDDLETON & KERSHAW, supra note 86, at 56.

¹⁰⁴. LOIS LEAKEY, MAU MAU AND THE KIKUYU 22 (1952).

¹⁰⁵. MIDDLETON & KERSHAW, supra note 86, at 35, 56.

¹⁰⁶. Id.

¹⁰⁷. Id.

¹⁰⁸. LEAKEY, supra note 104, at 21-22.

¹⁰⁹. KENYATTA, supra note 30, at 107.

¹¹⁰. Id. at 106.

¹¹¹. H.E. LAMBERT, KIKUYU SOCIAL AND POLITICAL INSTITUTIONS 66 (1956).

¹¹². MURUIKI, supra note 101, at 118.

¹¹³. MIDDLETON & KERSHAW, supra note 87, at 57.

¹¹⁴. Id.

¹¹⁵. Id.

¹¹⁶. Id.

¹¹⁷. Id.

¹¹⁸. KENYATTA, supra note 30, at 137.

¹¹⁹. Id.

¹²⁰. Id.

¹²¹. Id.

¹²². Id.

¹²³. Id. at 138.

¹²⁴. Id.

¹²⁵. The matuumo may occur either inside or outside the homestead. Id.

¹²⁶. Ralph Bunche, The Irua Ceremony Among the Kikuyu of Kiambu District, Kenya, 26 J. Negro Hist. 46, 55 (1941).

¹²⁷. KENYATTA, supra note 30, at 140.

¹²⁸. Bunche, supra note 126, at 56 (footnote omitted).

¹²⁹. KENYATTA, supra note 30, at 141.

¹³⁰. Id. at 141.

¹³¹. Id.

¹³². Id.

¹³³. Id. at 142.

¹³⁴. Id.

¹³⁵. Id.

¹³⁶. Id.; MIDDLETON & KERSHAW, supra note 86, at 58.

¹³⁷. KENYATTA, supra note 30, at 142; MIDDLETON & KERSHAW, supra note 86, at 58.

¹³⁸. KENYATTA, supra note 30, at 143.

¹³⁹. Id.

¹⁴⁰. Id.

¹⁴¹. Id.

¹⁴². Id.

¹⁴³. Id. at 144.

¹⁴⁴. Id.

¹⁴⁵. Id. at 145.

¹⁴⁶. Id. at 144.

¹⁴⁷. Id. at 145.

¹⁴⁸. Id.

¹⁴⁹. Id.

¹⁵⁰. Bunche, supra note 126, at 61.

¹⁵¹. KENYATTA, supra note 30, at 146.

¹⁵². Id.

¹⁵³. Id. at 147.

¹⁵⁴. Id.

¹⁵⁵. Id. at 148.

¹⁵⁶. Id.

¹⁵⁷. Id.

¹⁵⁸. Id.

¹⁵⁹. Id.

¹⁶⁰. Id.

¹⁶¹. Id.

¹⁶². Id. at 149.

¹⁶³. Id.

¹⁶⁴. Id.

¹⁶⁵. Id.

¹⁶⁶. Id. at 149-50.

¹⁶⁷. Id. at 150.

¹⁶⁸. Id.

¹⁶⁹. Id.

¹⁷⁰. Id.

¹⁷¹. Id.

¹⁷². Id. at 151.

¹⁷³. Id.

¹⁷⁴. Id.

¹⁷⁵. LEAKEY, supra note 104, at 24.

¹⁷⁶. Id.

¹⁷⁷. KENYATTA, supra note 30, at 152.

¹⁷⁸. Id.

¹⁷⁹. Id.

¹⁸⁰. See supra notes 112-79 and accompanying text.

¹⁸¹. See supra notes 104-13, 175-79 and accompanying text.

¹⁸². Geertz, supra note 45, at 82.

¹⁸³. MURUIKI, supra note 101, at 133.

¹⁸⁴. Id. at 134.

¹⁸⁵. KENYATTA, supra note 30, at 134.

¹⁸⁶. See supra notes 119-22 and accompanying text.

¹⁸⁷. See supra notes 131-32 and accompanying text.

¹⁸⁸. See supra note 137 and accompanying text.

¹⁸⁹. See supra note 141 and accompanying text.

¹⁹⁰. See supra note 172 and accompanying text.

¹⁹¹. KENYATTA, supra note 30, at 106.

¹⁹². Id. at 141.

¹⁹³. Id. at 155.

¹⁹⁴. LEAKEY, supra note 104, at 24.

¹⁹⁵. MIDDLETON & KERSHAW, supra note 86, at 37.

¹⁹⁶. Carolyn M. Clark, Kinship Morality in the Interaction Pattern of Some Kikuyu Families 99 (1975) (unpublished Ph.D. dissertation, Michigan State University).

¹⁹⁷. MURUIKI, supra note 101, at 133-34.

¹⁹⁸. S.N. Eisenstadt, African Age Groups, 24 AFRICA 100, 107 (1954).

¹⁹⁹. See supra notes 140-41 and accompanying text.

²⁰⁰. See supra notes 131-32 and accompanying text.

²⁰¹. KENYATTA, supra note 30, at 2.

²⁰². See supra note 160 and accompanying text.

²⁰³. TURNER, supra note 32, at 97.

²⁰⁴. MURUIKI, supra note 101, at 118.

²⁰⁵. Id.

²⁰⁶. KENYATTA, supra note 30, at 143.

²⁰⁷. Pia G. Gallo & Marian Abdisamed, Female Circumcision in Somalia: Anthropological Traits, 21 ANTHROPOLOGISCHER ANZEIGER 311, 325 (1985).

²⁰⁸. ABDALLA, supra note 9, at 12.

²⁰⁹. Id. at 18.

²¹⁰. Id.

²¹¹. Id.

²¹². Id. at 42.

²¹³. Id. at 30-32.

²¹⁴. Id. at 43.

²¹⁵. Id. at 42.

²¹⁶. Id. at 43.

²¹⁷. Id. at 44.

²¹⁸. Id. at 35.

²¹⁹. Id.

²²⁰. Id. at 30.

²²¹. Id. at 35-36.

²²². Id.

²²³. See supra note 14 and accompanying text.

²²⁴. See supra note 20 and accompanying text.

²²⁵. ABDALLA, supra note 9, at 35-37.

²²⁶. Id. at 82.

²²⁷. Slack, supra note 4, at 444.

²²⁸. ABDALLA, supra note 9, at 31.

²²⁹. Id. at 82.

²³⁰. Slack, supra note 4, at 457.

²³¹. Id. at 455.

²³². Id. at 455-56.

²³³. Id. at 456.

²³⁴. See infra notes 334-40 and accompanying text.

²³⁵. See infra part III.

²³⁶. Flax, supra note 1, at 41.

²³⁷. Id.

²³⁸. Id.

²³⁹. Id.

²⁴⁰. Id.

²⁴¹. Id. at 41-42.

²⁴². Id. at 42.

²⁴³. Id. at 43.

²⁴⁴. Id. at 49.

²⁴⁵. Id. Flax states:

Perhaps reality can have 'a' structure only from the falsely universalizing perspective of the dominant group. That is, only to the extent that one person or group can dominate the whole will reality appear to be governed by one set of rules or be constituted by one privileged set of social relations.

Id.

²⁴⁶. Sandra Harding, Conclusion: Epistemological Questions, in FEMINISM AND METHODOLOGY 181, 185 (Sandra Harding ed., 1987) (emphasis added).

²⁴⁷. Sandra Harding, Introduction: Is There a Feminist Method?, in FEMINISM AND METHODOLOGY, supra note 246, at 1, 3.

²⁴⁸. Id. at 3-4.

²⁴⁹. Id. at 3.

²⁵⁰. Id.

²⁵¹. Id.

²⁵². Id. at 4.

²⁵³. Id. at 7.

²⁵⁴. Id. at 9.

²⁵⁵. Id.

²⁵⁶. Id. at 11.

²⁵⁷. HENRIETTA L. MOORE, FEMINISM AND ANTHROPOLOGY 1 (1988).

²⁵⁸. Id.

²⁵⁹. Id. at 2.

²⁶⁰. Id.

²⁶¹. Id.

²⁶². Id.

²⁶³. Id.

²⁶⁴. Id.

²⁶⁵. Id.

²⁶⁶. Id.

²⁶⁷. Id.

²⁶⁸. See supra notes 258-59 and accompanying text.

²⁶⁹. See supra notes 257, 260 and accompanying text.

²⁷⁰. See supra note 196.

²⁷¹. See supra notes 104, 108, 175-76, 194.

²⁷². See supra notes 30, 82-85, 93, 109-10, 118-25, 127, 129-49, 151-74, 177-79, 185, 191-93, 201, 206.

²⁷³. See supra notes 86-92, 94-100, 103, 105-07, 113-17, 136-37, 195.

²⁷⁴. See supra notes 101-02, 112, 183-84, 197.

²⁷⁵. See supra note 111.

²⁷⁶. See supra notes 126, 128, 150.

²⁷⁷. See supra note 198.

²⁷⁸. MOORE, supra note 257, at 2.

²⁷⁹. See KENYATTA, supra note 30, at 130-54; LAMBERT, supra note 111, at 67; MIDDLETON & KERSHAW, supra note 86, at 56-59; MURUIKI, supra note 101, at 117-36; Bunche, supra note 126; Eisenstadt, supra note 198.

²⁸⁰. KENYATTA, supra note 30, at vii, xvi.

²⁸¹. See Clark, supra note 196, at 99; LEAKEY, supra note 104; sources cited in note 279, supra.

²⁸². See KENYATTA, supra note 30, at xv-xxi.

²⁸³. Gallo & Abdisamed, supra note 207.

²⁸⁴. ABDALLA, supra note 9.

²⁸⁵. Gallo & Abdisamed, supra note 207, at 311.

²⁸⁶. ABDALLA, supra note 9, at i.

²⁸⁷. ABDALLA, supra note 9, at 105. Gallo & Abisamed, supra note 207, at 311. For example, one women stated that

I could not stand the severe pain of circumcision. I screamed when the woman performed the operation and cut my clitoris and ran away bleeding before she could sew me with the thorns. My mother and the midwife caught me and all the women around held me tight and pressed me down until the woman operator finished sewing me up.

ABDALLA, supra note 9, at 105-06. When asked if circumcision should be abolished, this woman stated that

if religious and government leaders thought that girls should not be circumcised, she would be the first one to support them because of her own experiences of its serious, harmful effects. "Women ... suffer a lot from this operation, from childhood until their old age. Girls can hardly urinate when they are virgins because they are tightly sewn up. They have the same problem with their monthly periods."

Id. at 107 (quoting a Somalian woman who had been circumcised as a child and whose experiences had been recorded and included as a case study in Sisters in Affliction).

²⁸⁸. MOORE, supra note 257, at 4.

²⁸⁹."It is not that women are silent; it is just that they cannot be heard." Id.

²⁹⁰. See supra notes 236-56 and accompanying text.

²⁹¹. Thanks to Ronald Garet, Professor of Law and Religion, University of Southern California Law Center, who articulated this idea and metaphor to me on Apr. 26, 1991.

²⁹². Id.

²⁹³. See supra notes 31-36 and accompanying text.

²⁹⁴. See supra notes 62-63 and accompanying text.

²⁹⁵. MOORE, supra note 257, at 6.

²⁹⁶. Id. at 7.

²⁹⁷. Id. at 9.

²⁹⁸. ABDALLA, supra note 9, at 5.

²⁹⁹. Id. at 39.

³⁰⁰. Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, in THE POWERS OF DESIRE 177 (Ann Snitow et al. eds., 1983).

³⁰¹. Id. at 182-83. Other male powers include the powers "to command or exploit [women's] labor to control their produce," "to control or rob them of their children," "to confine them physically and prevent their movement," "to use them as objects in male transactions," "to cramp their creativeness," and "to withhold from them large areas of the society's knowledge and cultural attainments." Id. at 184.

³⁰². Id. at 185.

³⁰³. NAWAL EL SAADAWI, THE HIDDEN FACE OF EVE: WOMEN IN THE ARAB WORLD 41 (Sherif Hetata trans., 1980).

³⁰⁴. Rich, supra note 300, at 182.

³⁰⁵. ABDALLA, supra note 9, at 35.

³⁰⁶. Rich, supra note 300, at 187.

³⁰⁷. Id. at 185.

³⁰⁸. Id. at 191.

³⁰⁹. Heidi Hartmann, The Unhappy Marriage of Marxism and Feminism: Towards a More Progressive Union, in WOMEN AND REVOLUTION 1 (Lydia Sargent ed., 1981).

³¹⁰. Id. at 3-13.

³¹¹. Barnes-Dean, supra note 18, at 28.

³¹². EL SAADAWI, supra note 303, at 40-41.

³¹³. Hartmann, supra note 309, at 15.

³¹⁴. Id.

³¹⁵. Id. at 15, 18.

³¹⁶. Id. at 16.

³¹⁷. Id. at 21.

³¹⁸. Id.

³¹⁹. Id. at 14-15.

³²⁰. "The [Kikuyu] customary law of marriage provides that a man may have as many wives as he can support, and that the larger one's family, the better it is for him and the tribe." KENYATTA, supra note 30, at 174.

³²¹. Id. at 160.

³²². Id. at 162.

³²³. Id.

³²⁴. Id. at 9.

³²⁵. Id. at 163.

³²⁶. Id. at 111.

³²⁷. MURUIKI, supra note 101, at 134-35.

³²⁸. KENYATTA, supra note 30, at 132.

³²⁹. See supra notes 218-24 and accompanying text.

³³⁰. ABDALLA, supra note 9, at 45.

³³¹. Id. at 43.

³³². Id. at 37 (quoting Sura 4:34).

³³³. Id. at 31.

³³⁴. Id. at 43.

³³⁵. Id. at 45.

³³⁶. Id. at 20.

³³⁷. ASMA EL DAREER, WOMAN, WHY DO YOU WEEP? 69 (1982).

³³⁸. ABDALLA, supra note 9, at 20.

³³⁹. Id. at 43.

³⁴⁰. Id.

³⁴¹. Slack, supra note 4, at 471.

³⁴². See supra notes 226-29 and accompanying text.

³⁴³. Slack, supra note 4, at 471.

³⁴⁴. Id.

³⁴⁵. The Amharas of Ethiopia circumcise children between eight and 40 days after birth. ABDALLA, supra note 9, at 14.

³⁴⁶. EL DAREER, supra note 337, at 69.

³⁴⁷. See supra notes 336, 340 and accompanying text.

³⁴⁸. TURNER, supra note 31, at 43.

³⁴⁹. Slack, supra note 4, at 472.

³⁵⁰. Jane Flax argues,

[I]n insisting upon the existence and power of such relations of domination, we should avoid seeing women/ourselves as totally ... passive beings. Such a viewpoint prevents us from seeing the areas of life in which women have had an effect, in which we are less determined by the will of the other(s), and in which some of us have and do exert power....

Flax, supra note 1, at 56.

³⁵¹. Nancy Fraser & Linda J. Nicholson, Social Criticism Without Philosophy: An Encounter Between Feminism and Postmodernism, in FEMINISM/POSTMODERNISM, supra note 1, at 19, 27.

³⁵². MOORE, supra note 257, at 7.

³⁵³. Nancy Hartsock, Foucault on Power: A Theory for Women?, in FEMINISM/POSTMODERNISM, supra note 1, at 157, 159.

³⁵⁴. Id. at 171.

³⁵⁵. Id.

³⁵⁶. Id. at 172.

³⁵⁷. JACK DONNELLY, THE CONCEPT OF HUMAN RIGHTS 22 (1985).

³⁵⁸. U.N. CHARTER art. 55, _ c.

³⁵⁹. U.N. CHARTER pmbl.

³⁶⁰. African [Banjul] Charter on Human and People's Rights, OAU Doc. CAB/LEG/67/3 rev. 5, reprinted in 21 INT'L LEGAL MATERIALS 58 (1982) [hereinafter Banjul Charter].

³⁶¹. See infra notes 378-79, 391, and 395-96 and accompanying text.

³⁶². Id.

³⁶³. See supra notes 18-23 and accompanying text. In addition, infibulation may contribute to Africa's quickly multiplying AIDS epidemic. Because intercourse after infibulation often causes open wounds and bleeding, it seems likely that the woman is more likely to catch or spread the virus. See Scott Kraft, Africa's Death Sentence, L.A. TIMES MAG., Mar. 1, 1992, at 12.

³⁶⁴. Slack, supra note 4, at 451.

³⁶⁵. Edna Adan Ismail, Female Circumcision, in PROCEEDINGS OF THE SECOND INTERNATIONAL CONGRESS OF SOMALI STUDIES 219-20 (Thomas Labahn ed., 1983).

³⁶⁶. Slack, supra note 4, at 451 (quoting Blaine Harden, Female Circumcision: A Norm in Africa, INT'L HERALD TRIB., July 29, 1985).

³⁶⁷. Universal Declaration of Human Rights, G.A.Res. 217A (III), U.N. GAOR, 3d Sess., at 76, U.N.Doc. A/811 (1948) [hereinafter UDHR].

³⁶⁸. See supra notes 18-23 and accompanying text.

³⁶⁹. Declaration of the Rights of the Child, G.A.Res. 1386, U.N. GAOR, 14th Sess., Supp. No. 16, at 19, U.N.Doc. A/4354 (1959) [hereinafter Declaration of the Rights of the Child].

³⁷⁰. Banjul Charter, supra note 370, art. 16(1), at 61.

³⁷¹. Id., art. 18(3), at 62.

³⁷². See supra notes 15-16 and accompanying text.

³⁷³. See supra notes 18-23 and accompanying text.

³⁷⁴. Slack, supra note 4, at 451.

³⁷⁵. HOSKEN, Kenya, in THE HOSKEN REPORT, supra note 7, at 1 (quoting JACQUES LANTIER, LA CITE MAGIQUE ET MAGIE EN AFRIQUE NOIRE 277-79 (1972)).

³⁷⁶. Slack, supra note 4, at 451.

³⁷⁷. UDHR, supra note 367, art. 5, at 73.

³⁷⁸. Id., art. 22, at 75.

³⁷⁹. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A.Res. 3452, U.N. GAOR, 30th Sess., Supp. No. 34, at 91, U.N.Doc. A/10034 (1975) [hereinafter Declaration on the Protection of All Persons from Being Subjected to Torture].

³⁸⁰. Id., art. 1(2), at 91.

³⁸¹. Declaration of the Rights of the Child, supra note 369, princ. 9, at 20.

³⁸². Banjul Charter, supra note 370, art. 5, at 60. Perhaps this language reveals an insensitivity to women and girls.

³⁸³. See supra notes 221-22, 328 and accompanying text.

³⁸⁴. See supra notes 327-28, 336-37 and accompanying text.

³⁸⁵. UDHR, supra note 367, art. 3, at 72.

³⁸⁶. Convention on the Elimination of All Forms of Discrimination Against Women, G.A.Res. 180, U.N. GAOR, 34th Sess., Supp. No. 46, art. 1, at 194, U.N.Doc. A/34/180 (1980) [hereinafter CEDAW].

³⁸⁷. Banjul Charter, supra note 370, art. 4, at 60.

³⁸⁸. Id., art. 6, at 60.

³⁸⁹. Slack, supra note 4, at 453.

³⁹⁰. See supra note 21 and accompanying text.

³⁹¹. CEDAW, supra note 386, art. 1, at 194.

³⁹². U.N. CHARTER art. 1, _ 2.

³⁹³. International Covenant on Economic, Social and Cultural Rights, G.A.Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, art. 1(1), at 49, U.N.Doc. A/6316 (1967).

³⁹⁴. Banjul Charter, supra note 370, art. 17(3), at 61.

³⁹⁵. Id., art. 20, at 62.

³⁹⁶. Id., art. 18(1), at 61.

³⁹⁷. Id., art. 18(2), at 61.

³⁹⁸. ESCHEL M. RHOODIE, DISCRIMINATION AGAINST WOMEN: A GLOBAL SURVEY OF THE ECONOMIC, EDUCATIONAL, SOCIAL AND POLITICAL STATUS OF WOMEN 63 (1989).

³⁹⁹. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 554 (3d ed. 1979).

⁴⁰⁰. Id. at 571.

⁴⁰¹. In article 3, the CEDAW requires all parties to take "all appropriate measures, including legislation." CEDAW, supra note 386, art. 3, at 195.

⁴⁰². CEDAW, reprinted in BASIC DOCUMENTS SUPPLEMENT TO INTERNATIONAL LAW: CASES AND MATERIALS 425 (Louis Henkin et al. eds., 1987) [hereinafter BASIC DOCUMENTS].

⁴⁰³. Id.

⁴⁰⁴. BROWNLIE, supra note 399, at 570.

⁴⁰⁵. BASIC DOCUMENTS, supra note 402, at 99.

⁴⁰⁶. BROWNLIE, supra note 399, at 572.

⁴⁰⁷. BASIC DOCUMENTS, supra note 402, at 402-03.

⁴⁰⁸. "The Member State[ ] ... parties to the ... Charter shall ... undertake to adopt legislative or other measures to give effect to [the rights enunciated in the Charter]." Banjul Charter, supra note 370, art. 1, at 60.

⁴⁰⁹. BASIC DOCUMENTS, supra note 402, at 509; Banjul Charter, supra note 370, art. 63, at 68.

⁴¹⁰. See supra part IV.

⁴¹¹. Laura Reanda, Human Rights and Women's Rights: The United Nations Approach, 3 HUM.RTS.Q. 11, 28-29 (1981).

⁴¹². Id. at 23-24.

⁴¹³. BROWNLIE, supra note 399, at 571-72.

⁴¹⁴. Id.

⁴¹⁵. Id. at 716-28.

⁴¹⁶. U.N. CHARTER art. 34(1).

⁴¹⁷. BROWNLIE, supra note 399, at 590.

⁴¹⁸. Id. at 728.

⁴¹⁹. Id.

⁴²⁰. "All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." U.N. CHARTER art. 56. Article 55 provides for the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to ... sex." U.N. CHARTER art. 55.

⁴²¹. Banjul Charter, supra note 370, arts. 30 & 31, at 63-64.

⁴²². Id., art. 47, at 65-66.

⁴²³. Id., art. 52, at 66.

⁴²⁴. Id., arts. 47-57, at 65-67.

⁴²⁵. 436 U.S. 49 (1978).

⁴²⁶. Id.

⁴²⁷. Id.

⁴²⁸. Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U.CHI.L.REV. 671, 672 (1989).

⁴²⁹. CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 66 (1987).

⁴³⁰. Id. at 67.

⁴³¹.25 U.S.C. __ 1301-1303 (1988). "No Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction equal protection of its laws...." Id. _ 1302(8).

⁴³². Santa Clara Pueblo v. Martinez, 436 U.S. 49, 52-53 (1978).

⁴³³. Id. at 54.

⁴³⁴. Id.

⁴³⁵. Id. at 72.

⁴³⁶. Joan W. Scott, Deconstructing Equality-Versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism, in CONFLICTS IN FEMINISM 134, 137 (Marianne Hirsch & Evelyn Fox Keller eds., 1990).

⁴³⁷. Id.

⁴³⁸. Id.

⁴³⁹. MACKINNON, supra note 429, at 68.

⁴⁴⁰. Id.

⁴⁴¹. Andree Chedid, The Future and the Ancestor, in WOMEN OF THE FERTILE CRESCENT: AN ANTHOLOGY OF MODERN POETRY BY ARAB WOMEN 12 (Kamal Bouillata ed. & trans., 1978).

************************************************

End of Document

[WHRR Home][Bora Laskin Law Library][Faculty of Law] [Uof T Library] [Search] -->