COUNTERING HARMFUL CULTURAL PRACTICES THROUGH CRIMINAL LAW? A CRITICAL STUDY BASED ON FIELDWORK IN AFRICAN COMMUNITIES

Abstract

There is a general agreement among states that harmful cultural practices (HCPs)) contravene individual rights and freedoms and that, they should be eliminated. Most countries are using criminal sanctions to address this problem. This notwithstanding, evidence suggests that the law has had limited success and minimal impact in countering these practices. Consequently, most scholars on the legal regulation of HCPs tend to denounce the criminal law’s role in this regard. This study was of the view that the over denunciation of criminalisation in the literature has overshadowed attempts to examine in more depth how criminal law can be more effectively used as strategy against HCPs.

The study distinguishes itself by using empirical methods to investigate the practical functionality of criminal law in countering HCPs in African communities, with the intention of examining in-depth whether and how the criminal law can be successfully used to address HCPs. Ultimately, the study provides empirical confirmation of the limited but useful role of the criminal law in countering HCPs as well as the central obstacles that undermine the enforcement of HCP offences. The study further examines three empirically informed ways in which the criminal response to HCPs can be strengthened including: the limited potential of holding traditional leaders criminally accountable, the value of criminalising malum in se HCPs only and treating all others without criminal censure and finally, suggestions on the treatment of adult women who subject themselves to HCPs.