What you need to know:
- Women lobby groups, female genital mutilation (FGM) survivors, anti-FGM crusaders and rights organisations have welcomed a High Court ruling upholding the criminality of FGM.
- Petition was filed by a Kenyan doctor, Dr Tatu Kamau, who sought to decriminalise FGM for women aged over 18 years.
- Anti-FGM Board CEO Bernadette Loloju, termed the ruling as a major win for girls and women in the country
Women lobby groups, female genital mutilation (FGM) survivors, anti-FGM crusaders and rights organisations have welcomed a High Court ruling upholding the criminality of FGM.
The three-judge bench consisting of Justices Lydiah Achode, Margaret Muigai and Kanyi Kimondo noted that FGM has adverse long-term health effects. They noted that those who engage in the retrogressive practice slip through the hand of law enforcement agencies by leaning on Type Four FGM.
According to the UN, Type four FGM includes pricking, piercing, incising, scraping and cauterising a woman or a girl’s genitalia.
The petition was filed by a Kenyan doctor, Dr Tatu Kamau, who sought to decriminalise FGM for women aged over 18 years. She said women have a right to choose what they do with their bodies at that age.
Dr Kamau argued that the FGM Act forbade willing adult women from getting circumcised and as a result, many owing to the fear of legal crackdowns, sought dangerous backstreet services that continued to endanger their lives.
However, in the ruling read virtually at the Milimani High Court by Judge Achode affirmed that the court was not moved to concur that a woman can, out of her own free volition, choose to undergo a harmful practice.
Negative health effects
The ruling laid credence to published scientific research papers that connote the practice to be synonymous with adverse and long-term negative health effects.
Sadia Hussein an FGM survivor turned anti-FGM crusader and who testified in the case, said the ruling freed girls from the outlawed practice.
“We won the case on FGM Act. I am happy that I testified as a survivor. Let girls be free from the outlawed cut,” she said.
Ms Hussein recounted how her testimony moved the petitioner in court.
“My testimony moved Dr Tatu herself. She said sorry to me and added that my mother did that to me because of love. I said no, since my mother never had a voice to protect me like I did for my daughter. Community stigma pushed my mother,” she said.
Anti-FGM Board CEO Bernadette Loloju, termed the ruling as a major win for girls and women in the country.
“The absence of a law criminalising FGM would be a grave mistake because it would allow perpetrators to go back to cutting women and girls as they please,” said Ms Loloju in a statement.
The organisation’s chairperson Agnes Pareiyo praised the court for upholding the dignity of women.
“There existed no iota of doubt in my mind — and those of my board members and other stakeholders — that our honourable courts would be swayed to dump our women into the dustbin of archaic activism,” she said.
Ms Pareiyo said there is still time for Dr Kamau to re-evaluate her stand and see the issue from the perspective of the majority that “FGM is criminal, a gross contravention of woman rights and which in being applied by warped mind sets and has resulted to a human tragedy in so many instances.”
Equality Now, an organisation that advocates for the protection and promotion of the human rights of women and girls hailed the ruling saying it will advance their rights by protecting them from FGM.
“Absolutely delighted to announce that Kenya’s High Court has upheld and validated the constitutionality of the anti-FGM law thereby advancing the rights of women and girls by protecting them from FGM. This is a historic win for girls and women in the country,” the organisation posted on its twitter account.
Maendeleo ya Wanawake Organisation Murang’a Chapter chairperson Lucy Nyambura, said she was elated by the ruling.
“The ruling solidifies the forte that we have been erecting against FGM in the country,” she said.
Domtila Chesang’ the founder of I-Am Responsible Foundation an organisation that champions against FGM and child marriages in West-Pokot County, said the ruling comes to give hope and energy to the fight against the vice.
“FGM is illegal. The case in now closed and we can now move on in ending the outlawed cultural practise and child marriage,” she said.
Dr Kamau in her petition had argued that the anti-FGM law was unconstitutional as it violated the right of adult women to practice their cultural beliefs and do what they wanted with their bodies.
In her testimony before court, she said that in the 31 years she has practiced medicine and in the research she have conducted, she had proved that FGM, although banned by the government, favours women.
However, the judges found that contrary to the doctor’s argument, FGM is harmful to a woman or a girl.
“From the evidence of survivors, they explained the deception and societal pressures which led them to undertake the cut. The Attorney General shall forward proposals to the National Assembly to consider amendment of Section 19 of the Prohibition of Female Genital Mutilation Act (No.32 of 2011) with the view of prohibiting all harmful practices of FGM as set out in this judgment,” the court ruled.
“We are happy the Judiciary has imparted a well inspiring hope in the lives of our women that had been targeted for the rot by the archaic pronged arguments placed before it,” Federation of African Women Educationists (Fawe) Organising Secretary Cecilia Gitu told nation.africa.
Observers see the ruling as a major win for the fight against FGM in the country that has seen millions of innocent girls undergo the cut.
According to the Kenya Demographic and Health Survey (KDHS) 2014, about 21 per cent of women and girls aged between 15- 49 years in Kenya have undergone FGM.
And despite the national decline in the prevalence, the practice is still high in some communities like Somali at 94 per cent, Samburu 86 per cent, Kisii 84 per cent, Maasai 78 per cent and West Pokot 74 per cent.
In November 2019, the government launched the National Policy on Abandonment of FGM, which it seeks to use to eradicate the illegal practice in the country by 2022.