Dr. Tatu Kamau who wants Female Genital Mutilation decriminalized and recognised as a cultural rite in Kenya told the court that “The reason why FGM is practiced is to stop women from ‘disturbing’ their husbands.”
She was being cross-examined by lawyer Colbert Ojiambo in the Kenyan High Court where she is challenging the constitutionality of the Kenya Prohibition of the Female Genital Mutilation Act (2011).
This was before a 3-judge bench, Lady Justice Lydia Achode, Lady Justice Margaret Muigai and Justice Kanyi Kimondo in the petition case No. 244/2019.
Her petition has been opposed by the Federation of Women Lawyers – Kenya (FIDA Kenya), Center for Rights Education and Awareness (CREAW) and Equality Now.
According to Dr. Tatu, her culture and cultural practices are protected by the Constitution and stopping her people from practising FGM will amount to a violation of her rights.
“Every citizen has a right to equality and freedom from discrimination but the said Act shows open intolerance to women who wish to undergo female circumcision even for the purposes of upholding their culture,” she said.
The 10th interested party, who is supporting the petition (John arap Kiplagat) in his statement, told the court that within his community, “We do not practice FGM. We practice “female circumcision.”
She filed the petition (244 of 2019) on 18th July 2017 and amended on the 20th November 2017 and is brought pursuant to the provisions of Articles 19, 27,32 and 44 of the Constitution of Kenya 2010 for being in violation of adult consenting women’s right to culture, health and equality.
She wants the court to make an interpretation of whether or not the Enactment and coming into force of the Prohibition of Female Genital Mutilation Act was in contravention of Articles 19, 27, 32 and 44 of the Constitution.
Her submission is that adult women from these communities who opt to partake in the practice and those who support the practice should not be subjected
to the sanctions set out in the Anti-FGM Act.
The Court is asked to consider the rationale for regulating the practice of FGM through legislation and legislative sanctions within the context of a constitutional democracy with a supreme Bill of Rights.
A ruling on 14/06/2018 determined that the petition raises substantive matters of the law and directed that the case be heard before an uneven number of judges.
Chief Justice David Maraga enrolled a three-judge-bench on 31/08/2018 to determine the case.
Kenya enacted the Anti-FGM Act, in line with the international standards requiring it to enact gender-sensitive legislation to prevent, protect against and respond to FGM.
As a result, Kenya has acted in line with the standards set out in the African Human Rights system and in the practice of comparative African states. Article 21 of the African Charter on the Rights and Welfare of the Child obliges States Parties to eliminate harmful social and cultural practices, such as FGM, that affect the welfare, dignity, normal growth and development of the child.
In addition, Article 5 of the Protocol to the African Charter on Human and Peoples’ ‘Rights on the Rights of Women in Africa (Maputo Protocol) requires States Parties to prohibit and condemn all forms of harmful practices, such as FGM, which negatively affect the human rights of women and to take all necessary legislative and other measures to eliminate such practices.
The hearing continues on Friday.