Kenyan High Court has dismissed a petition that sought to decriminalise Female Genital Mutilation (FGM) saying it violates the right to health, dignity and in some circumstances the right to life.
In dismissing the petition case No. 244/2019, the 3-judge bench, Lady Justice Lydia Achode, Lady Justice Margaret Muigai and Justice Kanyi Kimondo held that one can not chose to harm themselves.
“We find that limiting this right is reasonable in an open and democratic society, based on the dignity of women,” said judge Lydia Achode. “The amended petition is devoid of merit and hereby dismissed.”
Dr. Tatu Kamau had 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.
In her petition, she wanted 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.
Relying on the evidence of three medical experts, the Court also observed that there is no conceivable benefit of FGM.
“The implication of this is that FGM/C cannot be rendered lawful because the person on whom the act was performed consented to that act. No person can license another to perform a crime. The consent or lack thereof of the person on whom the act is performed has no bearing on a charge under the act,” said Lady Justice Achode.
The judges ruled that “The Constitution grants the freedom for one to exercise their culture. However, that freedom has to be carried out in line with other constitutional provisions. From the law we observe that culture entails various modes of expression and therefore what is limited is any expression that will cause harm to a person or by a person to another person. FGM/C falls into the latter category. It therefore follows that while our Constitution has a general underlying value of freedom, this value of freedom is subject to limitation which is reasonable and justifiable. Additionally, it has not inscribed the freedom to inflict harm on oneself in the exercise of this freedom,” said Justice Achode.
“It, therefore, follows that while our Constitution has a general underlying value of freedom, this value of freedom is subject to a limitation which is reasonable and justifiable.”
Kenya enacted the Anti-FGM Act in 2011, in line with the international standards requiring it to enact gender-sensitive legislation to prevent, protect against and respond to FGM.
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.
7. High court finds article on right to culture and freedom to practice belief can be limited if it results in harm #EndFGM #FGMCase
— Katiba Institute (@katibainstitute) March 17, 2021
In March, President Uhuru Kenyatta said ending Female Genital Mutilation (FGM) is key to empowering the girl child in Kenya to participate fully in national development.
“I know it is possible for our girls to go through alternative rites of passage without suffering,” President Kenyatta said at Kisima in Samburu County where he witnessed the signing of a declaration by elders to end FGM and child marriages.
The Kenya Demographic Health Survey (KDHS, 2014) report observed that about 87 percent of Kenyan women who have undergone FGM had a cut and their flesh was removed while nine percent had their genital area sown. In addition, 28 percent of women aged 20-24 who have been subjected to FGM in Kenya were cut when they were between five to nine years old.
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