FGM remains illegal, High Court rules

Thursday, March 18th, 2021 00:00 |
Female Genital Mutilation Act was passed in 2011 and anyone found guilty of FGM could serve a sentence of not less than three years or pay a fine of Sh200,000. ng. Photo/PD/FILE

Female Genital Mutilation (FGM) remains illegal in Kenya, the High Court has ruled.

A three-Judge Bench dismissed a petition by a Kenyan medical doctor, Tatu Kamau, who wanted FGM legalised saying the practice violates the right to health, dignity and some instances right to life.

 “From the medical evidence we are left with no doubt about the negative short term and long term effect of FGM on women’s health,” they ruled.

Justices Lydia Achode, Kanyi Kimono and Margaret Muigai noted that the evidence provided during the case shows that there is a sense of no consent from the victims who undergo the said process.

“We are not persuaded that one can chose to undergo a harmful practice, we find that limiting this right is reasonable in a democratic society  ...The amended petition is hereby dismissed,” they ruled.

Kamau had argued that most women want to undergo FGM but the Anti-FGM law stops them.

The Female Genital Mutilation Act was passed in 2011 and anyone found guilty of FGM could serve a sentence of not less than three years or pay a fine of Sh200,000.

 Kamau claimed that in abolishing the said culture it gave the impression that there are others that are superior.

Sued AG and FGM board

She had sued the Attorney General and Anti- Female Genital Mutilation Board.

She wanted the anti-FGM board, the body tasked with the responsibility to effect the campaign against the practice, disbanded.

The Judges however noted that she did not plead with specificity the element of the functions that are unconstitutional.

“We find that the Board was properly created and that its functions are in conformity with the Act and the Constitution,” ruled the Judges.

The Judges noted that the assumption that anyone above the age of 18 years undergoes FGM voluntarily is far from reality, especially for women who belong to communities where the practice is strongly supported.

“From the evidence, it is clear that those who undergo the cut are involved in a cycle of social pressure from the family, clan and community.

They also suffer serious health complications while those who refuse to undergo it suffer the consequences of stigma.

Women are thus as vulnerable as children due to social pressure and may still be subjected to the practice without their valid consent,” the Judges noted.

Devastating effects

The Judges noted that all survivors disclosed devastating immediate, short-term and long-term effects the practice.

“They told the court that they experienced excruciating pain during cutting and thereafter until the wound healed and on occasions that they undertook biological functions.

They suffered bleeding, incontinence and in the long term psychological and even psychotic conditions from trauma.

F.A.S.A. experienced difficulties in marriage, during pregnancy and childbirth of her two children,” noted the Judges.

Tatu had claimed that the prohibition of female circumcision while allowing male circumcision resulted in unfair discrimination.

The Judges however ruled that the evidence of the medical experts confirmed the grim reality of the challenges posed by female circumcision ranging from difficulty in consummating marriages to difficulty in child birth, and in certain instances, death of the victims.

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