By Ogova Ondego
Published May 11, 2021
Kenya’s High Court has ruled against a case seeking to make circumcision for consenting women legal.
A three-judge bench comprising Margaret Muigai, Kanyi Kimondo and Lydia Achode, ruled: “We are not persuaded that one can choose to undergo a harmful practice. From the medical and anecdotal evidence presented by the respondents, we find that limiting this right is reasonable in an open and democratic society based on the dignity of women.”
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Tatu Kamau, a female medical doctor from a community whose women go through circumcision as a rite of passage, had on July 24, 2017–on behalf of communities that practice female circumcision and women who have been jailed for carrying out the rite of passage–gone to court to challenge the Prohibition of Female Genital Mutilation law that Kenya passed in 2011, arguing it is both unconstitutional and that it denies adult women the right to enjoy their culture.
Dr Kamau argued that Sections 2, 5, 19, 20 and 21 of the law contravene Articles 19, 27, 32 and 44 of the Constitution by limiting women’s choice and right to uphold and respect their culture; ethnic identity; religion; beliefs; and, by discriminating between men and women. She further argued that this law is an imperialist imposition from another culture that holds a different set of beliefs or norms’.
Prohibiting an adult woman from freely choosing to undergo circumcision under a trained and licensed medical practitioner, she contented, sections of the anti-female circumcision law passed in 2011 both contravene Kenya’s Constitution besides denying women access to the right to healthcare.
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But the judges disagreed.
“We are not persuaded that one can choose to undergo a harmful practice from medical and anecdotal evidence presented by the respondent. We find that limiting this right is reasonable in an open and democratic society,” the judges ruled in a statement read by Achode on March 17, 2021. “Our final orders shall be as follows: The amended petition is devoid of merit and is hereby dismissed. Two, the Attorney-General shall forward a proposal to the National Assembly to consider amendment of Section 19 of the Prohibition of Female Genital Mutilation Act (No.32 of 2011) with a view to prohibiting all human practices of FGM as set out in this judgment above.”
Expressing displeasure and disappointment after the ruling, Kamau said she would appeal against the judgment to the Court of Appeal as “the rights of women have been subsumed in those of a child” by the High Court.
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Despite the fact that any one found guilty of female circumcision faces a three year sentence in jail, a fine of Sh200 000 (about US$2000) or both under Kenya’s anti-female circumcision law, several communities in the country continue to circumcise their women.
President Uhuru Kenyatta, through the National Policy on Abandonment of Female Genital Mutilation, pledged in 2019 to eradicate female circumcision by 2022.
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Women, Gender and Youth Directorate of African Union Commission, lauded Kenya’s High Court for its ruling on the female circumcision petition.
Terming the ruling as “a clear demonstration of the commitment by member states to preserve, protect and promote women’s rights through laws, policies and action,” Victoria Maloka, the African Union Commission Acting Director for Women, Gender and Youth, observed that the “ruling is not only a win for Kenya, but for all African women and girls. It is very encouraging and is very much aligned to the AU Strategy for Gender Equality and Women’s Empowerment.”