FGM and CEFM are backward cultural practices that must be abandoned on the sands of time

1.0 Meaning of FGM and CEFM

FGM stands for female genital mutilation while CEFM stands for child-early forced marriages. The use of the words mutilation and child early forced marriages insinuate the illegal nature of the two. The term mutilation shows that the act is inhuman and constitutes trespass to a person of a negative and destructive nature. It is total assault. The term early shows that the person is prematurely married off through duress or coercively without the free consent of the girl. The term child shows that there is no capacity to make an autonomous or free will to marry in the strictest legal sense. A child-in-law is legally incapacitated owing to the tender age which amounts to mental disability. This implies the child is still under the care of the parents, guardians or the protection of the law such that marrying her off even wilfully is invalid and void ab initio.

1.1 Historical origins, fallacies and roles of FGM

FGM can be traced to Egyptian traditions, especially around the western Red Sea. It plays the role of raising a girl to womanhood indicating a drastic change of status. This is fallacious and outlandish since many popular tribes do not practice FGM, yet women attain the same status once married. The tribes that practice FGM bar those who have not been initiated from participating in many cultural activities thus contributing to direct discrimination. How can mutilation of one’s body add more liberty or dignity than that which is inherent in the human person? This explains the archaic and backward nature of FGM. A child born by a woman who has not undergone this illegal act still suffers the same discrimination as that experienced by his or her mother. In some extreme situations, abortion is carried out to ensure such an innocent child does not see the light of the world. Abortion in itself is illegal subject to some lenient exceptions which only a medical practitioner can exercise.1 There can be no greater natural injustice than ending the life of a child (who cannot even speak for himself or herself) in the most hideous and degrading manner.

FGM adds nothing to the girl because the girl is perfect the way she was made by God. Its prevalence in some communities is only a way of shadowing discrimination and silent suffering of the worst form. The suffering born by the woman or girl in human history can be described as tearful, painful, long, loud, unheeded, horrendous, harrowing, terrible, imposed, or forceful and the list is open. The basis for all this as manifested by FGM is unreasonable and clouded by nothing other than fallacies. Some elders argue that marrying a girl who is not circumcised leads to the death of the groom. However, we know that there is nothing uncertain about one’s death. Death is an act of God or vis major or force majeure. The day you die is unknown and unaffected by such a belief. If a soldier goes to war, the bullet to his head or chest will cause his death. So does an unfortunate situation such as a road accident or a plane plunging into the unknown from the azure sky’s miles from the earth’s surface and all passengers move from physics to the metaphysical. If one contracts a disease, he may die from it. The key here is causation and not why one has died. We cannot then engulf our heads or wrap up our ordinary reasoning with that which is beyond our knowledge or burden of proof. This is why FGM must pave the way for the rule of law in place of freakish beliefs that only belong to the Stone Age.

1.2 Dangers that arise from FGM

FGM is absolute suffering in the broadest sense of the word. Girls over bleed and perish, the pain is torturous, infection is inevitable as many use unsterilized crude blades since the government does not provide blades for the act as it is outlawed, complications during childbirth, psychological stress and sex which ought to be enjoyed as a gift of nature is no longer of any meaning or enjoyable. Indirectly, it leads to infant mortality where young children who are married off conceive early before the full development of the pelvic bones. Some doctors have had no choice but to perform a cesarean section to save the life of the girl and let go of that of the child. In other words, let a child die to save another. This is mostly because the mother arrives at a health facility when the child is already rotting in the womb. How sombre? FGM is a contributing factor to the thriving of CEFM and school dropouts as soon as these girls are married off.

 

1.3 FGM and the law

FGM has neither a take-off point nor a touch-down anywhere within the laws of Kenya or international conventions or treaties ratified by Kenya and other human rights instruments. Therefore, it is not only illegal under statute but also a direct violation of human rights. It is culpable under the law and amounts to a felony.2 There are other allied offences created under the FGM Act: abet or aid in FGM, counsel another to perform FGM, procure another to perform or undergo FGM, cross border FGM, use premises to perform FGM, possess tools used to perform FGM, fail to report the commission of FGM or use derogatory language or ridicule a woman who has not undergone FGM or harm her or a man for marrying or supporting such a woman.3 The penalty upon conviction on the finding of guilt is imprisonment for a term whose floor is set to be 3 years or a fine of Kshs. 50,000 – 200,000 shillings or both such fine and conviction. The consequences of being caught in this crossfire are thus serious. Those who are still hell-bent on the continuation of illegal customs should be fully informed of this.

Back in the villages, some of the people still think that FGM is a cultural right. On the contrary, it is a crime that spells disaster for those caught in the act. If the worst unfolds and the girl dies in the aftermath of the act, the penal code rears its head like a charging ram. Thus, any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.4 Any person who commits the felony of manslaughter is liable to imprisonment for life.5 Under the same code, FGM qualifies to be an assault occasioning actual or grievous bodily harm leading to imprisonment for five years.6 This is the law that the perpetrators of the act need to be reminded of to eject it from our society and rescue the girl child from odd customs that should be left forlorn on the sands of time.

FGM also infringes on the constitutional rights of girls or women. It is a violation of human Dignity as it is performed forcefully or coercively on the human person. The 2010 Constitution guarantees respect and protection of the dignity of the human person which can only be limited by the law and not arbitrarily.7 Certain rights are absolute and have no limitations at all such as freedom from torture and inhuman or degrading punishment.8 FGM is torture as it painful and it takes time for one to heal not to mention the psychological disturbance it imparts on the girl child or woman. One’s privacy is also a matter that the law never fails to uphold.9 Imagine the monumental trespass to person and assault where one’s private organs are outrageously invaded and mutilated like an animal undergoing castration. This is sickening and morally wrong. Every person is entitled to the security of the person.10 In law a person is inviolable. FGM acts to the contrary. It is an unconstitutional act and women and girls must be rescued from this menace. In many circumstances, the opinion of the girl or woman to refuse to undergo the rite is side-lined. This is against the supreme law of Kenya.11 No person is allowed to force another into undergoing a cultural rite or practice.12 Youth are to be shielded from harmful cultural practices such as FGM.13 FGM is also a contributing factor in the discrimination of women and girls. All persons are entitled to equal benefit before the law and there ought to be no discrimination on any ground.14

International conventions rallied against FGM if joined end to end have no end. The women’s convention or CEDAW postulates that violence against women is a violation of the right to life, the right not to be subjected to torture or other cruel treatments, the right to liberty and security of the person and the right to the highest attainable standards of physical health. It also underscores the principle of universality of human rights i.e human rights are to be enjoyed by all humanity on an equal basis which throws the public private dichotomy out of the window. This convention calls upon all States to modify social and cultural patterns so as to eliminate prejudices and customary practices which are based on the idea of the superiority or the inferiority of either gender or stereotyped roles for men and women.15

 

1.4 CEFM and the law

CEFM just like FGM is illegal. Why should a grown-up or an old man marry a child? Is this not similar to sexual slavery or servitude? Marriage to a girl child is a nullity. A person is not allowed to marry until 18 years and above.16 Any person below that age is barred from marrying otherwise such a marriage will be null and void for lack of capacity to marry on the part of the girl child.

Valid marriage must be out of the free consent of the parties and not under duress as is always the case for child marriages. Thus, every adult has the right to marry a person of the opposite gender based on the free consent of the parties.17 Lack of consent and failure to meet the minimum age of 18 are factors that vitiate a marriage to a child. In pastoral communities, the girl is not a participant in the marriage negotiations. Her parents or next of kin negotiate with the groom’s family and finalise the number of cows, goats, camels, donkeys, and sheep that are to be exchanged for the girl. If the girl refuses, she will be beaten up or admonished severely. Ultimately, she has no choice but to drop out of school and head for her new home to begin a different life as a woman soon-to-be a mother. The search for the Golden Fleece comes to a sudden halt. Her dreams of being an important figure in society or her desire to undertake a certain career in life are all things of the past now. This is a denial of the right to self-determination.18 Entitlement to education is compromised here.19 It is discrimination of the worst kind since boys proceed as they part ways with such a girl.20 It is not in the best interest of the child since in the circumstances, a child’s future is shut out forever like a dark blanket or eclipse across the sun.21 The child is condemned unheard and her fears and suffering are left simmering in her for eternity. This is despite her rights to opinion, views and wishes which are provided by the law.22 Her opportunity to develop her potential, personality and mental or physical abilities is cut short so abruptly that in place of dreams and ambitions comes a dark shadow of mental suffering and subjection to child labour.23

1.5 Conclusion

FGM and CEFM contradict national laws, the Constitution and international human rights conventions. They are illegal and culpable crimes that kill dreams and the future of innocent children and women. They constitute a travesty to justice for the girl child or the woman. They are uncivil, unclean, horrible and terrible avenues that provide an evil inroad towards the violation of the rights of the girl child and women. They deserve national, local and regional coordination of all partners and stakeholders together with NGOs to join hands and with one loud voice say ‘stop’. The girl is magnificent in the way she was created. Why should you unmake what God had made wonderful and graceful in His own time? We cannot interfere with creation but only help preserve it. FGM war is a sacred battle that must be won. Above all, the girl child or the woman is a liberal being radiating full grace and dignity. She has the absolute right to choose what happens to her body or her future. She should not be a puppet for bygone cultural practices that add nothing to the value of life.

 

1.6 Recommendations

The president of the Republic of Kenya had vowed to end FGM by 2022. Is this really possible? Where is the strategy? If such a fight is to be won, we must make stupendous improvements in legislation and intensive awareness creation right down to the villages where such practices thrive. Membership to the FGM board should be reasonable and include local administration such as chiefs, village elders, village administration and activists such as lawyers from the locality and also NGO personnel who have the fervour to fight hard as nails. The war against FGM and CEFM is far from being won. Let us shift the theatre of this war to the doorsteps of the village arena. Let us make active use of those down there. This is the master plan for victory. Since they constitute crimes against the girl or woman, there should be no excuse as to culpability and punishment of offenders.

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Lekenit Lawrence Ltirisio Joram is an Advocate of the High Court of Kenya (LLB, PGD, BSC).