According to the World Health Organization, this practice exists for non-medical reasons. The cut can be aimed at removing the clitoris (clitoridectomy), the labia minora and infibulation (which is basically the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora with or without the excision of the clitoris).[1]
The extraction or rather “the cut” is usually on a basis of varying reasons. Oftentimes, it is a way for some communities to establish a woman’s social viability thus it is a rite of passage within some communities whereas for other communities it is a way of defining “womanhood”- so that one can be termed a woman within that community. Other reasons include: amplifying one’s viability for marriage, sexual maturity, hygiene and even for the purpose of aesthetics.
Female genital mutilation is recognized as a form of violence against women; including the girl child. It is also recognized as a violation of human rights by the 1993 Declaration on Elimination of Violence against Women.[2] This being the case, the UN General Assembly went ahead to set aside February 6th as an International Day for Zero Tolerance of Female Genital Mutilation. Kenya is a party to the convention and having ratified it thus recognizes this day.[3]
Sessional Paper No. 3 of 2019 on the National Policy for the Eradication of Female Genital Mutilation as well as the National Policy on Gender-Based Violence- 2019, gives proper guidance on the monitoring, regulation as well as management of Female Genital Mutilation within the Country.[4]
Statutory development
The earliest Kenyan Statute to outlaw Female Genital Mutilation is the Children Act No 8 of 2001. However, the term Female Genital Mutilation was switched with Female Circumcision[5]. This seemingly innocent interchange of words is key to understanding the position of FGM practice in Kenya at that time.
The term Female Circumcision was used to draw a likeness to male circumcision, a scenario that hugely downplayed the distinct nature of the two procedures and the resulting consequences in both cases, as will be highlighted later in this article.
In addition, the terminology seemed to allude that FGM was a respectable cultural practice which wasn’t the case. This façade made the sensitization by various stakeholders on the harm of FGM that much harder since in the eyes of the public FGM was not coached in strict enough wording.
The definition of female circumcision under the Children Act No 8 of 2001 was also wanting for its narrow constitution. It define it as follows:
The cutting and removal of part or all of the female genitalia and includes the practices of clitoridectomy, excision, infibulation or other practice involving the removal of part, or of the entire clitoris or labia minora of a female person[6].
Beyond these, superficial provisions the Act made no other substantial reference to Female Genital Mutilation other than acknowledging its status as a harmful cultural pressure practice.
The Constitution of Kenya 2010 elevated the issue of children’s rights to a constitutional status through Article 53 of the Constitution. Article 53 (1)(d) in particular as read with Section 14 of the repealed 2001 Children Act, provided that children should be protected from inter alia, harmful cultural practices such as female circumcision.
The Prohibition of Female Genital Mutilation Act No 32 of 2011, was the tipping point in the legal fight against FGM. The rationale for the enactment of the Act was to prohibit FGM and protect the mental and physical health of those it was likely to be performed.[7]
The Act finally adopted the proper terminology and defined FGM as:
all procedures involving partial or total removal of the female genitalia or other injury to the female genital organs, or any harmful procedure to the female genitalia, for non-medical reasons, and includes— (a) clitoridectomy… b) excision… c) infibulation…, but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purposes[8]. (Emphasis added)
The definition under the Prohibition of Female Genital Mutilation Act was more comprehensive since it covered all possible procedures likely to be used in carrying out FGM rather than limit it to the procedures that cut or remove as in the repealed Children Act.
The Prohibition of Female Genital Mutilation Act primarily criminalizes commission of FGM, regardless of whether or not done by a medical practitioner. In addition, where it allows the carrying out of surgical procedures necessary for an in individual physical or mental health, it eliminates culture, religion or a person’s customs as part of the considerations[9].
In addition, the Act negates the use of consent as a defense by a person who performs FGM on another person. This ensures survivors of the practice are not threatened into lying that they had consented to the act. This was a huge boon considering that FGM is usually conducted on girls between the age of 8 and 13 in several practicing communities.
The Act casts the net of culpability as wide as it can by roping in the aiders and abettors;[10] those who procure FGM outside the country[11]; those who possess the tools for performing FGM[12]; those who allow the use of their premises for FGM[13] and those who use derogatory language against persons who have not undergone FGM.[14]
The Children Act No 23 of 2022, referred to the broad definition of FGM set out by the Prohibition of Female Genital Mutilation Act.[15] It also lists FGM as one of the harmful cultural practices that children are subjected to and considers child victims of FGM as Children in Need of Care and Protection.[16]
Beyond these direct references to FGM, the Children Act 2022 broadly defines child abuse to include the infliction of physical harm on a child as well as the failure to report the abuse of a child. Since FGM amounts to physical harm, both the procurer and the parents could be found culpable under this clause as well.[17]
The practice of FGM also inevitably violates the right of the girls to education and the right to highest standard of health, by endangering their lives and placing them in a very vulnerable position where the risk of dropping out of school is high.
The Judiciary’s take
In S M G v R A M[18], the minor admitted that she had procured the female genital mutilation by herself and without any knowledge by her parents, who in her own words had told her not to do it. She further claimed that she did it because her age mates had teased her that she would remain in unmarried if she did not.
Both parents were arraigned in court for allegedly contravening Section 24 of the Prohibition of Female Genital Mutilation Act which criminalizes failure to report that FGM has been, is being done, or is intended to be done to a person.
The parents though convicted by the Magistrates Court were acquitted by the High Court pending an appeal for one reason. The magistrate had overstepped his mandate by un-procedurally recalling the victim to testify because he found the prosecution’s case inadequate to justify a conviction. The recall was particularly problematic because the prosecutor had an opportunity to cross-examine her but refused to take it and nor did the judge ask her any questions as she testified for the defence.
This case serves to highlight the fact that despite there being laws and systems in place some stakeholders still keep dropping the ball at the peril of innocent Kenyan girls and women. In this particular case the prosecution did not do its due diligence since the Magistrates felt the need to go out of his way to find evidence for a conviction.
Secondly, in as much as laws exist to regulate society, they do not always work out as seen in this case. The victim claimed that she was motivated by peer pressure from her peers to procure the FGM. This goes to show just how interconnected the issue of FGM is connected to the cultural life of most people. It is this interconnectedness that necessitates the use of more sensitization in practicing communities, hand in hand with the punitive provisions of the Prohibition of Female Genital Mutilation Act. This would ensure that prevention remains the key strategy in the fight against FGM.
In 2020, the law on FGM had another watershed moment through the judgement in Tatu Kamau v Attorney General & 2 others (Tatu Kamau Case).[19]The crux of the matter were Sections 2, 5, 19, 20 and 21 of the Prohibition of Female Genital Mutilation Act that were alleged to be in contravention of Articles 19, 27, 32 and 44 of the Constitution by limiting the choices of women and their right to uphold and respect their culture; ethnic identity; religion; beliefs; and by extension amounted to discrimination between men and women.
Therefore, discrimination was dismissed by the Court due to the differences in the nature of the operation and the consequences between FGM and male circumcision. According to the expert witnesses, where male circumcision had minimal risks and health benefits such as the reduced risk of transmission of HIV, FGM had numerous physical and psychological effects such as excessive blood loss, difficulties in childbirth, depression, chronic anxiety and phobias. Hence the same considerations child does not apply to both practices. The differentiation between the two was found not to amount to unfair discrimination.
Secondly, on the issue of consent, the Court was empathetic that consent does not legalize an act that is illegal if the effect of the Act causes extensive harm to the person consenting and the society. In addition, the capacity of women to consent was put in doubt considering the cultural pressure and threats that women from FGM-practicing communities face. The Court was satisfied that in view of the harm caused by the practice, it was reasonable to limit the right to practice it in a fair and just society.
Of note is that the petitioner’s arguments were buttressed on consent. Therefore, even if the case was decided in favour of the petitioner, FGM practice on minors would still have remained an offense due to their lack of capacity to consent.
Statistics
According to an article by NTV Kenya- media house, the prevalence of FGM has dropped from 38% in 1998 to 15% in 2022. This was as per a statistic carried out by the Kenya National Bureau of Statistics (KNBS).[20] There has been a clear and steady decline of the rate of Female Genital Mutilation over the years. According to the Kenya Demographic and Health Survey (a body within the Kenya National Bureau of Statistics), in 2003, the rate of female circumcision was at 32%, 27% between the years of 2008-2009 and at 21% as of 2014.[21] This statistic is in relation to mutilation against children and women between the ages of 15-49.
In 2022, the Kenya Demographic and Health Survey established that the percentage of women who have been circumcised with their flesh being removed is at 70% (this being a drop from 87% in 2014) and 12% of women having been sewn (this having a rise from 9%).[22]
The twist to all this is that, according to the statistics by the Kenya National Bureau of Statistics, the prevalence of Female Genital Mutilation increases with age. The statistics show that 9% of girls between the ages of 15-19 is the rate at which girls within that age bracket are circumcised yearly while that of women between the ages of 45-49 is at 23%.[23]
In simple terms what these statistics show is that, as much as Female Genital Mutilation is still being practiced within some of the communities in Kenya, there is still a significant drop. This has been aided by many institutions and organizations that convey the downside of FGM to these communities. Amref Health Africa (one of these organizations) has helped various communities practicing FGM through the incorporation of Community-Centered Interventions and evidence generation.[24] Amref Health Africa has been able to come up with a digital tracking tool to help keep track of girls who have come forth seeking aid to be protected from the traditional/ cultural based practice of them being circumcised. This tool helps track these girls’ education, health as well as their socio-economic welfare. This applies subsequently until the girls’ attain the age of 25.[25]
Conclusion
Female Genital Mutilation is a practice that needs to be controlled and managed especially for the very young girls of tender ages who have just started school and are not aware or rather do not understand the essence of this practice and since the girls within this age bracket tend to be the most vulnerable. Hence, the sensitization of the “Horrors of Female Genital Mutilation” should be encouraged throughout Kenya, within all the communities and continued education on this should be highly motivated and encouraged. The law is by the people and for the people and the people ought to abide by it.
[1] Section 2 of the Prohibition of Female Genital Mutilation Act No. 32 of 2011, L;aws of Kenya
[2] Tammary Esho, Female genital mutilation rates peak in Kenya during school holidays- an alternative option offers a solution (December 21, 2022) https://theconversation.com/female-genital-mutilation-rates-peak-in-kenya-during-school-holidays-an-alternative-option-offers-a-solution-176483 (Accessed on 28th January 2023)
[3] Ibid
[4] MwanaWaNjuguna, FGM prevalence drops to 15% (January 17, 2023) https://ntvkenya.co.ke/news/fgm-prevalence-drops-to-15/ (Accessed on 28th January 2023)
[5] Children Act No 8 of 2001, s 2
[6] Ibid.
[7] The Prohibition of Female Genital Mutilation Act No 32 of 2011, Long title.
[8] Ibid s 2
[9] Ibid s 19
[10] Ibid s 20
[11] Ibid s 21
[12] Ibid s 23
[13] Ibid s 22
[14] Ibid s 25
[15] The Children Act No 23 of 2022, s 2
[16] Ibid s 23
[17] Ibid s 2
[18] [2015] eKLR
[19] Tatu Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) (Constitutional Petition 244 of 2019) [2021] KEHC
[20] MwanaWaNjuguna, FGM prevalence drops to 15% (January 17, 2023) https://ntvkenya.co.ke/news/fgm-prevalence-drops-to-15/ (Accessed on 28th January 2023)
[21] Ibid
[22] Ibid
[23] MwanaWaNjuguna, FGM prevalence drops to 15% (January 17, 2023) https://ntvkenya.co.ke/news/fgm-prevalence-drops-to-15/ (Accessed on 28th January 2023)
[24] Tammary Esho, Female genital mutilation rates peak in Kenya during school holidays- an alternative option offers a solution (December 21, 2022) https://theconversation.com/female-genital-mutilation-rates-peak-in-kenya-during-school-holidays-an-alternative-option-offers-a-solution-176483 (Accessed on 28th January 2023)
[25] Ibid
