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Kenya’s High Court rules anti-FGM law is constitutional: A jubilant day for girls and women in Kenya

NAIROBI, Kenya, March 17 – A three-judge bench of the High Court in Nairobi has upheld and validated the constitutionality of the Prohibition of Female Genital Mutilation Act, 2011, advancing the rights of women and girls to a positive cultural context and to protection against harmful practices.

The remarkable judgment follows the 2017 filing of a constitutional petition by a public health professional in Kenya challenging the constitutionality of the anti-FGM law on grounds that Sections 5, 19, 20, and 21 of the Prohibition of Female Genital Mutilation Act were unconstitutional. Section 5 of the Act establishes the Anti-FGM Board which is tasked with the responsibility of coordinating and leading efforts designed to end FGM on behalf of the government of Kenya. On the other hand, Sections 19 to 21 criminalize FGM and prescribe various penalties to those found guilty.

Justices Lydia Achode (presiding), Margaret Muigai, and Kanyi Kimondo however found that the Petitioner did not prove her allegations that the FGM law was unconstitutional. They opined that revoking the anti-FGM law would be detrimental to women in Kenya as it would leave them without the benefit of a legal protective mechanism thereby exposing them to this harmful practice.

The court observed that the survivors’ testimonies disclosed the devastating and harmful effects of FGM, and was therefore not convinced that any woman or girl would consciously and freely consent to FGM. 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 added that Kenya has, by ratifying numerous international treaties including CEDAW and the Maputo Protocol, made notable regional and international commitments to protect the rights of women and girls including the freedom from discrimination, cruel, inhuman, and degrading treatment and harmful practices and attaining the highest standards of health. 

The judges also noted that culture is dynamic and not static, is fluid and susceptible to change and thus progressive measures have been taken by communities to abandon retrogressive, archaic, and harmful practices and further noted that FGM has negative, far-reaching immediate, short and long-term (often lifelong) effects on the physical and psychological health of women and girls. 

“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.

While welcoming the judgment, the Anti-FGM Board CEO Bernadette Loloju pointed out that the enactment of the Prohibition of FGM Act was a strategic legal intervention that protected both women and girls from this human rights violation. She explained that Kenyan laws did not protect adult women from FGM before the establishment of the anti-FGM Act. 

“We were using the Children Act but it was just a clause that was limited to protecting children from this violation. When we got the Prohibition of FGM Act in 2011, it expanded this protection to women. Hence both women and girls are protected from FGM. The absence of a law criminalizing FGM would be a grave mistake because it would allow perpetrators to go back to cutting women and girls as they please. We have to guard this law and the strides that Kenya has made in ending FGM and being ahead of its peers,” she said.

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. 

Equality Now’s Africa Office Director, Faiza Mohamed lauded the court for reiterating Kenya’s commitments and obligations under various treaties and conventions that prohibit FGM including the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)  which are reflected in the Prohibition of FGM Act (2011). Additionally, Kenya has made high-level political commitments to end FGM by 2022. 

“FGM represents and promotes the subjugation and suppression of women, creating an environment that subjects uncut women and girls to ridicule and ostracism. The Petitioner’s attempt to void Kenya’s anti-FGM law would have jeopardized the future of millions of girls and women in Kenya and I am absolutely thrilled that Kenya’s High Court has stood in favor of girls and women in the Country. I hope that the Government will take the recommendation for law reform to ensure total prohibition of all forms of FGM and further take revamped steps to implement the law towards zero tolerance for FGM and free its daughters from this harmful practice, once and for all. I also hope that other African countries will adopt this progressive jurisprudence, adopt national laws and policies to eradicate FGM.” said Ms. Mohamed.