At first a reader may think that the judgment in this case is some kind of practical joke. How can it possibly be, as the judges’ first lines say, that the applicant in a case testing the constitutionality of Kenya’s ban on female genital mutilation (FGM) is a ‘Dr Tatu Kamua … a medical doctor’?
How could someone with 26 years’ experience as a doctor actually contend that there was anything good about FGM, so good in fact, that the law banning it was unconstitutional? How could anyone attack the law banning FGM as no more than an ‘imperialist imposition from another culture that holds a different set of beliefs or norms’?
Fortunately for the women of Kenya and elsewhere, the three-judge panel of Kenya’s high court, hearing the matter as a constitutional petition, decided that the law against FGM was not unconstitutional. Further, in the course of their detailed, 81-page decision, they spotted a lacuna in the law which they found could hamper the effective enforcement of the FGM ban.
Fix
In response, the judges therefore ordered that the Attorney General should forward proposals to the National Assembly about how to fix the gap, with amendments that would ensure the prohibition of all the different ways in which the harmful practices of FGM had so far escaped the net.
The front page of the judgment includes many individuals and organisations that became involved in the dispute, among them one other person – apart from the original petitioner, Dr Kamua – who supports that practice. He is John Kiplangat Arap Koech, a long-standing opponent of the law banning FGM, which he believes is a ‘holy’ cultural practice.
Dealing with the argument by Kamua, the three years said they had to agree with her that there was some confusion created by the law. She had pointed to a gap in the legislative provisions that, according to the court, was ‘exploited by traditional circumcisers’. Because the law allowed genital procedures to be carried out by doctors during labour or after delivery, some ‘traditional circumcisers’ had performed FGM on women at this time.
Lacuna
This lacuna, identified by the court, was to form part of the judges’ order at the end of the decision.
Leaving aside the question of children, the court disputed whether a woman, over 18, would decide voluntarily to undergo FGM. It was particularly unlikely for women in communities where the practice is strongly supported and where social pressure and punitive sanctions would be imposed to ensure that she ‘agreed’. Evidence in court had shown that those who underwent FGM were involved in a cycle of social pressure from family, clan and community.
‘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 said.
Doctors
Medicalisation, something the Kamua urged should be allowed, did not mitigate the harm caused by FGM, said the court. The judges had heard evidence from women who had experienced FGM in their communities and from others who underwent it at the hands of a doctor. From that evidence they concluded that it made no difference who carried it out, the negative experiences were similar.
Although Kamua based her claim on the constitutional rights related to culture, religion, beliefs and language, the court pointed out that these rights could be limited ‘due to the nature of the harm resulting from FGM to the individual’s health and well-being’.
Kamua also argued that consenting adult women should not be prevented from undergoing ‘female circumcision’ which, she said, ‘is an age old valued tradition among certain communities.’ But the law showed that it was no defence to say that the women concerned consented to the cutting, or that the person charged with performing the cutting ‘believed that consent had been given’.
International law
‘No person can licence another to perform a crime.’
The court quoted a number of international law instruments to the effect that discrimination against women was to be outlawed, even where it existed in customary practices. It was also no defence to argue that the law banning FGM was discriminatory since circumcision of men was allowed. There was evidence that according to ‘grim reality’, FGM was a harmful cultural practice, with no health benefits, while male circumcision ‘boasts of health benefits’.
According to the judges, culture is ‘dynamic and not static’; it is also ‘fluid and changes from time to time’. While the constitution gave freedom to practice one’s culture, it also stipulated that this freedom had to be carried out in line with other constitutional provisions. Any expression that caused harm to a person or by one person to another, would be limited: FGM fell into this category.
Rite
In conclusion, ‘there is no doubt that FGM was central to the culture of some communities in Kenya including the Kikuyu to which (Kamua) belongs. However, from the medical evidence … we are left in no doubt about the negative short and long term effects on women’s health. We have also discussed the absence of consent by [those] who under the rite …. We are not persuaded that one can choose to undergo a harmful practice. From the medical and anecdotal evidence … we find that limiting this right is reasonable in an open and democratic society based on the dignity of women.’
The three judges dismissed the petition, ordered the Attorney General to forward proposals to the National Assembly to plug the lacuna identified in the law, and held that each party should bear its own costs.
- The three judges were Judge Lydia Achode, principle judge of the High Court of Kenya, Judge Kanyi Kimondo and Judge Margaret Muigai
