By Samantha Oswago, Legal officer, EACHRights
The court’s dismissal of the Female Genital Mutilation (FGM) petition in March is laudable. A medical doctor had challenged the constitutionality of the Prohibition of FGM Act 2011 and the Anti-FGM Board.
Dr Tatu Kamau sought a declaration by the court that the Act is unconstitutional for being in violation of adult consenting women’s right to culture, health and equality. She pleaded that sections of the Act contravened Articles 19,27,32 and 44 of the Constitution by limiting women’s choice or freedom and, by extension, rights to uphold their culture ethnic identity, religion, beliefs and by discriminating between men and women.
The High Court sitting in Nairobi dismissed the petition, ruling that the practice of FGM, a retrogressive culture in the region, violates the right to health, dignity and sometimes the right to life. Its punchline was that the Constitution grants the freedom to exercise one’s culture but that must be carried out in line with the other constitutional provisions. FGM falls into category of harmful cultural practice and is, therefore, outlawed.
FGM is outdated and serves no beneficial purpose to the victims. On the contrary, it applies marriageability as a quality to girls as young as nine, directly disrupting their right to education and affordable healthcare as it is often carried out in secret by traditional practioners who may not always practise adequate hygiene protocol.
No known benefits
Most importantly, FGM greatly affects its victim’s physical health as it often leads to complications in their reproductive health. It also has dire implications on mental health; victims often suffer from post-traumatic stress disorder (PTSD) due to the coerced physical violation of their reproductive organs. That has a wide range of negative effects — from inability to focus on their education to being socially impaired in their respective communities.
Importantly, FGM has no known tangible benefits and its horrific disadvantages far outweigh whatever falsely perceived benefits there may be.
The ruling bolsters the legitimacy of the Prohibition of FGM Act and the illegality of FGM. Secondly, it sets a precedent on constitutional contesting rights not only nationally but regionally, whereby cross-border FGM between Kenya and its neighbours is common. It creates additional room for the passing of anti-FGM legislation and policy at a devolved level through county assemblies. Finally, it boosts the efforts of civil society actors to achieve the eradication of FGM through advocacy, policy interventions and grassroots engagement.
While culture remains an integral part of our national identity, harmful cultural practices cannot be allowed to trump other human rights. The judgment is based on principles that go far beyond FGM. It can also be applied and upscaled by stakeholders in the human rights space to advocate against other retrogressive practices such as child marriage and honour killing and in ending negative stereotypes, discrimination against children with disabilities and all other forms of violence that are ever so prevalent in our society.
This article was first published on Nation Media
Ms Oswago is also an advocate of the High Court. You can reach her via firstname.lastname@example.org