Challenging the Criminalisation of FGM Survivors in Kenya
On 25 June 2025, a constitutional petition was filed before the High Court in Narok challenging a State practice that criminalises and re-victimises women and girls who have undergone female genital mutilation (FGM).
The case, Sofia Rajab (on her own behalf and on behalf of all women and girls who are victims or suspected victims of FGM) and Others v. The Assistant Chief, Mogor Village, Trans Mara East Sub-County, Narok County and Others (HCCHRPET/E007/2025), raises fundamental questions about the protection of survivors of harmful cultural practices under Kenyan law.
The petition challenges Kenya’s so-called “Zero Tolerance Approach to Female Genital Mutilation”, which uniquely results in victims of FGM being arrested, prosecuted, and convicted for undergoing the practice. Kenya remains the only country in the world that applies its anti-FGM laws in a manner that punishes victims rather than protecting them. Under this approach, women and girls suspected of having undergone FGM are often arrested and subjected to forced genital examinations at the direction of police officers, a process that compounds the original harm and violates their dignity, privacy, and bodily integrity.
About the Petition
The petition argues that this practice is rooted in vague and unconstitutional provisions of the Prohibition of Female Genital Mutilation Act, particularly Section 24, which was declared vague by the High Court in KL v Republic [2016] eKLR. Despite this finding, the provision has continued to be used to criminalise victims more than eight years later. The case therefore asks the High Court to determine whether the State’s objective of deterring FGM by criminalising victims meets the constitutional threshold for limiting rights and fundamental freedoms under Article 24 of the Constitution of Kenya.
This petition also arises from five criminal cases previously filed before the Murkan Mobile Magistrates’ Court—MCCR/E077/23, MCCR/E078/23, MCCR/E079/23, and MCCR/E080/23—in which Katiba Institute represented five women charged with undergoing FGM. In those matters, KI sought a stay of proceedings to allow the High Court to determine the constitutionality of the application of the Act to victims of FGM.
The case is significant because it seeks to fundamentally change how Kenya’s anti-FGM legal framework is applied. Rather than protecting survivors, current enforcement practices punish them, deepening stigma and discouraging reporting. The petition calls for a shift in focus away from victims and towards holding perpetrators accountable, while ensuring that survivors receive protection, support, and access to justice.
On 18 June 2025, the High Court certified the matter as urgent and issued conservatory orders protecting the identity of the 2nd to 6th Petitioners. The Court also stayed all further proceedings in the criminal cases before the Murkan Mobile Court pending the hearing and determination of the application. In addition, the Court issued an injunction prohibiting the State, through any of its organs, from conducting forced genital examinations on suspected victims of female genital mutilation.
When the parties appeared before the Court on 27 June 2025, the Attorney-General and the Director of Public Prosecutions agreed to extend the conservatory orders pending the hearing and determination of the application, which is scheduled for 18 September 2025. The Court also set 24 February 2026 as the date for highlighting submissions on the application.
Through this case, Katiba Institute and its co-petitioners seek to affirm that efforts to eliminate FGM must centre the rights, dignity, and protection of women and girls, and that survivors of harmful cultural practices should never be treated as criminals.
Katiba Institute (KI) is the 7th Petitioner in the case. The 1st Petitioner is a practising advocate with extensive experience working on FGM-related matters, while the 2nd to 6th Petitioners are women who have undergone FGM and were subsequently arrested, charged, and detained under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. These women bring the petition both on their own behalf and on behalf of other women and girls who face similar treatment.
Relevant Documents: