The state is obliged to ensure by various means the practice is not carried out.

The Bill of Rights in the Constitution, Part 3, provides for the application of specific rights to certain groups, to ensure “greater certainty”. Children (Article 53), persons with disabilities (Article 54), youth (Article 55), minorities and marginalised groups (Article 56) and older members of society (Article 57) are dealt with. Women fall under the definition of marginalised groups under Article 260 of the Constitution: “a group of people who, because of laws and practices … were or are disadvantaged by discrimination,” including on grounds of sex or gender.

Violence against women and human rights

The UN Committee on Elimination of Discrimination Against Women, (General Recommendations Nos 19 and 35), recognise that violence is perpetrated against women just because they are women, so it is by definition discrimination. Therefore, in determining whether there is discrimination, there is no requirement to compare men’s situation with women’s.

Under our Constitution everyone also has a right to be free from violence from any source (Article 29) (c).

In January this year, Kenya experienced an increase in reports of women being killed, mainly as a result of intimate partner violence. This led to a nationwide demonstration tagged as #Totalshutdown on January 26, when thousands of women and men across Kenya marched against the increasing rates of femicide (‘killing of women’) and the lack of government support and accountability through measures to protect women from being killed.

February also began with the recognition of another form of Violence Against Women that presents itself through a woman’s life as a child, in her youth and adulthood. This is Female Genital Mutilation (FGM). The United Nations General Assembly in 2012 designated February 6 as the International Day of Zero Tolerance to Female Genital Mutilation, the intention being to end FGM by 2030. This year’s observation theme was “Her Voice. Her Future”, the focus being on support for survivors of FGM.

How is Kenya doing?

In Kenya, the fight against FGM has pitted the State against proponents of culture or religion who practise FGM. Even before the adoption of the 2010 Constitution, FGM was prohibited in the Children’s Act of 2009.

Though the Constitution does not mention FGM by name, it is clearly covered by the prohibition of violence, and of compulsion to undergo cultural practices (Article 44(3)), harmful cultural practices (for youth – Article 55), and inhuman treatment (for children – Article 53).

The Constitution expressly provides that the State must “observe, protect, promote, respect and fulfil” the rights within the Bill of Rights.

Also relevant to FGM, women’s and girls’ rights to culture (Article 44), religion (Article 32), and health, including reproductive health rights (Article 43(1) (a), life (Article 26), and non-discrimination (Article 27(4) of the Constitution) are rights and freedoms that must be protected.

The positive obligation to ‘protect’ means that the state must put measures in place, such as policies and law, and the necessary enforcement machinery, including necessary training, to ensure that third parties do not violate rights. To ‘promote’ requires measures aimed at raising awareness, creating incentives, educating the public, and building infrastructure to enhance the enjoyment of rights. To ‘fulfil’ refers to positive action by the state to achieve rights.

The state must thus take multi-pronged approaches to ensure the eradication of FGM. Passing laws criminalising it, even punishing those who commit the offence, is not enough.

In 2011 Parliament enacted the Prohibition of Female Genital Mutilation (PFGM) Act, to “prohibit the practice of female genital mutilation to safeguard against violation of a person’s mental or physical integrity through the practice of female genital mutilation.” This legislation plays a critical role in recognising the different forms of FGM and provides safeguards for victims of FGM and sanctions and punishment for perpetrators of FGM.

However, in 2019, a female physician, Dr Tatu Kamau, filed a case seeking to challenge the Act for limiting and violating the rights of adult women seeking to undergo FGM. Specifically, she argued that some sections were contrary to Articles 19, 27, 32 and 44 of the Constitution because they prohibit an adult woman from consenting to undergo FGM and that in Kenya, one culture cannot be held better than another.

She argued that Section 19(1) of the Act, which forbids a qualified medical practitioner from performing ‘female circumcision’, denies women the highest attainable standards of health. On the other hand, the State argued that it had met its obligations of protecting women and girls against FGM by enacting the PFGM Act.

A three-judge bench of the High Court dismissed Dr Kamau’s petition. It held that FGM is a violation of the right to culture under Article 44(3). The Court also held that the practice of FGM violated women’s right to health and human dignity and, where FGM results in death, the right to life. Indeed, the medical and other evidence provided in Court was clear that women cannot consent to FGM even in the cultural aspects because of the harm that FGM inflicts on their health.

The Court went further. Far from deciding that the law goes too far in making FGM a crime, the Court wanted the scope of the crime extended. It directed the Attorney General to forward proposals to the National Assembly to prohibit all forms of harmful practices of FGM, including what is called type IV FGM, recognised as harmful by the World Health Organization but not by the Act. Type IV covers a varied group of generally less serious, though still harmful, treatments of the woman’s clitoris. The court said this was a gap in the law that should be filled.

The court also affirmed that only harmful cultural practices are prohibited. This aligns with the African Charter on Human and Peoples’ Rights, which promotes a positive cultural context in Article 17.

Not good enough

However, next month it will be three years since the judgment, and the Act is yet to be amended to reflect the prohibition of all types of FGM as recognised by the World Health Organization. This means the State has not met its obligation to ensure that the laws in place are effective in their implementation.

There have also been complaints across the country that in a bid to fight FGM, the law has been used to criminalise victims of FGM, which ought not to be the case, as they need protection and not persecution.

In June 2023, the African Committee on Experts on the Rights and Welfare of the Child and the African Commission on Human and Peoples’ Rights delivered a Joint General Comment on Female Genital Mutilation. This General Comment aims to clarify the measures the State needs to ensure the elimination of FGM and ensure the State is there is accountable. It also recognises that, because FGM is a multifaceted practice, the State must use different measures to eliminate it, such as legal, cultural, religious, economic and social measures.

Kenya has ratified the African Charter on Human and Peoples’ Rights; therefore, under Article 2(5) of the Constitution, the Charter is part of Kenyan law. When interpreting rights in the Bill of Rights we can refer to the General Comments to interpret rights within the Bill of Rights. This means that this General Comment supports the promotion of women and girls’ rights about the State’s obligation to protect them from FGM. It is critical as we fight against FGM to bear in mind what the Commission and the Committee stated: “FGM is not just about the practice itself but also about the recognition of women’s equal dignity and rights and the dismantling of a system of gender inequality and anchored in patriarchy.”

This shows that the fight against FGM is a fight to uphold the rights within the Bill of Rights, which Article 10 of the Constitution commands all persons to uphold when interpreting, and applying the Constitution and the law and implementing policy.

The author, Emily Kinama is the litigation and research counsel, Katiba Institute.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-02-18-kinama-protection-of-women-girls-against-fgm/