A three-judge bench is expected start the hearing of a ground-sweeping petition case filed by a medical doctor seeking to find anti-Female Genital Mutilation laws in Kenya unconstitutional.
The petition filed by Dr Tatu Kamamu also wants the Anti-Female Genital Mutilation Board, headed by chairperson – Agnes Pareiyo, disbanded.
“A declaration that the second respondents (Anti-FGM Board) purportedly established by this act is illegal as it was created without the authority of the law,” reads the application.
She originally lodged her petition in the High Court in Machakos in January 2018 but Justice David Kemei referred the matter to the Chief Justice, asking David Maraga to constitute a three-judge bench hear the case.
Justice Kemei said the case had raised fundamental constitutional issues for determination, noting how it had generated immense public interest.
Dr Kamau wants the court to re-look at how the legislature enacted the Prohibition of Female Genital Mutilation Act (2011) in total disregard of the provisions of Articles 19 of the constitution, arguing the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.
There are 10 interested parties, two friends of the court and three respondents – the Attorney General, Anti FGM Board and the Director of Public Prosecution.
Federation of Women Lawyers in Kenya, Kenya Women Parliamentary Association, National Gender & Equality Commission and Samburu Girls Foundation, are some of the interested parties opposing the case.
Other interested parties are Equality Now, Msichana Empowerment, AMREF, Centre For Rights Education & Awareness, Men for Equality Of Men & Women and John Kiplangat Arap Koech.
Katiba Institute, Kelin and Isla are listed as friends of the court in the landmark case.
It is a petition that comes at a time when the government has enhanced enforcement of the Anti-female genital mutilation laws, seeing a number of parents, who take their girls for circumcision and those performing the process; jailed.
The matter has drawn support from beyond the borders, proponents of female circumcision saying the laws have failed to distinguish between mutilation and circumcision as a rite of passage for women – an age-old tradition that is now being criminalized by the law.
All Women Are Free to Choose co-founder, Dr Fuambai Ahmadu, agrees with the petitioner in her submission that the Kenyan legislation outlawing female circumcision breaches the right to freedom of choice and is tantamount to entrenchment of Western culture.
All Women Are Free to Choose is a non-governmental organization that advocates for women’s right to choose what to do with their body, including the choice to be circumcised.
“We are concerned that global Female Genital Mutilation (FGM) campaigns, laws and policies discriminate against the vast majority of circumcised women who do not see or experience ourselves as mutilated,” argues Dr Ahmadu, adding female circumcision is “a cultural and socio-religious obligation that confers gender identity and ensures gender equality and complementarity with male circumcision within our traditional social structures”.
“… Female circumcision is an important part of the matriarchal rites of passage marking the status of wife, mother and cultivator that is parallel with male circumcision and initiation, which transforms young men to husbands and warriors.”
In her application, Dr Kamau avers that in Article 28 of Kenya’s supreme law provides that every person has inherent dignity and the right to have that dignity respected and protected; which right the Act limits in contravention of the constitution.
“… The rights of women to uphold and respect their culture has been violated in enacting the Prohibition of Genital Mutilation Act.”
According to Dr Kamau, the FGM law in Kenya is unconstitutional because the ban blanketly includes adult women, who should be left to have the right to consent to female circumcision. She views this as an erosion of the cultural practices and rites of passage of African communities in Kenya.
“We know that the odds are stacked against Dr Kamau… Anti-FGM campaigning is a lucrative, multimillion dollar global aid industry – but we believe in the struggle for bodily autonomy, self-determination, religious freedom, and gender equality on our terms as African or Muslim women,” Dr Ahmadu avers.
In November 2018, a Detroit federal judge declared a US law banning female genital mutilation unconstitutional, dismissing several charges against two doctors and others in the first US criminal case of its kind.
In the US and other liberal societies, women are allowed the right to undergo vaginal rejuvenation and other forms of female genital surgeries, including clitoral reductions or piercings, labiaplasty (surgery to reduce the size of flaps of skin on either side of the vagina).
Women aged 18 years and above are also free to get other ‘harmful’ bodily procedures like breast implants and chemical injections that change their shape and appearance, which according to proponents of female circumcision have worse effects than the cut.
“If it’s not okay to infringe on the rights of white, western women (and all men around the world) to choose what to do with their own bodies or genitalia – whether due to social pressures, religion, hygiene, or cultural aesthetics – then it is NOT okay to deny adult African and Muslim women the same rights and bodily autonomy when it comes to female circumcision,” maintains Dr Ahmadu.