Kenyan High Court Upholds Female Genital Mutilation Ban

Samburu girl and other tribe members in the midst of an FGM ceremony. (Flickr)

Kenya’s High Court struck down a constitutional petition that challenged the country’s female genital mutilation (FGM) ban on March 17. The petition, introduced by medical practitioner Tatu Kamau, argued that the FGM ban was unconstitutional and infringed on a woman’s right to choose what to do with her body. High Court Principal Judge Lydia Achode and two other judges involved in the trial stated that they dismissed the petition on the basis that it lacked merit. 

FGM is a practice that involves the total or partial removal of the external female genitalia. It largely stems from ceremonial or cultural practices that deem the procedure necessary for social acceptance and marriage. 

The UN Fund for Population Activities found that one in five girls and women in Kenya between the ages of 15 and 43 have undergone FGM. Thirty countries still use the practice even though it has no proven health benefits and even causes medical complications. In fact, the World Health Organization stated that FGM can cause severe bleeding, infections, sexually transmitted diseases, complications in childbirth, increased risk of infant death, and psychological disorders. 

Kenya criminalized FGM in 2011. Offenders can face three years in prison and/or a $2000 fine, even if they commit the crime outside Kenya’s borders. 

Kamau filed the constitutional petition in 2017, arguing that it violated the Kenyan constitution by discriminating against culture, discriminated between men and women by placing restrictions on what a woman can do with her body, and violated the right to healthcare by hypothetically barring a medical practitioner from performing a procedure on a consenting adult woman. 

Kamau argued that women who performed FGM had been subjected to state-sanctioned harassment and contempt. She further stated that consenting women over the age of 18 should have the option to undergo FGM. 

The petition’s trial included testimonies from FGM survivors and perpetrators, anti-FGM advocates, and medical experts. Various local leaders also testified that women from communities that practice FGM were not afforded the same educational opportunities as women from anti-FGM communities. 

In the petition’s ruling, Achode stated that the FGM ban did not discriminate against culture because “it inflicts harm on women and girls thereby infringing upon their worth and dignity.” The judges also determined that women would not be able to freely consent to FGM because of social pressure and coercion and that the practice can never be lawful because “no person can license another to perform a crime.” Finally, the judges stated that FGM violated the right to health, the right to human dignity, and, when FGM causes death, the right to life. 

In addition to their ruling, the judges ordered the Attorney-General to forward a proposal to the national assembly for an amendment to Section 19 of the FGM ban that would prohibit all practices of FGM. 

Activists and other organizations lauded Kenya’s high court for its reaffirmation of women’s rights. Equality Now lawyer Sofia Rajab Leteipan stated that the ruling reaffirms the rights of women to human dignity and health, and ensures that “we do not use cultural practices as an excuse to undermine the rights of women and girls.” The African Union praised Kenya for continuing to preserve, protect, and promote women’s rights through the legal system. 

Kenyan President Uhuru Kenyatta pledged to end FGM by 2022. However, women’s rights activists argue that this is an unrealistic goal because of crime, insecurity, and the remoteness of locations that show the highest rates of FGM. Furthermore, some fear that COVID-19 has increased the rate of FGM as hundreds of girls have stayed home from school.