DR TATU KAMAU GOES TO COURT TO LEGALISE FEMALE GENITAL MUTILATION

Kenyans reacted with disbelief when a Kenyan female doctor in February 2020 went to court to legalize female genital mutilation (FGM). The case brought by Dr. Kamau before the Machakos High Court in Kenya was aimed at obtaining an order that would decriminalise this ancient cultural practice, outlawed in 2011, for consenting adult females.

Dr. Kamau, who considers the ban to be unconstitutional, argued that the ban is a way for the government to try to abolish a “cultural heritage”. Arguing her case before the court on 26 February 2021, she further stated that women have the right to choose for themselves what practices best fit their bodies. In this she compared FGM to other harmful practice in which women do have a choice, such as the choice to smoke or drink. She suggested medicalising the procedure to answer the question of FGM safety procedures. Additionally, she raised concerns regarding women undergoing harassment as well as being jailed, over the last three years, for choosing to continue with this practice.

The High Court dismissed her petition, saying that it is unreasonable for any woman of sound mind to choose to undergo such a harmful practice that is associated with causing serious health problems to women and girls.

CHOICE OVER RISK: WHO IS AT THE RECEIVING END?

Pundits have questioned the intent behind presenting the petition, claiming it to be a publicity stunt. With various leaders terming the move as “outrageous," Dr Kamau may not have depicted the true picture of what is happening on the ground.  

Globally, over 200 million girls across 31 countries have had to experience the gut-wrenching pain of the cut in the name of adhering to sociocultural norms. Up to 21% of Kenyan women and girls aged 15 to 49 have undergone a form of FGM, and over three million girls under 15 years are at risk globally. COVID-19 has further exacerbated the vulnerability of young girls being forced into this practice.

Internationally, FGM is considered a violation of human rights. The United Nations, amongst other international bodies, calls for an end to any form of traditional harmful practices resulting in the  suffering of girls and women. The Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) a legally binding international treaty of the African Union, further mandates all member states, including Kenya, to prohibit all forms of harmful practices that infringe the fundamental rights of women and are not in line with existing international standards. 

FGM is a global health problem, and medicalising it, as Dr Kamau suggests, would not change or lessen the detrimental effects it brings to those who have undergone it.

Women have a right to choose what they deem fit for their bodies as enshrined in article 14 of the Maputo Protocol. However, when we consider FGM as a social practice for adults, we turn a blind eye to the reality that a majority of those that are at greater risk of mutilation are adolescent girls. The law of Kenya clearly distinguishes a child from an adult, as anyone under the age of eighteen years. Nonetheless, communities, where these practices are prevalent do not conform to this understanding. A girl at the age of 12 is considered a fully grown woman who is ready for marriage.

Local and national non-profits in the country have over the years worked tirelessly to ensure that young girls are not taken out of school to take part in a retrogressive cultural practice. These organisations fight against community elders to stop the practice in remote areas as such practices are to a large extent conducted by traditional midwives with little medical training. What then happens when older women continue to embrace the practice?

IMPLICATIONS OF HAVING A DEBATE ON FGM IN KENYA TODAY

Kenyan law makes FGM an offence, irrespective of whether it is performed on an adult or a child. Anyone found practicing the act, upon conviction, is liable to imprisonment for life. What makes the practice unlawful is its physical and mental health complications to women. The underlying purpose of the law is thus not to deny women the power to choose.

FGM and early / child marriage are intertwined. The move by an educated female doctor could therefore result in regressive steps towards realizing gender equality. Progress could be affected not just in Kenya, but in Africa and globally, as the story was picked up by several other news outlets around the world. Once they undergo the cut, the girls are more often than not forced to drop out of school and prepare for early marriage. This further disempowers them from ever competing with their male counterparts for opportunities.

Because FGM carries some form of social acceptance in most communities practicing it, giving room for consent would further increase the practice in rural areas. Encouraging a collective abandonment of FGM, by educating members of the community, including elderly women, in areas where FGM is still deeply rooted, has for many years been a tool to eradicating this harmful practice. It is therefore imperative for the new generation to play a pivotal role in the fight against FGM. When the freedom to participate in a practice involves harming oneself, and placing more vulnerable members of society at risk, there can never be any justification for its practice.

This article was written as part of the Human Rights Pulse Writer’s Workshop programme.

Diana is a final year student pursuing a degree in Journalism and Mass Communication (Public Relations) at Kibabii University. Digital Activist at Youth Alliance for Leadership and Development in Africa. A passionate advocate of SDGs 4 & 5. A volunteer Mentor for the Equity Group Foundation based in Kenya.

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