The Legal Framework on Female Genital Mutilation in Kenya
Female Genital Mutilation in Kenya (also known as female circumcision) is a rare practice in some parts of Kenya. This article looks at what some of the laws in Kenya say about FGM.
Chapter Four - Bill of Rights
Article 19 of the Kenyan Constitution on Rights and fundamental freedoms enumerates that (1) the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of human beings. (3) The rights and fundamental freedoms in the Bill of Rights (a) belong to each individual and are not granted by the state; (b) do not exclude other rights and fundamental freedoms not in the bill of rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter(Chapter 4); and (c) are subject only to the limitations contemplated in this constitution.
Article 20(2) on the Application of the Bill of Rights spells out that “every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.”
Article 20(4) also spells out that in interpreting the bill of rights, a court, tribunal or any other authority shall promote (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights. This is further spelt out in other constitutional provisions, such as Article 21 (implementation of rights and fundamental freedoms), Article 22 (enforcement of Bill of Rights) and Article 23 (authority of the courts to uphold and enforce the Bill of Rights), and also articles 47 (fair administrative action), 48 (access to justice), 49 (rights of arrested persons), 50 (fair hearing) and article 51 (rights of persons detained, held in custody or imprisoned).
Article 21 on the Implementation of rights and fundamental freedoms specifically points out that- (1) it is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights; (3) all state organs and all public officers have the duty to address the needs of vulnerable groups within the society, including women, members of a particular cultural community, et cetera; and that (4) the State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
Article 27 on the Equality and freedom from discrimination prescribes that- (1) every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal opportunities in political, economic, cultural and social spheres. Article 27(4) & (5) enumerates various grounds upon which the state and the person respectively, may not discriminate against another (the grounds include belief and culture). Article 27(6) spells out the mandate of the state to ensure “legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.” Articles 27(7) reinforces article 27(6).
Article 28 on Human dignity observes that “Every person has inherent dignity and the right to have that dignity respected and protected.”
Article 29 on the Freedom and security of the person also clearly states out that- every person has the right to freedom and security of the person, which includes the right not to be- (a) deprived of freedom arbitrarily or without just cause; (c) subjected to any form of violence from either public or private sources; (d) subjected to torture in any manner, whether physical or psychological; (f) treated or punished in a cruel, inhuman or degrading manner.
Article 32 on the Freedom of conscience, religion, belief and opinion specifies in section (4) that a person shall not be compelled to act or engage in any act, that is contrary to the person’s belief or religion.
Article 43 on Economic and social rights section (2) states that “A person may not be denied emergency medical treatment.”
Article 44 on Language and culture, especially section (3) hits the nail on the head with regard to Female Genital Mutilation in Kenya. Section (3) states that “A person shall not compel another person to perform, observe, or undergo any cultural practice or rite.”
Article 53 on Children declares that (1) every child has the right (d) to be protected from abuse, neglect, harmful cultural practices, and all forms of violence, inhumane treatment and punishment…
Article 55 on Youth compels the State to take measures, including affirmative action programs to ensure the youth- (d) are protected from harmful cultural practices and exploitation.
Finally, Article 59 on the Bill of Rights provides for the establishment of the Kenya National Human Rights and Equality Commission, with the functions of the Commission being enumerated in the same article. Its general functions include promoting gender equity, respect for human rights and redress for human rights violations, through affirmative action programmes (Such as receiving complaints and suggestions, monitoring and investigation, coordination and facilitation, protection and observance, compiling reports and undertaking remedial action, among other functions, it is empowered to conduct by the relevant legislation). The powers of this commission are spelt out in Chapter Fifteen of the Kenyan Constitution (on Commissions and Independent Offices).
The Prohibition of Female Genital Mutilation Act
This is an Act of Parliament meant to address Female Genital Mutilation in Kenya. It is meant “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 and for connected purposes.”
The Act was passed into law by the Kenyan parliament on 30th September 2011 and commenced on the 4th of October of the same year. The Act may also be cited as the Prohibition of Female Genital Mutilation Act, 2011.
The Act defines Female Genital Mutilation in Kenya as “comprising all procedures involving partial or total removal of the female genitalia or other injury to the female genital organs, or any harmful procedure to the female genitalia, for non- medical reasons, and includes- (a) Clitoridectomy, which is the partial or total removal of the clitoris or the prepuce; (b) Excision, which is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora; and (c) Infibulation, which is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris.
The Act goes a step ahead to clarify that Female Genital Mutilation in Kenya “does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose; with ‘sexual reassignment procedure’ referring to any surgical procedure that is performed for the purposes of altering (whether wholly or partly) the genital appearance of a person to the genital appearance (as nearly as practicable) of a person of the opposite sex.”
The Anti-Female Genital Mutilation Board
The Act, under Part II, section 3(1) provides for the establishment of the Anti-Female Genital Mutilation Board, which is a ‘body corporate’ under section 3(2). The composition, powers, financial provisions and functions of the board are enumerated in the same Act, with the ability to delegate its powers under section 8 of the Act. The functions of the Board as spelt out under Section five of the Prohibition of Female Genital Mutilation Act, 2011, are as follows:
- Design, supervise and coordinate public awareness programmes against the practice of Female Genital Mutilation in Kenya;
- Generally, advise the Government on matters relating to Female Genital Mutilation in Kenya and the implementation of this Act;
- Design and formulate a policy on the planning, financing and coordinating of all activities relating to Female Genital Mutilation in Kenya;
- Provide technical and other support to institutions, agencies and other bodies engaged in the programmes aimed at eradication of Female Genital Mutilation in Kenya;
- Design programmes aimed at eradication of Female Genital Mutilation in Kenya;
- Facilitate resource mobilization for the programmes and activities aimed at eradicating Female Genital Mutilation in Kenya; and
- Perform such other functions as may be assigned by any written law.
For more about the board, see the functions of the Anti-FGM Board in Kenya.
Part IV: Offences (in regard to Female Genital Mutilation in Kenya)
The offences and the grounds upon which such offences (as stipulated in Part IV of this Act) can occur include-
- A person (including a person undergoing a course of training while under supervision by a medical practitioner or midwife with a view to becoming a medical practitioner or midwife) who performs female genital mutilation on another person;
- Aiding and abetting Female Genital Mutilation in Kenya;
- Procuring a person to perform female genital mutilation in another country;
- Use of premises to perform female genital mutilation;
- Possession of equipment or tools for female genital mutilation;
- Failure to report the commission of the offence; and
- Use of derogatory or abusive language towards those who have not undergone female genital mutilation, or for a man marrying or otherwise supporting a woman who has not undergone female genital mutilation.
All these constitute offences under the Prohibition of Female Genital Mutilation Act, 2011.
Section 28 (1) of this Act also provides for extra-territorial jurisdiction, i.e. “A person who, while being a citizen of, or permanently residing in, Kenya, commits an act outside Kenya which act would constitute an offence under section 19 had it been committed in Kenya, is guilty of such an offence under this Act.” However, subsection (2) provides for non-conviction of such a person if they have been acquitted or convicted in the country where that offence was committed.
Section 26 of this Act “permits a law enforcement officer, without a warrant, to enter any premises for the purposes of ascertaining whether there is or has been, on or in connection with such premises any contravention of this Act.”
Punishment for offences committed under the Prohibition of Female Genital Mutilation Act
Subsection (1) of section 19 states that- A person, including a person undergoing a course of training while under supervision by a medical practitioner or midwife with a view to becoming a medical practitioner or midwife, who performs female genital mutilation on another person commits an offence – a person causes the death of another, that person shall, on conviction, be liable to imprisonment for life.
Section 19(6), however, spells out that “It is no defence to a charge under this section that the person on whom the act involving female genital mutilation was performed consented to that act, or that the person charged believed that such consent had been given. “
Under section 25 of this Act, “Any person who uses derogatory or abusive language that is intended to ridicule, embarrass or otherwise harm a woman for having not undergone Female Genital Mutilation in Kenya, or a man for marrying or otherwise supporting a woman who has not undergone Female Genital Mutilation in Kenya, commits an offence and shall be liable, upon conviction, to imprisonment for a term not less than six months, or to a fine of not less than fifty thousand shillings, or both.”
Section 29 of this Act (under Part V: Miscellaneous) stipulates the penalty for the offences in this Act. “A person who commits an offence under this Act is liable, on conviction, to imprisonment for a term of not less than three years, or to a fine of not less than two hundred thousand shillings, or both.”
In conclusion, Section 27 of this Act mandates the Kenyan Government to take necessary steps within its available resources to—
- Protect women and girls from female genital mutilation;
- Provide support services to victims of female genital mutilation; and
- Undertake public education and sensitize the people of Kenya on the dangers and adverse effects of female genital mutilation
Other Laws concerning FGM in Kenya
The Children’s Act No.8 of 2001
Section 14 of this Act states that “No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.
The Penal Code
CHAPTER XIX of the Penal Code on – Murder and Manslaughter- contains provisions that MIGHT relate to the offences arising out of FGM, especially in relation to Sections 202 to 206. Section 204 prescribes the death sentence for anyone guilty of murder in accordance with sections 202 and 203. (Applies to circumstances of death as a result of FGM)
The Medical Practitioners & Dentists Act
Sections 9(3), 20 and 21 of this Act provide for the cancellation of License for any medical practitioner who, according to section 20 “is convicted of an offence under this Act or under the Penal Code (Cap. 63), whether the offence was committed before or after the coming into operation of this Act, or if, after inquiry by the Board, is found to have been guilty of any infamous or disgraceful conduct in a professional respect, either before or after the coming into operation of this Act…”
The Nurses, Midwives and Health Visitors Act (1965)
Section 22 of this Act states that:
(1) If the Council (Nurses, Midwives and Health Visitors Council of Kenya, established under section 3 of this Act) is satisfied in respect of any person registered or enrolled under this Act that such person whether before or after she became registered-
- Has been convicted of any offence punishable by imprisonment the commission of which in the opinion of the Council has dishonoured her in the public estimation; or
- Has been guilty of negligence or malpractice in respect of her calling; or
- Has been guilty of impropriety or misconduct whether in respect of her calling or not;
it may, in its discretion, either cause that person’s name to be removed from the appropriate register or roll or suspend her registration or enrollment for a period not exceeding twelve months: Provided that the Council may in its discretion cause the name of a person which has been removed from a register or roll to be restored to the appropriate register or roll.
(e) Persons with Disabilities Act, 2003.
According to section 26 (1), a person is guilty of an offence if he (or she); (e) on the ground of any ethnic, communal, cultural or religious custom or practice, discriminate against a person with disability.
NB: In November 1996, the Kenya Parliament defeated a motion to make the practice of Female Genital Mutilation in Kenya illegal. Previously in 1982 and 1989, the former President Moi had issued presidential decrees banning the practice.