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February 22, 2019

What the law says about FGM

A knife used in women circumcision ceremony (FGM)
A knife used in women circumcision ceremony (FGM)

Female genital mutilation-FGM was defined in 1997 by the WHO, UNICEF and UNFPA as the “partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons.

FGM contravenes the human rights of the person on whom is conducted. The Constitution in Article 2 provides that any law, including customary law that is not compliant with the Constitution is void. No one can as such argue that FGM is an accepted cultural practice.

The Prohibition of Female Genital Mutilation Act was enacted 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.

The Act defines FGM 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;

(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,but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose.

The negative effects of FGM are numerous and far reaching. They depend on the procedure, and they include and are not limited to recurrent infections, chronic pain, cysts, an inability to get pregnant, complications during childbirth and fatal bleeding.

The conflict between the cultural beliefs and outdated justification for FGM flies in the face of the right to bodily integrity and it has no known health benefits.

FGM practice defies the various treaties that Kenya is a signatory to which prohibit the practice. These include: The African Charter, The Maputo protocol and The Universal Declaration on Human Rights. The UDHR in Article 5 postulates that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Maputo Protocol defines harmful practices to mean all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity. FGM falls squarely under this definition. Article 5 provides that States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards including FGM.

Many a times the Consent of the victim is not sought. Not that a consent to FGM would validate it. The State protects all its subject from acts that have the effect of inflicting damage to the integrity of the body. The operation is a permanent and irreversible incursion into the body of the girls and women that leaves the victim with not only a physical scar but also an emotional injury and a stigma that will never leave them. There are often deep feelings of betrayal, confusion, and loss among the victims of FGM.

FGM is an affront on the right to family as enshrined in Article 45 of the Constitution. The act/attack as I have chosen to call it is a form of gender based violence that must be condemned for all intents and purposes. It has been medically proven that FGM leaves the victim without the ability to enjoy sexual pleasure. It is no wonder one doctor in Egypt has started carrying out operations on women to reinstate the power to enjoy sex in the victims of FGM.

The family has a role to play in curbing this practice. The mindset of the society needs to change. Society should not place premium on the practice of FGM. It is prudent that people start understanding that FGM serves no purpose. The courts have also been on the forefront in combating this practice. The courts have rightfully convicted offenders and punished them accordingly. The girls should be left to grow and go to school to be married at the right time.

The media has its role in the equation which it has to continue playing so as to enlightening the society on the illegality of the practice and on other legal and available alternative rites of passage. One might ask why this practice is ongoing when we have all these measures in place to curb this practice. It has all to do with societal values that places premium on this unsavory act. There are alternative rites of passage that are legal, conform to the Constitutional rights and are acceptable by society.

Any practice that hinders or endangers the normal growth and affects the physical and psychological development of women and girls should be condemned and eliminated in the interest of the family equality and growth. We should ensure that the rights of women are promoted, realised and protected in order to enable them to enjoy fully all their human rights.

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