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October 19, 2018

Form 3-judge bench to hear pro-FGM case, Machakos court asks Maraga

Dr Tatu Kamau in a Machakos court in February 2018. /FILE
Dr Tatu Kamau in a Machakos court in February 2018. /FILE

The Machakos High Court has referred the pro-FGM case by Dr Tatu Kamau to Chief Justice David Maraga.

On Thursday, justice David Kemei asked the CJ to constitute a three-judge bench to hear the application which seeks to legalise female genital mutilation.

Kamau filed the case alongside John arap Koech (an interested party) but Kemei said the issues raised are of "substantial questions of law that will require a final adjudication of the whole matter."

While making his ruling, Justice Kemei said the determination of this matter will set precedence on balancing cultural practices, rights and freedoms of individuals.

"The determination that will eventually be made will greatly impact the rights of girls and women and eventually affect policies on the rights to health, culture and non- discrimination of the public in general."

Read: Court to rule on bench to hear pro-FGM case

Kemei added that the matter was of great public importance as the freedom sought was the same as those expressed through 'my dress, my choice',  and 'my body, my choice' campaigns.

The judge said that the issues raised in the petition qualify substantial questions of law as contemplated under Article 165 (4) of the Constitution as read with Article 165 (3), b or d.

In his case, Kamau seeks the interpretation of whether or not the enactment of Female Genital Mutilation Act was in contravention of Articles 19, 27, 33 and 44 of the Constitution.

She is also seeking the interpretation of whether or not the right of women to uphold and respect their culture was violated by the enactment of the FGM Act.

Also at the centre of her petition is whether or not the Anti-FGM Board was illegally created and serves to infringe on the rights of women as enshrined in the Constitution.

NGOs, civil society organisations and church leaders have come out strongly to oppose the legalisation.

The nine interested parties have joined the case include Equality Now, Amref Health Africa, and Federation of Women Lawyers (Fida).

Others are Centre for Rights Education and Awareness Africa, Katiba Institute, the Office of the Director of Public Prosecution, Samburu Girls Foundation, Msichana Empowerment and Kenya Women Parliamentary Association (KEWOPA).

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