FGM is Illegal Regardless of Consent from the Victim – Kamau v Attorney General & 2 Others; Equality Now & 9 Others (Interested Parties); Katiba Institute & Another (Amicus Curiae) (Constitutional Petition 244 of 2019) [2021] KEHC 450 (KLR)

In Kamau v Attorney General & Others (2021), the High Court of Kenya delivered a landmark judgment addressing the constitutionality of the Prohibition of Female Genital Mutilation Act (2011) and the practice of Female Genital Mutilation/Cutting (FGM/C). The court held that FGM/C is unlawful, irrespective of the consent of the individual undergoing the procedure. This commentary examines the legal reasoning, constitutional principles, and broader implications of the decision, particularly in the context of balancing cultural rights against human rights protections under the Kenyan Constitution and international law.

Background

The petitioner challenged the Prohibition of Female Genital Mutilation Act (2011), arguing that it violated the constitutional rights of adult women to freely choose to undergo FGM/C as part of their cultural or religious practices. She contended that the Act was discriminatory, infringed on cultural rights under Article 11, freedom of conscience and belief under Article 32, and the right to equality and non-discrimination under Article 27 of the Kenyan Constitution. The petitioner further argued that the Act was an imperialist imposition that disregarded the autonomy of adult women and failed to adequately distinguish between different types of FGM/C, particularly Type IV, as classified by the World Health Organization (WHO).

The respondents and interested parties, supported by medical and survivor testimonies, argued that FGM/C causes significant physical and psychological harm, justifying its prohibition as a matter of public health and human rights protection. The court was tasked with determining whether the Act's blanket prohibition, including its disregard for consent, was constitutionally permissible.

Legal Reasoning

The High Court's decision rested on several key legal principles:

1. Human Rights and Constitutional Protections

The court anchored its reasoning in the Kenyan Constitution, particularly the Bill of Rights. Articles 25, 27, 28, 43, and 53 were cited as protecting fundamental rights, including the right to dignity, health, equality, and freedom from harmful cultural practices. The court emphasized that FGM/C, regardless of consent, violates these rights due to its well-documented physical and psychological harms, as evidenced by expert medical testimony (e.g., from Prof. Guyo Jaldesa and Dr. Joachim Oeur) and survivor accounts. These harms included severe pain, bleeding, infections, complications during childbirth, and long-term psychological trauma, such as low self-esteem and suicidal ideation.

The court found that the Act's prohibition aligns with the state's obligation under Article 21 to protect vulnerable groups, particularly women and children, from practices that undermine their dignity and health. The preamble to the Constitution, which recognizes the culture and customs of the Kenyan people, was interpreted as subject to the overriding standard of human rights protection. The court held that cultural practices, while valued, must conform to constitutional standards, and FGM/C fails this test due to its harmful nature.

2. Consent and Autonomy

A central issue was whether adult women could validly consent to FGM/C as an exercise of their autonomy and cultural rights. The petitioner argued that the Act's prohibition, particularly Sections 19(6), 20, and 21, which criminalize FGM/C regardless of consent, violated Article 32 (freedom of conscience, religion, and belief) and Article 11 (cultural rights). The court rejected this argument, drawing on legal definitions of harm from the Penal Code and Black’s Law Dictionary (10th Ed.), which define harm as bodily injury, disease, or disorder, whether temporary or permanent.

The court reasoned that consent does not negate the inherent harm of FGM/C, particularly given its community-driven nature, where social pressures often undermine true voluntariness. Survivor testimonies highlighted instances of coercion, deception, and intimidation, particularly among young girls, reinforcing the court's view that consent in this context is often illusory. The court also referenced international legal principles, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which obligates states to eliminate practices that harm women, regardless of cultural justification or consent.

3. Discrimination and Equality

The petitioner claimed that the Act was discriminatory because it prohibited FGM/C while allowing male circumcision, thus violating Article 27(4) of the Constitution, which prohibits discrimination based on sex. The court acknowledged that the Act differentiates between male and female circumcision but found this differentiation to be reasonable and justifiable. Medical evidence demonstrated that FGM/C poses significantly greater health risks than male circumcision, including life-threatening complications. The court held that the Act's purpose—to protect women and girls from harm—bears a rational connection to a legitimate legislative objective, satisfying the test for permissible differentiation under Article 24 (limitation of rights).

The court further noted that the term "mutilation" in the Act's title and provisions appropriately distinguishes FGM/C from male circumcision, emphasizing the former's harmful nature. This distinction was seen as advancing the constitutional values of human dignity, equality, and the advancement of human rights under Article 10.

4. Public Participation and Legislative Process

The petitioner challenged the Act's enactment, alleging insufficient public participation as required by Article 10(2) of the Constitution. The court reviewed evidence, including Hansard Reports from April and September 2011, which documented parliamentary debates and stakeholder consultations. While the petitioner argued that no records of public hearings outside Parliament were provided, the court found that the legislative process met the minimum threshold for public participation, given the involvement of relevant stakeholders, including the Kenya Women Parliamentary Association (Kewopa).

5. International Law and Obligations

The court extensively referenced international instruments ratified by Kenya, including CEDAW, the African Charter on Human and Peoples’ Rights, and the Convention Against Torture. These instruments impose obligations on states to eliminate harmful practices and protect women’s rights to health, dignity, and equality. The court found that the Act complies with these obligations by criminalizing FGM/C, reinforcing Kenya’s commitment to international human rights standards.

6. Type IV FGM/C and Legislative Gaps

The petitioner highlighted that the Act does not explicitly criminalize Type IV FGM/C (e.g., pricking, piercing, or scraping), as classified by the WHO, leading to inconsistent enforcement. The court acknowledged this lacuna, noting that the Act’s focus on Types I, II, and III creates challenges in prosecuting Type IV practices. However, this did not invalidate the Act, as the court found that the broader prohibition still served a legitimate purpose in protecting women from harm.

Implications

The Kamau decision has significant implications for Kenyan law and society:

1. Affirmation of Human Rights Over Cultural Practices: The ruling underscores that cultural rights are not absolute and must yield to fundamental human rights, particularly those related to health, dignity, and equality. This sets a precedent for challenging other harmful cultural practices under the constitutional framework.

2. Consent and Harmful Practices: By holding that consent does not legitimize FGM/C, the court establishes a principle that individual autonomy cannot override state obligations to prevent harm. This may influence future cases involving other consensual but harmful practices.

3. Legislative Clarity: The court’s recognition of the Act’s failure to address Type IV FGM/C highlights the need for legislative reform to ensure comprehensive prohibition and enforcement. This could prompt amendments to the Act to clarify its scope.

4. Public Health and Gender Equality: The decision reinforces Kenya’s commitment to gender equality and public health, aligning with global efforts to eradicate FGM/C. It strengthens advocacy by organizations like Equality Now and supports survivors’ voices in legal discourse.

5. Costs and Public Interest Litigation: The court’s decision that each party bear its own costs, given the public interest nature of the petition, encourages constitutional litigation on issues of societal importance without the fear of prohibitive costs.

Critical Analysis

While the court’s decision is robust in upholding human rights, it leaves some questions unresolved. The acknowledgment of a legislative gap regarding Type IV FGM/C suggests potential enforcement challenges, particularly for practices like cosmetic genital surgeries, which may fall outside the Act’s scope. The court’s reliance on medical evidence and survivor testimonies effectively countered the petitioner’s cultural arguments but may have underemphasized the complexity of cultural identity in communities where FGM/C is a deeply rooted rite of passage.

Moreover, the court’s dismissal of the petitioner’s discrimination claim, while legally sound, could be seen as sidestepping a broader discussion on the cultural significance of male circumcision versus FGM/C. A more detailed comparison of the two practices’ social and medical impacts might have further clarified the basis for differential treatment.

Conclusion

The Kamau v Attorney General decision is a pivotal affirmation of Kenya’s constitutional commitment to human dignity, equality, and health over harmful cultural practices. By declaring FGM/C unlawful regardless of consent, the High Court reinforces the state’s duty to protect women and girls from harm, even in the face of cultural or religious claims. The ruling also highlights the need for legislative clarity to address all forms of FGM/C effectively. This case serves as a critical precedent in the ongoing global fight against gender-based harmful practices and underscores the judiciary’s role in balancing cultural rights with human rights protections.