Amref Health Africa Welcomes High Court Ruling against Lawsuit Challenging Kenya’s Ban on FGM/C

Amref Health Africa has welcomed the judgment of the High Court of Kenya in the case Dr. Tatu Kamau v Attorney General et al. as a major step forward for the movement to end Female Genital Mutilation/Cutting (FGM/C) in Kenya.

A three-judge bench comprising Justices Lydia Achode, Kanyi Kimondo and Margaret Muigai of Kenya’s High Court, upheld a ban on FGM/C in a landmark ruling that has been welcomed by End FGM/C activists, survivors, and campaigners.

The court was ruling on a petition, filed by Dr. Tatu Kamau in 2017, challenging the constitutionality and validity of the Prohibition of FGM Act 2011 (“Anti-FGM Act). The petition sought to legalize FGM/C on the grounds that the ban goes against cultural rights, and that adult women should retain autonomy over their bodies – including the right to undergo FGM/C should they desire to. It further sought the disbandment of the Anti-FGM Board, a semi-autonomous government agency established in December 2013 under the Ministry of Public Service and Gender, to coordinate initiatives and advocacy against FGM/C.

The petitioner argued that Article 19 of the Anti-FGM Act violated Article 43 of the Kenyan Constitution on the right to access the highest attainable standard of health, by causing there to be no medical training and qualified personnel to undertake the FGM procedure. She further asserted that the right to culture under Article 44 was violated by the imposition that FGM is a harmful practice, which inhibited the liberty to practice a culture relevant to the society.

The matters determined by the court included deliberations on whether the Anti-FGM Act is discriminatory and contravenes Articles 27 (equality and nondiscrimination), 44 (right to culture), 43(1) (right to highest attainable standard of health) and 24 (right to participate in the cultural life of one’s choice) of the Constitution of Kenya. Delivering the ruling, Lady Justice Lydia Achode said the court found that limiting these particular rights was reasonable in an open and democratic society based on the dignity of women. She further noted that the petition was devoid of merit and hereby dismissed.

Kenya outlawed the long-standing practice in 2011 through sweeping provisions that made it illegal to carry out or help someone procure FGM/C. Failure to report the practice or stigmatizing a woman – or any man who marries or supports her – for not undergoing the procedure were also banned. Causing death by performing FGM/C became punishable with life imprisonment and a fine of 200,000 Kenyan shillings.

An estimated 200 million girls and women worldwide have been subjected to FGM/C, which involves the partial or total removal of the external genitalia. The ritual is practiced in at least 28 African countries and parts of Asia and the Middle East. In Kenya alone, there are an estimated 4 million women and girls who have undergone the harmful practice.

According to an Amref-led study on the effects of COVID-19 on FGM/C in Kenya the pandemic has widened the gender inequality gap, leading to an increase in prevalence of the practice. The study, published in December 2020, revealed that 55% of respondents from 3 counties with high rates of FGM/C (Kajiado, Samburu and Marsabit) reported an increase in instances of FGM/C and Child, Early and Forced Marriage (CEFM) as a result of school closures, economic hardship and reduced enforcement and protection, which exposed potential victims to a higher risk of being forced to undergo the cut.

1 in 5 women and girls aged between 15 and 49 years in Kenya have undergone FGM/C, which has been classified as a human rights violation that discriminates against women and girls. The practice harms sexual and reproductive well-being and limits opportunities for growth and development by interrupting girls’ education and forcing them into marriage. FGM/C has also been proven to cause a host of health complications including severe bleeding, risk of infection and difficulty during childbirth.

Although Kenya outlawed the practice 10 years ago, it is still carried out among communities that believe it is necessary for social acceptance and to increase a young girl’s/woman’s marriage prospects.

The ruling has come at an opportune time when Kenya is also implementing a robust multi-agency acceleration plan to end FGM/C in compliance with the Presidential Directive to eradicate the practice by 2022. At the regional level, Kenya has initiated a programme to end cross-border FGM in partnership with neighbouring Tanzania, Uganda, Somalia and Ethiopia. The five countries have outlawed and signed a landmark Regional Declaration to end FGM in the East African region.

For over a decade Amref has implemented community- and girl-focused programmes to end FGM/C. One such intervention is the community-led Alternative Rites of Passage (ARP), which has resulted in a significant reduction in FGM/C prevalence in Kajiado county (Kenya).

This ruling invigorates our efforts to accelerate the abandonment of this practice. It also shines a spotlight on the importance of enacting airtight health laws to avoid loopholes that may be exploited to the detriment of girls’ and women’s health – and the health of the general population. It is a globally accepted truth that FGM/C is a violation of human rights, hence the need to strengthen laws and policies that protect the health and rights of women and girls.

We would like to take this opportunity to thank every individual and organisation that contributed their time and resources to provide supporting statements to the courts, as well as to acknowledge the important work carried out each day by all end-FGM/C campaigners and activists as well as Non-Governmental Organizations, Civil Society Organizations and the Anti-FGM board, among others. We look forward to working together to advance the end FGM/C agenda.