Edna Kandie ran away from her home in Keiyo early in 2002 when she realized her parents were just about to hand her over to circumcisers
Tagging her younger sister with her, she sought refuge with a charitable organization in Eldoret
Then together they sued their parents
That was one of the landmark cases in the Kenyan courts where FGM was challenged in a court of law. The court issued an injunction against the parents, saving 16 other girls who had been slated for circumcision
Although there was no legal framework against FGM at that time the lawyers argued that circumcision was a violation of the girls’ rights under international treaties
Fast forward to 2019 and a medical doctor in Kenya, Dr Tatu Kamau is fighting for the legalization of FGM, on the grounds that adult women should be given the freedom to make choices about their bodies.
“There is nowhere in the Constitution that this dignity and respect is defined and how it should be done. It is left to individuals to interpret it. If an adult girl wants to be circumcised, then she should be left to do it and that should be respected,” she argued
Parliament passed the Female Genital Mutilation Act in 2011 and spelled a punishment of between three years and life imprisonment for those caught conducting FGM, those who cause death of an initiate in the process and also a fine of Sh200,000 as an alternative punishment.
However analysts believe the law has loopholes that make it harder for perpetrators to be jailed. Between 2011 and 2014, of the 71 cases reported in Kenya, 16 resulted in convictions, 18 in acquittals and four were withdrawn. In 2014, the remaining 33 cases were still pending.
A 2016 annual report by the UNFPA-UNICEF Joint Programme listed 75 cases brought to court and ten convictions
“The Children’s Act needs to be amended if the war against FGM should be fast-tracked. In its current state it that protects minors under 18 not to be circumcised, the law leaves a loophole that adults take advantage of to get the cut,” says Ella Kanini, a women rights activist
The law is also silent on minors who participate in the rite.
“You cannot separate an act from an actor. If I steal, I am a thief, if I do a barbaric thing, I am a barbarian. I can sum that from the word, we categorise those who do female circumcision as barbaric while those who do not do as the sophisticated. There is nothing unethical in medical field about female genital surgeries. We do it for cosmetic reasons,” Dr Kamau argued in her court submission
Article 2 of the FGM Act 2011 clearly defines FGM as ‘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, (b) excision and (c) infibulation (with accompanying definitions of each). The only exceptions are a ‘sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose’; the law does not, however, define the meaning of ‘therapeutic’ in this context.
The Kenyan courts have been lenient with FGM cases brought before it, with several cases being thrown out due to legal technicalities or lack of evidence
“I think the law should be more harsh on parents who allow their underage children to either participate in the ritual on their own or decide to cut each other,” sates Natasha Letting, a human rights advocate
Despite the law, many communities are wary of reporting cases to the police for fear of backlash from their communities. Most will not whistle blow on their relatives who are actively involved in the practice.
“It’s not easy convincing communities to abandon the norm. However what we tell them are the consequences of FGM,” says Linah Kilimo, a crusader against FGM.
Unless legislation is accompanied by measures to influence cultural traditions and expectations, it tends to be ineffective, since it fails to address the practice within its broader social context.
Some activists believe a new campaign to fight against FGM should be initiated in Kenya to boost the waning
“Although legislation is able to challenge the traditional status quo by providing legitimacy to new behaviors, much more grassroots campaigns need to be carried out,” says Natasha Letting, a human rights defender.