The Kenya High Court on Wednesday refused to allow female circumcision for consenting adults, saying unlike the male cut it does not have health benefits and reduces the wellbeing of the woman it is performed on and in some cases can lead to death.
The ruling by three High Court justices against the petition filed by Tatu Kamau said evidence presented showed women in the communities that practise female circumcision – widely referred to as female genital mutilation (FGM) because of its adverse effects – do not have a choice.
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Kamau argued many women want to undergo circumcision, but the law prevents them.
“We are not persuaded that one can choose to undergo a harmful practice. From the medical and anecdotal evidence presented by the respondents, we find that limiting this right is reasonable in an open and democratic society based on the dignity of women,” Justices Lydia Achode, Kanyi Kimono, and Margaret Muigai said in their ruling.
Kenya’s Female Genital Mutilation Act, passed in 2011, states anyone found guilty of the practice could be sentenced to at least three years in jail or pay a fine of $1,800.
Kamau intends to appeal the judgement, her representative said after the ruling.
“Generally for me, I am disappointed. I feel that the rights of women have been subsumed in those of a child,” she said.
Deeply rooted practice
An estimated 200 million girls and women worldwide have been subjected to the practice, which usually involves the partial or total removal of the external genitalia. It is a deeply rooted practice in some communities in Africa, Asia and the Middle East.
One-in-five women and girls aged between 15 and 49 in Kenya have undergone some form of the procedure, according to the United Nations Fund for Population Activities, the UN’s sexual and reproductive health agency.
President Uhuru Kenyatta has pledged to end FGM by 2022, but women’s rights groups say that target is not realistic because of crime and insecurity, the remoteness of many locations, and high prevalence rates in some areas of the country.
Female circumcision can affect sexual intercourse and lead to problems with childbirth. In some cases, HIV is spread via the tools used, and excessive bleeding or badly done procedures can lead to death.
“Today is a great day for the women who live in these communities that practise female genital mutilation,” said lawyer Ken Mbaabu, who is a board member of Samburu Girls Foundation, a group fighting the practice they say leads to early marriages.
The court ruling upholds the rights of women to make their own decisions about their bodies, he said.
While the argument of giving adults consent may seem logical, Mbaabu said, in the communities that perform the cut, a girl is considered an adult when she starts her menstrual cycle, from about 12 years.