By Liz Amandla
Female genital mutilation/cutting, FGM/C, is considered barbaric in many countries around the world, including Africa. Yes. Africa. I remember reading a story in a book of short stories called Half a Day and Other Stories, the specific story titled Against the Pleasure Principle. This story explains the brutal experience of FGM/C that a young girl goes through in an African community, a rite of passage from childhood to womanhood. The story paints a vivid picture of the procedure and the excruciating pain that the girl goes through; a procedure that involves the complete severing of the poor girl’s genitalia, leaving only a small hole the size of a rice grain or wheat grain for peeing. Please read the story.
From that story, I see a practice that is outdated and is still being practiced here in Kenya in this day and age. Furthermore, there is an on-going case in a Kenyan court where a certain lady is seeking the removal of the Prohibition of the Female Genital Mutilation Act of 2011 in an effort to reinstate the practice. She argues that the practice is entrenched in many Kenyan communities and that taking that away is robbing them of their cultural heritage. She also claims that the procedure can easily be done in hospitals due to hygiene and safety concerns. Outrageous, don’t you think? Unless you outrightly fall in the communities that still cherish this practice, you would contemplate otherwise.
So then you ask, what is the purpose of the FGM Act? First, the Act was enacted following the provision of Articles 28 (right to human dignity), 29 (d) (freedom not to be subjected to torture in any manner, whether physical or psychological), 53(1) (d) (right to be protected from harmful cultural practices) of the Constitution. The Act’s preamble unequivocally states the purpose of the Act which is “to prohibit the practice of female genital mutilation, to safeguard against violation of a person’s mental or physical integrity through the practice of female genital mutilation and for connected purposes.”
Female genital mutilation is defined under the Act as comprising 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, which is the partial or total removal of the clitoris or the prepuce;
(b) excision, which is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;
(c) infibulation, which is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris, but does not include a sexual reassignment procedure or a medicalprocedure that has a genuine therapeutic purpose.
The Act establishes the Anti-Female Genital Mutilation (Anti-FGM) Board under section 3 whose composition (section 4(1)) comprises of Principle Secretaries or representatives from the Ministries of Finance, Gender, Youth Affairs, Health and Education; the chairperson appointed by the President; three representatives appointed by the Cabinet Secretary; and the Chief Executive Officer.
The functions of the Board enunciated in section 6 include:
- design, supervise and co-ordinate public awareness programmes against the practice of female genital mutilation;
- generally advise the Government on matters relating to female genital mutilation and the implementation of this Act;
- design and formulate a policy on the planning, financing and coordinating of all activities relating to female genital mutilation;
- provide technical and other support to institutions, agencies and other bodies engaged in the programmes aimed at eradication of female genital mutilation;
- design programmes aimed at eradication of female genital mutilation;
- facilitate resource mobilization for the programmes and activities aimed at eradicating female genital mutilation; and
- perform such other functions as may be assigned by any written law.
These functions are based on the Ministries whose representatives belong to the Anti-FGM Board, and can be co-performed by each of those Ministries.
In order to perform these functions, the Anti-FGM Board has been accorded powers under section 6 of the Act as follows: the power to
- enter into contracts;
- manage, control and administer its assets in such manner and for such purposes as best promote the purpose for which the Board is established;
- determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Board;
- receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom;
- enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Board is established;
- open such banking accounts for its funds as may be necessary;
- invest any funds of the Board not immediately required for its purposes; and
- undertake any activity necessary for the fulfilment of any of its functions.
These powers pertain to the Anti-FGM Board as a corporate body or an artificial person established by the Act. They are seen to make the Board a person under the law with a name on which it can transact business as well as the functions stated above. The powers of the CEO as a member of the Anti-FGM Board are illustrated in section 9. The Board also has the power to delegate it powers by way of resolution to any committee, member, officer or employee of the Board, to perform the functions of the Board. This is found in section 8 of the Act. Section 13 of the Act provides that as a body corporate with a recognizable identity, the Anti-FGM Board cannot be relieved of any liability to pay damages or compensation caused to any person for any injury pertaining to the person’s rights, or interests by way of the Board exercising its functions.
In order for the Anti-FGM Board to effectively perform its functions, it requires sufficient funding. The funds, under section 14, are received from gifts to the Board or other monies from lawful sources provided, donated or lent to the Board. The funds are subject to an audit within three months after the end of the financial year, as provided in section 17. The Anti-FGM Board, as per section 18, is also allowed to invest the funds received in securities by trustees who wish to invest trust funds, or in other securities, from time to time, which the Treasury approves. These funds may also be deposited in a bank or banks, in the event that they are not required immediately by the Board to perform its functions.
Part IV of the Act provides for what amounts to an offence of FGM. Section 19 states that any person who undergoes training under a medical practitioner or midwife to become a midwife or a medical practitioner, and who performs FGM on another person commits an offence. If the procedure causes the death of a person, the midwife or medical practitioner shall be liable to life imprisonment upon conviction. However, it shall not be considered an offence for a medical practitioner or registered midwife who performs a surgical procedure or operation on another person which is necessary for the person’s mental or physical health, or an operation at any stage of labour or child birth for the purposes related to labour or child birth.
There is no defense for a charge under section 19 that the person on whom the FGM was performed consented to that act, or that the person charged believed that such consent had been given. This means that FGM is illegal and no defense as to consent shall be admissible in a court of law.
Section 20 makes it an offence for a person who aids, abets, counsels or procures a person to commit an offence under section 19, or another person to perform the act on the other person. Procuring a person to perform FGM in another country, or having them brought into Kenya to perform the said act is also considered an offence under section 21.
Section 22 makes it an offence for a person who knowingly procures any premises for which he or she is in control of or responsible for, for the purposes of performing FGM. In addition, any person found in possession of a tool or equipment that is connected with the performance of FGM commits an offence, as provided under section 23. Any person who is aware that an offence of FGM has been, is in the process of being, or intends to be committed and fails to report to a law enforcement officer, commits an offence (section 24). The use of derogatory or abusive language to a woman who has not undergone FGM, or to a man for marrying or otherwise supporting a woman who has not undergone the process commits an offence that attracts, upon conviction, a liability of imprisonment for not less than 6 months or to a fine not exceeding Ksh. 50000, or both. This is provided in section 25 of the Act.
Other Provisions of the Act
Section 26 of the Act authorizes a law enforcement officer to enter into any premises suspected to be in connection to the contravention of the Act. Moreover, the Act places responsibility on the Government to protect women and girls from FGM; provide support services to the victims of the same and to create awareness and sensitize the people of Kenya on the dangers and adverse effects of FGM.
A person, while being a citizen of Kenya, or permanently residing in Kenya, commits an act outside Kenya that would constitute an offence under section 19 of the Act had it been committed in Kenya, is guilty of an offence under the Act. It is noteworthy that if this person has been convicted or acquitted in the country where the offence took place shall not be convicted again in Kenya. This is in accordance to article 28 of the Act of extra-territorial jurisdiction.
Section 29 finally concludes by providing the penalty to the offences committed under the Act. The penalty is a liability of an imprisonment term of not less than 3 years or to a fine of not less than Ksh. 200000, or both.
This provides a comprehensive summary of the contents of the Prohibition of FGM Act of 2011.
Liz Amandla is a Legal Policy Writer with Mtoto News
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