Unlocking the door to legalising female genital mutilation (FGM) in Kenya: the case for culture?
By Lyse Nathalie Menyimana (Legal Researcher, Africa)
Female Genital Mutilation (FGM), a practice that some women and girls, mostly in Africa, undergo as a rite of passage has been qualified as violence against women and girls by the United Nations and under international human rights law.
Evidence exists that suggests such a practice has no benefits; whether health or social.
Health consequences include the fact that Female Genital Mutilation is injurious, harmful and in extreme cases, contributes to complications during childbirth such as increased risk of death in both mother and child. As to social consequences, they capture issues such as child marriage, and high rates of girls leaving school earlier than their male counterparts. It is in this sense that it is argued that women and girls who go through FGM are exposed to life-long disadvantages that may negatively affect their health, as well as disrupt their future professional career. At this point, the UN affirms that such a practice reveals an extreme form of discrimination against women and girls. FGM is said to violate women’s and girls’ rights to health, security, bodily integrity and particularly the right to be free from torture and cruel, inhuman or degrading treatment. Opponents suggest that FGM must be outlawed, no matter the circumstances.
However, this is not how a Kenyan medical practitioner perceives the practice of FGM. Dr Tatu Kamau has filed a case at the High Court in Machakos, Kenya, asking for FGM to be decriminalised. It is worth mentioning that Kenya formally outlawed FGM in 2011. Surprisingly, a practising doctor, who is aware of the potential health side-effects, is advocating for the continued practice of FGM. Dr Tatu Kamau’s claims are supposedly representative of local communities that wish to protect customary cultural practices. Although Kenya has made progress in formally tackling FGM, in the past few years, according to the Kenya Demographic and Health Survey, some parts of the population still believe in such a practice and continue to conduct it, albeit illegally.
Returning to the court case in question, the doctor’s main arguments are that the law against FGM damages cultural practices attached to the Kenyan communities; as well as other African countries. She argues that it should be legal for Kenyan girls and women to practise their own culture, ‘in the best way possible’, through transposing these practices into safe and regulated spaces with medical oversight. Opponents, however, continue to insist that whether FGM is undertaken in hospitals or not, the effects and risks of FGM remain the same. For Dr Kamau, every woman above the age of 18 should be allowed to decide whether she wants to undertake the procedure or not. Most pivotally, minors are the most vulnerable to FGM practices and community and cultural pressure to have the procedure, and even for women aged over 18, they cannot be said to have complete freedom of choice when it comes to FGM, as there are so many external pressures and influences.
‘Female Genital Mutilation (FGM) is our heritage, banning FGM is straying away from our African roots,’ says Dr Tatu Kamau.'
Dr Kamau’s actions in bringing the case to court has not be welcomed by most Kenyans. Her actions have been described as shameful, uncivilised and retrogressive. But perhaps, she is speaking for other parts of local communities through her actions, those without a voice. The fact that even though FGM has been abolished in the country and that some medical practitioners still conduct it secretly proves that the mindsets still have not changed. The job of performing the procedure on girls and women is not only a source of income, but is also often deemed a respected profession that brings dignity to the practitioner.
This case shows that law-making and law reform have a limited reach when they are not combined with educational and advocacy efforts to inform local communities of such dangerous cultural practices as FGM.