In December 2010 the Honourable Fred Kapondi, Member of Parliament for Mount Elgon, introduced to Parliament as a private members bill the Prohibition of Female Genital Mutilation Bill which seeks to criminalize the practice of female genital mutilation (FGM). Specifically, the bill requires the state to protect women from FGM, provide support to victims and as well as educate the public on the adverse consequences of the practice.
FGM or female genital cutting (FGC) is a deep-rooted and widespread practice in Kenya to the extent that only 5 of the over 42 Kenyan ethnic groups do not practice one or more form of it*. It is also a practice that is jealously guarded by some groups as part of their cultural identity and any attempts to eliminate it are viewed as an affront to their identity and cultural imperialism. It is thus important to put a perspective on exactly what this bill seeks to eliminate.
The bill comes at a time when the country has just adopted a new Constitution that affords women more and better protections for their rights including the right to health and reproductive health. Moreover, the enactment of this bill into law could be one of the mechanisms of implementing the Constitution. Outlawing FGM protects the following rights of women all of which are guaranteed under our bill of rights: life, human dignity, privacy, conscience, health (including reproductive health care) and culture. However, the greatest impact of the bill will be to safeguard women’s sexual and reproductive health.
FGM is the cause of untold suffering to millions of women worldwide with the negative consequences of its impact on a woman’s reproductive system being well documented**. Common early complications of all types of FGM are haemorrhage and severe pain which can lead to shock and death. Prolonged bleeding may lead to anemia and can affect the growth of a poorly nourished child. Local and systemic infections are also common. Long term complications are associated with infibulation, because of interference with the flow of urine and menstrual blood. Chronic pelvic infection causes pelvic and back pain, dysmenorrhoea (painful menstruation), and possibly infertility. Chronic urinary tract infections can lead to urinary stones and kidney damage. Others are the formation of cystic tumors containing hair, skin or both at the line of the scar. These are the cause of painful intercourse and they sometimes split. Childbirth is also an added risk for infibulated women, particularly where health services are limited. If de-infibulation is not performed, prolonged labour follows, which can lead to fetal death and vesicovaginal fistula, a distressing condition of urinary incontinence for which women are often ostracized by their communities***.
Apart from the physical complications, research among the girls who live in communities where FGM carried high social value, the desire to gain social status, please parents, and comply with peer pressure is in conflict with the fear, trauma, and after-effects of the operation. In short, physical complications add to the psychological trauma with the effects varying from person to person.
Legislation against FGM is not new to Kenya. In 2001, Kenya enacted the Children’s Act which has a provision that includes a provision criminalizing FGM. This provision however useful is of a limited scope because it only protects those under the age of 18. The age limit has provided a lacuna in that the practice of FGM on a woman of majority age is not a crime and thus any person wishing to escape the reach of the law only needs to raise the age when to undertake FGM. Proponents of FGM argue that for a woman of majority age the choice to undergo FGM or not is voluntary. However, anecdotal evidence reveals otherwise. Women’s rights advocacy groups have received numerous complaints from such victims alleging use of force, violence, duress and threats of divorce as some of the methods used to pressurize women to consenting to undergo FGM. To guard against these loopholes, the new bill offers equal protection to all persons regardless of age and disallows consent as a valid defense. Furthermore, where a surgical operation is necessary for a person’s physical or mental health, culture, religion, other custom or practice shall not be a consideration in arriving at a decision.
The strength of the bill despite its brevity is its holistic approach towards eradication of FGM. The three pronged approach of protection, support to victims, and public education will be key to our success as a country to move away from the practice. And as provided, it will be imperative that the FGM policy, civil society programs and other support towards this end, respond to each of these areas. In short, this law is about safeguarding the constitutional rights of women and not about eroding cultural values. Furthermore, the constitution also allows each of us the space to question and stand away from those cultural values that are injurious and discriminatory; and a culture that puts the burden of its proliferation on a single gender while causing grave injury to health, is as injurious as it is discriminatory. In the circumstances, I have no doubt that the implementation of a law such as the one proposed will go a long way in safeguarding women’s rights.
* National FGM Draft Policy 2009
*** Ross, S. D. (2009). Women's Human Rights: The International and Comparative Law Casebook. Pennsylvania: University of Pennsylvania Press.
