Legal gaps, impunity and blind allegiance to culture to blame for stubborn vice

December, the month when we celebrate Christmas, has just zoomed by. For several girls in Kenya, however, the highlight of the month has been pain and tears. Their parents and communities have openly connived at some disgusting, primitive and worthless — not to say criminal — cultural practice known as Female Genital Mutilation (FGM).

Under the right to security of the person, the Constitution proscribes  and establishes the right of every person not to be subjected to any kind physical or psychological torture.  Female Genital Mutilation, whatever name we baptise it or whatever reason we give to justify it, is clearly an act which leaves its victims with instant pain of a physical and psychological kind that lasts beyond the actual procedure. 

For the diffident, the Constitution further prohibits treatment that is inhuman, cruel and degrading. This is yet another clear indication of the Constitutional stricture against that practice.

The health risks to which victims of FGM are exposed not only at the time of the procedure but subsequently are many and well-known. Therefore, this practice is a clear abrogation of a child’s right to the highest standard of health, including reproductive health care that Article 43 of the Constitution envisages for every citizen of Kenya.

To the cultural apologists who worship recrudescent practices, Article 44 of the Constitution has some words for you: No person shall be compelled to undergo or observe any cultural practice or rite.

The wisdom of the Constitution’s framers and the persons who approved it at the referendum is that when it comes to certain rights, no person should make the decision of observing a cultural right on behalf of another — not even a parent, I dare say.

Not least is the Constitutional prescription on the rights of children specifically. Article 53 speaks plainly and reiteratively when it states that Children shall be protected from abuse, neglect or harmful cultural practices. What else could have been intended here other than FGM and its ilk? Where would the duty to protect a child lie other than first with the parents or guardians? Thus, the parent subjecting or permitting a child to FGM would be acting unconstitutionally in two ways: by being party to the infringement of the child’s right not to undergo the practice, and also in failing to protect the child from the practice itself. In addition, Article 55, which talks of the rights of the youth, further compounds the angst of the Constitution towards procedures like FGM by asserting that the youth, too, should be protected against harmful cultural practices.

Aside from the Constitution, there is a law specifically geared at outlawing the act. The Prohibition of Female Genital Mutilation Act of 2011 declares as its purpose the prohibition of FGM and the provision of safeguards to the violation of the physical and mental well-being of persons through subjection to the procedure. The Act establishes an Anti-Female Genital Mutilation Board whose purpose is to conduct public awareness campaigns and other initiatives towards the eradication of FGM.

The concern is that the Anti-FGM Board is established more to work at eradication by diplomatic and soft approaches. For example, while the performance of FGM is an offence for which conviction would attract imprisonment for life, there is no clear power for the Board to engage actively in the investigation of complaints relating to the practice.

One would have also expected that the Board would be empowered, in pursuit of the Constitution, to ensure that children are protected from the harmful practice and parents who permit or condone it are deprived of their parental rights by the placement of endangered children in protective care. 

But this is not entirely a problem of law. There is sufficient deprecatory law at the constitutional level followed by the criminalisation of the act with serious penalty of life imprisonment. What lacks is the resolve to look at the issue in the eye and take the steps required to protect children.

Then other reason is that the continued prevalence of FGM in Kenya is evidence of impunity in the villages and condonation by the rest of society.

In the midst of the Second World War, Winston Churchill said this on Christmas Eve 1941: Let the children have their night of fun and laughter... Let us grown-ups share to the full in their unstinted pleasures before we turn again the stern tasks  and the formidable years that lie before us, resolved that by our sacrifice  and daring these same children would not be robbed of  their inheritance or denied their right to live in a free  and decent world”

As long as FGM continues to raze through this country, Winston Churchill’s wishes for children to live in a decent and free world cannot possibly be said to include Kenya, 75 years after he uttered the words. We are letting girls down. FGM is a national disaster. Yes, I said it.