Doctor loses bid to have FGM legalised, court rules it violates right to human dignity
A Nairobi court on Wednesday directed the Attorney General to table the Female Genital Mutilation (FGM) Bill to Parliament to consider all forms of the act banned after a doctor’s bid to legalise it failed.
Dr. Tatu Kamau had challenged the constitutionality of the Prohibition of the Female Genital Mutilation Act as well as the Anti-Female Genital Mutilation Board.
She argued that sections of the Prohibition of the Female Genital Mutilation Act contravene the Constitution by limiting women’s choice to uphold and respect their culture.
According to Dr. Kamau, Section 19(1) of the Act that prohibits a qualified medical practitioner from performing female circumcision denies willing adult women access to the highest attainable standard of health.
The court however noted that evidence from doctors showed that FGM has grave disadvantages including death of the victims.
“…while our Constitution has a general underlying value of freedom, this value of freedom is subject to limitation which is reasonable and justifiable. Additionally, it has not inscribed the freedom to inflict harm on one’s self in the exercise of these freedoms,” read the ruling by Judges L.A Achode, K. Kimondo and M.W Muigai.
“The evidence before us demonstrates that the practice of FGM/C implicates not only the right to practice cultural life but also the right to health, human dignity and in instances when it results in death, the right to life. The provisions of international treaties reproduced hereto are also clear that not all traditional practices are prohibited, but only those that undermine international human rights standards.”
The court further added: “In sum there is no doubt that FGM/C was central to the culture of some communities in Kenya including the Kikuyu to which the petitioner belongs. However, from the medical evidence, and as discussed earlier, we are left in no doubt about the negative short term and long term effects of FGM/C on women’s health. We have also discussed the absence of consent by victims who undergo the rite which violates Article 44 (3) of the Constitution. 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.”
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