Wednesday, 10 December 2014

Consent is no Defence

This week at a validation workshop in a hotel in Nairobi several implementing partners in advocacy against FGM/C met to validate an abridged version of the Prohibition of Female Genital Mutilation Act 2011.

One of the interpretations of the law proposed partly states that if a woman consents to undergo FGM/C, she has not committed an offence. Such an interpretation shows a gap in the existing law and presents a setback in the efforts towards abandonment of the practice. With worldwide prevalence at a high and abandonment efforts few, every loophole has to be addressed lest we run the risk of slowing down campaigns against FGM/C.

Commenting on this interpretation, ACCAF’s Dr Agnes Meroka notes: “The anti FGM law in Kenya covers both the traditional practices as well as medicalized practices. While the prohibition of FGM Act 2011 does not expressly mention medicalization as an outlawed practice this in itself does not mean that medicalization is not outlawed in Kenya. This act must be read together with articles 2(5), 2(6) 27, 28, and 29 of the constitution, which led to the conclusion that FGM, regardless of whether it is performed by a traditional practitioner or medical professional, constitutes a violation of fundamental rights and freedoms, and is a violation of the law.”

As we have noted in one of our posts, medicalized FGM/C does not mean safe FGM/C. Only last month in Egypt, Dr. Raslan Fadl was acquitted of murder charges that had been proffered against him after performing a botched FGM/C. The victim, 13-year old Suhair al-Bata’a succumbed to complications as a result of the surgery. In Kenya, medicalization is a new trend and is widely practiced by the Kisii. However, this medicalization contravenes the medical code of ethics. Allowing it to continue would give a green light to quacks in the industry to perform the act. Indeed, the mere fact that FGM/C can be performed under medical supervision does not alienate the complications a woman would suffer as a result of the operation. Hence, it is very important that the law is read and interpreted correctly to avoid such loopholes.

A lot of money, human resource, time and effort have been invested in the fight against FGM over the years. Every loophole has to be sealed, as gaps in our advocacy will thwart all the years and efforts of survivors and campaigners who want to see an end to this practice.

Monday, 1 December 2014

Should Circumcisers Face Tougher Jail Terms?

The December holiday season in Kenya comes with a lot of activities, one of which is female genital mutilation/cutting (FGM/C). Patterns in the practice of FGM/C are now shifting from traditional hyped ceremonies to secret ceremonies performed at night, with only members of the household present. This shift makes it difficult to trace the circumcisers, who continue with the practice because they see it as a lucrative business that earns them up to Kshs. 20,000. Although laws have been put in place to discourage FGM/C, chiefs find it difficult to prosecute the perpetrators owing to the absence of consenting witnesses. Sometimes, the victims even deny that any harm was done to them.

After carrying out its own research into these changes, the Office of Director of Public Prosecutions in Kenya is proposing a set of new legal directives. An article by The Star Newspaper highlights this statement, noting that,

“to make it easier to arrest those who refuse to give up FGM, the office of Director of Public Prosecutions is proposing a raft of amendments to the Female Genital Mutilation Act to make it more punitive. The proposed amendments arise from a study report on FGM trends carried out by the DPP's office among various communities in the country. One of the key amendments is the introduction of a life imprisonment sentence for persons who perform FGM on children aged between 0 and 5 years. ‘This proposal caters for those communities that circumcise girls at their infancy as such it is difficult to detect. In communities such as the Tavetas, this has led to high infant mortality rates,’ the DPP's report says. The amendments will also introduce an offence of performing FGM on oneself and which will attract a one-year imprisonment and a fine of Sh100, 000. ‘There some communities where the girls or women cut themselves. This occurs mainly where the parents have refused to give their consent for the ceremony. This practice we found was common among the Ameru,’ the DPP's report says. Attempted FGM will attract an imprisonment of 5 years, according to the proposals by the DPP's team. The DPP is also proposing that it be an offence to use threats and intimidation is used to cover up for the commission of an offence. This offence, the proposals read, should attract a sentence of three years with no option of a fine. It will also be an offence for teachers and doctors withholding information on cases of FGM that come to their knowledge.”

What do you think about this proposal from the DPP's office?

Source: DPP proposes tougher jail term for FGM offenders