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.

http://accaf.uonbi.ac.ke/