When she first made her petition before the High Court in Machakos, Dr Tatu Kamau, a medical doctor of more than 30 years, declared that she is proud of her Kikuyu tradition of female circumcision.
It took the world by surprise that a woman of her stature could petition the judiciary to declare all laws prohibiting female genital mutilation unconstitutional.
The case generated global interest and moreso after the presiding judge in Machakos referred the case to Chief Justice asking David Maraga to constitute a three-judge bench to hear the case.
Justice David Kemei had ruled that “this is a case which raises fundamental constitutional issues for determination and has subsequently generated immense public interest” and so 24 October and the day after – the two days the hearing of the matter was scheduled – were anxiously awaited.
Come the day and courtroom 18 at Nairobi’s Milimani Law courts was packed as parties, the general public and the media wanted to hear Dr Kamau make her case before the learned judges – Justice Kanyi Kimondo and Lady Justices Lydia Achode and Margaret Muigai.
“Every citizen is entitled to freedom of conscience, religion, belief and opinion but the said act discriminates directly against women of specific ethnicity and religious beliefs with reference to their traditional practice of female circumcision,” she told the court as she made submissions on her petition to have the Prohibition of Female Genital Mutilation Act 2012 declared unconstitutional as well as itscreation – the anti-FGM Board – dissolved.
“The Act has created distress within some communities by overly favouring the cultural practices of one gender against the parallel cultural practices of the other gender in contravention of the constitutional fundamental right of gender equality.”
Right to consent
She maintains that female circumcision, as traditionally practised by Kenyan and other African communities, is not the same as female genital mutilation. She argues that it should not be criminal forwomen to practise their cultural beliefs.
“I understand that the law is there to also protect the children but they are very well protected by the Children’s Act and therefore this anti-FGM law denies women their right to consent,” she argued, in response to questions of how children will be exposed if the legislation was to be abolished according to her prayer before the court.
Her assertion that in the traditional African set-up, children were never circumcised as the practise was reserved for women who were ready for marriage was backed by the testimony of John Kiplagat Koech, who dismissed the popularly- held belief that FGM and female circumcision are the same.
Koech, a Kalenjin elder who once served as a prisons officer but has now retired, told the court that in their culture only women above 19 years were subjected to the rite as part of their transition to married life.
“Kalenjins never practised mutilation but circumcision,” he told the court.
“Children would never be circumcised because they are not of age to get married and this had very valid reasons as to why that tradition was part of their culture.
“A woman who is not circumcised cannot cook and serve a circumcised man who would be her husband so there was no way children could be circumcised because they are not ready for marriage.”
“Descendants of Abraham”
He explained that it was Biblical and godly to have men and women circumcised, arguing that God had instructed Abraham to change his name from Abram after circumcision and the same would be said of his wife, whose name was changed from Sarai to Sarah.
“It means they both had their names changed after they were both circumcised,” he told the court during cross examination by defense lawyers, who submitted the Bible was not clear on women circumcision.
“Where in the Bible does it say that women be circumcised in the explicit way it talks of male circumcision,” one counsel for one of the interested parties had posed.
“Why does it have to be explicit when they same Bible says that man and woman would become one? And doesn’t the same scripture say they had their names changed after circumcision of Abraham? It means Sarah followed the example of her husband and for us as descendants of Abraham must follow the same example.”
The petitioner (Dr Kamau) maintains women above the official consent age should be allowed to decide whether or not they want to undergo the cut without fear of being arrested and sent to jail.
“Female circumcision can be made safe if we stop criminalising it so that we avoid it being done at night,” she said as she made the case for medicalization of the rite to make it safe and clean.
The second day of the hearings featured two defense witnesses, who shared their experiences as survivors of the cut but made their submissions away from the media.
Their identities were only given as survivors from Elgeyo Marakwet and Northern Kenya respectively. The court adjourned to 5 December immediately after their testimonies when Professor Jaldesa Guyo, a practising obstetrician gynecologist and lecturer at the University of Nairobi will give his testimony as a third state witness.
There will be two other testimonies by Professors Joseph Karanja and Joachim Osur. The two are expert witnesses, specializing as obstetrician gynecologists appearing for Equality Now – the first Interested party and Amref, the ninth interested party.
The final submissions by the parties will be made before the court on 17 December after which the dates for the ruling will be known.