Thursday, 24 October 2019 will mark a momentous day as the hearing of a landmark case begins. High Court of Kenya petition 244/2019 is challenging the constitutionality of laws and policies criminalizing female genital mutilation as it were, the petitioner – Dr Tatu Kamau saying the Prohibition of FGM Act 2011 denies women the right to be circumcised.
When the three learned judges – Justice Kanyi Kimondo and Lady Justices Lydia Achode and Margaret Muigai, begin listening to the submissions inside courtroom 18, they will be faced with the unique challenge of hearing submissions by opposing parties seeking to make emotional statements on a matter of heavy legal ramifications.
But as the learned fiends will be going at each other through the judicial contest, the battle outside the courtroom presents unique juxtapositions, what FGM really is against the principle behind women initiation practices.
While the law as it is prohibits FGM, those against it submit that its rendition criminalizes a cultural practice called female circumcision, which bears no harm whatsoever to the women who undergo it.
Interestingly, the argument that mature women should be allowed to choose modification of their genitals if that is what they desire makes for a great discourse that could tilt the outcome of this contest both in the judicial corridors and in the court of public of public opinion and ultimately influence what society would adopt at the end of this debate.
Alternative bold voices
While the world has been, for the past close to five decades, accustomed to campaigns against FGM due to the ‘adverse’ health and reproductive health implications it has on the women who undergo the rite, an alternative voice is emerging perhaps emboldened by ‘misrepresentations by anti-FGM campaigners’.
Yet these bold voices maintain theirs is a campaign to protect cultural practices that must be preserved.
These are women who contest the generalization that makes female circumcision a syno-phrase to female genital mutilation.
“We represent proudly circumcised, normal, healthy, sexually confident and accomplished women worldwide who reject the terminology Female Genital Mutilation,” says Dr Fuambai Ahmadu – co-founder of All Women Are Free to Choose, a non-governmental organization that advocates for women’s right to choose what to do with their body, including the choice to be circumcised.
The NGO provides evidence- based health information on benefits and risks of different types of female genital alterations, challenging misinformation promulgated through global anti-FGM propaganda.
Circumcised in accordance with her tradition back in her native country – Sierra Leone, Dr Ahmadu says there is a “vast majority of circumcised women who do not see or experience ourselves as mutilated”.
This assertion by Dr Ahmadu, similarly expressed by Dr Kamau in her petition forms the crux of the debate on whether or not female circumcision bears the medical or reproductive risks and dangers that anti-FGM campaigners put forward as basis for opposing the tradition.
Women should choose
Excruciating pain, genital deformation and difficulty during childbirth are some of the medical dangers supposedly associated with female genital mutilation but Dr Kamau maintains the fact that she has never encountered the many problems typically associated with female circumcision among numerous of her patients from circumcising communities is good enough grounds to allow mature women to choose whether or not to undergo the cut.
Dr Ahmadu disputes the medical risks claims, saying she has seen women, regardless of whether or not they had been circumcised, face similar challenges because of the environment or circumstances of their life.
Kenya’s anti-FGM Board chairperson – Agnes Pareyio, who says she was cut at 14 against her will, argues the practice is an insult to women based on its brutality to those who go through it.
“I am a survivor and I know the extent of the pain that women go through with FGM – it is a violation of our human rights,” Pareyio was quoted as saying after Dr Kamau filed her petition.
Damaris Seleina Parsitau, a scholar who has written several commentaries against FGM, points out to the fact that outlawing the cut through the law has led to massive medicalization of the practice which she says is intended to legitimize the cut.
“However, the real reason driving this is its economic value. Medical professionals are cutting girls and women for payment, replacing the traditional cutters in rural villages. Additionally, the commercialization of FGM/C helps parents and guardians to avert the law and authorities,” she writes in one of her commentaries.
According to Dr Kamau, medicalization of female circumcision should follow its legalization to make it easier and safe for those who want to undergo it to seek the best medical services.
“Once you reach adulthood there is no reason why you should not make that decision,” she was quoted by Kenya’s Daily Nation in January 2018, saying her emphasis is to discourage FGM without criminalizing it and letting mature women consent to it.
“Just as people are discouraged from smoking or drinking alcohol, the gospel against mandatory circumcision as a cultural right of passage should continue, but those who choose to go under the knife should not be arrested.”
Dr Ahmadu backs this assertion maintaining it is ridiculous to jail a woman for choosing to be cut while in the West, where the anti-female circumcision gospel originated, women who have attained the age of consent are allowed to choose what to do with their own bodies or genitalia.
“In the US, unlike Kenya, it’s certainly not okay to discriminate. Adult women have the right to choose female circumcision or female genital cosmetic surgery or an abortion – whatever the aversions others may have to these practices,” Dr Ahmadu avers.
No clear differentiation
But while in those liberal democracies procedures like labiaplasty, clitoral reductions or piercings, vaginal rejuvenation or other forms of so-called female genital cosmetic surgeries are legally permitted, there is no clear differentiation between FGM and female circumcision; leaving those who practice the latter exposed to the same punishment as those who perform the former which is harmful.
According to the Prohibition of Female Genital Mutilation Act (2011) FGM “comprises all procedures involving partial or total removal of the female genitalia or other injury to the female genital organs, or any harmful procedure to the female genitalia, for non-medical reasons, and includes” clitoridectomy, excision and infibulation. It “does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose.”
The law does not give room for the principle of consent to insulate mature women from being punished if they choose to be circumcised, which is what those opposed to the laws want abolished.
Alexander Parsimei (not his real name), a Maasai elder says practicing communities are suffering because of how the law victimizes them for practicing their culture.
“Tumekuwa tukifanya hii tohara (ya wanawake) tangu zamani lakini sasa imekuwa hujuma kwetu kwa sababu sasa serikali inashika sisi na kupeleka jela (This female circumcision has been a part of our culture since time immemorial but we are now being victimized and sent to jail by the government),” he says, maintaining how the fear of being arrested has made it risky yet they have done it safely for many years.
A traditional cutter from Narok says: “Hii mambo ya mtu kufa kwa kutahiriwa ni kwa sababu sasa watu wanafanya na uoga sana ndio hawafanyi vile inatakikana lakini kama watu wanafanya bila kujificha haitakuwa na madhara yoyote (The cases of death due to circumcision is because people are doing this in fear so they don’t do everything as required but if it was allowed then the risks would be minimal).”
As the debate rages and protagonists have a go at each other’s beliefs, Dr Kamau’s case has brought to the fore voices that have been silenced for decades and which would get louder in the future as this “quiet, humble hero” has turned the page to fight for, as Dr. Ahmadu contends, the “rights to equal dignity and, importantly, to our own voices”.
“Anti-FGM campaigns – often relying on sensationalized, random internet images of dirty razor blades, screaming women, girls and even babies being held down […] have created a false metanarrative about female circumcision as “mutilation” or a form of sexual oppression and extreme violence against girls and women.
“These images of FGM – as a barbaric, sadistic, patriarchal maiming of girls and women to deprive us of sexual enjoyment – do not remotely reflect the personal experiences of the vast majority of us affected women or the deeply felt matriarchal aspects of our societies that recognize the inherent right and capacity of women to sexual pleasure […] orgasm.”
While anti-FGM campaigners maintain the practice, in some communities, involves the complete of the clitoris (which opponents say is physically impossible) as well as the labia minora and the labia majora, female circumcision proponents have rubbished the claims saying the “false FGM narrative” has indiscriminately attacked circumcised women equally around the world, including those who perform the mildest forms of female circumcision.
Struggle to decriminalize
Khatna, for instance, practiced mainly in Asia “is a barely visible nicking of the clitoral foreskin […] far less invasive than male circumcision”.
“No circumcised woman, whatever her religion, however light her complexion or minimal her procedure is immune from the persecution and stigma of anti-FGM campaigns.
“This is why all circumcised women need to put aside our artificial differences in race, history, religion, culture, nationality, ethnicity and socio-economic status and join hands across the world,” says Dr Ahmadu.
Dr Kamau’s petition represents the boldest struggle to decriminalize adult female circumcision in Kenya and those in support of this case will be watching keenly to see how it pans out. Their simple argument is that in the traditional African culture, initiation for men and women involved circumcision at the early stages of adulthood, just prior to marriage.
This group maintains that there was no possibility of children or underage girls being subjected to the rite because circumcision was, and still remains, a huge marker for full adulthood and marriage under customary law and tradition.
There are 10 interested parties, two friends of the court and three respondents – the Attorney General, Anti FGM Board and the Director of Public Prosecution.
Federation of Women Lawyers in Kenya, Kenya Women Parliamentary Association, National Gender & Equality Commission and Samburu Girls Foundation, are some of the interested parties opposing the case.
Other interested parties are Equality Now, Msichana Empowerment, AMREF, Centre For Rights Education & Awareness, Men for Equality Of Men & Women and John Kiplangat Arap Koech.
Katiba Institute, Kelin and Isla are listed as friends of the court in the landmark case.
FIDA says the petitioner must lose the case if the gains made against FGM are to be sustained, adding that abolishing the law will see more women compelled to undergo the cut to fit into societies.
“What do you think will make a 45-year-old woman agree to FGM? It will definitely be because she wants to be accepted and assimilated into the family she is married to. That will not necessarily be about her choices but about external coercion,” argues FIDA chairperson – Josephine Mongare, ahead of the hearing that will take place over two days at the Constitutional and Human Rights Division of the High Court of Kenya.
Anti-FGM Board says the campaign had seen prevalence drop by 16% between 2008 and 2014, down to 21% from 37%, according to the demographic health survey.
The office of the Director of Public Prosecutions has designated at least 20 prosecutors to handle FGM-related cases.