Automated Summary
Key Facts
The petitioner challenged Kenya's Prohibition of Female Genital Mutilation Act (2011), arguing it infringes on adult women's rights to consent to cultural practices like female circumcision. The court dismissed the petition, ruling the Act constitutional as it prohibits harmful cultural practices that violate human rights, including health and dignity. The Act criminalizes FGM even with consent, and the court found no evidence that the petitioner's cultural rights were violated, emphasizing the harm caused by FGM.
Issues
- vii. What were the factors to be considered in deliberating upon an unfair discrimination claim?
- v. What were the factors to be considered in the limitation of rights and fundamental freedoms and whether the rights relating to culture, religion, beliefs and language could be limited?
- ix. Whether the prohibition of female genital mutilation on consenting adult women violated their right to human dignity?
- ii. What was the nature of public participation?
- vi. What was the nature of the State's obligation with regard to the right to health?
- iv. Whether a cultural practice could be deemed to be a national heritage.
- iii. What was the effect of failure to state with specificity the provisions of the Constitution that were alleged to have been violated in a constitutional petition?
- viii. Whether the criminalizing of female genital mutilation and allowing male circumcision amounted to unreasonable discrimination?
- i. Whether female genital mutilation performed with the consent of the person to whom the act was done was legal.
Holdings
- Consent to undergo FGM was explicitly rejected as a defense. The court ruled that the Act prohibits the practice regardless of consent, aligning with precedents on harmful practices and the principle that consent cannot legitimize actions causing irreversible harm.
- The court dismissed the petition, finding that the petitioner failed to prove the Prohibition of Female Genital Mutilation Act (2011) is unconstitutional. The Act was deemed to align with constitutional principles and international obligations, including protections against harmful cultural practices and promotion of human dignity.
- The Anti-Female Genital Mutilation Board was properly established under the Act, and its functions are consistent with constitutional and statutory requirements. The petitioner did not provide sufficient evidence to demonstrate that the Board's operations infringe on cultural rights.
- Female genital mutilation (FGM) was determined to constitute a harmful cultural practice under Kenyan and international law. The court emphasized its severe physical and psychological harms, justifying its prohibition to protect women's health, dignity, and rights.
- The court acknowledged that cultural practices, including female circumcision, can be limited if they cause harm. It balanced constitutional rights under Articles 11, 32, and 44 against the need to protect individuals from harm, upholding the Act's restrictions as reasonable and justifiable.
Remedies
- The Attorney General (1st respondent) was ordered to forward proposals to the National Assembly to consider amendments to section 19 of the Prohibition of Female Genital Mutilation Act (No 32 of 2011) with a view to prohibiting all harmful practices of FGM as outlined in the judgment.
- The amended petition was found to be devoid of merit and was hereby dismissed by the court.
Legal Principles
- The court emphasized the need for a purposive interpretation of the Constitution, requiring that all provisions be read as a whole to promote constitutional purposes, values, and the Bill of Rights. This approach was central to evaluating the Prohibition of Female Genital Mutilation Act against constitutional principles.
- The petitioner bore the evidential burden to demonstrate that the Prohibition of Female Genital Mutilation Act violated constitutional rights. The court ruled that unsupported assertions or hypotheses were insufficient to establish such violations.
- The court applied proportionality tests under article 24 of the Constitution to determine if limitations on cultural rights were reasonable and justifiable. This included assessing whether the Act's restrictions on FGM were proportionate to protecting women's health and dignity.
- The court reiterated the rebuttable presumption of constitutionality for statutes, noting that legislation is presumed valid unless the petitioner proves otherwise. This principle was pivotal in assessing the Act's constitutionality.
Precedent Name
- Council of Imams and Preachers of Kenya, Malindi & 4 others v Attorney General & 5 others
- Doctors for Life International v Speaker of the National Assembly and others
- R v Big M Drug Mart Ltd
- Attorney General v Law Society of Kenya & 4 others
- Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others
- R v Donovan
- Federation of Women Lawyers (FIDA-K) & 5 others v Attorney General & another
- JK (suing on behalf of CK) v Board of Directors of R School & another
- United Millers Limited & another v John Mangoro Njogu
- Omare, Gideon v Machakos University
- Haki Na Sheria Initiative v Inspector General of Police & 3 others
- Seventh Day Adventist Church (East Africa) Ltd v Minister for Education & 3 others
- R v Coney
- Karani, Stephen Wachira & another v Attorney General & 4 others
- In Re Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General
- Leina Konchellah & others v Chief Justice of the Supreme Court of Kenya & others
- Waweru, Peter K v Republic
- Katet Nchoe & another v Republic
- Kandie, Karen Njeri v Alassane Ba & another
- Mbugua, Simon & another v Central Bank of Kenya & others
- Institute of Social Accountability & another v National Assembly & 4 others
- Republic v Kenya National Examinations Council & another ex parte Audrey Mbugua Ithibu
- Dullu Kora Elisha v Kenya School of Law & another
- Kenya Human Rights Commission v Communications Commission of Kenya
- Anarita Karimi Njeru v Republic
- Harksen v Lane NO and others
- Ndyanabo v Attorney General
- Ajuang, Joan Akoth & another v Michael Owuor Osodo the Chief Ukwala Location & 3 others; Law Society of Kenya & another
- Martin Nyaga Wambora & others v Speaker of the Senate & 6 others
- County Government of Nyeri & another v Cecilia Wangechi Ndungu
- Ramogi, William Odhiambo & 3 others v Attorney General & 4 others
Cited Statute
- Children Act, 2001
- Prohibition of Female Genital Mutilation Act, 2011
- Constitution of Kenya, 2010
- Penal Code (Cap 63)
- Protection of Traditional Knowledge and Cultural Expressions Act, 2016
- Prevention of Torture Act, 2017
- Evidence Act (Cap 80)
Judge Name
- M. W. Muigai
- K. Kimondo
- L. A. Achode
Passage Text
- In our case, FGM is certainly harmful to the physical and no doubt psychological and sound well-being of the victim. It may lead to child birth complications, in this case, it led to premature death of a teenager.
- It is no defence to a charge under this section that the person on whom the act involving female genital mutilation was performed consented to that act, or that the person charged believed that such consent had been given.
- 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.