In this case, the petitioner in her petition claims that the Prohibition of FGM Act violates women’s rights to perform their culture as provided for under Article 44 of the Constitution. This provision guarantees every person the right to participate and practice the cultural life of his or her choice. She further alleges that the Anti-Female Genital Mutilation (Anti-FGM) Board infringes on the rights of the Kenyan women who value and practice female circumcision. As a result, she has asked the court to declare the Prohibition of FGM Act as unconstitutional and invalid. She also seeks an order declaring the Anti-FGM Board as unconstitutional for having been established without the authority of the law.
If their joint application is granted, KELIN and ISLA intend to develop their submissions on FGM as violation of women’s rights to highest standard of health in particular violation of sexual and reproductive health rights of women. They will also advance the correlation between FGM and HIV/AIDS. Further they seek to demonstrate FGM is a harmful cultural practice and a form of violence against women. In addition, they will provide comparative jurisprudence from other constitutional democracies on FGM as harmful cultural practice that violates women’s rights. Lastly, they will share a historical perspective on FGM within the continent and provide to the court the best practices that should govern the court while making its decision.
The Attorney General and the Anti-FGM Board have been cited as the respondents. In the petition.
Several organisations have applied to be enjoined in the case as either interested parties or amicus curiae. These include Equality Now, FIDA Kenya, National Commission on Gender and Equality, Msichana Empowerment-Kuria, Samburu Youth Empowerment and Katiba Institute.
When the case was mentioned on 2 November 2017, the Petitioner requested the court, and was granted time to respond to the applications filed by the various organisations. She was also given permission to amend her petition.
The case will now be mentioned on 17 January 2018 for direction on the applications as well as on the hearing of the petition.
To contribute to the discussion and for live updates follow KELIN on our social media platforms: Twitter: @KELINkenya using hashtag #Justice2Health
For more information contact:
Carolene Kituku
Advocate and Human Rights Counsel
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
4th Floor, Somak Building, Mombasa Road Tel +254202515790;
Cell +254720467396;
Email: ckituku@kelinkenya.org
