OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Draft Report on Sensitization of Prohibition of FGM Act 2011

By: The Anti-FGM Prosecution Unit

TABLE OF CONTENTS
EXECUTIVE SUMMARY ____________________________________________________________________ 4

1.0 Introduction ____________________________________________________________ 6

1.1.

The ODPP Anti FGM Prosecution Unit ___________________________________ 7

1.2.

Achievements __________________________________________________________ 8

2.0.

Findings and Observations __________________________________________________ 9

2.1.
Kisii County ____________________________________________________________________ 9
2.2.
Samburu County ________________________________________________________________ 9
2.3. Marsabit County: __________________________________________________________________ 9
2.4. Nairobi County ___________________________________________________________________ 9
2.5. Kuria County ____________________________________________________________________ 10
2.6.
Wajir County __________________________________________________________________ 10
2.7.
Elgeyo Marakwet ______________________________________________________________ 10
2.8.
Garissa Report _________________________________________________________________ 11
2.9.
West Pokot ____________________________________________________________________ 11
2.10 .
Narok ______________________________________________________________________ 11
2.11.
Tana River __________________________________________________________________ 12
2.12.
Taveta ______________________________________________________________________ 12
2.13.
Kajiado _____________________________________________________________________ 12
2.14.
Meru ______________________________________________________________________ 12
2.15.
Baringo ______________________________________________________________________ 13

2.2.

Factors Fueling FGM __________________________________________________ 13

2.2.1Cultural Practices _________________________________________________________________ 13
2.2.3 Religion _________________________________________________________________________ 14
2.2.4 Political Interference ______________________________________________________________ 14
2.2.5. Illiteracy ________________________________________________________________________ 14
2.2.6.
Poverty _____________________________________________________________________ 14
2.2.7.
Laxity by duty bearers _______________________________________________________ 15
2.2.8.
Changing Dynamics of FGM __________________________________________________ 15
2.2.9.
Case Backlog ________________________________________________________________ 15
2.2.10.
Lack of knowledge for Existing Law ___________________________________________ 15

3.0.

Challenges ___________________________________________________________ 16
3.1 Few Rescue Centers _______________________________________________________________ 16
3.2 Lack of Reporting __________________________________________________________________ 16
3.3 Inadequate personnel to handle the FGM cases _______________________________________ 16
3.4. Poor inter agency cooperation _______________________________________________________ 16
4.0. Comparative study on best practices in other jurisdictions in handling FGM Prosecutions __ 17

5. 0.

RECOMMENDATIONS _____________________________________________ 29

6.0 Annexure ______________________________________________________________ 30

2

6.1.
Proposed Amendments to the Prohibition of FGM Act 2011 ______________________________
6.2. Cases Pending In Court On Early Marriages And Fgm________________________________
a) Chief Magistrate's Court At Isiolo __________________________________________________
b) Kapenguria Law Courts ___________________________________________________________

30
32
32
34

EXECUTIVE SUMMARY

Recent studies have shown that there are several areas in this country where the
practice of FGM is prevalent. In those areas where FGM is rampant, the practice has
taken on a new form; in that it has gone underground having lost its pomp and
glamour but the cutting has been maintained. This is after the community literacy
efforts have increased knowledge on the illegality of the practice. Statistics(DHS 20082009) have shown the following areas to have a high prevalence of the practice;
Marsabit, Garissa, Wajir, West Pokot, Elgeyo Marakwet, Baringo, Kuria, Narok,
Kajiado, Meru, Isiolo, Tana River, Kisii, Kilgoris, Samburu, Taita Taveta and Nairobi.
The ODPP being fully aware of the challenges and the impacts of FGM under the
leadership of the Director established a unit whose mandate is to prosecute offences
relating to FGM, under the Prohibition of Female Genital Mutilation Act 2011, within
the country. As part of its intervention the Unit employed a two prong approach
blending community sensitization with prosecutions. The Unit undertook sensitization
of members of the public on the provisions of the prohibition of Female Genital
Mutilation Act 2011, visiting 16 counties from 6th April, to 14th June, 2014. The exercise
targeted the local administration, youth and opinion leaders, religious leaders, schools
and the community members. The target groups met with the Unit members through
public gatherings commonly known as Barazas, meeting, consultative forums and one
day workshops organized for the members of the local administration.
During the visit the Unit found that deep-rooted cultural belief; capacity in terms of
inadequate personnel and resources, countable rescue centers and poor infrastructure;
low level of community literacy; use of alternative dispute resolution mechanism;
political interference; laxity by duty bearers and poor interagency cooperation are some
of the issues that impede and fuel the practice of female genital mutilation.
In their quest the Unit undertook a comprehensive study on several jurisdictions that
have been on the forefront in the war against FGM such as the UK, USA, France,
Uganda and Egypt. From this study it was established that save for France all other
countries and grappling with how to tackle the prosecution of FGM offences. It is also
noteworthy that prosecution must be supported by programs aimed at achieving social
change for it to be effective in eradicating FGM. Premised on this, the Unit made
several suggestions for amendment to the Kenyan Legislation on FGM.

The Unit developed Standard Operating Procedures (SOPs) for FGM, Early Marriages
and related cases to aid in investigation and prosecution.
In order to achieve results in the campaign against FGM the Unit proposes that a muftiprong approach be embraced by all stakeholders. The approach should include
strengthening of prosecution of FGM cases through capacity building and sharing of
best practices, proper investigations and security of information; engaging in
community literacy activities on FGM; standardize case management amongst
stakeholders, strengthen inter agency co-operation and in the development of a follow
up mechanism on all reported matters peripheral and central to FGM.

1.0 Introduction
Kenya has signed several international human rights conventions, which provide a
strong basis for the characterization of FGM as a violation of international human
rights; Convention on the Elimination of Discrimination Against Women (CEDAW),
Convention on the Rights of the Child (CRC) , International Covenant on Economic,
Social and Cultural Rights (ICESR), African Charter on the Rights and Welfare of the
Child, Maputo Protocol to the African Charter on Human and Peoples Rights on the
Rights of the Women in Africa (the Maputo Protocol), African Charter on Human and
Peoples Rights (the Banjul Charter).
In December 2012, the UN passed a historic resolution, calling on countries to eliminate
FGM. In the same spirit in 2013 the 57th UN Convention on the Status of Women it was
agreed that a reference be included on the need of states to develop policies and
programmes to eliminate FGM as well as other forms of violence against women (UN,
2012). In realization of the impact of FGM the African Union declared the years from
2010 to 2020 to be the Decade for African Women. Kenya is expected to continue its
commitment to promote and protect the rights of women this including the eradication
of FGM.
In Kenya a number of policies and studies concerning FGM have been carried out. Key
among them is the National Plan of Action for the Elimination of Female Genital
Mutilation 2008-2012 that provides a road map on the implementation of anti- FGM
activities. It is also noteworthy that even way before this National Plan of Action the
enactment of the Children Act 2001 prohibited FGM of children, that is, anyone below
the age of 18 years. Section 14 of the Act protects children against harmful cultural
practices.
The Constitution also addresses issues of FGM and other forms of discriminative
cultural practices. Article 2 (4) of the Constitution provides that any law including
customary law, that is inconsistent with the Constitution is void to the extent of the
inconsistency and any act or omission in contravention of the Constitution is invalid. In
addition to the foregoing Article 44(3) of the Constitution provides that a person shall
not compel another person to perform, observe or undergo any cultural practice or rite.
This is buttressed by Article 25 and Article 53(1) (d) that further provide for freedom and
protection from cruel inhuman degrading treatment, cultural practices and all forms of
violence. The effects and results of female genital mutilation are tantamount to cruel,
inhuman and degrading treatment and can also be deemed as a form of violence against
women.
6

The Government as a duty bearer is further tasked in Article 21(2) of the Constitution to
put in place progressive measures to ensure economic and social rights under Article 43
are enjoyed by all and sundry. The implementation of the Prohibition of Female Genital
Mutilation Act 2011 can be termed as a progressive measure towards this realization.
It is in this same spirit that Kenya enacted the Prohibition of Female Genital Mutilation
Act in 2011 which came in force in October of the same year. The Act has provided for
offences that are prosecutable under the criminal justice regime in Kenya. In order to
make valid progress in the prosecution of FGM/C cases in Kenya it is paramount to
have an informed public as this law does not apply in a vacuum.
The ODPP is alive to the fact that this legislation seeks to legislate against culture and
such the approach to its implementation is unique owing to the sensitivity of the
offences it creates. The ODPP also appreciates the fact that the public under Article 35 of
the Constitution has a right to information. In light of the foregoing, the ODPP sought
to sensitize the public on the law prohibiting FGM as it moves toward substantial
prosecution under the Act.
1.1.
The ODPP Anti FGM Prosecution Unit
The Director of Public prosecutions constituted a team of twenty (20) officers to
spearhead the prosecutions under the Prohibition of Female Genital Mutilation Act. The
Unit upon deliberation opted for a two prong approach; sensitization and profiling
cases for prosecution.
At the end of the assignment the Unit is expected to deliver the following:
-

Comprehensive report on FGM, Early and Forced Marriages;

Review of the Prohibition of FGM Act 2011;
Standard Operating Procedures for Prosecutors on FGM;
The Unit identified several FGM prevalent areas which they visited as indicated below:
Dates
6th to 12th April

Team 1
Narok

Team 2
Kajiado

Team 3
Nairobi

Team 4
Baringo

4th to 10th May

Kisii

Garissa

Meru

18th to 24th May

Kilgoris

Taita Taveta

Maralal

Elgeyo
Marakwet
West Pokot
7

8th to 14th June

Kuria

Tana River

Marsabit

Wajir

1.2. Achievements
Despite all the foregoing, unit had some achievements:
Disseminate of information to the public Prohibition of FGM Act 2011done at
the grass root levels within 16 counties. The unit also distributed hard copies
of the act to stakeholders;
Enhanced ODPP visibility at the grass root level by sharing information on
the organizations structure, mandate and office locations;
Developed partnerships and networks at the grass root, county and national
level salient for the operations of ODPP;
Enhanced reporting of FGM cases that have now led to prosecution of cases
under the prohibition of FGM Act 2011. Revived dialogue on the campaign
against FGM in the country and as a result has placed Kenya in the
international arena in the fight against FGM.

2.0.

Findings and Observations

2.1.
Kisii County
The Unit observed in Kisii County that FGM is widely practiced. The practice is not
generally viewed as rite of passage as is common among other communities that
practicing FGM. It is mainly practice that has been carried along from generation to
generation.
The practice is mostly carried out by errant medical practitioners mostly in private
clinics and during the night making it hard to detect.
FGM amongst the Kisii is championed by elder women in the society. It is
characterized by a gifting ceremony amongst the women known as giving egetoro, so
the gifting ceremony are like a merry-go-round within the community.
2.2.
Samburu County
The ODPP Unit first visited Samburu Girls Foundation that rescues girls from Early
Marriage and those running away from the fear of FGM. At the institution, it was
observed that 90% of the girls rescued from the cut are below age twelve (12) years.
Upon rescuing the girls, the foundation assists them to acquire formal education in
various institutions that it partners with.
2.3. Marsabit County:
In Marsabit County, the ODPP Unit observed that there are several communities living
in the area and who practice FGM. These communities include: Rendile, Samburu,
Borana, Burji, Gabra and Somalis.
Amongst the said communities, FGM is carried out in secret with same crossing over to
Ethiopia to undergo the cut.
Men in these communities perpetuate the practice by refusing to marry girls who have
not undergone the cut. Parents also were to be perpetrators of the vice by pushing their
girls to undergo the cut so that they benefit from a bride price.
2.4. Nairobi County
The Unit observed that the actual act of FGM is not carried out with Nairobi. Most of
the perpetrators ferry their daughters to their respective rural areas and to neighboring
countries where they undergo the cut and return to Nairobi upon healing.
9

2.5. Kuria County

FGM is quite rite within the Kuria Community. It was observed that men actually the
girls to undergo the cut. The situation is dire is that the uncircumcised girls are actually
abducted and carried shoulder high to the circumcision field during the circumcision
period which runs for about a month or so.
The FGM ceremony is conducted every two years based on the directives of the Kuria
Council of Elders. It is noteworthy that circumcision ceremonies for both girls and boys
are done at the same time.
During the circumcision ceremony, no person is allowed to engage in other activities e.g
going to the shambas, otherwise sanctions will be imposed on the errant. party. It
was also observed that the circumcision ceremony is brought with spiritualism and
with craft.
In certain circumstances, human sacrifices are involved in determining which year is
right for circumcision or not. The women who perform the cut are chosen from a
particular family who hand it down to their offspring. It virtually impossible for a
Kuria girl to remain uncircumcised and co-exist normally in the society.
2.6.
Wajir County
It was observed that religion and culture play a pivotal role the way of life of the
communities living in the county.
Here, FGM is practiced as a rite of cleansing after which the girls are considered to be
suitable for marriage.
2.7.
Elgeyo Marakwet
It was observed that in Elgeyo Marakwet, the main inhabitants are largely Keiyo and
Marakwet sub tribes of the Kalenjini community. However the Marakwet Sub-tribe are
the ones who largely practice FGM.
Among the Marakwet, the women undergo the cut so as not to be social misfits. A
woman who has not undergone the cut cannot participate in traditional social
gatherings. This pressure to fit in is what makes the women seek the cut.

10

2.8.
Garissa Report
In Garissa Religion and culture what move the society. As such every decision is based
the dictates of either religion or culture. With regard to FGM the religion dictates that
the community to practice what is called sunna (the pricking of the clitoris). There
was a lot of resistance from the religious leaders upon their realization that sunna is
prohibited by the law sunna is taught in the mosques.
The Community has a social forum for dispute resolution known as Maslah. Maslah
imposes sanctions against the community rather than against the person thus there is no
individual responsibility against the perpetrator. Most of the cases within the
community are resolved through Maslah.
2.9.
West Pokot
The West Pokot region practices FGM/C as a rite of passage from childhood to
adulthood.
There have been changing faces of FGM with the community now singing Christian or
church songs to disguise their activities. There is also a lot of cross border practice of
FGM/C within West Pokot. Political interference on FGM/C related matters has also
left a lot to be desired as it kills every effort made towards eradication of the vice.
The area has also experienced frequent attacks against persons who are against FGM/C
within the community. This dose knit society has also mobilized themselves and
interfered with apprehension of perpetrators in instances where FGM/C has been
reported. This interference has rendered the administrators useless in the fight against
FGM/C.
However, it was encouraging that several FGM cases pending in court.
2.10 . Narok
Narok County is a pre-dominantly inhabited by the Maasai though the Narok town
leans towards cosmopolitan. The Maasai practice Female as a rite of passage after
which the girl is married off. In this community early and forced marriages go hand in
hand with FGM/C.
It was encouraging to find that Narok County has several rescue centers that took care
of the girls who ran away from FGM. In Narok there were several cases also pending in
court.
11

2.11. Tana River

Tana River is inhabited mainly by the Cushitic communities who by and large practice
FGM as a way of life. In this community it was interesting to note that religion and
culture define and determine the functionality of the community. FGM/C targets girls
between the ages of 10 and 12.
Political interference has hampered efforts to address and eradicate the practice of
FGM. The local administration (chief) does not address FGM for fear of reprisals from
the community. The chiefs were categorical noting that it was the old women of the
community who decided what happens to the girls and thus they should also be spoken
to.
2.12. Taveta
In Taita Taveta County the team observed that there is a low prevalence of FGM. The
practice is dying but in the area however there are several areas that practice it in
uttermost secrecy.
2.13. Kajiado
In Kajiado among the Maasai community FGM/C is practiced as a rite of passage from
childhood to adulthood. After undergoing the act the young girls are deemed ready for
marriage. Thus early and forced marriages go hand in hand with FGM.
The larger community is ignorant of the law though they know the effects and impact
of FGM/C through sensitization by civil society organizations.
The community has a social structure for dispute resolution which makes it challenging
when presenting FGM/C cases if any other sexual and gender related offences. In
Kajiado there are several FGM cases still pending in court.
2.14.
Meru
In Meru, the FGM cases are reported for and in between the practice is done in specific
cases i.e. Igembo and Tigania. Cases are reported regularly but prosecution fails
because the witnesses fail to come to court.
The team went as far as Isiolo where it was established that FGM is prevalent and is
practiced as a rite of passage.
The practice is so ingrained such that the girls themselves feel they are not adults until
they have undergone the cut. This pushes them to facilitate and procure the art by
themselves against their parents consent.
12

There are several areas reported that are related to early and forced marriage in Meru
and Isiolo.
2.15.
Baringo
The prohibition of FGM Act 2011 was a new legislation to the stakeholders on the
ground and as such there were no matters touching on FGM reported in courts or police
stations.
The Baringo FGM/C is prevalent amongst the Illchamus community this is a close knit
society that protects and holds on to their culture. Any campaign against FGM/C
among the community is faced with blatant hostility.
During the first round the Unit was able to visit Nairobi, Kajiado, Narok and Baringo
where they undertook sensitization for members of the public as well as profile cases
for prosecution under the Act.
As a result of the visits there were four cases filed at Kajiado Law Courts under the Act
and one case in Narok.
Members of the public were also informed of the points of first contact for purposes of
reporting. This has resulted to a flow of information with regard to the practice.
However not all reported matters have been able to be investigated owing to
inadequate capacity.

2.2.
Factors Fueling FGM
From the visits conducted by the team around the country, the following were found to
be the major influencers of FGM
2.2.1Cultural Practices
FGM is a cultural practice that is highly regarded in the societies that practice it. Failure
to undergo the cut results to one being shunned by the entire community. The
consequences of not undergoing the cut could result in total isolation and ridicule for
the victim as well as the families of the girl. As a result, most girls would rather under
the cut rather than be ostracized by the society.

13

The cut among these communities is considered as a way of curbing infidelity and
promiscuity. The Men in the community were quick to point out that without the cut
women tend to engage in casual sexual liaisons. The women on the other hand were
silent and never sought to demystify the myth associated with the cut.
2.2.3 Religion
Religion plays a key role in areas that prescribe to the Islamic Faith. In Islam, FGM
practice is considered as sunna. As a result of the foregoing, the religious leaders
propagate FGM as a practice sanctioned by religion and criminalizing is tantamount to
fighting the religion.
2.2.4 Political Interference
Political and opinion leaders sway the masses and determine the direction the society
takes in matters of great import.
Politicians and senior government officials from communities that practice FGM are an
obstacle in implementation of the law. There is misuse of political status and influence
to frustrate prosecution through intimidation and threats. There is outward interference
and hostility towards victims and witnesses in a bid to gain favour and popularity
among the community.
This interference has negatively influenced the fight against FGM and early marriages
since duty bearers get frustrated and choose not to pursue the matters.
2.2.5. Illiteracy
High levels of illiteracy among the communities that practice FGM is a factor that fuels
the practice. Lack of exposure has resulted to the communities endearing and
upholding their culture such that there is resistance against anyone who tries to change
it. It is in this regard that FGM to them is a must as a rite of passage which is
symbolically and officially recognized. Premised on this, very few incidences of FGM
are reported. There is fuelled mistrust of the modern way of life and such limited
interaction between the community and service providers; as such the women neither
give birth in health centers nor take their children to school.
2.2.6. Poverty
Most communities that practice FGM score high in poverty levels. It is with these in
mind that FGM comes hand in hand with early child and forced marriages. As a result,
they see marriage as a source of wealth, which unfortunately demands that a girl must
have undergone the cut to qualify as a woman suitable for marriage. Most of these girls
14

come from poor families and are married off to supposedly richer families who pay
dowry (in exchange of the girl.
2.2.7. Laxity by duty bearers
For satisfactory result on eradication of FGM, all office bearers concerned with matters
of FGM must act in accordance with the mandate of their office. The office bearers such
as chiefs, assistant chief, village elders and even county and sub-county commissioners
tend to tolerate offenders mainly because of threats from families. These threats are
both physical and supernatural (that one shall be cursed). As earlier pointed out, curses
form part of the culture which the community upholds; as such many are unwilling to
follow up these cases.
2.2.8. Changing Dynamics of FGM
Whereas in the past FGM was marked by big celebrations, presently as a covet affair
carried out in the dark of the night, using surgical blades and in some instances by
medical practitioners in private clinics.
These changing dynamics of the FGM have made the detection and prosecution of FGM
hard
2.2.9. Case Backlog
The criminal justice system is clogged with older matters. FGM cases are not given
hearing dates on priority, hence witnesses have long waits subject to court diaries
before they are heard. This results in victims and witnesses abandoning the cases or
being compromised by being moved to neighboring countries to avoid prosecution.
2.2.10.
Lack of knowledge for Existing Law
None duty bearers are ignorant of the laws under which accused persons can be
changed for example subjecting a child to sub marriage, should be charged under the
Childrens Act 2001, while circumstances in as well be charged under the Penal code for
grievous harm into Penal Code as well as the prohibition of female genital mutilation
Act 2011. The ignorance of the law by duty bearers hampers the reporting,
investigation and eventual recantation of FGM and early marriage cases.

15

3.0.

Challenges

3.1 Few Rescue Centers

Rescue Centres have been set up in various localities to take care of the young girls who
have escaped the cut and thus are shunned by their communities. It is unfortunate
that the government as the overall duty bearer lacks the capacity to take care of the
young girls in need of care and protection as most of the Rescue Centers are privately
owned and managed.
Once a girl escapes or is rescued from FGM, they need to place in a safe house or rescue
center which are few or non-existent in most areas. Further making the girls vulnerable
as some of the rescue centers are privately owned and managed and without adequate
security.
3.2 Lack of Reporting
The victims are disempowered girls who would rarely have the resources and
knowledge to make official complainants to the rightful authorities. The nature of the
offences involves children giving evidence against their parents or close relatives,
putting the victims in rather awkward situation, therefore the victims opt remain silent
rather than report the crimes.
3.3 Inadequate personnel to handle the FGM cases
The areas visited by the Unit are quite vast tracts of land totaling to thousands of
hectares. The government has deployed officers to the identified rural-urban areas. The
officers are very few to cover the large terrains and thus service delivery to those in the
interior is crippled by inadequate personnel.
These officers have inadequate capacity to investigate effect arrest and deliver requisite
services to the affected communities.
This has also hampered the public efforts to report any cases of FGM or otherwise
within the community.
3.4. Poor inter agency cooperation
There is a push and pull among the various agencies that are tackling matters FGM,
with a lot of duplication of efforts. It should be noted that the fight against FGM cannot
be managed by a single agency.

16

4.0. Comparative study on best practices in other jurisdictions in handling FGM

Prosecutions
It is vital that FGM laws are fully implemented and that governments, agencies,
professionals and communities work together for the elimination of this practice.1
FGM is supported using a tightly woven web of justifications 2 premised around notions
and values such as family honour, health, custom, and faith. No religion teaches the
desirability of FGM 3 but it has been performed by Jews, Muslims, Christians and
atheists. It is most prevalent in Muslim nations where many believe circumcision to be a
commandment. However there is no imperative in the Koran for females to be
circumcised.
FGM is said to preserve virginity, preserve family honor and as it reduces sexual
pleasure it is said to reduce extramarital relationships. 4 Some suggest it promotes
chastity: the female form being closed can be opened on the wedding night.
Disturbingly this can involve cutting with a knife or razor blade if the orifice proves too
small for even forceful penetration to take place. Conversely some have suggested that
it allows promiscuity because the girls always have recourse to re-infibulation before
their wedding night should they stray.5 In many nations family honor and virginity
are inextricably linked, FGM is thus viewed as a prerequisite to marriage.6 One Somali
woman admitted candidly the honor of a Somali family lies between the legs of a
woman.7
Traditional gender roles are rife in third world countries and FGM is seen as a way of
bringing female to submission and preserving family honor.8 In these countries FGM is
the norm and the ultimate sign of femininity: [perhaps] the most important rationale
1

McCafferty, C. MP, Chair, UK All Party Parliamentary Group on Population, Development and Reproductive Health.
In: Female Genital Mutilation. Comfort Momoh. (Ed Momoh, C). (Radcliffe Publishing, Oxford 2009).
2
Alison T. Slack, Female Circumcision: A Critical Appraisal, 10 HUM. RTS Q. 437 (1998) p 445.
3
Joanne A. Lui, When Law and Culture Clash: Female Genital Mutilation, a Traditional Practice Gaining Recognition
as a Global Concern, 11 N.Y.INTL L. REV. 71, 77 (1998). Some Christian Leaders claim the Bible supports FGM
because the book of genesis suggests all male children should be circumcised. However, note that the reference is
to the males and at no point is the female child mentioned. The Christian faith does not require its females to be
circumcised.
4
Amnesty International, Section One: What is Female Genital Mutilation? at 5.
http://www.amnesty.org/ailib/intcam/femgen/fgm
5
McLean, S.; and Graham, S.E. (eds.)Minority rights group: female circumcision, excision and Infibulation: The
Facts and Proposals for Change, 5 p 7 (Minority Rights Group LTD (MRG),London, 1985).
6
Bashir, L M. Female Genital Mutilation in the United States: An Examination of Criminal and Asylum Law, 4 p
415, 420 (1996)
7
Ibid p427
8
Melissa A. Morgan, Female Genital Mutilation: An Issue on the Doorstep of the American Medical Community,
18, J Legal Med, 93,94 (1997)
17

for female circumcision is that, because it is such an ancient and commonly practiced
tradition, reduced or infundibulate genitals are simply considered normal.9
4.1.

FGM in the United Kingdom

The campaign against FGM in the UK has been undertaken amid such difficulty in the
United Kingdom. At the onset the campaign relied on the Offences Against the Person
Act10 and support from government and non governmental agencies. However despite
all efforts the practice still became common mainly fueled by the increase of the
immigrants in the UK.
The Prohibition of Female Genital Circumcision Act 1985 made it an offence under UK
law to excise, infibulate or otherwise mutilate the whole or any part of the labia majora
or minora with the exception of cases when:
2(1) (a) it is necessary for the physical or mental health of the person on whom it
is performed by a registered medical practitioner.
2(2)In determining for the purpose of this section whether an action is necessary
for the mental health of a person, no account shall be taken of the effect on that
person of any belief that the operation is required as a matter of custom or
ritual.11
The penalties for perpetrating such a crime were:
a) On conviction or indictment, a fine or imprisonment not exceeding 5 years or
to both; or
b) On summary conviction, to a fine not exceeding the statutory maximum or to
imprisonment for a term not exceeding six months or both.
In 1989 the UK Government recognized FGM as a form of child abuse and published
guidelines through the Department of Health in 1999.12,13 This guidelines coupled by
the legal provisions opened the door to prosecute perpetrators of this crime by charging
9

Sandra D. Lane & Robert A. Rubinstein, Judging the other: responding to traditional female genital surgeries,
Hastings Center Rep; May-June 1996, p 33.
10
Section 18 of the 1861 Act originally used for cases of FGM where the crime was defined as maiming
11
Prohibition of Female Circumcision Act 1985; at:
www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1985/cukpga_19850038_en_1
12
Department of Health, Home Office and Department for Education and Employment (1999) Working Together to
Safeguard Children.London: The Stationery Office; at:
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications?
13
Hedley R and Shaw E (1991) Child Protection and Female Genital Mutilation.Foundation for Womens Health
Research and Development, London
18

them with child abuse.14 Unfortunately this move did not receive the backing of other
sectors as it left out healthcare professionals, teachers, social workers and parents.
Unfortunately there were no successful prosecutions under the 1985 Act due to a lack of
education at the grass roots level about the Act but also in part due to a loophole in the
original law that meant families were able to take their daughters abroad to have the
operation performed with no fear of prosecution on their return.15It became apparent
that many parents, doctors, teachers and social workers were not even aware that the
practice was illegal.16
Another law was passed in 2003 changed the title of the law from Female Genital
Circumcision to Female Genital Mutilation. These amendments to the 1985 law also
made it an illegal to take a child abroad for the purpose of subjecting her to FGM even if
that practice is legal in that other country (extraterritoriality).It further stipulated that it
was illegal to re-infibulate a woman after childbirth and made it an offence to help a girl
to mutilate herself. Another addition was in the definitions such that that girl includes
woman. The sentence for those convicted was raised from 5 to 14 years as a further
deterrent.
As of 2013 the Crown Prosecution Service (CPS) looked at 8 cases of suspected FGM, 4
new cases and 4 review cases. One of the new cases failed because the victim withdrew
her evidence, presumably due to family pressure; thought to be common according to
the CPS. The other 7 cases are still being investigated.17
The World Health Organization declared FGM as a Human Rights violation in its
factsheet in 200018 and was identified as an issue by the 2002 WHO special rapporteur
into violence against women, its causes and consequences: Cultural practices in the
family that are violent towards women19 where FGM is addressed as a discrimination
issue.

14

They can be charged under Section1 of the Childrens and Young Persons Act 1933 (any person over the age of
16 years who causes a child injury to health or mental derangement shall be guilty of a misdemeanor) with a
maximum penalty of 10 years. Assault under section 20 or section 47 of the offences Against the Person Act 1861
can also be used and carries a maximum sentence of 5 years. www.cps.gov.uk/legal/p_to_r/prosecution
15
WLUML (2004) UK: Female Genital Mutilation Act 2003. Wluml.org/English/newsfulltxt.shtml
16
Sleator, alex (2003) The Female Genital Mutilation Bill: Bill 21 of 2002-2003. Research Paper 03/24. (London:
House of Commons Library).
17
http://cps.gov.uk/news/latest_news/cps_decision_on_female_genital_mutilation_case/ last accessed
01/09/2013
18
WHO, Factsheet No. 241 (June 2000), available at: http://www.who.int/mediacentre/factsheets/fs241/en/.
19
Coomaraswamy, Radhika Cultural practices in the family hat are violent towards women, UN Doc.
E/CN.4/2002/83, 31 Jan. 2002, pp.9-10
19

This introduces the issues of discrimination in the FGM debate. Despite the fact that the
UK has had the law in place for several years they had their first determination in an
FGM related case in 2014. However, looking at FGM from the point of discrimination
on the ground of sex several decisions have been made by the courts in the UK. It is
interesting to note that most of these cases have immigrants as parties.
In Kaba v Canada in 2010 the appellant claimed refugee status on the grounds that if
she and her daughter were to be returned to Guinea by Canadian authorities, there
would be a significant risk of the daughter being subjected to FGM and forced
marriage, both examples of sex discrimination under International Human Rights Laws.
Canada disallowed the case on the grounds that the evidence was lacking but the UN
Human Rights Committee upheld the complaint on two counts. Firstly that the risk of
FGM occurring on return to Guinea was beyond reasonable doubt and therefore
satisfied the issues raised in articles 7 and 24 (1). Secondly that State parties were under
an obligation not to expose individuals to a real risk of being subjected to cruel,
inhumane or degrading treatment or punishment upon entering another country by
way of their extradition, expulsion or refoulement.20
In Fornahv Secretary of State for the Home Department21 a 15 year old girl from Sierra
Leone fled the country because of fear of having to undergo FGM, and claimed asylum
on the grounds of fear of persecution for fears of membership of a particular social
group. The social group that she based her appeal on was that of intact women in
Sierra Leone. It was held that this group was a particular group for the purposes of
Art. 1A(2). Women in this area were clearly held in a position of inferiority compared to
men i.e. sex discrimination was at play. Auld, L.J. was held to be incorrect when he
stated that FGM was not in the circumstances in which it is practiced in Sierra Leone,
discriminatory in such a way as to set those who undergo it apart from society and it
was stated that Fs case was covered by the rule applied in Islam v Secretary of State for
the Home Department 22 in that the social group existed independently of the
persecution. In the case analysis it was stated that Female Genital Mutilation was an
extreme expression of the discrimination to which all women in Sierra Leone were
subject.23

20

Kabav Canada (1465/2006) UN Human Rights Committee 25/03/10 28 B.H.R.C. 783 available at
http://login.westlaw.co.uk/maf/wluk/app/delivery?&summary=true&status=true&doc last accessed 28/07/13. See
also A v Australia (1429/2005); UN HRC and Khan v Canada (1302/2004); UN HRC
21
Fornahv Secretary of State for the Home Department [2005] EWCACiv 680
22
Islam v Secretary of State for the Home Department (1999) 2 WLR 1015
23
Case analysis available:
http://login.westlaw.co.uk/maf/wluk/app/delivery?&links=true&altview=&status=true last accessed 27/07/2013
20

In the recent past during the Girl Summit 2014 the UK Government made a
commitment to combat issues of FGM and Early Child Forced Marriages by introducing
measures such as the establishment of an FGM Unit. The FGM unit is expected to be
similar to an existing one on forced marriage, which is run jointly by the Home Office
and Foreign Office to help victims, investigate and prevent the crime. Other measures
include criminalizing parents who fail to prevent their daughters being cut and putting
doctors, teachers and nurses under a legal obligation to report cases of FGM.24
Some of the challenges that face the UK in tackling FGM are overemphasis on achieving
a prosecution, the lack of robust statistical data on FGM, cultural obstacles within the
communities that perpetuate FGM, lack of preparedness among professionals to
appropriately intervene in FGM cases among others.25
4.2.

FGM within The French Legal System

In France FGM is treated like a crime according to the general provisions of the Penal
Code. In particular Articles 221-2, 221-3 and 221-5 these refer to acts of torture and
barbarity. Articles 222-9 and 222-10 which refer to intended bodily harm causing
infirmity or mutilation are also applied to FGM.
The French jurisdiction has gone a step further and factored the age of the victim in
determining the offence of FGM and the punishment therein. Under French law where
the offence is committed against a minor it is considered an aggravated circumstance
and this increases the penalty. The law against FGM also applys the principal of extraterritoriality; this makes FGM a punishable offence even if it is committed outside the
country on a French citizen.
It is interesting to note that there is no specific law addressing FGM in France. There
have been, however, since 1978, over 20 cases involving this practice successfully
prosecuted under existing laws (Penal Code). This has included the conviction and
imprisonment of persons performing the procedure, as well as parents of girls subjected
to it. The law provides for a penalty of 10 to 20 years imprisonment.
Further buttressing the provisions of the law the Medical Ethics Code (1979) forbids the
practice of FGM by medical doctors except where medically required. The French
24

Girl Summit: Government unit to tackle FGM to be launched

http://www.independent.co.uk/incoming/global-conference-on-fgm-pledges-new-unit-to-tackle-crimes-againstgirls-9621926.html last accessed 26/9/14
25
Avalos R.L. Reviewing the United Kingdom Policy Framework on Female Genital Mutilation: Opportunities for
Change. http://www.academia.edu/7585672/ accessed on 26/9/14.
21

Medical Board is not aware of any breaches of the Code as none have been reported to
date.
The most recent case involving this practice occurred in February 1999. A Paris court
sentenced a Malian woman, who had been practicing female circumcision for 15 years
in France, to eight years for cutting 48 girls between the ages of one month and ten
years. Twenty-seven mothers and fathers who solicited her services received suspended
sentences of from three to five years. This case was brought by a victim, aged 23, who
told a judge in 1995 that the woman had performed this procedure on her and her
sisters when they were children.
Since 1983 the government and private groups26 have undertaken a campaign to inform
immigrants that this practice is contrary to the law and will be prosecuted. This mixed
approach has resulted to a reduction in the number of FGM cases reported and
prosecuted in France.
In the French system the information is given by the doctors or the hospitals to the
police that a child has been mutilated. It is the duty of the medical practitioners to
report ill treatments inflicted on a minor if and when they came across it. The parents
are then summoned to the police station with all their daughters. Whilst the parents are
interrogated, the children are brought into a special unit in the hospital for examination.
The results serve as proof (evidence) of either the mutilation or the absence of
mutilation. If they are mutilated then the case will follow its course and there will be a
trial. The minors will be granted a special tutor (administrator ad hoc) who will in turn
choose a lawyer to represent them in court. In most cases, parents refuse to disclose the
identity of the perpetrator. The parents are condemned as abettors of the crime, usually
to serve a prison term, eventually suspended, and have to pay financial compensation
to the victims (a sum they will receive at 18).
In France if an asylum case is brought, the courts judge that the minors be granted
protection subsidiaire and the illegal immigrant parents are thus benefitted. The

26

These groups include Groupes des Femmes pour l'Abolition des Mutilations Sexuelles (GAMS), a group of
African women in France who advise, support and inform African women and families in France about the practice;
Commission International pour lAbolition des Mutilations Sexuelles (CAMS), an associated member of UNICEF
France that fights against this practice by creating educational materials for the African community in France and
also provides legal services; Association Nationale des Medecins de Protection Matermelles et Infantiles
(ANMPMI), an association that provides advice and medical treatment for women and children; Prefecture dlle de
France, an organization concerned with womens rights in general with programs focused on FGM prevention and
Movement Francais pour le Planning Familial, which is also involved in this prevention campaign.
22

caveat is that they have to prove periodically that the girl remain intact that is they do
not undergo the cut.
French authorities are aided by several legal initiatives that support the eradication of
FGM. The guidance given to health care professionals is known as the Conduit a tenir
face alexcision des petites filles 27 which is issued by the Protection Materenelle
Infantile (PMI).28
Breach of confidentiality between health care professional and parents of girls who have
been mutilated is protected in law. Female children are examined as a matter of routine
until their 6th birthday when they enter the school system when it becomes more
difficult. The state of their genitalia is recorded in a Carnet de Sante. 29
In France, despite the increasing numbers of the immigrant communities respect for
other cultures and traditions does not serve as a reason to turn a blind eye to FGM.
There is no fear of upsetting the ethnic minorities in fact the rights of the child and their
best interests are upheld at all costs. Every French citizen, no matter where that citizens
origins lie, are afforded protection under the law, and so all children are given the right
to protection from abuse including FGM.
A study in 2007 looked at European laws on FGM and their implementation. 30
Although there has been progress, despite specific criminal laws being introduced
almost across the board, these laws have been no more successful than general criminal
laws.
It can be concluded that the number of cases being brought to court is low because of
issues around conditions of extraterritoriality, the secrecy of the communities, the
reluctance of girls to formally implicate parents and the reluctance of professionals to
follow through on all complaints and concerns.
In European Member States FGM is illegal under general criminal law including
Finland, France, Germany, Greece, Southern Ireland, Luxemburg, Portugal, and the

27

Guidelines regarding excision of girls.

Mother and Child Health Care service, a public service provided in each of the French departments.
29
Protection Maternelle et Infantile, Direction de lAction Sociale de lEnfance et de la Sante, Sous-Direction de la
Petite Enfance, Departement de Paris. Note a lattention des medicins darrondissement de PMI, des sagesfemmes, des puericultrices-coordinatrices de creches, des puericultrices de secteur, des medecins vacataires, des
directrices de consultations, <<Conduite a tenir face a lexcision des petites filles>>.
30
Leye, E; Deblonde, J; Garcia-Anon, J; Johnsdotter, S; Kwateng-Kluvitse; Weil-Curiel, L; Temmerman, M. (2007) An
analysis of the implementation of laws with regard to female genital mutilation in Europe.C rime Law SocChange
(2007) 47:1-31
23
28

Netherlands. In other states specific criminal law provisions to account for FGM are in
force and these are Austria, Belgium, Italy, Spain, Sweden and the UK.
4.3.

FGM in the USA

President Clinton introduced the Female Genital Mutilation Act in 1996.31 Before it was
embraced by the US, several states had legislated against FGM but this brought its own
problems of movement between states to have the procedure carried out. The USA has
chosen to use a two pronged attack on the eradication of FGM within and without its
jurisdiction. The first outlaws the procedure in the USA and the second involves the
USA representatives of the World Bank with- holding loan funds to countries still
condoning the practice who will not agree to educational measures within its
community to show why this practice should be outlawed.
Under the law, the performance of FGM on a person under the age of 18 was made a
crime in the United States under section 116 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. (18 U.S.C.A. 116), provides in part that
"whoever knowingly circumcises, excises or infibulates the whole or any part of
the labia majora or labia minora or clitoris of another person who has not
attained the age of 18 years shall be fined under this title or imprisoned not more
than five years, or both."
The law provides that no account shall be taken of the effect on the person on whom the
operation is to be performed, of any belief on the part of that person, or any other
person, that the operation is required as a matter of custom or ritual. The Act also
provides that it is a crime to take a girl abroad for FGM and prescribes a punishment of
up to five (5) years imprisonment and/or a fine.
At the state level, sixteen states have passed legislation outlawing this practice. These
include California, Colorado, Delaware, Illinois, Maryland, Minnesota, Missouri,
Nevada, New York, North Dakota, Oregon, Rhode Island, Tennessee, Texas, West
Virginia and Wisconsin. In these states others use general child abuse or assault statutes
to prosecute. These statutes have higher sentencing guidelines than specific FGM law,

31

The Act is now codified in two parts in the US Code: 18 U.S.C. s 116 (West Supp. 1998) and 22 U.S.C. s 262K-2
(West Supp. 1998)
24

so even in states that have FGM law prosecutors prefer charges of assault in order to
impose a higher sentence32.
The issue of immigrants is what has greatly affected the implementation of this law and
the fight against FGM in the USA. To date there have been no prosecutions under either
the Federal or State law.
In January 2013, President Barack Obama signed the Transport for Female Genital
Mutilation Act, criminalizing the transportation of girls abroad to undergo FGM, and
finally bringing the United States in line with long-standing international efforts to end
the practice.
Where states lack specific legislation criminalizing female genital mutilation, child
abuse statutes can provide protection for young girls facing FGM within the U.S. The
Federal Child Abuse Prevention and Treatment Act provides minimum standards for
state law definitions of child abuse and neglect. It states that
the term child abuse and neglect means, at a minimum, any recent act or
failure to act on the part of a parent or caretaker, which results in death, serious
physical or emotional harm, sexual abuse or exploitation, or an act or failure to
act which presents an imminent risk of serious harm.33
To date, there has been a glaring absence of prosecutions in the U.S. related to cases of
FGM under both state and federal law: as of 2012, there have been no prosecutions
under federal law, and only one criminal case has been brought forward under a state
statute. 34 The failure to enforce existing FGM legislation may leave potential FGM
victims without adequate protection.
International experience suggests that successful prevention of female genital
mutilation requires a proactive and coordinated approach that includes:

32

Community and survivor-led outreach and education;

Guidelines and training to assist front-line professionals to identify and protect
girls at risk;
Robust, consistently enforced laws that prohibit FGM locally and
extraterritorially; and

Khalid Adem, an Ethiopian immigrant, was found guilty of aggravated battery and cruelty to children in 2006 for
removing his daughters clitoris with scissors when she was 2 years old, USA Today reported.
http:/usatoday30.usatoday.com/news/nation.2006-11-01-georgia_x.htm
33
119 42 U.S.C.A. 5106(g) (2) (West 2003).
34
In 2010, a 35 year-old mother in Georgia was accused of performing FGM on her infant daughter. See Annie
McCallum, LaGrange crime: Woman charged with female genital mutilation, 2nd-degree cruelty to children,
Ledger-Enquirer, Mar.11, 2010 available at http://www.ledger-enquirer.com.
25

4.4.

Reporting and data collection35.

FGM in the Uganda

In Uganda, according to the most recent Demographic Health Survey (DHS), the estimated
prevalence of FGM in girls and women (aged 15-49 years) is 1.4% (DHS, 2011). In comparison to
many of the other countries in Africa in which FGM is practiced, Uganda has a very low rate.
There are regional variations in prevalence with the highest rates occurring in Karamoja (4.5%)
and the Eastern Region (2.3%) (DHS, 2011). All other regions in Uganda have prevalence rates
of below 2%. It is mainly practiced in Eastern Uganda among Pokot, Sabiny Tepeth in
Kapchorwa District, Kwen and Bokwo. Communities know it is illegal so are on high alert &
also fight anyone who wants to disrupt the ritual.
Prohibition of FGM Act in Uganda was came into force in 2010, 17TH March. As such the
country has a law that specifically addresses the issues of FGM. Since the FGM ban in Uganda,
some parents sent children to Kenya to undergo the cut.
The Act provides for several offences that are related to the performance of FGM and other
related practices. It is quite comprehensive and captures situations that are unique to the
Ugandan way of life such as a person cutting themselves, participation in FGM related
ceremonies and protection of persons whose wives, daughters or relatives has not undergone
FGM from engaging or participating in any economic, political, social or other activities in the
community commits an offence & is liable on conviction to imprisonment not exceeding 5
years36.
There several factors that fuel the practice of FGM in Uganda such ill-equipped law enforcers,
sparse population living in thick forests, poverty and ignorance and cultural beliefs. 37
Unfortunately there have been no documented cases of FGM as reported in Uganda.

4.5.

FGM in the Egypt

A thirteen-year-old Egyptian girls tragic death during a botched genital mutilation operation in
the Nile Delta governate of Daqahliya has brought the issue of female circumcision, as it is
traditionally known, to the forefront. Despite the practice being illegal under the Child Law of
2008 and punishable by fines ranging from 1,000 to 5,000 Egyptian pounds and custodial
sentences between three months and two years, female genital mutilation (FGM) is still widely
practiced in Egypt. Suhair El-Bataa died in early June after she was taken by her parents to a
doctor to have the procedure. An autopsy on her body confirmed that the cause of her death
35

Sanctuary For Families, 2013; Female Gen ital Mutilation in the United States; Protecting Girls and Women in the
U.S. from FGM and Vacation Cutting
36
th
Prohibition of Female Genital Mutilation Act 2010, The Ugandan Gazette No.21 Volume CIII dated 9 April 2010.
37
FGM: Despite the ban, the monster still rears its ugly head in Uganda; www.newvision.co.ug/nesw/639566,
2013.
26

was a sharp drop in blood pressure resulting from shock trauma. Bataa is not the first to have
died from FGM in Egypt, and other girls who have shared her fate include Karima Rahim
Masoud, aged thirteen, and Bedour Shaker, aged twelve, who both died in 2007, and Nermine
El-Haddad who died aged thirteen in 2010.

Current statistics show Egypt to be the leading Country as far as the practice of FGM is
concerned. In the year 2013 UNICEF reported Egypt as having the world's highest total
number of FGM victims. According to that report 27.2 million Egyptian women having
undergone FGM. The Desert Flower Foundation, founded by a Somali Icon and AtiFGM Campaigner, Waris Dirie website puts Egypt as the leading with 97% of women in
Egypt having undergone the cut.
4.5.1. Myths about FGM in Egypt
According to the Egypt Demographic and Health Survey (EDHS) in 2008, almost 63
percent of FGM procedures were carried out by dayas (traditional birth attendants). The
rest are carried out by trained medical personnel in health clinics.
The practice, commonly referred to as tahara (purification) in Egypt, affected 91 percent
of women aged 1549 in 2008 according to the EDHS of the same year. The numbers are
said to be in the increase with womens rights activists blaming former president
Mohamed Mursis rule. Mursi according to the Activist is said to have held FGM as an
Islamic approved practice.
At one time and during Mursis reign, an attempt was made to overturn the ban on
FGM in Egypts Supreme Constitutional Court. Azza El-Garf, one of the few female
representatives of the Muslim Brotherhoods Freedom and Justice Party (FJP) while
commenting on the issue then, described FGM as beautification plastic surgery and
a personal choice,. Mursis statement that FGM is a private issue between mothers
and daughters have all led to the director of the Egyptian Center for Womens Rights,
Nehad Abul Komsan, to conclude that the rise in religious conservatism as a result of
FJP rule, along with the portrayal of FGM as a religious obligation, has directly affected
the increase in FGM operations taking place.
4.5.2. FGM and Islam In Egypt
FGM is not endorsed in Islam. The former grand mufti of Egypt, Ali Gomaa, confirmed
this in his fatwa against FGM in November 2006, stating that it is a deplorable,
inherited custom, which is practiced in some societies and is copied by some Muslims
in several countries. He also asserted that there were no written grounds for FGM in
the Quran or the authentic tradition of the Prophet.
Advocates of FGM on the basis of religion cite a hadith (tradition of the Prophet) that
appears in one of the six authentic books of traditions, Sunan Abu Dawud, and
27

mentions female circumcision. They fail to note, however, that this specific tradition is
recorded as weakunauthentic, and therefore invalid. Other traditions that mention
female circumcision allude to the fact that FGM was practiced before the advent of
Islam, but was not instructed by the Prophet to be part of Islamic Law
4.5.3. The law against FGM in Egypt
Egypt's Ministry of Health and Population has banned all forms of female genital
mutilation since 2007.
The ministry's order declared it is 'prohibited for any doctors, nurses, or any other
person to carry out any cut of, flattening or modification of any natural part of the
female reproductive system'. Islamic authorities in the nation also stressed that Islam
opposes female genital mutilation. The Grand Mufti of Egypt, Ali Gomaa, said that it is
"Prohibited, prohibited, prohibited." Egypt passed a law banning FGM. The June 2007
Ministry ban eliminated a loophole that allowed girls to undergo the procedure for
health reasons. There had previously been provisions under the Penal Code involving
"wounding" and "intentional infliction of harm leading to death", as well as a ministerial
decree prohibiting FGM. In December 1997, the Court of Cassation (Egypt's highest
appeals court) upheld a government banning of the practice providing that those who
did not comply would be subjected to criminal and administrative punishments.
In June 2008, Act No.126 of 2008 was passed with Article 4 amending Article 61 of the
Penal Code to include FGM as a punishable offence.
Article 61: Any person found guilty of practicing FGM is liable to a fine of 1000-5000
Egyptian pounds and a prison sentence of not less than 3 months but not more than 2
years
Unfortunately Egypt has no constitutional provisions that can be relied upon to criminalize the
practice of FGM.

28

5. 0. RECOMMENDATIONS
In light of the foregoing the unit makes the following recommendations:
1. Establishment of a multiagency task force to review the prohibition provisions
of the FGM Act focusing on:
a. Enhancement of sentences
b. Introducing strict parental responsibility on parents within communities with
a high prevalence of FGM.
c. Accountability on the part of teachers and medical practitioners to report any
cases of FGM
Annexure 1: Proposed amendments to the Prohibition of FGM Act 2011
2. Continuous stakeholders engagement to enhance inter-agency co-operation.
This should focus on:
a. Continued community sensitization on the law.
b. Engagement with the ministry of education to include FGM as a topic in
the life skills curriculum.
c. A review on the alternative rite of passage programme to ensure they
capture community societal values.
3. Establish a follow up mechanism. The multi-sectored team should develop a
follow up mechanism to ensure that matters brought to light well-handled and
that victims receive maximum support through;
a. Undertaking a baseline survey to establish the status of FGM within the
counties;
b. Develop teams to monitor the progress;
c. Develop and manage an elaborate case management and case tracking
mechanism.

29

6.0 Annexure
6.1. Proposed Amendments to the Prohibition of FGM Act 2011
SECTION
PROPOSAL
JUSTIFICATION
Section 19
- Introduce the offence of This proposal caters for those
The section creates the
aggravated FGM premised communities that circumcise
offence
of
FGM,
on the age of the victim girls at their infancy as such it is
causing death by FGM.
with
an
enhanced difficult
to
detect.
In
It also excludes any
categorical sentence(0-5 communities such as the
surgical
procedures
year= life imprisonment, 6- Tavetas this has led to high
from being termed as
12 years= 10 years infant mortality rates.
FGM.
The
section
imprisonment, 12- 17
further states that
years
=
7
years
consent shall not be a
imprisonment)
defence in any offence
of FGM and that
religion or cultural
- Introduce the offence of There some communities where
background shall not
performing
FGM
on the girls or women cut
be used to justify any
oneself.
An
offence themselves. This occurs mainly
act of FGM
punishable by one year where the parents have refused
imprisonment or and a fine to give their consent for the
of Kshs. 100,000
ceremony. This practice we
found was common among the
Ameru

Section 20
This section creates the
offence of aiding and
abetting FGM

Introduce the offence of

attempted
FGM.
An
offence punishable by
five(5) years imprisonment

There instances where girls have

been rescued just before they
are cut and since the intention is
there but no action the
perpetrator is tried for an
offence
with
a
lesser
punishment. It is in this regard
that this offence is proposed to
capture the scenarios where
there rescues of the girls at risk
The penalty for this section The alternative of a fine takes
should remain as is (not
into account scenarios where
less than 3 yrs ) with the
the accused persons are parents
option of a fine of Kshs.
and thus provides for an
250,000
opportunity not to disintegrate
the family unit further in the
conduct of criminal proceedings.
30

Section 21
It creates the offence
of procuring a person
to perform FGM in
another country

Section 24
Creates the offence of
failure to report
commission of offence

Other proposals :

Broaden the offence to

include those who
accompany the girls as
they travel from one
country to another.

We established that the girls

who are to undergo FGM across
borders do not travel on their
own. They are delivered to the
cutter and taken care of by a
relative or a person paid to do
so. As such these persons are
fully aware and are conspirators
to the commission of the
offence and thus should be
charged alongside with those
who procure the performance of
the act.
A time indication should This introduction shall put a cap
be included in this section on the time limit and thus
fails to report within 48 prevent the abuse of the system
hours
by criminal justice actors.
The penalty for this
offence should be fixed at
two
(2)
years
imprisonment or a fine of
Kshs 250,000.
This shall serve instances where
An offence of inhibiting a threats and intimidation is used
person from reporting to cover up for the commission
should be introduced of an offence.
under this section.
The offence should attract
a sentence of not less than
three (3) years with no
option of fine.

Strict Liability Clause on teachers

-

This provision should hold

the doctors and teachers
accountable for failing to
account and report any
FGM or CEFM related
issues that come to their
knowledge

Provision that the girl child

It is noted with great concern

that the teachers also abet the
practice of FGM. This strict
liability clause shall ensure that
the teachers make reports of
any students that are missing
from school owing to FGM or
early child forced marriages.

This is meant to safeguard

31

aged between 0-5 years be

subjected to periodic
medical examination by a
competent medical
practitioner to ascertain
whether or not they have
been cut.

minors from harmful cultural

practices. The routine check-up
should be coincidental with the
medical clinics that children
undertake during this age.

The provision must further

bind the doctors to report
any abnormality that if
FGM related during the
examinations to the ODPP,
vide a letter.

This is also a policy issue and

need to be debated at an interministerial level.
It also raises constitutional
issues that should be decided by
a court of law as pre-empting
the same would be to put a cart
before the horse.

Victims and witness procedural

and legal safeguards should be
introduced in the act. These
safeguards include but are not
limited to:
- Exclusion of public from
the hearing;
- Anonymity of victim
throughout trial;
- Giving evidence through
an intermediary;
6.2. Cases Pending In Court On Early Marriages And Fgm
a) Chief Magistrate's Court At Isiolo
No.

CASE NO.

NAME OF
ACCUSED

CHARGE

HEARING
DATE

1.

14/14

John Titus Mutuma

Incest C/S 20 (1)

15/5/14

2.

617/11

James Kariuki

Defilement c/s 8(1)(3)

15/5/14

3.

853/13

Mohamed Abdul

Defilement c/s 8(1)(3)

15/5/14
32

4.

249/11

Josphine Lemantile

Child in need of care and

protection c/s 119 (4)

14/8/14

5.

248/11

Soina Leresh

Child in need of care and

protection c/s 119 (4)

14/8/14

6.

247/11

Jackline Leuronkeek

Child in need of care and

protection c/s 119 (4)

14/8/14

7.

252/11

Karen Ekai

Child in need of care and

protection c/s 119 (4)

14/8/14

8.

253/11

Lucina Lekoomet

Child in need of care and

protection c/s 119 (4)

14/8/14

9.

251/11

Mantai Lemonza

Child in need of care and

protection c/s 119 (4)

14/8/14

10.

207/11

Hussein Dida

Defilement c/s 8(1)(3)

16/6/14

11.

63/13

Patrick Muthama

Defilement c/s 8(1)(3)

29/5/14

12.

1/13

Mohammed Gollo

Defilement c/s 8(1)(3)

20/5/14

13.

271/13

Ibrahim Godana

Gang rape c/s 10

12/8/14

Abdishakur Godana
14.

670/12

Charti Shama

Defilement c/s 8(1)(3)

4/6/14

15.

188/13

Festus Mwiti

Attempted defilement c/s

9(1)(2)

22/5/14

16.

63/14

Ibrahim Hassan

Defilement c/s 8(1)(3)

19/5/14

17.

130/14

Fatuma Ibrahim

Neglect of a child c/s

127(1)

4/6/14

18.

35/14

Hawo Ibrahim

Failing to protect a child

from cultural rites c/s 14

10/6/14

19.

76/14

Likitarian Lekulal

Attempted defilement c/s

9(1)(2)

16/5/14

33

20.

490/13

Dominic Ltkinyilan

Defilement of a boy c/s

8(1)(1)(3)

16/5/14

b) Kapenguria Law Courts

CASE NO.
Cr. 1334/13

PARTIES
R vs. Chepocheporelo
Arenyuure & Margaret
Ngurieruket

COURT
Kapenguria
Law Courts

Cr. 1339/13

R vs. Chepocheporole
Tokedi, Amos Lokedi &
Pauline Kilemmet

Kapenguria
Law
Courts

STATUS
Last in court on the 15th
April 2014
That on the 7th day of
December 2013 at Tweletewe
location within West Pokot
County jointly performed
F.G.M on Jackline Cheyech.
Plea on 16th December 2013.
Witness absent even though
bonded.
Adjourned to 3rd July 2014

Cr. 1316/13

R. vs. Chepochelit
Lormelima

Kapenguria
Law Courts

Last to court- 15/4/2014

That on the 12th day of
December 2013 at Tualelewe
sub location within the West
Pokot County performed
F.G.M on Chole Chetum.
Plea- 6/12/13
Adjourned to 3rd July 2014
for reason that witness was
unwell.
Plea- 6/12/ 2013
That on the 3rd day of
December 2013 Leopio
location in Pokot Central
within West Pokot County
perfomed F.G.M on Cherop
Lokweyen a girl aged 12
34


Cr. 1337/13

R vs. Monica Jolun

Kapenguria
Law Courts

years.
Adjourned to 3rd July 2014
That on the 4th day of
December 2013 at Twaleteke
location within West Pokot
county , jointly with another
not before court, performed
F.G.M on Everlyne
Chenanga
Adjourned to 3rd July 2014
due to the absence of
prosecution witnesses.

35

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