TOPIC: IS CONSENT A DETERMINANT? FEMALE GENITAL MUTILATION AND THE DILEMMA OF CONSENT
Date: Tuesday, 20th February 2018 Venue: Alliance Francaise – Wangari Maathai Auditorium Time: 4.00 pm to 6.30 pm Discussion Panel:
- Asenath Mwithigah – The Girl Generation
- Tammary Chepkoech Esho – Lecturer, Technical University of Kenya
- Senator Mercy Chebeni – Nominated Senator
- Jean Paul Murunga – Equality Now
- Esther Waweru – SOAWR
Moderated by: Bina Maseno, Badili Africa
The International Day of zero tolerance for Female Genital Mutilation (FGM) is an annual commemoration on every 6th of February seeking to accelerate the fight towards ending FGM globally. 16 years since Kenya banned FGM, various interventions have been put in place to curb the practice by both the Government and civil society organizations. The Prohibition of Female Genital Mutilation Act 2011 criminalized FGM and together with the establishment of the Anti-FGM Board in 2013 were key initiatives by the government towards eliminating FGM in Kenya. Several other initiatives have been implemented through civil society and progress towards ending FGM is well documented, but still the practice continues. A briefing note published by UNFPA and UNICEF in 2015 shows that in Kenya, 21% of women and girls, aged 15-49, have undergone some form of FGM. FGM prevalence remains very high amongst Somali 94%, Samburu 86%, Kisii 84% and Maasai 78%. With this background and the recent filing (17TH January 2018) by a medical doctor (Dr. Tatu Kamau) of a petition at the High Court in Machakos, seeking to have FGM decriminalized, the Gender forum will dialogue with identified stakeholders and the public in seeking to understand the extent to which the legal framework has been effective, what emerging/parallel initiatives are used towards ending FGM and, crucially, whether age limit and consent should be a consideration in the discourse on FGM.
Key Discussion Points:
- Should respect for age become an issue of consideration on female genital mutilation in the context of human rights?
- To what extent is the existing legal framework effective in the fight against FGM?
- How effective has alternative rite of passage been as a campaign against FGM and what new initiatives are being used?
Dr. Tammary opened the discussion with a presentation that laid the groundwork for the discussion. She defined FGM as all procedures involving the partial or total removal of the female genitalia for non- medical reasons. There are 4 types of FGM:
- Clitoridectomy / circumcision / sunna – the cutting of (part or all) the hood of the clitoris. This is mainly common among the Kisiis.
- Excision – cutting of (part or all) of the clitoris or all or part of the labia minora. It is practised among the Kalenjin, Kikuyu and Meru.
- Infibulation- cutting of the clitoris, labia minora and (part or all of) the labia majora then holding together both sides of the vulva and sowing them together leaving a tiny opening for peeing and menses. It is practised among the Somalis.
- Harmful non- medical procedures on the female genitalia e.g. pricking piercing, incising etc.
She further highlighted that 21% of Kenyans do practise FGM. The following are reasons why they do it:
- To ensure sexual morality for girls and women i.e. lower their libido
- Sex is more pleasurable for men
- More cleanliness in the female genitalia
- It increases marriageablity for women
- It increases the social status for the women and the men who marry them
- It is a rite of passage from childhood to adulthood
- Due to cultural and social pressure
- Some claim it is a religious especially the Muslims though the Quran does not actually talk about it
FGM comes with a set of complications. Dr. Tammary stated that at least 63% of the girls and women who undergo FGM suffer some complications. The complications are usually divided into short term and long term complications. The short term complications usually manifest between day 1 and day 10. They include:
- Swelling of the genital parts
- Trouble passing urine
- Shock as a result of pain or/ and infection
- Injury to adjacent tissue
- Feelings of fear and betrayal
Long term complications include:
- Uncomfortable and even painful sexual encounters
- Decreased sexual pleasure and fulfillment
- Child birth complications
- Psychosocial problems e.g. feelings of incompleteness, loss of self esteem, panic disorders
She further highlighted that in Kenya, FGM has generally being on the decline. In most communities, she noted that there was a general decline in cases of FGM among the daughters of women who have undergone the cut in communities such as Kikuyu, Meru and Kisii. However, there was no decline among the Somali community. In addition, she stated that research shows that FGM is higher among the Muslims (over 60%) than among Christians (20%). The Issue of Consent According to Jean – Paul of Equality Now, consent implies that one does something voluntarily or has given permission for something to take place. It also implies that the individual in question has both negative and positive freedoms. Negative freedom refers to the freedom accorded the state or community i.e. it is external. Positive freedom refers the ability of the individual to critically analyze issues and their consequences before making a decision. Taking into account the latter, minors can therefore not give consent but their guardians can on their behalf. Legal Framework Unlike Kenya and Burkina Faso, on the authority of Jean- Paul, most countries have blanket laws against violence against women which FGM is part and parcel. In Kenya, we have The Prohibition of Female Genital Mutilation Act 2011which criminalized FGM which means that if one is caught practising FGM; they face 3 years of jail time and a life sentence if the victim dies as a result of the procedure. In Burkina Faso, on top of having specific laws against FGM, they also have an anti – FGM police task that are specially trained to handle the victims and to bring the offenders to task. Moreover, Burkina Faso considers FGM done to minors to be worse than that done to adults hence perpetrators get harsher sentences. Political Goodwill Though there has not been much political goodwill towards the Zero – Tolerance movement as politicians fear backlash from their communities, Senator Mercy Chebeni pledges to push for laws and policies that are already existent to be effectively implemented. She further stated that she intended to follow up on cases that are already in court. In addition, Hon. Chebeni said she would push for the senate to come up with specific laws that protect children against FGM like in Burkina Faso. Zero Tolerance Advocacy and Alternative Rites of Passage On the report of Asenath Mwithigah of The Girl Generation, we have to accept that FGM is indeed a social norm. In this case, she advocates that the ‘Do no harm’ approach be adopted whereby we are cautious not to demonize FGM in community dialogues. Additionally, the approach seeks to help communities own and drive the Zero Tolerance movement with minimal abrasiveness so as it is not seen as Western propaganda. Ms. Mwithigah further added that alternative rites of passage would only work in communities that see FGM as a rite of passage from childhood to adulthood. In communities such as Somali where FGM is a norm by itself as opposed to being a rite of passage, it is virtually impossible to introduce alternatives. What’s more, she articulated that research shows that 90% of Kenyans know about FGM and its consequences but the key to getting alternative rites of passage to be adopted is selling them to key masses of people in the community such as community elders, midwives etc. International Human Rights Laws Ms. Esther Waweru, a legal advisor with SOAWR, listed some of the International laws that are against FGM. They include:
- The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter). It emphasis on right to culture.
- International Covenant on Civil and Political Rights. Adopted 16 December 1966; Entered into force 23 March 1976. General Comment 5 refers to FGM as torture.
- International Covenant on Economic, Social, and Cultural Rights. Adopted 16 December 1966; Entered into force 3 January 1976.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted 10 December 1984; Entered into force 26 June 1987.
Among the Human Rights laws against FGM, a key one is The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, better known as the Maputo Protocol, guarantees comprehensive rights to women including the right to take part in the political process, to social and political equality with men, improved autonomy in their reproductive health decisions, and an end to FGM. As the name suggests, it was adopted by the African Union in the form of a protocol to the African Charter on Human and Peoples’ Rights in Maputo, Mozambique in 2003. It has been ratified by over 40 countries in Africa including Kenya, Benin and Burkina Faso. SOAWR was formed to agitate the adoption of the Maputo Protocol as well as for it to be domesticated and implemented at the national level. Moreover, it monitors implementations and countries are required to report progress every 4 years.
- While doing her research, Dr. Tammary found that among the Kipsigii Community in Nakuru, married women who are fully aware of the implications of FGM are still getting the cut as a result of social pressure. Her research indicated that this trend started after the 2007 post – election violence. The men from that community decide to take up leadership roles at the community and political arenas but men with wives who are uncircumcised are not considered because they are not ‘complete men’. As a result, their wives are pressured to undergo the knife or else their husbands marry second wives who are circumcised. Moreover, they succumb to the knife to avoid the stigma they get in their communities. Jean- Paul echoed Dr. Tammary’s findings by giving an example of his community (The Abakuria) who intermarry with the Luo. While Luos do not practise FGM, Luo women married into the Abakuria community more often than not undergo FGM to fit in.
- Another arising issue observed by Dr. Tammary is that communities are opting to cut girls at a younger age, especially around 7 – 8 years, because these girls are voiceless.
- Into the bargain, medicalization of FGM is on the rise. Dr. Tammary found that 20% of the women and girls who have undergone FGM have had it performed by a medical practitioner i.e. doctors, nurses, clinical officers and even midwives. It should be noted that this does not make the procedure safer because FGM is not taught in medical school. There is no manual for it.
- It was noted that the police are quite incompetent at handling cases of FGM because more often than not they are required to implement laws that even they don’t understand. Having a special police task force that is specifically trained to deal with FGM cases could go a long way in helping the Zero Tolerance goals.
- Tammary highlighted on the availability of corrective cosmetic surgery for women and girls who have undergone the more acute forms of FGM. However, she warned that the surgery is still quite new and does not fix the psychosocial trauma inflicted by FGM.
- Among the challenges facing the Zero Tolerance movement, the existence of inter- county cut sites. An example was given of how Somali women at the Kakuma Refugee Camp ship their daughters to Eastleigh for the cut when they are of age.
FOOD FOR THOUGHT
- Why have we still not beaten FGM 30 years later?
- What is the role of sex education in fighting FGM?