The Constitution of Kenya (2010) Article 28 stipulates that, “the dignity of every person should be respected and protected”. While Article 44 (1) of the Constitution gives every person “the right to participate in the culture of his/her choice”, the same Article 44 (3) prohibits any person from forcing another to undergo any cultural practice or rite.
Article 14 of the Children’s Act 2001 provides that, “No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development”.
Article 27 of the Prohibition of FGM Act 2011 clearly spell out the obligations of the state to end FGM by stipulating “Then Government shall take necessary steps within its available resources to— (a) protect women and girls from female genital mutilation; (b) provide support services to victims of female genital mutilation; and (c) undertake public education and sensitize the people of Kenya on the dangers and adverse effects of female genital mutilation”.
The Kenya Prohibition of Female Genital Mutilation Act (2011) was put into place to eradicate FGM and to protect the mental and physical integrity of women and girls in Kenya. To enforce the provisions of the Act, the Anti-FGM Board was established in 2013.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) which Kenya has ratified, in Article 5 calls on all states to, “prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards”. The Maputo Protocol is a legally binding human rights instrument applicable in Kenya.
The African Charter on the Rights and Welfare of the Child Article 20 calls on States to “take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child.
FGM is internationally recognized as a violation of the human rights of girls and women, particularly their rights to health, physical integrity and life. The United Nations passed a Resolution [A/RES/67/146] in December 2012, also referred to as the worldwide ban on Female Genital Mutilation.
In September 2015, the international community adopted the 2030 Agenda for Sustainable Development which has 17 goals. Gender equality by 2030 requires urgent action to eliminate the many root causes of discrimination that still curtail women’s rights. Goal 5.3 calls on states to eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation.
