On 14 June 2018, the High Court at Machakos ruled that the case seeking to legalize FGM raises substantial questions of law that ought to be determined by more than one judge.
Justice D. Kemei in his ruling held that the case raised important constitutional issues that impact on various fundamental rights and freedoms such as the protection against discrimination, right to practice culture and freedom of conscience and belief. The judge found that the issues raised in the petition have great impact on women and girls. He recognized that the decision made in this case will greatly impact on the rights of girls and women and would affect policies on the right to health, culture and non-discrimination. According to the judge, the case concerned a matter that is of great public importance given that the fight against FGM continues to occupy a large part of the national discourse. In his view, there is need for more than one judge to decide on the issues raised in the petition.
As is required under the Constitution, the Judge referred the matter to the Chief Justice who shall constitute a bench of an uneven number of judges to hear and determine the issues raised in the petition.
The case (Petition 8 of 2017) was filed on 25 July 2017 by Dr Tatu Kamau seeking to allow adult women to practice FGM in accordance to their cultural right as provided for in the Constitution. KELIN and ISLA have filed a joint amicus brief on historical context of FGM as a form of violence against women and the positive obligation of state parties to enact laws against FGM.
To contribute to the discussion and for live updates follow KELIN on our social media platforms: Twitter: @KELINkenya and @ISLAfrica using hashtag #DontTouchFGMLaw and #EndFGM
Court Documents
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;
Email: ckituku@kelinkenya.org
