On Thursday, October 24, 2019, a three-Judge bench heard the petition filed by Dr. Tatu Kamau who questioned the constitutionality of the prohibition of female circumcision.
While Dr. Kamau's petition attracted public outbursts and objection, what many do not know is that Kenya's first President, Jomo Kenyatta rode on the ban of female circumcision in 1929 to launch his political career.
In March 1969, Christian missionaries stationed in parts of Mt Kenya banned the cultural practice held dear among a section of its congregants and Mt Kenya leaders during a conference in Tumutumu, Nyeri.
"The members of the clergy passed a resolution which stated that with one dissent that the custom is evil and should be abandoned by all Christians. Further by a vote of 30 to nine, all Christians submitted to it were to be suspended by churches everywhere," The Sunday Standard reported on Sunday, October 27.
Unknown to Dr. John Arthur, the head of the Church Mission Society, he and other missionaries played directly into the hands of the Kikuyu Central Association founded by Harry Thuku.
The ban on female circumcision incited the masses against each other gifting an upcoming Jomo Kenyatta the rare opportunity to launch his career.
KCA used the disagreement on female circumcision among Mt Kenya residents as a rally to stir revolution against the colonial government.
Charles Hornby, a British Historian, and novelist in his book, Kenya: A History Since Independence wrote: the ban escalated the split between those aligned to the church and believed to condone the colonial master and freedom fighters.
In a case filed before justice David Kemei in June 2017 Dr, Kamau, a medic with a practising experience spanning to 26-years moved to the High Court in Machakos pursuing orders to have the court declare the act that outlawed FGM unconstitutional.
However, Chief Justice David Maraga moved the case from Machakos High Court to Milimani Law courts where he constituted a three-judge bench that heard the case.
Hornsby added that among the Kikuyu it was unheard of for an uninitiated girl to graduate into a woman, a wife or a mother.
In the October 24 hearing, Kamau told the court that fatalities come up when the female cut is conducted by a person who is unqualified and argued that the cut should be done by a licensed medical practitioner.
"As medical practitioners, we are taught surgical basics and there is no specialisation on mental genital surgery in medicine," Kamau stated.
When one of the judges asked Dr. Kamau whether she was taught to conduct FGM in medical school, she replied, "no one is taught how to mutilate. Medicine does not teach mutilation. Medicine teaches surgery."
Kamau defended the practice when asked whether elders (men) in communities that favour FGM take advantage of the practice to marry off young girls in exchange of property.
Kamau replied, "it is the mothers, the women who decide whether or not a girl is ready for the cultural practice. If a girl is ready, that is when the head of the family is informed for purposes of planning."
Kamau also told the court that circumcised women are more fertile than those who have not undergone the cut.
In a past court session, the medic turned activist affirmed that stopping women from undergoing the cut while men are allowed to get circumcised is discriminatory.
Kamau went further and likened the ban against the female cut to an act of Kenyans embracing Western culture.
Respondents in the case that will also be heard on Friday, October 24 include the Attorney General; listed as the first respondent and the Director of Public Prosecutions (DPP) listed as the third respondent.
Advocacy groups opposing the application have also been enjoined in the case: the Federation of Women Lawyers in Kenya (FIDA), Kenya Women Parliamentary Association, National Gender, and Equality Commission and Katiba Sasa.
The law states that anyone found guilty of practising FGM could attract a Ksh 200,000 fine or serve a sentence that does not excede three years.
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