A key ruling in a case filed by a senior medic seeking for the legalization of Female Genital Mutilation (FGM) will now be known on Thursday this week.
Justice David Kemei, who is hearing the petition filed by Dr Tatu Kamau, Monday said he will make a final ruling on the case this week, after some parties in the matter voiced the need for an expanded jurisdiction.
This means parties enjoined in the suit will have to wait until the end of this week to know whether the court will propose for the formation of a three-judge bench to hear the matter.
In February this year, Kemei had intimated on the possibility of seeking an advisory opinion from the Chief Justice on the way forward in regard to the case whose hearing is yet to kick off.
“This is a case which raises fundamental constitutional issues for determination, and has subsequently generated immense public interest and so I will seek to refer it to the CJ in order to have an even bench to hear and determine the matter,” said Kemei during the February ruling.
Dr. Kamau, who has served at various top level positions in the health ministry, including the Unit of Vaccines and Immunization Services and the Division of Vaccines and Immunization, among others, claims the establishment and existence of the Anti-FGM board contravenes the right to participate in the cultural life of person’s choice.
She similarly says that the Prohibition of Female Genital Mutilation Act 2011, that outlaws female circumcision infringes on the right of women to perform their respective cultural based roles.
Dr. Kamau, who in her petition has listed the Attorney General, Anti FGM Board, and the director of public prosecution (DPP) as first, second and third respondents respectively, argues that the Act outlawing female cut in the country breaches the right to freedom of choice, and is tantamount to entrenchment of western culture.
She further argues the enactment of FGM Act (2011) denies women to practice their respective culture. She was unrepresented.
Some of the key organizations that have been enjoined in the case include the Federation of Women Lawyers in Kenya (FIDA), Kenya Women Parliamentary Association, National Gender and Equality Commission and Katiba Sasa.
Dr. Kamau argues that contrary to public outcry, her campaign is only meant to safeguard the dignity and rights of the woman and not in any way meant to violate the rights and privileges of underage girls, as this is already enshrined in the Children Act of 2014.
The petitioner argues there is nothing wrong in allowing women to voluntarily undergo genital surgery as the practice was very widespread in developed countries under the auspices of Female Genital Cosmetic Surgery.
“My Lord, while filing my petition I didn’t have the girl child in mind but only wanted to touch on the issues of adult women. The interested parties and my respondents were to look into my amended petition and see whether the girl applies,” she told Justice Kemei during an earlier court appearance