Alarmingly, overall, 13 girl accused persons were identified, all below the age of 18. Eleven of the girls were FGM victims.
Offences and Charges: What Gets Charged?
The PFGM Act defines FGM and delineates the offenses that may be charged. The key offenses are as follows:[3]
- Section 19 – Offence of FGM (the performance of FGM, including by medical personnel)
- Section 20 – Aiding and abetting FGM (which includes ‘procuring’ FGM)
- Section 21 – Bringing a person to another country or into Kenya for the purpose of undergoing FGM
- Section 22 – Use of premises to perform FGM
- Section 23 – Possession of tools or equipment connected with performing FGM
- Section 24 – Failure to report the commission of an offence of FGM
These provisions appear to carry a mandatory minimum sentence, as Section 29 imposes a penalty of “imprisonment for a term of not less than three years, or …a fine of not less than two hundred thousand shillings, or both.” In practice, courts most frequently imposed a fine of two hundred thousand shillings (1500 USD) with imprisonment in default for non-payment of the fine.
This report found that "failure to report" under Section 24 of the PFGM Act was the most common charge, while “performing FGM” under Section 19 – a charge directly targeting those responsible for the procedure – was most infrequently charged.
FGM victims were most often charged with “procuring FGM” under Section 20 (aiding and abetting FGM) and “failure to report” under Section 24.
Evidence
The evidence introduced in court by the prosecution centered around proving that FGM had occurred. In at least one-half of the cases (34 out of the 68), the results of genital examinations were introduced as evidence that FGM had occurred.[4] This means that in at least half of the cases in the dataset, genital examinations were performed on women and girls while they were in custody. There was no indication in the documentation (where documentation was available and reviewed) that fully informed consent was obtained.
Case Outcomes
Nearly three-quarters of completed cases ended in a guilty verdict. Cases at the magistrates’ level in particular, where all of the cases were tried in the first instance, very rarely ended in acquittal (only one was identified). Many FGM victims were found guilty; the analysis identified 45 FGM victims, including 7 girl victims, who were found guilty (out of a total of 151 accused persons).
Sentencing
Of the 35 cases that ended in conviction, over three-quarters involved the imposition of prison or the possibility of incarceration if a fine was not paid. FGM victims were among those ordered to pay a fine, or, in default, imprisonment. Out of the 21 cases that ended with possible imprisonment, 9 cases included FGM victims as accused persons, with an average sentence of nearly 3 years in default of non-payment of a fine; it is highly likely that some victims have been incarcerated due to failure to pay the fine. Some courts seemed to recognize that the accused were victims but still ordered the mandatory minimum, often alluding to the goal of deterrence.
Access to Counsel and Legal Representation
In nearly half of the cases where documentation was available, accused persons did not appear to have legal representation at any point during proceedings (58 out of 68 cases had sufficient documentation to make a determination). This pattern was the same for accused persons who were FGM victims. Access to counsel was crucial to case outcomes; not a single case ended in acquittal when the accused did not have counsel.
Core Concerns and International Human Rights Law
Kenya’s current approach to prosecutions under the PFGM Act violates several key international human rights standards as well as Kenya’s own constitutional guarantees.
- Revictimization – The prosecution of FGM victims in connection with their own FGM contravenes obligations under international and domestic law to protect victims. The ACERWC and ACHPR’s Joint General Comment on FGM states that governments must “ensure that the framing of the law does not expose victims of FGM to prosecution, or otherwise characterize them as having participated in committing the crime.”[5] In domestic law, the Victim Protection Act no.17 of 2014 requires authorities to “protect the dignity of victims through…preventing re-victimization in the justice process” and to “recognize and give effect to the rights of victims of crime.”[6] The current practice of criminalizing FGM victims does not comply with these standards and instead, compounds the harm they have experienced.
- Best interests of the child – Girl victims were subject to genital examinations, often compelled to testify, and sometimes even prosecuted for being victims of FGM. This is a breach of the best interests of the child under international human rights law.
- Right against self-incrimination and right to privacy – Genital examinations were found to be regularly conducted after arrest and then used as evidence to sustain convictions – implicating the right against self-incrimination and the right to privacy. There is no evidence of valid consent to the exams.[7] Additionally, private health information was often publicly exposed in court.
- Right to legal assistance and legal aid – Over half of the accused persons were not represented. Authorities failed to ensure the accused – particularly vulnerable children and FGM survivors – access to legal assistance.
- Foreseeability – Article 24 of the PFGM Act (“failure to report the commission of the offence of FGM”) is being used to charge FGM victims, including girls or women who were children at the time, for failing to report their own incidence of FGM – an unforeseeable and apparently erroneous application of a mandatory reporting provision meant for third-party reporting.
- Right to interpretation – Interpretation during hearings was provided informally by court employees rather than trained interpreters, and official documents did not appear to be translated. This negatively affected the ability of the accused to mount a meaningful defense as many/some of them did not speak the language used in court.
Recommendations
The extensive evidence in this report underscores the urgent need for Kenya to amend the PFGM Act to explicitly state that victims of FGM cannot be prosecuted under any circumstances. Kenya must adopt a victim-centered approach that prioritizes the protection and rehabilitation of survivors by providing comprehensive support services, ensuring access to justice, and implementing measures to prevent the criminalization of victims. Law enforcement and judicial officials require adequate training to differentiate between perpetrators and victims and to conduct prosecutions in a manner that respects human rights. It is imperative that Kenya reviews its practices to ensure that medical examinations in criminal investigations are fully compliant with international human rights standards, norms, and best practices. This includes obtaining informed consent, ensuring the presence of independent medical professionals, and protecting the confidentiality of medical information.
Read the Full Report Here (in English)
Endnotes
[1] Previously, FGM had only been prohibited under Section 14 of the now-repealed Children Act, which prohibited circumcision on minor girls only.
[2] This report will primarily use the term “victim” to reference FGM survivors who are being prosecuted in connection with their own case of FGM, as the term “survivor” is a broader term that may encompass all people who have undergone FGM, including cutters.
[3] Prohibition of Female Genital Mutilation Act, No. 32 of 2011, 4 Oct. 2011, Articles 19, 20, 21, 22, 23, and 24 [hereinafter “PFGM Act”].
[4] It was not possible to determine if the results of genital examinations were introduced in 28 cases; thus, 34 cases in which genital exams were introduced as evidence is a minimum figure, and likely an undercount.
[5] Although General Comments are legally non-binding, they are extremely important for clarifying State Parties’ obligations. African Committee of Experts on the Rights and Welfare of the Child (ACERWC) & African Commission on Human and Peoples’ Rights (ACHPR), Joint General Comment on Female Genital Mutilation, June 2023, pg. 17, available at https://www.acerwc.africa/sites/default/files/2023-11/Joint%20General%20Comment_ACHPR-ACERWC_on%20FGM%20%282%29.pdf [hereinafter “Joint General Comment on FGM”].
[6] Victim Protection Act, No. 17 of 2014, Part II, Section 3.
[7] In the absence of evidence that there was informed consent for the genital examinations, and with the caveat that the exams were most likely conducted without properly informed consent and in the context of custody, it is possible that such genital exams constitute a form of cruel, degrading, and inhumane treatment that can rise to the level of torture. See generally Human Rights Watch, submission to the United Nations Committee against Torture on Tunisia, Apr. 5, 2016, available at https://www.refworld.org/reference/annualreport/hrw/2016/en/109610.