Dr Tatu Kamau vs The Attorney General and Others: problems and prospects in Kenya’s 2021 High Court ruling to uphold the Prohibition of Female Genital Mutilation Act 2011 - a reply to ‘The prosecution of Dawoodi Bohra women’ by Richard Shweder

Abstract

‘[The] average third world woman leads an essentially truncated life based on her feminine gender (read: sexually constrained) and being “third world” (read: ignorant, poor, uneducated, traditionbound, domestic, family-oriented, victimized, etc.). This, I suggest, is in contrast to the (implicit) self-representation of Western women as educated, modern, as having control over their own bodies and sexualities, and the freedom to make their own decisions’ (Mohanty, 2003: 337). Not much has changed regarding Western views of the ‘third world woman’ in the 37 years since Chandra Mohanty made these remarks – this is especially so when it comes to the heated topic of female circumcision, female genital cutting or what opponents refer to as female genital mutilation among African and Muslim women. In Richard Shweder’s (2022) conclusion of the target article, he outlines four key considerations that justify male circumcision and argues that these factors ought to also determine the acceptability of female circumcision in liberal democracies: (1) the practice is broadly supported by the communities that uphold them; (2) the practice is motivated by the fundamental principle of gender equality; (3) the practice is not more physically invasive than what is legally allowed for male circumcision; and (4) there is scant evidence of harm. Shweder (2022) points out that all four conditions are consistent with the practice of khatna – a mild, barely visible form of female circumcision among the Dawoodi Bohra. In this response article, we consider these four standards in our discussion of Kenya’s High Court ruling this year to uphold the Prohibition of Female Genital Mutilation Act 2011. It first describes the legal context for challenging the constitutionality of the Act and outlines the key provisions within the Kenyan Constitution and its Bill of Rights that the plaintiff identified in her petition, focusing especially on the rights of Kenyan women to bodily autonomy and cultural expression. It then delves into the complex symbolic, cultural and socio-religious nuances of gender-inclusive circumcision rituals, citing various case studies in our reflection on the four points Shweder proposes for legitimising female circumcision.

Non-therapeutic penile circumcision of minors: current controversies in UK law and medical ethics

“…We propose that, going forward, both in law and medical ethics, children of all sexes and genders will have to be treated equally with respect to parental decision-making about medically unnecessary genital surgeries. Either "minor" forms of FGM will have to be allowed, as prominent defenders of child NPC are increasingly proposing, 4,5,25,[169][170][171][172][173][174] or NPC of minors will have to be brought into closer alignment with existing standards applied to other practices. 175 It is our view that a consistent application of widely-accepted medical ethics, safeguarding, legal and human rights principles should result in equal protection for all children from all forms of non-therapeutic genital cutting practices to which they cannot consent.…”

Child genital cutting and surgery across cultures, sex, and gender. Part 2: assessing consent and medical necessity in “endosex” modifications

“…The anatomical repercussions of each type of GGM overlap substantially [47,72], and if both were allowed to be done by a sufficiently skilled practitioner in a clinical setting, the health risks would similar. If there is a difference in health risks currently, this may largely be due to the fact that one set of procedures is illegal in many countries (and so cannot be done openly in a medically controlled way), while the other is not (and so can be done in a relatively safe manner) [77]. As an additional consideration, the question of whether certain negative health outcomes, commonly associated with "ritual" female GGMs, are in fact causally attributable to the cutting itself, as opposed to other factors (e.g., discrimination in healthcare or other settings), is a matter of ongoing debate among experts, as seen in this issue [78][79][80].…”

Genital Cutting as Gender Oppression: Time to Revisit the WHO Paradigm

“…The fact that, in FGC-practicing societies, the rite of genital cutting does not exclude females is therefore significant. Instead of assigning them to a lower status on account of their sex, it rather places them in a complementary relationship to males-i.e., "different but equal" -which may reflect a relatively non-hierarchical gender structure within the "cultural DNA" of at least some such societies (Ahmadu, 2000;Ahmadu and Kamau, 2022). 22 Due in part to Western intervention and criminalization, the ability of the rituals in question to serve their social function as sites of bonding is increasingly disrupted, with the practices being driven underground and stripped of their symbolic significance.…”

“…Legally, the tendency is questionable because it may lead to discriminatory treatment of different persons or groups based on constitutionally forbidden criteria, such as sex, gender, race, religion, ethnicity, or national origin (Coleman, 1998;Bond, 1999;Price, 1999;Davis, 2001;Mason, 2001;Somerville, 2004;Dustin, 2010;Johnsdotter and Essén, 2010;Askola, 2011;Adler, 2012;Merkel and Putzke, 2013;Fusaschi, 2015;Arora and Jacobs, 2016;Rogers, 2016Rogers, , 2022Svoboda et al, 2016;La Barbera, 2017;Shahvisi, 2017;Munzer, 2018;Notini and Earp, 2018;Pardy et al, 2019;Möller, 2020;Carpenter, 2021;Ahmadu and Kamau, 2022;Bootwala, 2022;Earp, 2022a;Rosman, 2022;Shweder, 2022b). And ethically, the tendency is questionable because, in practice, it privileges the customs of more powerful stakeholders (Gunning, 1991;Lewis, 1995;Obiora, 1996;Tangwa, 1999Tangwa, , 2004Toubia, 1999;Androus, 2004Androus, , 2013Chambers, 2004;Njambi, 2004;Bell, 2005;…”