The constitutionality of the criminalisation of consensual sex between minors in Kenya

Abstract

Female Genital Mutilation (FGM) is widely practised among Kenyan communities. Though there is an indication that the prevalence of the practice has reduced, there are emerging trends such as cross-border circumcision and medicalised circumcision. In a bid to end FGM, Kenya passed the Prohibition of FGM Act in 2011, which is the governing law on FGM. Kenya also passed the new Constitution in 2010, which gave life a new breath to new dispensation of governance and rule of law. This study sought to explore the extent at which the Act and the Kenyan Constitution have protected women and girls from the harmful practice of FGM. The study also responds to the fundamental questions on the extent of FGM in Kenya, and linking to how the Kenyan government has protected women and girls from the harmful practice. The study found out that the Kenyan Constitution and the Anti-FGM Act provides for an opportunity to end FGM. The Constitution is instrumental not only in addressing harmful practices, but also in advancing women’s rights and promoting gender equality. The Act has registered some success scores in the protection of rights of women and girls from FGM. However, the study found out that the Kenyan Act on FGM is also insufficient in some aspects including the fact that it does not address emerging trends such as medicalisation of FGM. The Act does not also protect women and girls who have not undergone FGM, making them susceptible to ridicule and seclusion from participating in some community activities. There is the need to amend the Act to make it more comprehensive so as to effectively contribute to ending FGM in Kenya.