LEGISLATION IS NOT ALL : AFTER THE LAW, THERE IS NEED FOR PROPER AND CONTEXTUALIZED IMPLEMENTATION

Madam Harriette Chiggai, Women’s Rights Advisor to the President of Kenya,

The Representatives of Civil Society Organisations,

The Representatives of the ABA,

Dear participants,

Ladies and Gentlemen,

All Protocol duly respected,

How I wished to be among you this morning,

Due to competing agendas, I am not.

This notwithstanding, I feel honoured and privileged to address this forum on the occasion of the Launch of the ABA Report on Monitoring Prosecutions under the Prohibition of FGM Act in Kenya.

I extend my gratitude to ABA and the Clooney Foundation for having commissionned this work. It gives pertinent insights on the implementation journey between the Good, the Odd and the need to Change.

Ladies and Gentlemen,

I read through the Report. My conviction is that Law does not make it all. Although Law is essential, it needs to move from book to action in order to translate and impact people’s life. It is this action that is being monitored in this piece of work.

Let us adress The Good.

The good in this Report resides in the resolve of Kenyan Authorities to fight against the scourge of FGM. The good is also the dedicated law enforcement officers who work relentlessly to bring cases before the courts which we are commenting today.

This cannot be undermined. More often than not in Africa and elsewhere, either there is no law on FGM or the law is hardly implemented.

So this should be noted and emphazised.

At times also, attempts to implement law can result in backclash, for the practice is so entrenched in people’s customs and traditions and is part of a normal way of doing things. The recent example of the failed attempt by some Gambian Law makers to repeal the criminalisation of FGM speaks volume to this. That attempt should be an eye opener on how we use law to address some of the issues that are culturally relevant to the definition of one’s identity.

Proper legislation is the starting point. Obviously. Through out the continent, the need to legislate against harmful practices cannot be overstated.  Millions of our girls are exposed daily to threats over their lives and bodily integrity. The outcome document of the 2^nd International Conference on Female Genital Mutilation held in Daar El Salam, Tanzania, from the 9 to 11 October 2023, states that 29 African Countries are among the 31 countries in the world where FGM is still prevalent. This figure alone shows the extent of the challenge ahead of us. Yes we need the law as part of the saving strategy. The law sets the pace. Moreover, the criminal law tells about the vision of a society. It says the resolve of a people to put an end to the practice.

Proper legislation is key. But why are we legislating ? The answer to this question is also paramount in designing and applying our laws. We do not only want to get rid of a particular practice, we want, at the end of the day to protect the victims.

Ladies and Gentlemen,

I will know adress what is less appealing in the Report.

I will adress what seems odd in this evaluation of the implementation of the Prohibition of FGM Law.

From our perspective, it seems odd that the law has less contributed to the protection of victims.

Protection of victims is a necessity. The report mentions cases of victims of FGM who have instead been prosecuted.

Criminalising victims is the path we should not embark on. The Joint general comment published in November 2023 by ACERWC-ACHPR advises States in this regards. One can have many questions on the free and informed consent of victims in a culturally stringent environment. Moreoften, except for few, who would advocate for their right to bodily autonomy to decide whether or not to subject themselves to the practice, victims are often conditionned by the cultural setting which carved out their belief systems, with entrenched schemes and stereotypes. In these circumstances, is consent to the practice, really an informed consent ? The question resonates not only for adults but moreover for children who are the most in need of protection. Can we conclude that they embark in such practice with full appraisal of its consequences, but also of full knowledge of them contravening any law ? It is true ignorance of the law is not an excuse. But the implementation of the law should be adequate.

Victims need to be protected, not prosecuted. In this regards, victims need support, medical, psychosocial, and other support services that should be made available. This is a core challenge in our societies.

Ladies and Gentlemen,

There should be clear policy guidelines on this issue of victim protection in the implementation of the law. This is the Change that we need to make echoing the recommendation of the Joint General Comment. It encourages States to facilitate the training and sensitization of law enforcement, prosecution and judicial officers on handling matters related to FGM, including appropriate and gender sensitive approaches to evidence gathering and preparation, which safeguard the integrity, dignity and safety of the girls and women involved.

Above this, the Joint General Comment acknowledge the difficulty of law alone in achieving substantive change. It advocates for the ‘’ need for reflection on measures that are specific to the peculiar  socio-cultural and economic context in Africa, which addresses both the causes and drivers of FGM in the African context’’. It underscores the need for comprehensive approach to effectively address FGM, beyond the law.

Thirteen years down the line, after the adoption of the Prohibition of FGM in 2011, what is the situation on the ground ? Has the approach to the implementation of the law impacted on the practice ? Has legislation contributed to change or has it moved the practice underground ?

We need to go back to the drawing board. This is not only important for Kenya. It is also important for the entire continent, for best practices can be emulated. The benchmarking trip of Gambian Parlementarians of the Joint Committee on Health and Gender in Al Azar Egypt added value to the Report they tabled upholding the Prohibition of FGM in The Gambia.

The report before us has opened an eye on some of the critical issues on the implementation of the Law on the prohibition of FGM.

The way Kenyan authorities and the Kenyan people at large would embrace the report and work on its recommendations would certainly pave the way for other countries on this beloved continent.

Ladies and Gentlemen,

In 2023, the 2^nd Conference on FGM was organised by the African Union in Daar El Salam with a view to evaluate progress and with the vision of achieving change in a generation.

Let us hope that the law, combined with education, social support and attitude, will help us achieve transformative change with coming  generations upholding the gains of the previous one.

I thank you for your kind attention.