The Legal and Human Rights Framework on FGM

Transcription

1 The Legal and Human Rights Framework on FGM Presented by Dr. Agnes K. Meroka, Advocate of the High Court of Kenya and Lecturer, UoN, School of Law and ACCAF Representative

2 Key Principles Underscoring the Law on FGM The Principle of Non-Discrimination- States have an obligation to ensure that women are not treated in a manner that results in disadvantage. Eg, FGM causes girls to drop out of school and get married. This is a disadvantage which states should address.

3 Key Principles Cont Violence Against Women/Gender-based violence- Any act that results in or is likely to result in physical, sexual or psychological harm to women. FGM results in physical harm, sexual harm and psychological harm and it is therefore classified as a form of violence against women.

4 Violence Against Women Article 2: Devaw. Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, nonspousal violence and violence related to exploitation;

5 Violence Against Women cont Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

6 Violence Against Women cont Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

7 Key Principles Cont Harmful Practices- Cultural or traditional practices which have been accepted by the society and practiced over a long period of time, but which have now been proven to result in physical, sexual or psychological harm to women. FGM is such a practice which societies have practiced over a long period of time as part of their culture, but which has now been proven to result in physical, sexual and psychological harm to women.

8 Harmful Practices cont Harmful cultural practices have been made illegal and societies are required by law to change their culture in order to abandon these types of practices.

9 Reproductive Health Rights International Human Rights Law recognizes, guarantees and protects the right to health. This right includes a) access to the highest attainable standards of health/medical care; b) the right to human dignity, freedom and security from social and cultural factors which negatively impact an individual s health.

10 Reproductive Health Rights cont The right to health includes the reproductive health rights. This right is defined in the 1994 International Conference on Population and Development (ICPD) Programme of Action, which took place in Cairo, Egypt.

11 Reproductive Health Rights cont.. This right is recognized under International, Regional, and Domestic Human Rights Instruments CEDAW- Article 12 Maputo Protocol- Article 14 Under domestic law Constitution- Article 43 Reproductive Health Care Bill, Section 2 Adopts the ICPD definition

12 The Legal Framework on FGM International Human Rights Law CEDAW- The Convention on Elimination of all Forms of Discrimination Against Women. It requires states to take all appropriate measure to eliminate practices which are discriminatory against women. Article 5 requires states to modify customary practices which lead to discrimination against women

13 CEDAW Cont Article 10- States shall ensure girls have equal right to education, and any practices which limit this rights should be eliminated. Article 12- women have the right to health and this includes the right to health in connection with pregnancy. States must eliminate practices which lead to maternal health complications.

14 Protocol to the African Charter on Human and People s Rights- Maputo Protocol Maputo Protocol on the Rights of Women in Africa Prohibits Discrimination against women; provides that women have the right to dignity inherent in a human being. FGM violates the dignity of women Article 5- Elimination of Harmful cultural practices, including all forms of FGM.

15 Maputo Protocol cont Article 14- Right to health includes the right to sexual and reproductive health.

16 Convention on the Rights of the Child Article 1- A child is anyone below the age of 18 years. Article 19- Protection of Children from all forms of physical and mental violence.

17 The National Framework Article 2(5) and (6)- International Human Rights Law is part of the national legal framework in Kenya. Constitution- Article 27- Women and girls enjoy the freedom from discrimination, which is any treatment of women/girls that would result in direct or indirect disadvantage. FGM leads to disadvantage of girls because they may be forced to drop out of school and to get married early.

18 Constitution cont Article 28- The all people in Kenya should enjoy the right to human dignity. FGM violates women/girls right to human dignity. Article 29- The right to freedom and security of person. No one in Kenya should be subjected to any form of violence or torture. FGM is a form of violence and it is also a form of torture.

19 The Prohibition of FGM Act Prohibition of FGM Act was passed in 2011, after the new Constitution was adopted. The Act recognizes the harmful effects of FGM and it makes FGM illegal and a criminal offence. The Act gives effect to the provisions of the Constitution and International Human Rights Laws.

20 Prohibition of FGM Act Cont Section 2 gives the definition of FGM female genital mutilation comprises all procedures involving partial or total removal of the female genitalia or other injury to the female genital organs, or any harmful procedure to the female genitalia, for non-medical reasons, and includes

21 Prohibition of FGM Act cont (a) clitoridectomy, which is the partial or total removal of the clitoris or the prepuce; (b) excision, which is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;

22 Prohibition of FGM Act cont (c) infibulation, which is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris,

23 Prohibition of FGM Act cont Section 19- FGM is a criminal offence in Kenya-. Where FGM leads to death, the person who was performing FGM shall be liable to life imprisonment. Section 20- It is a criminal offence to assist any person to perform FGM

24 Prohibition of FGM Act cont Section 22- It is a criminal offence to use one s premises for the purposes of FGM Section 23- It is a criminal offence to be in possession of tools and equipment for purposes connected with FGM Section 24- It is a crime to fail to report the commission of FGM

25 Prohibition of FGM Act cont Section 25- It is a crime to use abusive or derogatory language that is intended to ridicule and embarrass a woman who has not undergone FGM, or a man who marries or supports a woman who has not undergone FGM.

26 Prohibition of FGM Act cont.. All the offences under the Act, except one which results in death, carry a prison sentence of 3 years or a fine of Kshs. 200,000 or both, where a person is found guilty.

27 Children Act Children Act Section 14- No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child s life, health, social welfare, dignity or physical or psychological development.

28 Institutional Framework There are specific state agencies which are mandated to implement this law. These agencies include: The Police; local administration The DPP The Judiciary Ministry of Health; FGM Board; Ministry of Education; civil society, NGOs (local and international)