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The Prohibition Of Female Genital Mutilation Act

The Act Came Into Force On 4th October 2011. It Is Aimed At Eradicating Female Genital Mutilation In Kenya. It Is An Improvement On The Previous Laws Against Female Genital Mutilation Which Were Contained In The Penal Code And The Children’s Act. The Act Sets Out The Offences And Penalties Related The Act Of Female Genital Mutilation.

What is Female Genital Mutilation

This is a procedure that is performed usually as a traditional/ cultural rite of passage to remove the female genitalia in part or in whole for reasons that are not medical. There are different kinds of FGM, namely:

  1. Clitoridectomy – the partial or total removal of the clitoris or the prepuce.
  2. Excision – the partial or total removal of the clitoris and the labia minora with or without excision of the labia majora.
  3. Infibulation – narrowing the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without the excision of the clitoris.

The Act establishes the Anti-Female Genital Mutilation Board as a body corporate capable of suing and being sued (Section 3)

 

Composition of the Board (Section 4)

  1. Chairperson appointed by the President
  2. The PS of the Ministry responsible for gender/ representative
  3. The PS of the Ministry responsible for finance / representative
  4. The PS of the Ministry responsible for health / representative
  5. The PS of the Ministry responsible for education / representative
  6. The PS of the Ministry responsible for youth affairs / representative
  7. Three other members appointed by the Cabinet Secretary
  8. The Chief Executive Officer

The members of the board (apart from the ex-officio member – the Chief Executive Officer) serve for a single term of six years and cannot be re-appointed.

The Chief Executive Officer is appointed by the Board and holds office for a period of not more than 5 years and may be re-appointed after that term. The Board determine the terms and conditions of his employment. The CEO is the Secretary to the Board but has no voting rights at the meetings of the Board. The CEO is responsible for:

  • The day to day management of the Board
  • The direction of the affairs and transactions of the Board
  • The exercise, discharge and performance of the objectives of the Board
  • The functions, duties and general administration of the Board
  • Custody of the common seal of the Board (Section 9 & 11)

The Board is guided in its affairs and business by the Schedule (Conduct of Business and Affairs of the Board) and subject to the Schedule, the Board may regulate its own procedure (Section 7).

The Board has a common seal which when affixed to a document and duly authenticated by the signature of the chairperson of the Board (or a nominee appointed from among the Board members to sign on behalf of the chairperson) and the CEO, shall be judicially and officially noticed unless the contrary is proved. (Section 11)

The Chairperson of the Board may resign by delivering a letter of resignation to the President. Any other member of the Board may also resign by giving a letter of resignation to the Cabinet Secretary.

The functions of the Board are to:

  1. design, supervise and co-ordinate public awareness programs against the practice of female genital mutilation;
  2. generally, advise the Government on matters relating to female genital mutilation and the implementation of this Act;
  3. design and formulate a policy on the planning, financing and coordinating of all activities relating to female genital mutilation;
  4. provide technical and other support to institutions, agencies and other bodies engaged in the programs aimed at eradication of female genital mutilation;
  5. design programs aimed at eradication of female genital mutilation;
  6. facilitate resource mobilization for the programs and activities aimed at eradicating female genital mutilation; and
  7. perform such other functions as may be assigned by any written law.

The Board has power to:

  1. enter contracts;
  2. manage, control and administer its assets in such manner and for such purposes as best promote the purpose for which the Board is established;
  3. determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Board;
  4. receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom;
  5. enter association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Board is established;
  6. open such banking accounts for its funds as may be necessary;
  7. invest any funds of the Board not immediately required for its purposes; and
  8. undertake any activity necessary for the fulfilment of any of its functions.

A member of the Board (Other than the CEO) may be removed from office if the member:

  1. has been absent from three consecutive meetings of the Board without the permission of the chairperson;
  2. is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings;
  3. is convicted of an offence involving dishonesty or fraud, or an offence under the Anti-Corruption and Economic Crimes Act;
  4. is adjudged bankrupt or enters a composition scheme or arrangement with his creditors;
  5. is incapacitated by prolonged physical or mental illness or is deemed otherwise unfit to discharge his duties as a member of the Board; or
  6. fails to comply with the provisions of this Act relating to disclosure.
  1. The Board shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.
  2. the chairperson may, and upon requisition in writing by at least five members shall, convene a special meeting of the Board at any time for the transaction of the business of the Board.
  3. Unless three quarters of the total members of the Board otherwise agree, at least fourteen days’ written notice of every meeting of the Board shall be given to every member of the Board.
  4. The quorum for the conduct of the business of the Board shall be five members including the chairperson or the person presiding.
  5. The chairperson shall preside at every meeting of the Board at which he is present but, in his absence, the members present shall elect one of their numbers to preside, who shall, with respect to that meeting and the business transacted thereat, have all the powers of the chairperson.
  6. Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and voting and, in the case of an equality of votes, the chairperson or the person presiding shall have a casting vote.
  7. No proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.
  • The Board shall keep minutes of all resolutions and proceedings of meeting of the Board to be entered into books kept for that purpose.

 

  • If a member is directly or indirectly interested in any contract, proposed contract or other matter before the Board and is present at a meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration, that member shall, at the meeting and as soon as practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions with respect to the contract or other matter, or be counted in the quorum of the meeting during consideration of the matter.
  • If the majority of the members present believe the experience or expertise of such member is vital to the deliberations of the meeting, the Board may permit the member to participate in the deliberations subject to such restrictions as it may impose but such member shall not have the right to vote on the matter in question.
  • A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which it is made.
  • The members of the Board, staff, officers or agents of the Board are protected from personal liability, action, claim or demand arising from anything done in course of executing their functions, powers or duties under the Act.
  • Should any person incur expenses in a suit against him in an act done by him under the direction of the Board, if the court holds that the act was done bona fide, the person may be paid out of the general funds of the board, unless the person recovered the expenses from the suit.
  • The Board is still liable to pay compensation or damages to any person for injury or damage caused by the exercise of any power conferred by the Act or by the failure of any works.

The Board receives funding from (Section 14):

  • Gifts
  • Donations
  • Borrowings
  • Any other lawful source

The financial year of the Board ends on 30th June of each year (Section 15).

The Board prepares Annual Estimates at least 3 months before the beginning of each financial year. The annual estimates provide for (Section 16):

  1. payment of the salaries, allowances and other charges in respect of members and staff of the Board;
  2. payment of pensions, gratuities and other charges in respect of members and staff of the Board;
  3. proper maintenance of the buildings and grounds of the Board;
  4. maintenance, repair and replacement of the equipment and other property of the Board; and
  5. creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Board may deem appropriate.
  • The Annual Estimates once approved by the Board are submitted to the Cabinet Secretary for Approval. No expenditure can be incurred outside of the approved annual estimates or before authorization of the Board given with prior approval of the Cabinet Secretary.
  • The Board maintains proper records of accounts submits these to the Auditor General within 3 months after the end of each financial year the accounts of the Board together with a statement of income and expenditure of the Board and a balance sheet of the Board. The accounts are audited and reported in accordance with the Public Audit Act (Section 17).  
  • The Board may invest its funds in securities with the approval of the Treasury and may deposit in Bank(s) such monies not immediately required (Section 18)

 

SECTION

OFFENCE

PENALTY

19 (1)

Performing female genital mutilation

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

19 (2)

Causing the death of another while in the process of performing female genital mutilation

Life imprisonment

20

Aiding, abetting, counselling a person to perform female genital mutilation

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

21

Procuring a person to perform FGM: Taking a person from Kenya to another country, or arranging to bring someone from another country with the intention of having the person subject to FGM.

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

22

Allowing your premises/ premises in your control to be used for forming FGM

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

23

Being in possession of tools or equipment for purposes connected with the performance of FGM

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

24

Failure to report to a law enforcement officer that an offence of FGM has been or is in the process or intends to be committed

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

25

Using derogatory or abusive language meant to embarrass or harm a woman for not having undergone FGM or a man for marrying a woman who has not undergone FGM

Imprisonment for a minimum 6 months or fine of minimum Kshs.50,000/- or both.

28

General Penalty for offences

Imprisonment for a minimum 3 years, or a fine of minimum Kshs. 200,000/- or both

Schedule:

 

4 (3)

Failure by a member of the Board to declare a conflict of interest

Imprisonment for a maximum 6 months or a fine of maximum Kshs. 100,000/- or both

 

 

 

Children’s Act Section 14: Protection from harmful cultural rites, etc.: 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.

Children’s Act Section 119: A child is in need of care and protection if, being a female, she is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the child’s life, education and health; or

Constitution of Kenya Article 44 (3): A person shall not compel another person to perform, observe or undergo any cultural practice or rite.

Constitution of Kenya Article 53 (1) (d): Every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour

 

ACT

OFFENCES

PENALTY

Children’s Act Section 14 and 20

Infringing on the rights of a child to protection from FGM.

Imprisonment to a maximum of 12 years or a fine of maximum Kshs. 50,000/- or both

Penal Code Section 243

Grievous Harm

Life imprisonment

 

A law enforcement officer may without a warrant enter any premises for the purposes of ascertaining whether there is or has been a contravention of this Act (Section 26).

The Government is required to take necessary steps within its available resources to (Section 27):

  • Protect women and girls from FGM
  • Provide support services to victims of FGM
  • Undertake public education and sensitize the people of Kenya on the dangers and adverse effect of FGM

A person who while being a citizen of Kenya or permanently residing in Kenya commits the offence of FGM is guilty of the offence. The person will not be convicted in Kenya if he has been acquitted or convicted of the offence in the country where the offence was committed (Section 28)

Section 19 makes it illegal for any person to perform FGM. This includes medical practitioners such as doctors, clinical officers, nurses, midwives, or persons training to be medical practitioners.

It will be a defence for an approved medical practitioner who performs a procedure which amounts or results in FGM if it is shown that (Section 19 (3):

  • The surgical operation was necessary for the person’s mental or physical health
  • The surgical operation was in the course of any stage of labour or having just given birth, for purposes connected with labour or birth

It is no defence that the person on whom the act involving FGM was performed consented to the act, or that the person charged believed that such consent had been given. Section 19 (6).

  1. Anti-FGM Board
  2. Police
  3. Local Chief/ Administrators
  4. Children’s Officers
  5. DPP – Anti-FGM Unit – 0770610505
  6. Anti-FGM NGOs
    1. FIDA Kenya
    2. Kituo cha Sheria
    3. CREAW

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