Article 2 stipulates that any practice, including circumcision, is void if it is inconsistent with the Constitution or causes harm.
Bwana Wakili,
My cousin lost his only son last year. We suspect that our nephew's death was the result of a botched circumcision procedure that took place in the village. While this has been a painful reality, our cousin has tried to move on after this tragedy. What is particularly troubling is that our son has refused to visit his grandmother due to his fear of being forced into circumcision. What does the law say about this?
Dear Worried Uncle,
The Kenyan Constitution is thoughtfully crafted to balance the promotion and protection of individual rights with legal accountability. It recognises that cultural practices are non-negotiable as long as they do not cause harm, injustice, or discrimination. Article 11, Clause (1) acknowledges culture as the foundation of the nation and reflects the collective civilization of the Kenyan people.
In Clause (2), it mandates that the state promote all forms of national and cultural expression through literature, arts, traditional celebrations, science, communication, information, mass media, publications, libraries, and other forms of cultural heritage.
Circumcision is not practiced universally among all Kenyan societies; however, it is a cultural tradition for certain ethnic groups. Therefore, in this context, circumcision is protected under the law.
Cultural recognition and its associated protections are critically important, provided they adhere to Article 2, Clause 4, alongside Articles 11, 28, 29, and 53(2). Article 2, Clause 4 appears to limit the extent to which cultural freedom can be exercised, emphasising the need for compatibility with the constitution and written law.
If cultural practices, such as circumcision, are found to be inconsistent with these laws, the degree of inconsistency may justify their rejection.
Article 28 serves as a vital legal valve for maintaining a balance aimed at preserving human dignity. Article 29 categorises practices that occur without prior informed consent as torture, inhuman treatment, and degrading treatment. In cases involving minors, the law prioritises the best interests of the child principle for any actions that affect their well-being and rights.
Therefore, it can be argued that the cultural practice of circumcision is permissible only within the legal boundaries established by Article 24 of the Constitution.
The Children's Act includes specific provisions that directly address the issue of circumcision. It explicitly prohibits forced circumcision. In the interpretation section, it defines forced male circumcision as any procedure that involves the partial or complete removal of the male genitalia, other injuries to the male genital organs, or any harmful procedures performed on the male genitalia for non-medical reasons.
This definition applies regardless of whether the procedure is done with or without undue influence, inducement, enticement, coercion, or intimidation of a male child. The limitations on such actions concerning children are based on three key factors.
First, there must be confirmation that the circumcision is for valid medical reasons. Second, it is essential to verify that the caregivers’ consent to the procedure, as the children are considered minors. Third, it is crucial to determine whether the action serves the child's best interests.
The potential death or injury that may occur in these situations highlights three interconnected realities. First, it is essential to understand the regulatory framework governing traditional circumcisers in the country.
Second, we must determine whether the individual performing this sensitive procedure is properly licensed. Third, any actions or incidents that result in injury or death during circumcision can be interpreted and prosecuted under the Penal Code.
However, addressing such cases in criminal terms can hinder the survivor's ability to seek compensation through the doctrine of damages.
The law offers a way to seek justice, but certain standards must be met. The claimant or petitioner needs to present evidence linking their claims to the act of circumcision. They must convince the court that the injuries or losses they are claiming would not have occurred but for the circumcision.
In a criminal context, the standard for litigation is "beyond a reasonable doubt," while in a civil context, it is assessed "on a balance of probabilities." The qualifications of the person performing the circumcision may raise questions that could lead to legal reforms and regulations, prompting the need for licensing based on relevant expertise.
However, a more effective way to prevent such unfortunate incidents is to undergo these sensitive surgical procedures in a reputable hospital, where established protocols and standards can help minimise the risk of negligence.
A petition for redress based on errors in a recognised health facility is likely to have a stronger legal foundation than one based on actions by a village genital surgeon.
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