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Kenya: Comprehensive Bill Before Parliament Criminalizing Female Genital Mutilation

(Apr. 5, 2011) It was reported on March 31, 2011, that Kenya's Parliament is considering the Prohibition of Female Genital Mutilation Bill, 2010, which criminalizes the practice of female genital mutilation (FGM). (Kapondi Authors Law to Criminalise Female Cut, THE STANDARD (Mar. 31, 2011).) The bill was sent to the Departmental Committee on Health after going through its first reading on March 30. (Id.) Although FGM has been outlawed in Kenya since March 2002 through the Children Act, this bill is the first comprehensive attempt to address the problem of FGM. (The Children Act, 2001 (No. 8 of 2001), §14, LAWS OF KENYA (rev. ed. 2007), African Children Law Reform [under UNICEF] website.)

The bill imposes severe penalties for violation of its provisions. A person who performs a FGM is on conviction punishable by a prison term of up to seven years and/or a fine of up to KES500,000 (about US$5,974). (The Prohibition of Female Genital Mutilation Bill, 2010, §3, GIZ Health Sector Programme in Kenya website (last visited Apr. 4, 2011).) The bill imposes similar penalties on the following acts:

· aiding, abetting, or counseling a person who performs FGM;

· procuring a person to perform FGM;

· allowing the use of one's premises for performing FGM;

· possessing a tool for performing FGM; and

· failing to report an offense under the bill. (Id. §§4-8.)

The bill imposes a more severe penalty – life imprisonment — on anyone who performs FGM and the unlawful procedure results in the death of the victim. (Id. §3.)

The bill seeks to waive judicial oversight of agents tasked with enforcing its provisions. It specifically states: “[a] law enforcer may, without a warrant, enter any premises for the purposes of ascertaining whether there is or has been, on or in connection with such premises any contravention of this Act.” (Id. §9.) The bill defines the term law enforcer broadly to include members of the police force, members of the provincial administration, children officers [sic], and probation officers. (Id. §2.)

Another notable provision of the bill confers extraterritorial jurisdiction on Kenyan courts. The bill makes any Kenyan citizen or resident who violates any provision of the bill outside the country liable to prosecution in Kenya. (Id. §11.)