Female genital mutilation cannot be rendered lawful because the person on whom the act was performed consented to that act

Tatu Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2021] eKLR

Constitutional Petition No. 244 of 2019

High Court at Nairobi

LA Achode, K Kimondo & MW Muigai JJ

March 17, 2021

Reported by Kakai Toili

Constitutional Law – fundamental rights and freedoms – right to human dignity – where the Prohibition of Female Genital Mutilation Act prohibited female genital mutilation (FGM) – whether the  prohibition of FGM on consenting adult women violated their right to human dignity - whether FGM performed with the consent of the person whom the act was done was legal - Constitution of Kenya, 2010, article 28 and 44(1); Prohibition of Female Genital Mutilation Act, 2011, section 19.

Constitutional Law – national values and principles of governance – public participation - what was the nature of public participation – Constitution of Kenya, 2010, article 10.

Constitutional Law - constitutional petitions - form and content - particulars to be pleaded - requirement that a petitioner set out with a reasonable degree of precision that which he complained of, the provisions claimed to have been infringed, and the manner in which they were alleged to be infringed - what was the effect of failure to state with specificity the provisions of the Constitution that were alleged to have been violated in a constitutional petition.

Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – factors to be considered in the limitation of rights – limitation of freedom of conscience, religion, belief and opinion - whether the rights relating to culture, religion, beliefs and language could be limited - whether a cultural practice could be deemed to be a national heritage – Constitution of Kenya, 2010, articles 11, 32, 44 and 259.

Constitutional Law – fundamental rights and freedoms – right to the highest attainable standard of health - what was the nature of the State’s obligation with regard to the right to health – Constitution of Kenya, 2010, article 2(6) and 43.

Constitutional Law – fundamental rights and freedoms – equality and freedom from discrimination – claim that female genital mutilation (FGM) had been criminalized while male circumcision had not been criminalized - factors to be considered in deliberating upon an unfair discrimination claim - whether the criminalizing of FGM and allowing male circumcision amounted to unreasonable discrimination – Constitution of Kenya, 2010, article 27.

Words and Phrases – participation – definition of participation - the act of taking part in something, such as partnership - Black’s Law Dictionary 10^th Edition; Thomas Reuters, at page 1294.

Words and Phrases – harm – definition of harm -  injury, loss, damage; material or tangible detriment -Black’s Law Dictionary 10^th Edition, page 832.

Words and Phrases – bodily harm – definition of bodily harm - physical pain, illness or impairment of the body - Black’s Law Dictionary 10^th Edition, page 832.

Words and Phrases – choice – definition of choice - an act of choosing; the right of ability to choose; a range from which to choose; something chosen - Concise Oxford English Dictionary, 12^th edition.

Words and Phrases – freedom – definition of freedom - the power or right to act, speak, think freely; the state of having free will; the state of being free; the state of not being subject to or affected by (something undesirable) - Concise Oxford English Dictionary, 12^th edition.

Words and Phrases – freedom of choice – definition of freedom of choice – unfettered right to do what one wants when one wants, and do so.  Also excluded was doing something that would harm one’s self or another - Black’s Law Dictionary, 2^nd Edition.

Words and Phrases – discrimination – definition of discrimination - differential treatment; esp. a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured - Black’s Law Dictionary, 10^th Edition at page 1566.

Brief facts

The petitioner challenged the constitutionality of the Prohibition of Female Genital Mutilation Act (No. 32 of 2011) and the Anti-Female Genital Mutilation Board formed thereunder (the impugned Act and the Board respectively). The petitioner pleaded that sections 2, 5, 19, 20 and 21 of the impugned Act contravened articles 19, 27, 32 and 44 of the Constitution of Kenya, 2010, (Constitution) by limiting women’s choice and right to uphold and respect their culture; ethnic identity; religion; beliefs; and, by discriminating between men and women.

The petitioner contended that section 19(1) of the impugned Act expressly forbade a qualified medical practitioner from performing female circumcision, thereby denying adult women access to the highest attainable standard of health, including the right to healthcare. The petition sought among others orders that a declaration be issued that sections 5, 19, 20, 21 and 24 of the impugned Act were unconstitutional and thus invalid. 

Issues:

i.   Whether female genital mutilation performed with the consent of the person whom the act was done was legal.

ii.   What was the nature of public participation?

iii.  What was the effect of failure to state with specificity the provisions of the Constitution that were alleged to have been violated in a constitutional petition?

iv.  Whether a cultural practice could be deemed to be a national heritage?

v.  What were the factors to be considered in the limitation of rights and fundamental freedoms and whether the rights relating to culture, religion, beliefs and language could be limited?

vi.  What was the nature of the State’s obligation with regard to the right to health?

vii. What were the factors to be considered in deliberating upon an unfair discrimination claim?

viii. Whether the criminalizing of female genital mutilation and allowing male circumcision amounted to unreasonable discrimination?

ix.  Whether the prohibition of female genital mutilation on consenting adult women violated their right to human dignity?

Relevant provisions of the law

Prohibition of Female Genital Mutilation Act (No. 32 of 2011)

Section 19

(1)  A person, including a person undergoing a course of training while under supervision by a medical practitioner or midwife with a view to becoming a medical practitioner or midwife, who performs female genital mutilation on another person commits an offence.

(2)  If in the process of committing an offence under subsection (1) a person causes the death of another, that person shall, on conviction, be liable to imprisonment for life.

(3)  No offence under subsection (1) is committed by an approved person who performs—

(a)  a surgical operation on another person which is necessary for that other person’s physical or mental health; or

(b)  a surgical operation on another person who is in any stage of labour or has just given birth, for purposes connected with the labour or birth.

(4)  The following are, for the purposes of this Act, approved persons—

(a)  in relation to an operation falling within paragraph (a) of subsection (3), a medical practitioner;

(b)  in relation to an operation falling within paragraph (b) of subsection (3), a medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming a medical practitioner or midwife.

(5)  In determining, for purposes of subsection (3)(a), whether or not any surgical procedure is performed on any person for the benefit of that person’s physical or mental health, a person’s culture, religion or other custom or practice shall be of no effect.

(6)  It is no defence to a charge under this section that the person on whom the act involving female genital mutilation was performed consented to that act, or that the person charged believed that such consent had been given.

Held

1.  The principles for interpreting the Constitution were well settled. The court should aim at promoting the purposes, values and principles of the Constitution and to advance the rule of law, human rights and fundamental freedoms in the Bill of Rights. The Constitution should be given a purposive interpretation where all provisions were read as a whole with each provision sustaining the other.

2.  Article 2(5) and (6) of the Constitution expressly recognized treaties ratified by Kenya as part of its domestic law but the treaties were subordinate to the Constitution. The primary dispute remained as pleaded by the petitioner and as answered by the three respondents.

3.  The evidential burden to prove that the impugned Act or some of its provisions were unconstitutional fell squarely on the petitioner. Furthermore, there was a rebuttable presumption of constitutionality of statutes. Until the contrary was proved, a legislation was presumed to be constitutional. It was a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as would make it operative and not inoperative.

4.  The court was alive to the guiding values and principles of governance including the rule of law; accountability; democracy; and, participation of the people enshrined in article 10(2) of the Constitution. Public participation was a means by which citizens took part in the conduct of public affairs, directly or through their chosen or elected representatives. However, there were no fast and hard rules for public participation. The public could become involved in the business of the National Assembly as much as by understanding and being informed of what it was doing as by participating directly in those processes.

5.  The petitioner failed to discharge the evidential burden to demonstrate that there was inadequate or no public participation. From the proceedings in the departmental committee and the debates by representatives of the people in the whole House, the court could not then say that the Bill did not receive any public participation. The court was also alive to the general power to pass legislation delegated to Parliament by the people under article 94(1) and (5) of the Constitution.

6.  The impugned statute re-defined female circumcision to the more graphic term of female genital mutilation (FGM) and to expand application to adult women. The proviso to section 19 of the impugned Act was a contradiction. It was not clear how a sexual re-assignment procedure that would totally alter the female genitalia be permissible or less invasive than Type I FGM as classified in section 2(a) of the impugned Act.

7.  The impugned Act fell short of criminalizing Type IV FGM. According to the Interagency Statement by the World Health Organization, 2008, the reasons, context, consequences and risks of the various practices subsumed under Type IV varied enormously. Because the practices were less known than Types I, II and III, examples included: pricking, piercing and scraping; stretching; cauterization, cutting into the external genital organs; and, introduction of harmful substances. The World Health Organization (WHO) concluded that it was not always clear, however, what harmful genital practices should be defined as Type IV. Some of the practices omitted by the impugned Act included cosmetic surgeries, labiaplasty, piercing and burning of female genitalia with corrosive substances among others.

8.  It was not an idle point that the impugned Act favoured a miniscule of the population who practiced aspects of Type IV FGM including women who could afford labiaplasty or the cutting favoured by some religious sects.

9.  Section 3 of the impugned Act established the Board as a corporate entity with a seal and perpetual succession. Its composition was made up of a chairperson appointed by the President; the principal secretaries of the ministries for the time being responsible for matters relating to gender, finance, health, education, youth affairs and three other members appointed by the Cabinet Secretary. The petition did not plead with specificity the element of the functions of the Board that were unconstitutional. The petitioner ought to have specifically set out the provisions of the Constitution that were alleged to have been violated; provided the particulars of the alleged violation; and, how the respondent had violated those rights.

10. It was instructive that the petitioner had named the Board as the 2^nd respondent and stated that the Board served to infringe on the petitioner’s rights and as such ought to be disbanded. However, no cogent evidence was placed before the court to demonstrate how the activities of the Board had infringed on the petitioner’s rights.

11. It was not entirely true that a cultural practice could not be deemed to be a national heritage because article 11 of the Constitution posited that culture was the foundation of the nation and as the cumulative civilization of the Kenyan people and nation.

12. The exception in section 19(3) of the impugned Act to a surgical operation on another person which was necessary for that other person’s mental health had not been substantiated. Indeed, there was no evidence of a co-relation between circumcision of men or women and mental health. However, there was clear expert evidence that male circumcision had some health benefits including reduced rates of infection or reduced transmission of HIV.

13. There were some merits in the exception for that other person’s physical health or in the course of child birth under section 19(3)(b) of the impugned Act. However, therein also lay some gap that had been exploited by traditional circumcisers. From the evidence, FGM/C was often disguised and carried out on women during their labour. It was also carried out at a young age, sometimes as early as nine years.

14. There was a conflict between the statute and the Constitution. However, the Constitution made certain exceptions and allowed derogation of rights in some cases. When it came to beliefs or personal faith, the court could only undertake a limited inquiry into the genuineness of a person’s professed faith. However, the petitioner was unable to demonstrate a clear nexus between FGM and her right to manifest her religion or belief. The court was unable to impeach the offences created by sections 19, 20 and 21 of the impugned Act. The Board was properly created and its functions were in conformity with the Act and the Constitution.

15. FGM, female circumcision and female cut referred to all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs or any harmful procedure to the female genitalia for non-medical reasons. The Act defined FGM to comprise 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.

16. The WHO included FGM Type IV which was unclassified or any other procedure involving, genital pricking, piercing (and to adorn with jewelry or other decorations), scraping, cauterizing, incising and stretching of the clitoris or labia (with tongs or scissors including razor blades).

17. The Penal Code defined harm as bodily hurt, disease or disorder whether permanent or temporary, while grievous harm meant any harm which amounted to a maim or dangerous harm, or seriously or permanently injured health, or which was likely so to injure health, or which extended to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense. It also defined dangerous harm as harm endangering life.

18. The phrase harmful cultural practice was not defined by Kenyan statutes. However, articles 53 and 55 of the Constitution referred to harmful cultural practices in protection of children and the youth. The Maputo Protocol in article 1(g) defined harmful practices as all behavior, attitudes and/or practices which negatively affected the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity. Article 5 of the Maputo Protocol called for the elimination of harmful practices, by prohibiting and condemning all forms of harmful practices which negatively affected the human rights of women and which were contrary to international standards.

19. The definition of FGM/C and harm articulated the negative effect of harmful practices on women and girls’ right to life, health, dignity, education and physical integrity. That underlined how the commitment to eliminate harmful practices was linked not only to promoting the health and well-being of women but also to women’s human rights.

20. The assumption was that anyone above the age of 18 years underwent FGM voluntarily. However, that hypothesis was far from reality, especially for women who belonged to communities where the practice was strongly supported. The context within which FGM/C was practiced was relevant as there was social pressure and punitive sanctions. Those who underwent the cut were involved in a cycle of social pressure from the family, clan and community. They also suffered serious health complications while those who refused to undergo it suffered the consequences of stigma. Women were thus as vulnerable as children due to social pressure and could be subjected to the practice without their valid consent. The rationale for FGM/C varied from one community to another.

21. Medicalization of FGM/C did not mitigate harm on the girl/woman as demonstrated by the FGM/C survivors who deposed affidavits and/or testified in court were consistent and had similar experience after FGM/C.

22. The Constitution was the most significant legal instrument in the legal system. It impacted on common law, international laws, traditional African religion and customary practices. Article 2(1) of the Constitution stated that the Constitution was the supreme law of Kenya and bound all persons and all State organs at both levels of Government. Under article 2(4) any law, including customary law that was inconsistent with the Constitution was void to the extent of the inconsistency and any act or omission in contravention of the Constitution was invalid.

23. Some harmful cultural practices were valued as traditional cultural heritage in some communities. Cultural rights intertwined with human rights in certain social spaces, and were not easy to separate but the Constitution offered the first most important standard against which the relevance of all other laws, religions, customs, and practices were to be measured. The Constitution also restricted customary law and religions through certain other provisions whose overall effect was to rid of harmful traditional practices.

24. FGM/C was harmful to girls and women due to the removal of healthy genital parts. The FGM/C caused immediate, short term and long term physical and psychological adverse effects. The purposes of FGM/C were community culture-centered and not individual benefit centered. The culture custodians in communities were clan/elders who determined when, where, how and for what FGM/C was conducted within the specific community.

25. The preamble to the Constitution recognized the culture and customs of the Kenyan people. Articles 21 and 27(6) of the Constitution directed the State to take legislative measures to redress the disadvantages suffered by individuals or groups due to past discrimination. Articles 27, 28, 43, 53 and 55 of the Constitution protected all persons from all forms of discrimination and shielded the youth and children from harmful cultural practices. They also guaranteed the right to dignity and the right to the highest attainable standard of health and reproductive health.

26. Article 25 of the Constitution prescribed fundamental rights and freedoms that should not be limited. The right to enjoy one’s culture religion and belief as envisaged in articles 11, 32 and 44 were derogable. Article 24 prescribed that the right and fundamental freedom could be limited to the extent the limitation was reasonable and justifiable based on human dignity equality and freedom. The limitation should be proportionate to the legitimate aim. Despite the rights enshrined in articles 11, 32 and 44 of the Constitution relating to culture, religion, beliefs and language, the rights could be limited due to the nature of the harm resulting from FGM/C to the individual’s health and well-being.

27. Section 2 of the impugned Act defined FGM/C Type I, II and III but excluded Type IV which the WHO included as unclassified. The latter included any other procedure involving, genital pricking, piercing with tongs or scissors including razor blades, incising and stretching of the clitoris/labia. Section 19 of the impugned Act criminalized FGM/C except where it was a surgical operation for a person’s physical and mental health or at any stage of labour or birth. It further provided that culture, religion, custom or practice or consent would not be a defence.

28. From the stand point of criminal law there was a lacuna created that hampered the effective enforcement of the impugned Act. The criminalization of the three types of FGM/C and not Type IV, which was unclassified, made it difficult to effectively enforce the Act. There seemed to be no objective or professional process to distinguish between the various types of FGM/C during investigation or prosecution.

29. A reading of section 19(6) of the impugned Act revealed that it was no defence to a charge under the section that the person on whom the act involving FGM was performed consented to that act, or that the person charged believed that the consent had been given. The implication of that was FGM/C could not be rendered lawful because the person on whom the act was performed consented to that act. No person could licence another to perform a crime. The consent or lack thereof of the person on whom the act was performed had no bearing on a charge under the Act.

30. Article 44(1) of the Constitution provided that every person had the right to use the language, and to participate in the culture, of the person’s choice. Freedom was therefore an underlying element of the exercise of one’s right under the Bill of Rights, which included the right to participate in one’s cultural life. From the evidence of the survivors and those who escaped the cut, they all confirmed the misinformation, deception and societal pressure they were subjected to, to undergo the cut.

31. The right to the highest attainable standard of health which included the right to health care services, including reproductive health care for every person was provided under article 43 of the Constitution. The right to the highest attainable standard of health received mention in various international treaties and covenants which were part of the laws of Kenya by dint of article 2(6) of the Constitution.

32. The State’s obligation with regard to the right to health encompassed not only the positive obligation to ensure that her citizens had access to health care services and medication, but had to also incorporate the negative duty not to do anything that would in any way affect access to such health care services and medication. That included an obligation to ensure that women had access to reproductive health care. The right to health bore upon other rights enumerated in the Bill of Rights.

33. Decisions on violation of constitutional rights should not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights was not a mere technicality; rather, it was essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights could not be based upon unsupported hypotheses.

34. The general principle governing determination of cases was that a party who made a positive allegation bore the burden of proving it. That was stipulated under section 107 (1) of the Evidence Act. The onus was therefore on the petitioner to demonstrate that her ability to exercise the fundamental right had been infringed, and that the infringement or conduct was not justifiable in a modern democratic state by dint of article 24 of the Constitution. The petitioner failed to do so.

35. For a differentiation of treatment to be unconstitutional and impermissible, it had to meet the threshold of article 27 of the Constitution which stipulated the grounds upon which discrimination was prohibited. It therefore followed that the principle of equality of the sexes was recognized, and discrimination on any basis prohibited under the Constitution and international and regional treaties to which Kenya was a party.

36. In deliberating upon an unfair discrimination claim, the court had to interrogate:

a.  Whether the provision differentiated between people or categories of people. If so, whether the provision bore a rational connection to a legitimate purpose. If it did not, then there was a violation of the Constitution. Even if it bore a rational connection, it could nevertheless amount to discrimination.

b.  Whether the differentiation amounted to unfair discrimination. That required a two-stage analysis;

i.   whether the differentiation amounted to discrimination. If it was on a specified ground, then discrimination would have been established. If it was not on a specified ground, then whether or not there was discrimination would depend on whether, objectively, the ground was based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

ii.   whether the differentiation amounted to discrimination, and whether it amounted to unfair discrimination. If it was found to have been on a specified ground, then the unfairness would be presumed. If on an unspecified ground, unfairness would have to be established by the complainant. The test for unfairness focused primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of that stage of the enquiry, the differentiation was found not to be unfair, then there would be no violation.

c.  If the discrimination was found to be unfair then a determination would have to be made as to whether the provision could be justified under the limitation’s clause.

37. Mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason was an unacceptable phenomenon. However, where there was a legitimate reason, then, the conduct or the law complained of could not amount to discrimination. Consequently, the law which promoted differentiation had to have a legitimate purpose and should bear a rational connection between the differentiation and the purpose.

38. Whereas the evidence adduced pointed to discrimination, the discrimination was not unreasonable. The evidence of the medical experts confirmed the grim reality of the challenges posed by female circumcision ranging from difficulty in consummating marriages to difficulty in child birth, and in certain instances, death of the victims.

39. The Constitution entrenched respect for human dignity, the achievement of equality and the advancement of human rights and freedoms, as its foundational values. Article 28 of the Constitution provided for the right to inherent dignity and the right to have that dignity respected and protected. Human dignity was that intangible element that made a human being complete. It went to the heart of human identity. Every human had a value. Human dignity could be violated through humiliation, degradation or dehumanization. Each individual had inherent dignity which the Constitution protected. Human dignity was the cornerstone of the other human rights enshrined in the Constitution. The impugned Act did not violate the Constitution or women’s right to dignity.

40. The Protection of Traditional Knowledge and Cultural Expressions Act No. 33 of 2016 defined cultural heritage. Under that Act, intangible cultural heritage was defined as the practices, representations, expressions, knowledge and cultural spaces associated therewith communities, groups and, in some cases, individuals recognized as part of their social cultural heritage. Culture was dynamic and not static and would continue to grow responding to new factors.  It was also fluid and changes from time to time. It was susceptible to be swayed by many factors such as religion, education, and influence from other communities, inter-marriage and urbanization. However, there were certain aspects of culture that identified a particular group, their history, ancestry and way of life and that diversity was recognized and protected by the Constitution.

41. The Constitution granted the freedom to exercise one’s culture.  However, that freedom had to be carried out in line with the other constitutional provisions. Culture entailed various modes of expression. Therefore, what was limited was any expression that would cause harm to a person or by a person to another person. FGM/C fell into the latter category.

42. While the Constitution had a general underlying value of freedom, that value of freedom was subject to limitation which was reasonable and justifiable. Additionally, it had not inscribed the freedom to inflict harm on one’s self in the exercise of those freedoms. That was why the Penal Code prescribed offences such as attempted suicide in section 226 and abortion and allied offences in section 158 to 160.

Petition dismissed ; the Attorney General (1^st respondent) to forward proposals to the National Assembly to consider amendments to section 19 of the Prohibition of Female Genital Mutilation Act (No. 32 of 2011) with a view to prohibiting all harmful practices of FGM as set out in the judgment; each party to bear its own costs.

Text and Journals

1.      Black, HC., (Ed) (1995)Black’s Law Dictionary Lawbook Exchange Ltd 2^nd Edn

2.     Garner, BA., (Ed)  (2014) Black’s Law Dictionary   Thomson West 10^th Edn  p1294

3.    Stevenson, A., Waite,M., (Eds) (2011) Concise Oxford English Dictionary London : Oxford University Press 12^th Edn

Cases

East Africa

1.    Ajuang, Joan Akoth & another v Michael Owuor Osodo the Chief Ukwala Location & 3 others; Law Society of Kenya & another Petition 1 of 2020; [2020] eKLR-(Explained)

2.     Anarita Karimi Njeru v Republic No 1 [1979] 1 KLR 154 -(Followed)

3.    ANN v Attorney General, Petition  240 of 2012; [2013] eKLR-(Explained)

4.    Attorney General v Law Society of Kenya & 4 others, Court of Appeal, Civil Appeal 426 of 2018; [2019] eKLR –(Followed)

5.     Baadi, Mohamed Ali and others v Attorney General & 11 others Petition 22 of 2012; [2018] eKLR-(Mentioned)

6.    Council of Imams and Preachers of Kenya, Malindi & 4 others v Attorney General & 5 others Constitutional Petition No 40 of 2011; [2015] eKLR –(Explained)

7.    County Government of Nyeri & another v Cecilia Wangechi Ndungu Civil Appeal 2 of 2015; [2015] eKLR-(Followed)

8.    Dullu Kora Elisha v Kenya School of Law & another Petition 248 of 2017; [2017] eKLR-(Explained)

9.    Federation of Women Lawyers (FIDA-K) & 5 others v Attorney General & another Petition 102 of 2011; [2011] eKLR-(Explained)

10.  Haki Na Sheria Initiative v Inspector General of Police & 3 others Civil Appeal 261 of 2018; [2020] eKLR-(Mentioned)

11. In Re Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General  [2011] 1 KLR 458 -(Followed)

12. Institute of Social Accountability & another v National Assembly & 4 others Petition No 71 of 2014; [2015] eKLR-(Followed)

13. JK (suing on behalf of CK) v Board of Directors of R School & another Petition No 450 of 2014; [2014 ] eKLR –(Explained)

14. Kandie, Karen Njeri v Alassane Ba & another Petition 2 of 2015; [2017] eKLR-(Explained)

15. Karani, Stephen Wachira & another v Attorney General & 4 others, Petition 321 of 2017; [2017] eKLR-(Followed)

16. Katet Nchoe & another v Republic Criminal Appeals Nos 115 & 117 of 2010 (Consolidated); [2011] eKLR – (Explained)

17.  Katiba Institute & another v Attorney General Petition 209 of 2016 ;[2017] eKLR –(Mentioned)

18.Kenya Human Rights Commission v Communications Commission of Kenya, Constitutional Petition 86 of 2017; [2018]-(Mentioned)

19. Leina Konchellah & others v Chief Justice of the Supreme Court of Kenya & others Petitions E291-E337 & Judicial Review E1108 of 2020 (Consolidated); [2021] eKLR –(Followed)

20. Martin Nyaga Wambora & others v Speaker of the Senate & 6 others, Petition 3 of 2014; [2014] eKLR-(Mentioned)

21. Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil appeal 290 of 2012; [2013] eKLR-(Explained)

22.  Mbugua, Simon & another v Central Bank of Kenya  & others Petitions 210 & 214 of 2019; [2019] eKLR-(Mentioned)

23. Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others Constitutional Petition 305 of 2012, 34 of 2013 & 12 of 2014 (Consolidated); [2015] eKLR-(Mentioned)

24.  Munialo, Jack Mukhongo & 12 others v Attorney General & 2 others, Petition 182 of 2017; [2017] eKLR –(Followed)

25.  Munya v Kithinji & 2 others [2014] 3 KLR 36 - (Followed)

26. Muruatetu, Francis Karioko & another v Republic, Consolidated Petitions Nos 15 & 16 of 2015 [2017] eKLR –(Followed)

27. Mutunga v Republic [1986] KLR 16 –(Mentioned)

28. National Super Alliance (NASA) v Independent Electoral & Boundaries Commission & others Petition 328 of 2017; [2017] eKLR –(Mentioned)

29. Ndyanabo v Attorney General [2001] E A 495-(Followed)

30. Okuta & another v Attorney General & 2 others Petition 397 of 2016; [2017] eKLR-(Mentioned)

31. Olum & another v Attorney General (1) [2002] 2 E A 508 –(Mentioned)

32. Omare, Gideon v Machakos University Petition 11 of 2019; [2019] eKLR-(Explained)

33. Ramogi, William Odhiambo & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) Petition 159 of 2018 ;[2020] eKLR –(Explained)

34. Republic v Kenya National Examinations Council & another ex parte Audrey Mbugua Ithibu Judicial Reveiw 147 of 2013; [2014] eKLR-(Explained)

35. Seventh Day Adventist Church (East Africa) Ltd v Minister for Education & 3 others, Civil Appeal 172 of 2014; [2017] eKLR –(Mentioned)

36.  Trusted Society of Human Rights Alliance v Attorney General & 2 others, Petition 229 of 2012; [2012] eKLR-(Mentioned)

37. United Millers Limited & another v John Mangoro Njogu Civil Appeal 118 of 2011; [2016] eKLR-(Explained)

38.Waweru, Peter K v Republic  Miscellanous Civil Application  118 of 2004 ;[2006] eKLR –(Explained)

African Commission on Human and Peoples’ Rights

Purohit v Gambia, Comm 241/2001, 16th ACHPR 49 AAR Annex VII (2002-2003) –(Explained)

South Africa

1.    Barkhuizen v Napier [2007] ZACC 5-(Explained)

2.     Doctors for Life International v Speaker of the National Assembly and others  [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) –(Followed)

3.    Harksen v Lane NO and others [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300-(Explained)

4.    Hoffmann v South African Airways  2000 (2) SA 628;2001 (10)BHRC 571;(2000) 3 CHRLD-(Followed)

5.     King & others v Attorney Fidelity Fund Board of Control & another (561)/2004)[2006]-(Followed)

6.    MEC for Education: Kwazulu-Natal and others v Pillay  [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) –(Explained)

India

Keshavananda Bharati v State of Kerala [1973] 4 SCC 225 –(Explained)   

Canada

R v Big M Drug Mart Ltd (1985) 1 SCR 295-(Explained)

United Kingdom

1.    Pearlberg v Varty [1972] 1 WLR 534 –(Followed)

2.     R v Coney[1882] 8 QBD 534 –(Explained)

3.    R v Donovan[1934] 2 KB 498 –(Followed)

Statutes

East Africa

1.    Constitution articles 2(1)(4)(5)(6); 10(2)(b); 11(1)(2)(a); 19; 21(3); 23; 25(a)(b); 26; 27(1)(2)(3)(4); 28; 29; 32; 43(1)(a)(3); 44; 53; 55(d); 56; 57; 94(1)(5); 165(3)(b)(d); 259 –(Interpreted)

2.     Constitution of Kenya (Repealed) section 82(3) –(Interpreted)

3.    Children Act, 2001 (Act No 8 of 2001) sections 2, 14- (Interpreted)

4.    Evidence Act (cap 80) section 107(1) –(Interpreted)

5.     Penal Code (cap 63) – In general (Cited)

6.    Prevention of Torture Act, 2017 (Act No 12 of 2017) - In general (Cited)

7.    Prohibition of Female Genital Mutilation Act (No 32 of 2011) sections 2, 3(2); 5; 19(1); 20; 21; 24 –(Interpreted)

8.    Protection of Traditional Knowledge and Cultural Expressions Act, 2016  (Act No 33 of 2016) – In general (Cited)

9.    Sexual Offences Act, 2006 (Act No 3 of 2006) –(Interpreted)

International Instruments

1.     African Charter on Human and People’s Rights (Banjul Charter) [1981] articles 4, 5, 16,17 , 18;

2.     African Charter on the Rights and Welfare of the Child (ACERWC) 1990

3.    Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1984] OHCHR ;

4.    Convention on Elimination of All Forms of Discrimination against Women ( OHCHR) 1979

5.      Convention on Elimination of All Forms Of Discrimination Against Women (CEDAW)[1979] article 1, 2, 5;

6.    International Conference on Population and Development Program of Action 1994 CORE

7.    International Covenant on Economic, Social and Cultural Rights [1966] (OHCR) articles 3, 12;

8.     Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) [2003] articles 2, 3,5

9.    Universal Declaration of Human Rights (UDHR) (1948) articles 18 , 22 (1948)

Advocates

None Mentioned