Recently, a reader asked about the punishment for circumcising a girl in Kenya, so are the basics of the legal mechanism for preventing and punishing female circumcision and early marriage.

Article 14 of the Children’s Act of 2001 states:

“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.”

Article 20 of the same law provides that the penalties for breaching the above are as follows:

“Notwithstanding penalties contained in any other law, where any person willfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in sections 5 to 19, such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.”

One year in prison and a six hundred dollar fine for cutting off your daughter’s genitals by force and forcibly marrying her as a 13 year old. Is that punishment enough to deter? Not at all. The damage done to a girl through circumcision and forced marriage can be a lifetime challenge, a lifetime sentence, compared to the meager punishment for those who contravene the law.

There is a problem with the fact that these laws are implemented at the level of local governance, by chiefs, district officers, and district commissioners. These are political figures, and strictly enforcing the law is often not politically palatable. This is particularly true in the more rural or  less educated areas in which female circumcision and early marriage are rampant.

This means that the hands meant to be implementing the law are often twiddling their thumbs around the issue. One only need to recall Miriam (a girl who escaped her fate as a child bride) and how the D.O. was in cahoots with her parents and refused to help her, and it is clear that having the law on paper may not mean much in these areas.

In another twist, parents who try to marry  their children are much more vigorously pursued than those who try to circumcise their daughters. The Enoosaen location chief concedes that the law for preventing child marriage is much more strictly enforced than the law that is supposed to protect girls from circumcision, and says his has to do with a number of complicated reasons for which child marriage is less ingrained in the traditional culture. Overall, our chief genuinely believes that there is no reason for the law against FGM to be as strict as it is, and that is why authorities fail to enforce it. He says he believes in educating people, not punishing them, to get lasting change. This sounds reasonable at first, noble even, but at the end of the day it represents the feeling among the old guard of Maasai society that it just isn’t all  that bad to circumcise a girl. In his words, “after FGM, with some counseling, a girl will be okay….marriage is for life.”

Regardless of implementation, the law still fails to protect women over 18 years of age from forced marriage or circumcision. In addition, it is commonly understood that the law has driven female circumcision underground more than it has actually reduced it. Tragically, as a consequence of the law, some girls and their families even defer seeking necessary medical help when they have complications after the girl’s circumcision.

Counselor Caroline, an activist who helps girls escape early marriage and FGM, chafed at my suggestion that rescuing girls might be easier now that the law is on her side. “Sure in legal terms, but for the Maasai, it isn’t illegal. Maasai have their own law.”

Sincere thanks to expert Hellen Rotich, an invaluable resource on the subject, for her clarification on the legal protections for girls.