Republic v Amina Noor

Central Criminal Court

Brian, J

February 16, 2024

Reported by Faith Wanjiku & Collins Opwora

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Constitutional Law-human rights-violation of human rights-violation of the right to health and physical wholeness, right to be free from torture and inhuman treatment-where a minor was subjected to female genital mutilation (FGM) outside the UK-where the accused facilitated type 1 FGM against the minor- The Universal Declaration of Human Rights 1948,article 5; FGM Act, 2003, section 3

International Law-jurisdiction-where accused facilitated FGM in Kenya on a UK minor-whether facilitation of FGM in Kenya carried out on a UK citizen was a crime punishable in the UK- FGM Act, section 3

Brief facts

The accused and the victim (both UK citizens) were mother and daughter respectively. The accused was convicted for facilitating the genital mutilation of her own daughter, then 3 years old during a trip to Kenya in 2006.The trial by jury convicted the accused for aiding and facilitating the heinous act contrary to the Female Genital Mutilation (FGM Act, 2003), section 3. The sentencing by the judge was based on the facts of the investigation affirmed by the jury hearing findings.

Issues

  1. Whether the accused aided, abetted, counselled and procured a person to perform the act of female genital mutilation on a UK national abroad contrary to the FGM Act, 2003 section 3, the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of all forms of Violence Against Women (CEDAW) and the Convention on the Rights of a Child (CRC).
  2. Whether facilitation of FGM in Kenya upon a UK citizen was a crime punishable in the UK.

Relevant provisions of the law

Female Genital Mutilation Act 2003 Cap 31 (UK)

Section 3

Offence of assisting a non-UK person to mutilate a girl’s genitalia while abroad

(1) A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom.

(2) An act is a relevant act of female genital mutilation if— (a) it is done in relation to a United Kingdom national or permanent United Kingdom resident, and (b) it would, if done by such a person, constitute an offence under section 1.

(3) But no offence is committed if the relevant act of female genital mutilation— (a) is a surgical operation falling within section 1(2)(a) or (b), and (b) is performed by a person who, in relation to such an operation, is an approved person or exercises functions corresponding to those of an approved person.

Held

  1. The accused was found guilty of assisting a non-United Kingdom person to mutilate a girl’s genitalia whilst outside of the United Kingdom contrary to section 3 of the Female Genital Mutilation (FGM) Act, 2003. The victim, who was only 3 years old at the time, and was at the time of the sentencing 21, was entitled to lifetime anonymity.
  2. The victim of the appalling offence was not to be dehumanized by the use of an anonymous initial, being a young woman whose life was irrevocably altered by the accused’s actions, and who would have to deal with the consequences of the heinous act for the rest of her life. It was accordingly resolved to call her Jade.
  3. In order to identify the seriousness of the offence, and in circumstances where the accused did not accept the extent of the FGM that she intended would be performed on the victim, it was necessary for the court to make findings of fact in that regard, and to include descriptions of female genitalia, and the practice of FGM, that some would find uncomfortable or distressing to hear about.
  4. Since 1995, the World Health Organization (WHO) classified FGM into four types ranging from “pricking” the genitals with a needle or other sharp instrument so as to cause bleeding/draw blood (Type 4), through acts of cutting to, or the partial or total removal of, a girl’s labia majora and/or minora (or the stitching up thereof), to the total or partial removal of the clitoris (Type 1).
  5. Type 1 FGM involved the removal (in whole or part) of the clitoris. The clitoris being a neurovascular organ with an abundant blood and nerve supply making it vulnerable to the effects of trauma and at risk of significant pain and bleeding if cut.
  6. The nature of the act that was undertaken, and the seriousness of the potential consequences of the same, was not to be overlooked, underestimated or minimized. The total removal of the clitoris being nothing less than the removal, and therefore destruction, of an organ of the body. As such it was a serious assault of similar gravity to other forms of grievous bodily harm and, save in cases of medical need, it was difficult to conceive of a situation where even an informed adult could consent to the removal of such an organ for a non-medical purpose - just as no adult could consent to other such forms of non-medical assault being performed upon them-such assaults being contrary to the public interest and illegal.
  7. It was not a case of any form of allegedly consensual procedure performed on an adult, but rather the accused was found guilty of encouraging and assisting in an act of FGM performed upon a very young and vulnerable child when she was only 3 years old, and in the accused’s care, namely the complete removal of her clitoral hood and her clitoris, Type 1 FGM.
  8. There were both immediate and long-term potential consequences (and complications) of FGM. As noted in the agreed facts, the immediate complications of all types of FGM included, pain, bleeding, swelling, delayed wound healing, urine retention and infection. Infection could, of course, lead to sepsis and death. That risk extended even to “pricking”.
  9. There was no evidence whether an anaesthetic was used during the procedure on the victim, and if so, what was used in the “house” where the operation was performed. Had a local anaesthetic been used that contained lignocaine and adrenaline there would have been a high chance of minimal pain for up to 6 hours, but sadly, if predictably, in the present case , and by night time, the evidence was that the victim suffered sustained pain as she “cried the whole night” with cotton wool being stuck to the “wound” after the procedure was carried out, as the accused candidly recounted to a social worker at the UK National FGM centre when she was questioned in January, 2019.
  10. FGM was extremely common in both Somalia and Kenya. The evidence before the jury was that FGM rates in Somalia were the highest in the world, with the overall rate being at least 99%. Equally FGM was prevalent in Kenya, with those of Somali ethnicity most likely to undergo FGM, with the prevalence rate of FGM in the most affected ethic group in the country being 94%. The accused recounted that her elder sister had told her that the accused underwent FGM as a young child, and the court accepted that evidence. The accused’s evidence to the jury was that she did not know what form of FGM was performed upon her. The court found that hard to believe, and could not be sure that such evidence was true, not least in the context of the gynaecological problems that the accused had suffered.
  11. Parliament had outlawed any form of female genital mutilation in very clear terms. Ignorance of the law was no defence. Nor was pressure falling short of duress (which meant acting under threat of violence, which was not suggested in this case). Equally, the law prohibiting FGM did not distinguish between the possible purposes for which it is carried out. Nor did the law limit liability to someone of a particular religion or cultural background or required a jury to be sure what the purpose of a particular incident of FGM was. The issue for the jury was whether the accused aided, abetted, counselled or procured a person to do a relevant act of FGM on a UK national girl out of the UK. By their verdict they found that she did so, a verdict that the court considered was inevitable on the damning evidence against her that was before the jury. The accused’s evidence had all the hallmarks of tailoring her account at a later time to fit her defence case, and the court rejected such evidence. The accused should have refused to agree to the procedure as she was effectively in loco parentis and under a duty to intervene to prevent the victim from being ill-treated and assaulted.
  12. The accused was found guilty of the offence charged whether the act performed upon the victim was Type 1 genital mutilation (the removal of the clitoral hood and clitoris) or Type 4 (the injection or piercing of the genitals to produce blood) each being an act that would inevitably result in at least some form of physical injury or tissue damage for which there was no medical purpose, and which each carried serious risks. On either scenario her culpability was very high.
  13. Based on the evidence before the jury, and the court was satisfied and was sure, that the accused knew perfectly well, and intended, that the relevant act of FGM that was to be performed on the victim was Type 1 FGM.
  14. There were no sentencing guidelines in relation to the offence of assisting a non-United Kingdom person to mutilate a girl’s genitalia whilst outside of the United Kingdom contrary to section 3 of the FGM Act 2003, and as already noted, there had been no previous successful prosecution under this section. It was common ground that in such circumstances there was no direct sentencing guidance. The maximum sentence under section 3 being 14 years’ imprisonment which the judge satisfied indicated the considerable seriousness of the offence and the prosecution submitted that it could assist to consider a number of sentencing guidelines in place.
  15. In the context, a particularly relevant guideline was wounding with intent. Given the nature and seriousness of the injury, the accused aided and abetted the mutilation of the victim’s genitalia which was akin to wounding with intent.
  16. The court considered that the Sentencing Guidelines for Causing or Allowing a Child to Suffer Serious Physical Harm was of some assistance, and it also considered the Child Cruelty Guidelines, though it considered a child cruelty offence to be less apt given the more obvious correlation with the Wounding with Intent Guidelines and the Causing or Allowing a Child to Suffer Serious Physical Harm Guidelines.
  17. All factors withstanding, including the accused’s punishment effect on the husband’s adjustment of his work schedule to take care of the younger children, the adult children’s education schedule not being affected, her limited command of English language, psychiatrists’ and general practitioners’ recommendations, unjustified delay in prosecution and personal mitigation, the offence was so serious that neither a fine alone nor a community sentence could be justified for it, thus the sentence of imprisonment. In the court’s opinion the sentence matched the seriousness of the accused’s offending and took into account the mitigating factors in the case.

Orders

  1. In the context of the very serious nature of the offence, and the associated very high harm and very high culpability, and associated aggravating factors, the sentence passed was therefore one of 7 years’ imprisonment.
  2. Unless released earlier under supervision, the convict to serve one half of this sentence in custody. The release would not bring the convict’s sentence to an end. If after the release and before the end of the period covered by sentence the convict committed any further offence, she could be ordered to return to custody to serve the balance of this sentence outstanding at the date of the further offence, as well as being punished for that new offence.

Relevance to the Kenyan jurisprudence

The Constitution of Kenya under article 2 (5) recognizes that international conventions ratified by Kenya as applicable law within Kenya’s jurisdiction. Consequently, International Conventions that address the rights of women and girls, victims, and witnesses are applicable in the absence of a comprehensive Kenyan law or with Kenyan laws.

Article 10 (2) (b) provides for the right and protection of human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.

Article 25 (a) provides that the right of freedom from torture and cruel, inhuman, or degrading treatment or punishment shall not be limited.

Article 28 of the Constitution 2010 provides for every person’s right to inherent dignity and the right to have that dignity respected and protected. Article 29(d) and (f) of the constitution 2010 provides for the right to freedom and security of the person, which includes the right not to be; subjected to torture in any manner, whether physical or psychological and treated or punished in a cruel, inhuman or degrading manner respectively. Article 44 (3) states that a person shall not compel another person to perform observe or undergo any cultural practice or rite.

Article 53(1) (d) specifically states that every child has a right to be protected from abuse, neglect, harmful cultural practices, inhuman treatment and punishment and hazardous or exploitative labor.

Prohibition of Female Genital Mutilation Act no.32 of 2011 which is An Act of Parliament prohibiting the practice of female genital mutilation, safeguarding against violation of a person’s mental or physical integrity through the practice of female genital mutilation and for connected purposes, provides the constitutional and Legal mandate protecting women and girls from this heinous, degrading and life threating practice.

The Children Act, No. 8 of 2001

The Act addresses the rights, best interest, and welfare of all children.

Section 14 prohibits anyone from subjecting a child to FGM, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, and dignity or physical or psychological development.

Further, authorized officers are mandated to rescue and protect children at risk or who have undergone FGM.

Penal Code, Cap 63

The Penal Code establishes the criminal law code by outlining criminal offences and prescribing penalties.

Some of the charges against perpetrators of FGM are murder, grievous harm, and assault.

Standard operating Procedures manual and rapid reference guide on prosecution of FGM cases

These assist the prosecutor in deciding to charge, the evidence required, the conduct of the trial and how to handle victims and witnesses in the prosecution of FGM and related crimes. They also highlight fostering better collaboration, cooperation, and coordination among stakeholders involved in the fight against FGM.

In Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) (Constitutional Petition 244 of 2019) [2021] KEHC 450 (KLR) (Constitutional and Human Rights) (17 March 2021), wherethe petitioner pleaded that sections 2, 5, 19, 20 and 21 of the Prohibition of Female Genital Mutilation 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 court held that 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.

Further 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.

In Sarah Chumo v Republic [2020] eKLR, the appellant Sarah Chumo was charged in Kericho CMCC No.4162 of 2015 with six counts of performing Female Genital Mutilation (FGM) on six different persons contrary to Section 19(1) as read with Section 29 of the Prohibition of Female Genital Mutilation Act, Chapter 62B Laws of Kenya. The trial court had found the Appellant guilty as charged and convicted her on four counts. This conviction was affirmed by the High court but due to the convict’s age, economic situation, time served and other mitigating factors, the actual sentence was reduced to the time served. The appellant was warned against practicing FGM since that tradition was retrogressive and it had adverse effects on those subjected to it.

The dehumanizing, abhorrent and life threatening nature of FGM goes against all tenets of humanity. This has been recognized the world over and Kenya being one of the countries where FGM is illegal but secretly practiced, should enhance its’s sensitization drive, promote community policing prioritizing the fight against FGM among other outlawed cultural practices and highly publicize punitive repercussions for perpetrators of this heinous act.

The Constitution of Kenya 2010, article 2(5) and (6) commits Kenya to international treaties and conventions ratified by the state. This in effect allows Kenya to decisively apply her laws in dealing with internationally recognized crimes committed by Kenyans within and outside its borders.