Judge Tuiyott raises consent questions in FGM debate during Supreme Court vetting

Court of Appeal Judge Francis Tuiyott has opened up a deeper legal debate on female genital mutilation, questioning whether what is often described as consent in such cases can truly be considered free when shaped by cultural and social pressure.

Appearing before the Judicial Service Commission on Wednesday, Justice Tuiyott said courts face a difficult task in determining whether individuals involved in FGM practices are acting out of genuine choice or are influenced by surrounding expectations.

“What is consent? Is this true consent? Is this consent that is pressurized because of cultural views? Is it one of societal…,” he said, noting that the issue is legally and morally complex.

He stressed that judges dealing with cases under the FGM law must interpret it within Kenya’s own historical and constitutional context, rather than relying too heavily on external legal models.

“We must never lose sight… of the need to interpret the Constitution, bearing in mind the history of it, and to come up with indigenous and truly Kenyan jurisprudence,” he stated.

Justice Tuiyott also questioned whether Kenyan courts should draw direct comparisons with how other jurisdictions handle similar issues involving culture and consent.

“I am not too sure that, given our history and our place in that journey, whether we should treat the question of consent like say… a court in the UK would treat it,” he said, adding that interpretation must be “truly purposive, one that would give full effect to the right.”

He further raised broader questions on how culture is defined and protected under the law, pointing to ongoing debates on cultural rights and constitutional protections.

“There is an interesting Act known as the protection of traditional knowledge and cultural expressions Act,” he said, before questioning whether culture remains fixed or changes with time. “Is culture that was there in 1930 the same as culture today? Is culture static? Is it evolving?”

He said courts are required to balance cultural claims with constitutional protections, especially when interpreting laws meant to protect fundamental rights such as those affected by FGM.

Kenya continues to enforce the Prohibition of Female Genital Mutilation Act, with authorities and rights groups reporting progress in reducing cases, even as challenges remain in some regions.

Recent national and international monitoring data shows that the prevalence of FGM among women aged 15–49 has dropped to below 15%, although higher rates are still reported in some communities, particularly in the north-eastern and Rift Valley areas.

Health and rights organisations say the practice has persisted in some locations due to deep cultural beliefs and cross-border movement, a situation that continues to test enforcement efforts and the legal questions raised during the interview.