NAIROBI, Kenya — Court of Appeal Judge Francis Kipruto Tuiyott has told the Judicial Service Commission (JSC) that courts handling female genital mutilation (FGM) cases must carefully examine whether consent is genuinely voluntary or influenced by cultural and societal pressures.
Tuiyott made the remarks on Wednesday during his interview before the JSC panel for nomination to the Supreme Court, as the commission moves to fill a vacancy left following the death of Judge Mohamed Ibrahim in December 2025.
The panel is chaired by Chief Justice Martha Koome.
The judge said his judicial philosophy is anchored in more than three decades of legal experience, shaped by exposure to inequality and injustice that motivated his transition from private practice to the Bench.
He told the panel that judicial integrity and openness to scrutiny are central to the administration of justice.
“I strive to conduct myself in uttermost integrity, to demonstrate through my decisions that I am impartial, and to be open to scrutiny,” Tuiyott said.
On FGM-related cases, Tuiyott said courts must begin by recognising the principle of personal autonomy over one’s body, but stressed that consent cannot be assumed without deeper legal interrogation.
He said judges must assess whether consent is truly free or shaped by cultural expectations, social pressure, or traditional norms that may influence individual decision-making.
“One must begin by appreciating the place of personal autonomy in respect to one’s body,” he said.
Tuiyott added that in such cases, courts must also consider the purpose of legislation criminalising FGM and the historical context that informed its enactment.
“If I were a judge confronted with the question of the practice of FGM, I would have to understand the purpose of the statute and the historical perspective. Where is the country coming from?” he said.
He further noted that while an adult may appear to consent to the practice, courts must still interrogate whether such consent is legally and constitutionally valid in light of broader human rights protections.
The judge emphasised that judicial reasoning must remain flexible and responsive to evidence, particularly in cases involving rights, culture, and human dignity.
FGM remains a criminal offence in Kenya under the Prohibition of Female Genital Mutilation Act, which outlaws the practice and prescribes penalties for offenders.
Despite legal prohibitions, the practice persists in some communities, often prompting complex legal and constitutional debates in courtrooms.
Tuiyott’s remarks come amid ongoing judicial interviews aimed at strengthening the composition of the Supreme Court, which plays a central role in interpreting the Constitution and shaping national jurisprudence on fundamental rights and freedoms.
