Justice Tuiyott backs scrutiny of adult consent in FGM cases

Justice Francis Tuiyott during the JSC interview for the position of Supreme Court Judge. [David Gichuru, Standard]

Court of Appeal Judge Francis Tuiyott has called for deeper scrutiny of adult consent in Female Genital Mutilation (FGM) cases, questioning whether such decisions are voluntary or shaped by cultural and societal pressures.

Appearing before the Judicial Service Commission for vetting of the Supreme Court judge position, Justice Tuiyott said that any legal consideration of FGM must balance personal autonomy with the broader social context that influences individual choices.

“While an adult may appear to consent, the real question is whether that consent is free or driven by societal and cultural expectations,” he said.

Tuiyott noted that a judge must examine the purpose of laws outlawing FGM alongside the country’s historical context, noting that autonomy over one’s body remains a fundamental principle.

Reflecting on his 36-year legal career, he said his transition from legal practice to the Bench was motivated by a desire to address injustice and inequality. “Serving as a judge allowed me to make a direct contribution, however small, to the cause of justice,” he said.

Attorney General Dorcas Oduor, who questioned Tuiyott during the interview, also sought his views on the Constitution’s transformative nature and the doctrine of basic structure.

Tuiyott agreed that the Constitution is transformative but maintained that all its provisions are amendable.

He referenced the Court of Appeal’s position in the BBI dispute, where judges supported the application of the basic structure doctrine, introducing a four-tier test for constitutional amendments.

However, he acknowledged that the Supreme Court later clarified the matter, affirming that no part of the Constitution is beyond amendment.