NAIROBI, 25 April 2011 (IRIN) - A global advocacy group for gender-based violence survivors has called on the International Criminal Court to reconsider its refusal to recognize forced male circumcision as a form of sexual violence in a case against alleged organizers of Kenya's 2007-2008 post-election crisis.
Brigid Inder, executive director of The Hague-based Women's Initiatives for Gender Justice, said the judges' decision to classify forced male circumcision under "other inhumane acts" was "a misstep" that failed to take into account the element of force and purpose of the crime.
"We don't agree with the judicial decision; we think it's a wrong classification," Inder told IRIN.
Her comments followed allegedly inflammatory statements by leading politicians that have raised concerns among civil society groups in Kenya that the crime could repeated in the 2012 elections.
In his December 2010 request for summonses for three crimes-against-humanity suspects aligned with President Mwai Kibaki's Party of National Unity (PNU), ICC Chief Prosecutor Luis Moreno-Ocampo provided evidence of at least nine instances of forced male circumcision in the Rift Valley towns of Nakuru and Naivasha, as well as in Nairobi's Kibera slum. The violence claimed at least 1,000 lives nationwide and displaced hundreds of thousands between December 2007 and February 2008.
Ocampo initially moved to charge the crime - targeting the Luo ethnic group, which does not practise male circumcision - under "other forms of sexual violence", with atrocities such as sexual slavery and forced prostitution. But the pre-trial chamber ruled in March that it should fall under "other inhumane acts", crimes that cause "great suffering" or "serious injury to body or to mental or physical health".
The chamber blocked an appeal against that ruling in early April, though Ocampo can raise the issue again in hearings scheduled for September or before the trial chamber if cases against the suspects are allowed to proceed.
Though "other forms of sexual violence" and "other inhumane acts" are both categories of crimes against humanity, Inder said the latter, while acknowledging great suffering and injury, failed to address "the coercive environment" in which forced circumcisions were carried out - typically by mobs armed with knives, machetes or even broken soda bottles.
"In our view, what makes these acts a form of sexual violence is the force and the coercive environment, as well as the intention and purpose of the acts," she said. "It isn't simply about the injuries and suffering, although clearly these are also aspects of these crimes. But the forced circumcision of Luo men. has both political and ethnic significance in Kenya and therefore has a specific meaning. In this instance, it was intended as an expression of political and ethnic domination by one group over the other and was intended to diminish the cultural identity of Luo men."
Instead of placing all the blame with judges, however, Inder said Ocampo had failed to stress these points in his filings, simply stating that the acts are "sexual in nature" without elaborating. She said the onus was now on prosecutors "to argue their facts more effectively", and she encouraged them to do so in September.
Kevin Omollo, 23, a Kibera resident who was forcibly circumcised the day after poll results were announced, told IRIN the crime should be considered a form of sexual violence, saying he viewed the attack as an attempt to rob him of his "manhood".
On the morning of 31 December 2007, Omollo joined supporters of Raila Odinga, the Luo politician who was declared the loser in the election and is now Kenya's prime minister. When the mob was dispersed by police officers, Omollo fled, only to run into a group of the outlawed Mungiki criminal gang.
Unarmed, Omollo was quickly thrown down by his dread-locked assailants, members of the Kikuyu group, who carried guns, clubs and pangas and promptly beat him. Eventually, one removed his pants and sliced off his foreskin with a six-inch kitchen knife.
"The only thing I could feel was the pain in my genitals," Omollo said. "It was really intense."
Fellow Odinga supporters then came to rescue him. As he was whisked away he could hear his attackers saying, "How can a kihii [uncircumcised boy] rule the country? How can we have a president who is not circumcised?"
This rallying cry, which rights groups accused the PNU of openly spreading in the run-up to the 2007 general election, could very well be repeated in 2012 given that Odinga is viewed as an early frontrunner for the presidency, said Mary Njeri Gichuru, executive director of the Coalition on Violence Against Women in Kenya.
Gichuru said it was evidence of the tribalism that was at the base of much of the violence.
"For the many communities that circumcise, not being circumcised is a very abominable thing," Gichuru said. "That's why it's easy for them to abuse others for not circumcising. They believe that if you aren't circumcised, you can't be a leader."
Recent comments by Kenyan politicians have only heightened the anxieties of Gichuru and other observers.
At a February rally, Uhuru Kenyatta, Kenya's Finance Minister and one of the six suspects targeted by Ocampo, lashed out at Odinga's Orange Democratic Movement for opposing high-level appointments put forward by Kibaki, saying: "They think that Kibaki is their uncircumcised boy? That he does not have his own head to make his own decisions?"
An article on 3 April in a local daily newspaper cited one rally where Mwangi Kiunjuri, the PNU-aligned Assistant Minister for Public Works, said: "Let me tell you, uncircumcised boys are not invited to dowry negotiations because, as you know, boys will always take time to sing their play songs. An uncircumcised boy's goings is only ended when he faces the knife."
Judith Okal, a senior programme officer with the Federation of Women Lawyers in Kenya, said in addition to deterring attacks that might be prompted by such statements, a decision by the ICC to classify forced circumcision as sexual violence could raise awareness about the crime and encourage survivors to seek treatment not just for physical injuries but also for psychological trauma.
There is no domestic law that specifically mentions forced male circumcision. Okal said this discouraged survivors from seeking comprehensive treatment, as did the stigma associated with male circumcision among ethnic groups that do not practise it.
"In African culture, we grow up thinking that a man is absolute," Okal said. "If such a thing were to happen they wouldn't want that thing discussed."