Standard Digital NewsSeptember 1, 2012
A clash of cultural practices and the enjoyment of civil liberties
By Henry Wasilwa
Among the Bukusu, in western Kenya, a young male child is
obliged by customary practice, to undergo the traditional circumcision.
It is taboo to cringe, flee or show open fear of the cut and that the
entire family is ostracised if the initiate fails to withstand the cut
as expected.
A recent occurrence that was featured in The Standard On Saturday,
brings to the fore the choice between complying with this painful
cultural practices and the enjoyment of civil liberties such as freedom
from forceful or harmful practices.
Article 25 of the Constitution ensures that certain human rights can
never be modified, limited or affected by anything not even custom or
tradition, and it protects every person’s freedom from torture and
cruelty, and proscribes inhuman or degrading treatment or punishment; In
the hierarchy of laws, custom or traditional practices rank way below
constitutional edicts, statutory imperatives, subsidiary legislation,
and the common law. Any custom that abridges, diminishes, or in any way
impinges on the right to life and limb, is at once repugnant to the
Constitution for violating the higher element of the human rights set
out in Article 25 of the Constitution.
Initiation in the manner prescribed by Bukusu custom might have been
designed to compel the subject to undergo a process of pain, and
perseverance, ostensibly to celebrate the symbolic transition from
adolescence into adulthood. The manner prescribed for managing the
resultant wound was by application of the leaves from a traditional herb
known as “enguu” or in some Luhya dialects, “ingwe” thought to be an
antiseptic; and any swelling on the organ is to be relieved by
puncturing the swollen membrane with the means of some thorny flower
called “namusuni” named after the tiny red breasted bird that suckles
the flower’s nectar.
Others would use the horrifying mandibles of a live ant known for its
vicious bite to puncture any septic part of the organ and in the
process release any septic fluid. This would impart the most
excruciating pain imaginable to the septic part of the initiate and in
Bukusu custom, such pain depicted bravery and brawn in the initiate
anything else is considered woolly.
I asked an elder why this practice and he said it prepared an
initiate on how to consciously process and accept, deprivation, deal
with inconvenience, extreme conditions of weather, and how to emerge
from the horror of direct pain to the body. Perhaps these were useful
attributes for men in the days of hunters and gatherers because the
process of securing food and subsistence was fraught with danger, pain,
deprivation and inconvenience.
Any utilitative purpose that such practice might have served, can no
longer be justified in a market economy in which the dangerous hunting
moors have now been replaced by supermarkets, the stock exchange and
other platforms of accessing basic human livelihood and succour.
Any benefits that circumcision delivers can be obtained by humane,
clinically efficient and hygienic means in a hospital, without taking
away the core benefit, if any. With so many practical reasons falling
away, it is now difficult to defend this system of removal of the
foreskin.
The young hapless lad of the Baala clan, recently featured, wailing and screaming in horror during his forceful cut,
should
consider bringing a petition in any court that his constitutional right
to his civil liberties, were flagrantly infringed by his Bukusu
customary circumcision. Indeed this young boy could, in theory
file a similar petition to obtain compensation for assault, humiliation
and the deliberate denigration of his civil rights by his father, clan
and the local administration. I believe civil rights groups like the
Cradle would snap up and support, such a case.
In the mid seventies when I underwent the traditional cut, I did it
voluntarily but had I flunked the test, together with my family, I would
have been considered pariah forever.
The writer is advocate of the High Court