September 1, 2012
A clash of cultural practices and the enjoyment of civil liberties
By Henry WasilwaAmong 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
