In Kenya, Forced Male Circumcision and a Struggle for Justice

"There is no other category of charges which consistently faces these challenges before the ICC," Inder said.

The ICC cases that have made it to trial to date have largely frustrated those pressing for sexual violence prosecutions. In the first case, that of Congolese militia leader Thomas Lubanga, the charges filed by Ocampo were limited to Lubanga's recruitment and deployment of child soldiers, despite claims that his forces were involved in widespread rape. During the trial, many witnesses testified to sexual violence against young girls recruited into Lubanga's Union of Congolese Patriots; one soldier told the court in June 2009 that the girls "were used for everything."

The court's second Congo case, involving warlords Germain Katanga and Mathieu Ngudjolo Chui, has produced charges of rape and sexual slavery. But WIGJ claims that the sexual violence charges facing the two men are "not comprehensive," failing to take into account the number of victims and the scale of the crimes committed by the suspects' militias. The group has also expressed concern about the strength of the prosecution's evidence to support what charges have been brought.

In the court's third case, against former Congolese Vice President Jean-Pierre Bemba for atrocities committed in the Central African Republic in 2002 and 2003, the pre-trial chamber confirmed charges of rape as a crime against humanity and as a war crime. But the court dismissed charges of rape as torture and as "outrages upon personal dignity," basing its decision partly on what it says was insufficient evidence and "imprecise pleading" from the prosecution. WIGJ argues that the practice of "cumulative charging" -- bringing multiple charges with respect to one crime, in this case rape -- is specifically provided for in the Rome Statute, and is important for covering all dimensions of sexual violence.

Inder said that similar problems with prosecution filings, in particular a failure to provide enough evidence to ensure that charges are confirmed, could have triggered the reclassification of forced male circumcision in the Kenya case. The filings for the case claimed that the acts were "sexual in nature," but failed to elaborate on the specific elements that made them so. Ocampo's office did not respond to several requests for comment.

"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," Inder said. "It isn't simply about the injuries and suffering, although clearly these are also aspects of these crimes."

The "political and ethnic significance" of forced male circumcision in the Kenyan context, she said, makes it much more than just circumcision. "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," she said.

Forced circumcision in Kenya did not become such a widespread problem overnight. Grace Wangechi, executive director of the Gender Violence Recovery Center in Nairobi, said that, in some parts of Kenya, tribes that forgo male circumcision have long been targeted for forced circumcision by those who view the practice as an essential rite of passage.

For the majority of tribes in Kenya, the circumcision ceremony, held when boys are 13 or 14 and have completed their Class 8 exams, marks the assumption of their roles as men. "You're now expected to engage in manly activities," Wangechi said. "One could be called to sit in on discussions with other men about inheritance issues, property issues, and other topics."

"No one looks at your age; they look at whether you've gone through the rite of passage. It's that significant."

In some tribes, she added, newly circumcised boys "are expected to have a sexual relationship to prove they've entered into manhood."

Despite the ingrained discrimination -- and periodic bouts of violence -- targeting uncircumcised men in some areas, the issue receives little public attention. "No one has ever talked about male circumcision. It's just not visible," Wangechi said.

Ocampo can present new evidence about forced male circumcision during the 2007 and 2008 crisis at confirmation hearings scheduled for September. Wangechi said a subsequent decision by judges to reclassify forced male circumcision as a form of sexual violence "would have a huge impact" on how the crime is viewed in Kenya, and could perhaps draw widespread attention to it for the first time. With this heightened attention, she added, could come expanded access to treatment at health centers, provided the government begins to fully grasp "the magnitude of the assault."

Questions of how to view and respond to forced male circumcision are likely to assume renewed urgency in the run-up to elections next year, with Odinga, who became prime minister under the power-sharing deal, widely viewed as a top candidate for the presidency again. Wangechi said there was no reason to believe the issue of circumcision has become any less salient politically, as many Kikuyus remain as wary as ever of being governed by a kihii -- the Kikuyu word for "uncircumcised boy."

It was, presumably, this very sentiment that Mwangi Kiunjuri, a Kenyan assistant minister for public works, was looking to exploit while speaking at a political rally earlier this year in the Kikuyu heartland of Central province. After criticizing Odinga directly in the Kikuyu vernacular, he declared: "Let me tell you, kihiis are not invited to dowry negotiations because, as you know, boys will always take time to sing their play songs. A kihii's goings are only ended when he faces the knife."

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Robbie Corey-Boulet is a journalist based in Monrovia, Liberia. He has also written for Guernica, The Caravan, and Asia Literary Review.

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