OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

STANDARDS OPERATING PROCEDURE FOR FGM AND CHILD EARLY AND FORCED
MARRIAGES
1.0.

Introduction

1.1.

Article 157 of the Constitution of Kenya of 2010 (hereinafter the

Constitution) establishes the Office of Director of Public Prosecutions
(ODPP). The Constitution grants the Director of Public Prosecutions (DPP)
two specific powers: the power to direct the Inspector General of the
National Police Service to investigate any information or allegation of
criminal conduct, and state powers of prosecution.

1.2.

The ODPP is a creature of statute, the Office of the Director of Public

Prosecution Act 2013. The Act confers upon the DPP further powers to:
Formulate policy documents and keep them under review;
Direct an investigation agency to conduct an investigation.

1.3.

The ODPP shall not be under the directions and/or control of any person
and or authority in exercise of its mandate.

1.4.

Article 53 of the Constitution outlines the rights of children within the

jurisdiction and emphasizes that the best interest of the child are
paramount (Art.53 (2)). Article53(1)(d) states as follows;Every child has a right to be protected from abuse, neglect,
harmful cultural practices, all forms of violence, inhuman treatment
and punishment and hazardous or exploitative labour.

1.5.

Article 2 of the Constitution recognizes that International Conventions

ratified by Kenya are applicable as law within the Kenyan jurisdiction. The
conventions that address the rights of victims and witness can be deemed
applicable in the absence of a comprehensive domestic law.
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Several pieces of legislation have sought to address management of

witness during the conduct of criminal proceedings.
1.6.

The United Nations Guidelines on the Role of Prosecutors requires that

prosecutors consider the views and concerns of victims (who might be
witnesses) when their personal interests are affected and ensure that
victims are informed of their rights. There are a number of things that
prosecutors can do to protect the rights of victims and witnesses.

1.7.

Definitions
For the purposes of these guidelines:
Public Prosecutor means the DPP and any other person exercising the
delegated powers of the DPP under Article 157(9) of the Constitution.
Investigating Officer means any person authorized by an Investigative
Agency to undertake criminal investigations.
A victim of crime is a person who, through or by means of a criminal
offence (whether or not any person is convicted of that offence), suffers
physical or emotional harm, or loss or damage to property; and, where an
offence results in death, the members of the immediate family of the
deceased.
A witness is a person who testifies under oath in a trial with first-hand
information based on observation or expert opinion that is useful in a trial.
A party to the trial may be a witness.

Witnesses to crimes are important to our system of justice. A witness may be:

a victim of crime
a partner, relative or friend of a victim
Someone who was present when a crime was committed or may know
something about it.

2.0. Objective
2.1.

The primary objective of the guidelines is to provide general principles that

public prosecutors should adhere to the conduct FGM and Child
Early/Forced Marriage cases.
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2.2.

In particular these guidelines seek to:

ensure the victims and prosecution witnesses are handled in a dignified
manner throughout the conduct the of trials;
ensure public prosecutors are aware of and protect the rights of
victims and witnesses during trials;
Ensure that the victims and witnesses are supported to ensure
successful prosecutions

3.0. The Roles of the Prosecutor

3.1.

The roles of a Public Prosecutor in the criminal justice system include but
are not limited to:
a) Providing legal advice to Police Officers or other agencies
investigating matters relating to criminal offences.
b) Instituting criminal proceedings against accused persons, including
preparing charges. In this regard, it should be noted that the
selection of the charges to be preferred to the accused person is
an integral part of the decision to prosecute.
c) Conducting criminal trials.
d) Withdrawing criminal charges or terminating the prosecution of
accused persons in appropriate cases.
e) Prosecuting bail and other applications.
f) Prosecuting judicial review applications, petitions and constitutional
references.
g) Negotiating and entering into plea agreements with an accused
person or his representative.
h) Determining what evidence should be presented during trial.
i) Assisting the court in sentencing by evaluating victim impact
statements and antecedents of the accused.
j) Prosecuting appeals in higher courts of law.
k) Instituting revision proceedings.
l) Handling public complaints.
m) Identifying witnesses in need of protection and facilitating their
protection, including applying for protective measures for
venerable witnesses.
n) Taking steps to ensure that persons who are liable to pay sums of
money to the Government pursuant to criminal proceedings do so.
o) Taking steps to recover assets which should be forfeited to the
Government pursuant to a court order.

3.2. Duties of a Prosecutor

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3.2.1. A public prosecutors key role is to consider the facts of every case
carefully. Upon such consideration the prosecutor may do one of three
things:
Decide that there is sufficient evidence on which to prosecute and
proceed with the prosecution;
Decide that more information is needed to make an informed decision
and therefore instruct the investigating officer to further investigate the
case;
For various reasons, such as public interest, decide to withdraw the
charges.
3.2.2. Where the witness is a victim of crime the prosecutor his/her interests into
account when making any of these decisions and may also decide to
alter the charges, depending on the relevant facts of the case.
3.2.3. The prosecutor will request all information relevant to the
bail
proceedings from the investigating officer and present this to the
court to ensure that the decision to grant or deny bail to the accused is
taken with the best interest of the witness in mind.
3.2.4. The Public prosecutor has a duty to keep the witness informed throughout
the criminal proceedings especially where the witness is a victim. The
public prosecutor shall conduct a pre-trial meeting with the witnesses.
During the meeting the Public prosecutor shall:
explain to the witness of the purposes of the meeting;
explain as to the prosecutors role as defined by the ODPP Act and
the Prosecution Policy;
explain to the witness that it will not be possible to discuss the
evidence of the witness or any other matter relating to the
evidence in the case;
explain the court processes and procedures and roles of the various
parties in the trial;
3.2.5. The Public Prosecutor, before or during the conduct of criminal
proceedings and upon the advice of the Investigating officer or premised
on the sentiments of the witness, may make an application after a proper

first assessment and where certain requirements are met, for a witness to
be placed under the witness protection programme.
3.2.6. The Prosecutor with the assistance of the Investigating Officer will support,
prepare and give the witness as much information as possible about what
is likely to happen in court as they give evidence.
3.2.7. Upon receipt of a file that on FGM and Child Early and Forced Marriages
the Public Prosecutor must ensure that;

Age assessment of the victim has been done;

Medical examination has been undertaken on the victim to
establish the extent of the injuries.

4.0. Preferred Charges

The prohibition of FGM Act 2011 provide for several offences from section
19 to 25 of the act
4.1. Offences/Charges to be preferred:
1. Any person undergoing training for purposes of performing FGM commits
a crime.
2. Causing death by preferring FGM
3. Aiding, abetting counseling or procuring FGM.
4. Aiding, abetting, counseling or promoting training of another for purposes
of performing FGM.
5. Procuring a person to perform FGM in another country other than Kenya.
6. Permitting ones premises to be used in performance of FGM.
7. Possessing tools used in performance of FGM
8. Failing to report commission of FGM to relevant authorities.
9. Using abusive or derogatory language on persons/families who have not
undergone FGM.
10. Kenyan citizens procuring FGM while outside the country.
S/No. Section

Preferred Charge

Element

1.

2.

3.

Section.19(1)

Section.19(2)

Undergoing training for

progress of performing
FGM

Causing death by
performing FGM

Section.20(a) Aiding, abetting counseling or procuring FGM

-

4.

5.

6.

Section.20(b) Aiding, abetting,

counseling or promoting
training of another for
purposes of performing
FGM
Section.21
Procuring a person to
perform FGM in another
country other than Kenya
Section.22

7.

Section.23

8.

Section.24

9.

Section.25

Permitting ones premises to

be used in performance of
FGM

Possessing tools used in

performance of FGM
Failing to report
commission of FGM to
relevant authorities
Using abusive or
derogatory language on
persons/families who have
not undergone FGM
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Being in possession of
FGM paraphernalia e.g
notes, tools etc.
Being found in premises
where training is
believed to be carried
out.
Actual death
Cause of death
Causation of
remoteness
Proof of any sort of
assistance for purposes
of perpetuating FGM
Proof of effort by suspect
eg. monetary
Proof of any sort of
assistance
Proof of effort eg.
monetary payment etc.
Proof of citizenship
(Kenya)
Travelling documents
Medical report
Proof of ownership or
possession and /or
control
Knowledge
Actual Act
Tools/Paraphernalia
Possession of relevant
equipment
Proof of authority
Proof of knowledge and
failing to take
appropriate action.
Actual abusive
word/derogatory word
Intention to offend

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Section.28

Kenyan citizens procuring

FGM while outside the
country

Proof of citizenship
Medical report

5.0. Witness Rights

These guidelines recognize that a witness shall have the right:5.1. Right to Access information
5.1.1. To be informed about the judicial and trial processes as well as the rights
and responsibilities of witnesses (where a victim shall be a witness for the
prosecutions case).
5.1.2. To be informed upon request about the progress of investigations being
conducted by police (except where such disclosure might jeopardize the
investigation).
5.1.3. To be advised upon request of the charges laid against the accused and
of any modifications to such charges and the reasons for such
modifications, and where appropriate, the reasons for charges not being
laid.
5.1.4. To be advised upon request of the reasons for accepting a plea of guilty
to a lesser charge (plea bargaining) and the entering of a nolle prosequi if
and where appropriate.
5.1.5. To be dealt with at all times in a sympathetic, constructive and reassuring
manner with due regard to the victims personal situation, rights and
dignity during the conduct of the criminal trial. Where the witness is a
victim she may be called upon to write a Victim Impact Statement for
presentation before the court by the Public prosecutor.
5.1.6. To be advised upon request of the outcome of criminal proceedings and
be fully appraised of the sentence when imposed and its implications.
5.2. Right to protection
5.2.1. Legal protection

5.2.1.1.

To be protected from unnecessary contact with the accused and

defence witnesses during the course of the trial.

5.2.1.2.

To have the full effects of the crime upon her made known to the
sentencing court by the prosecutor.

5.2.1.3.

When dealing with a vulnerable and intimidated witnesses the

Public Prosecutor may:

May make an application before the court to have proceedings

heard in camera, or for the use of a witness protection box
depending on the circumstances surrounding the case;

Alter the sitting arrangement to safeguard vulnerable and

intimidated witnesses

Examine the witness through an intermediary, an intermediary may

be appointed by the court to assist the witness to give their
evidence at court. They can also provide communication
assistance in the investigation stage approval for admission of
evidence so taken is then sought retrospectively. The intermediary is
allowed to explain questions or answers so far as is necessary to
enable them to be understood by the witness or the questioner but
without changing the substance of the evidence;

5.2.2 Procedural protection

5.2.2.1.

To have property held by the State for the purposes of investigation

or evidence returned as promptly as possible. Inconveniences to
victims should be minimized wherever possible.

5.2.2.2.

To have his/her need or perceived need for physical protection put

by the prosecutor before the Court which is determining and
application for bail by the accused person. And further to have
ensured safety through the Witness Protection Program as provided
for by law.

5.2.2.3.
To seek redress by way of civil proceedings under appropriate
circumstances and the court upon determination of the matter may
make an order for compensation or restitution to victims of crime.
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5.3.

Right to confidentiality

5.3.1. To have their privacy and confidentiality respected by all actors involved
in the criminal justice system. The address and other personal details and
information whose disclosure is likely to prejudice the security and person
of a victim shall not be disclosed unless deemed material to the defence.
6.0

Inter-agency Collaboration

The public prosecutor shall strive to ensure inter agency collaboration in the
prosecution of FGM/C cases.

Sample/ Draft Charges under the Prohibition of FGM Act 2011

Section 19(1)
Offence:

Causing death through performing female genital mutilation

contrary to section 19(1) as read together with Section 26 of the
prohibition of female genital mutilation act 2011.

Particulars: XXXXXXXXXXXXXX: On the 16th April 2014 at XXX Location near

Obel Village within Kajiado County performed the act of female
genital mutilation on one XXXXXX minor aged 14 years
Section 19 (1) and 19(2)
Offence:

Performing female genital mutilation contrary to Section 19(1) and

19(2) of the Prohibition of Female Genital Mutilation Act 2011

Particulars: On12th of April 2014 at XXXX Location at KMQ area within Kajiado
County performed the act of female genital mutilation on one
XXXX occasioning severe bleeding that resulted in the death of the
said XXXX
Section 20

Offence:

Aiding and abetting female genital mutilation contrary to section 20

as read with section 29 of the Prohibition of Female Genital
Mutilation Act 2011.

Particulars: 1.XXXX 2. XXXXXAND 3.XXXX: On 16th April 2014 at Olobel Village

within Kajiado County counseled, procured, aided and abetted the
female genital mutilation of one XXXX minor of 14 years
Section 21
Offence:

Procuring a person to perform female genital mutilation in another

country contrary to section 21 as read with section 29 of the
Prohibition of Female Genital Mutilation Act 2011.

Particulars: On 2nd April 2014 at XYZ within NBR county took XXXXX to Mbale
District within the Republic of Uganda with the intention of having
her subjected to FGM.
Section 22
Offence:

Use of premises to perform female genital mutilation contrary to

section 22 as read together with section 29 of the Prohibition of
Female Genital Mutilation Act.

Particulars: XXXX On 16th April 2014 at Olobel Village allowed the premises for
which he was in control namely Boma to be used for purposes of
performance of Female Genital Mutilation on XXXX all minors in his
care and custody.
Section 23
Offence:

Being in possession of tools for purposes of performing female

genital mutilation contrary to section 23 as read together with
section 29 of the Prohibition of Female Genital Mutilation Act 2011.

Particulars: XXXX: On the 16th April 2014 at Olobel Village within Kajiado County
was found in possession of tools namely surgical/ razor blade and a
pair of gloves that were used to perform the act of female genital
mutilation on one XXXX a minor aged 14 years
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Section 24
Offence:

Failure to report commission of offence contrary to section 24 as

read together with section 29 of the Prohibition of Female Genital
Mutilation Act.

Particulars: XXXX: On 16th April 2014 at Olobel Village within Kajiado County
while being fully aware that an offence of female genital mutilation
was being committed failed to report to the police or any other law
enforcement agency being the senior chief of the said area.
Section 25
Offence:

Use of harmful, derogatory or abusive language contrary to section

25 of the Prohibition of Female Genital Mutilation Act 2011.

Particulars: On the XXXX day of April 2014 at MVX area within Narok County
did abuse one SXSXS by calling her egesagane which was meant
to redicule, embarrass and harm the said JVCR for having not
undergone FGM.

Childrens Act Section 14

Offence:

Subjecting a child to harmful cultural rites contrary to section 14 as

read with section 20 of the Childrens Act No.8 of 2001

Particulars: 1.XXXXX 2. XXXXX and 3. XXXX: On the 16th day of April at about
0600hrs at Olbel Village within Kajiado County, willfully and
unlawfully being parents to XXXX a child aged 14 years, subjected
the said XXXX to female genital mutilation.

Section 234 of The Penal Code

Offence:

Grievous harm contrary to section 234 of the Penal Code

Particulars: XXXX:On the 16th April 2014 at Olobel Village within Kajiado County
did grievous harm to XXXX a minor aged 14 years thereby causing
actual bodily harm.
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