The issue of under-reporting of FGM as well as lack of prosecutions in many contexts, such as Kenya, Somalia, Iraq, were discussed.
In the Kenyan context : « Implementation of the Act has also been hampered by the quality of prosecution of FGM cases since the enacted of the law. There has been under-reporting of FGM cases in the hot-spot counties where FGM is rampant; and should any arrests be made the communities have a vow of silence where witnesses are intimidated so as not to testify in court thus forcing judicial officers to have the cases dismissed due to lack of sufficient evidence that meets the evidentiary threshold required as per the Kenyan criminal law. However, we have had a few convictions over the years since 2011 where perpetrators have been successfully convicted in the lower courts but acquitted on appeal – a pointer to a greater need for improvement in the quality of prosecutions to achieve solid convictions that will also be upheld even at the appellate court. »
Under-reporting is also an issue in The Gambia, according to a member:
« even though the law is still in place and the advocacy by CSOs and other youth and women groups has been ongoing for the past decades, people hardly report cases of FGM to the authorities. Since the law came into place, it was just two cases that were reported and up to date, the courts have not given any meaningful decisions from these cases. While the practice continues to score high prevalence, the provisions of the law are hardly effective to mitigate it. »
Other issues around prosecution were also raised :
- Is prosecution the best way to convince communities that FGM is wrong ?
- Is it in the best interest of the child to prosecute a mother who is a cutter and has many children ?
Some members questioned the strong focus on prosecution that she observes in ongoing discussions on laws against FGM : « Just because there are no cases taken to court, doesn’t mean a law doesn’t work. There are laws which work without there ever having been a prosecution case. This is e.g. the case with the law against rape in marriage in Germany. What laws do and don’t do depends on the society’s understanding of laws: Do they generally believe in laws / the legislative and executive bodies responsible for the law? Do they know about the law? Was there a discussion about the law making people understand why it was necessary? » According to her « prosecution is one tool to make people understand that the law is actually there and is taken seriously. But this can be achieved by many other measures. So a lack of prosecution doesn’t mean much. »
WADI has experiences from the autonomous Kurdish region of Iraq where a law was passed in 2011 and where there has not yet been any prosecution :
« But this doesn’t worry us too much. » According to her the law was nevertheless necessary and has shown great impact – FGM rates have decreased in formerly unknown rapidity in any documented region. According to her « one of the reasons why the law in Kurdistan had such a great effect lays in the democratic process and the people endorsing government and parliament as theirs. Thus, they hold ownership of this law whether they like it or not. » In Iraqi Kurdistan there hasn’t been any « similar resistance as we see in many other places to « Western » values. Especially in the case of FGM, there was not much « Western » about the law. At the time, the UN did not even acknowledge that FGM existed in Iraq. » However, « Circumstances in non-democratic countries are different. Yet, this often makes a law necessary for other reasons: In despotic regimes you need a strong affirmation that your anti-FGM work is complying with government policy. »
The law was needed in Iraqi Kurdistan for several reasons :
- The initiative by the women in parliament to draft a law sparked a broad debate in society.
- The law now binds government bodies to work against FGM or (in the beginning) at least to not undermine our work.
- Television channels ran our adds which informed about the law
- Our Anti-FGM teams use the law to remind religious leaders not to preach pro FGM.
- midwifes, teachers, students, majors, policemen and women etc. are trained referring to the law. It would be much harder to justify workshops for whole professional fields only in reference to a « value ».
- Different groups like midwifes are made to sign that they will comply with the law.
- Not only the UN but also the Kurdish government is interested in seeing results and therefore supports studies.
- The government is prod to promote the decrease in FGM rates as their success story
Other members stressed that the law is necessary and important for many different reasons, other than prosecution. They stressed that laws makes is explicit that the government doesn’t approve of the practice, as well as showing commitment to end it. Laws laws have a preventive effect, independently of prosecution. For example, the anti-FGM law has reduced the number of Islamic scholars preaching in favour of FGM in Somalia : « there is real fear in them about being caught advocating for a criminal thing. This means we have less counter narrative spewing FGM as Islamic. »
Several members stressed that « focus on prosecution is and should be applied as a measure of last resort particularly in instances where all other interventions have failed – and must be part of the multi-faceted approach to ending FGM. »