Should women who 'willingly' undergo circumcision be victimised and jailed for a crime they did not want to commit?
This was the key question during a panel discussion in Nairobi on Thursday, by a team of Kenyan lawyers and magistrates.
Female genital mutilation is outlawed in Kenya but communities in counties such as Kajiado, Narok, West Pokot and Baringo still practice it and insist it has benefits.
Victims and activists have been speaking out against the cut but on Wednesday, another discussion revealed medicalisation has become a trend.
Today's talks explored the benefits, opportunities and challenges of prosecution in the war on FGM and the implementation of Prohibition of Female Genital Mutilation Act, 2011.
Advocate Sofia Leteipan argued it is wrong for prosecutors from the office of the Director of Public Prosecution to "re-victimse" women who only got circumcised because of societal pressure.
"Most of these women are ostracised by their communities. some are told they can't cook for their husbands because they are not cut and others are even called derogatory names. Do these women seem like people who can give informed consent for the mutilation of their own bodies?"
No section of the Act indicates what happens to women who 'willingly' go for the cut.
Unfortunately, if arrested, they are found guilty of aiding and abetting FGM, the stipulated jail term for this offence being not less than three years.
Leteipan wants section 24 of the Act to read: "A person who commits an offence by failing to report that an offence of FGM has been, is in the process of being or intends to be committed is found guilty, except where the victim reports the matter. "
Currently, there is no exception for victims who report the offence to relevant authorities.
Senior principal magistrate Evelyn Owande, who concurred with Leitepan, said the government needs to review this grey area in the Act.
"The offences in the act are very clear. They touch on those aiding, training and performing FGM. It is not clear on those found subjecting themselves 'willingly' to the act. If you're wrongly forced to undergo the act, you cannot be blamed."
However, prosecutor Mercy Nyokabi from the DPP's office in Narok county, said these women are found guilty of the offence on grounds that the testimonies they gave outside court contradict the ones given during hearings.
"If we allow ourselves to let them go because they are victims, we will be setting a bad precedence because the law is very clear on what needs to be done to people found guilty of aiding and abetting FGM. That is just the law and it is an ass."
Since the inception of the Act, the ODPP has handled more than 100 cases while some are ongoing.
Lack of reports of the offence and the recanting of witness statements have been cited as the major challenges in prosecuting those who engage in the illegal rite of passage.
Embu county commissioner Esther Maina noted need for sustained awareness creation in communities, as majority of chiefs are not aware of the consequences of committing the criminal act.
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