III Tension within the dispensation of justice
‘I don’t steal, I don’t lie, I cut!’ The paradoxes of the imprisonment of women for female genital mutilation in Burkina Faso
Frederic Le Marcis
Translated and edited by Cadenza Academic Translations
In 2015, women accounted for only 3% of the 7,620 prisoners that made up Burkina Faso’s total carceral population (General Directorate ofStudies and Sector Statistics [GDSSS], 2017),1 compared to 3.4% across the continent and 6.9% worldwide (Walmsley 2017). The low proportion of women in the Burkinabe prison system has generally been accompanied by more favourable detention conditions compared to men, in terms of nutrition and support (whether from religious or nongovernmental organisations), and better accommodations. This observation was confirmed by a prison guard at the women’s building of the Maison d’Arret et de Correction de Ouagadougou (Ouagadougou Detention and Correctional Centre; MACO), who remarked that ‘the Mandela Rules  are more for women and minors’. Female prisoners and their guards when questioned on this topic in the prison have put forward two main arguments to justify this differentiated treatment: women are often accompanied by children, referring to their reproductive role; and ‘their feminine condition’, referring implicitly to menstruation. A recently published literature review on the specific health needs of women in sub-Saharan African prisons (Van Hout and Mhlanga-Gunda 2018) contradicts these arguments with a summary of the specific needs of women in detention (which are usually not taken into account). However, its analysis is limited to texts about women and it therefore fails to assess their conditions of incarceration in relation to those of men. For instance, the authors relate the lack of primary care to gender, when it is in fact a reality for all prisoners. Furthermore, the authors completely overlook social science research that interrogates how the categories and logics that structure women’s experiences of prison are produced, settling for a partial (because exclusively female) description of prison life.
In France, Coline Cardi (2007, p. 4) argues that ‘while we must think about prison in connection with social order, we must equally and at the same time think about it in connection with the gendered order and the norms associated with it’. Despite the fact that the number of female prisoners in France who claim to be raising a child is only slightly higher than the number of male prisoners claiming to do so, writes the author, nonetheless:
the discourse of the agents of the penitentiary administration regarding women’s prisons is governed by the issue, and the prejudice, of women’s assignment to a maternal role. ... The ‘maternal problem’ typically defines everything that is ‘distinctive’ about the problems that women prisoners in general encounter.
(Cardi 2007, p. 8)
The tension in Burkinabe prisons exists as well in French ones, where researchers have identified both the constraints and the secondary benefits for women prisoners - better access to training, the vegetable garden, and food - all of which refer back to the social function assigned to women.
In this chapter, using statements from women who belong to the same kinship group, I discuss both the effects of this construction of women in the prison system and the meaning that these women give to their imprisonment. The women were held in the Maison d’Arret et de Correction de Ziniare (Ziniare Detention and Correctional Centre, MACZ) (Burkina Faso, see Figure 8.1), hav?ing been convicted of organising the genital excision of two young girls belonging to their family. According to a 2018 Social Institutions and Gender Index (SIGI) study, 63% of Burkinabe women have been victims of female genital mutilations (FGM; National Institute of Statistics and Demography [NISD] and OECD Development Centre, 2018). This practice persists to varying degrees across the country in spite of campaigns against it by missionaries during the colonial period, which were repeated by successive governments until the penal code made the practice a crime in 1996 (articles 380-382).
The context of these women’s incarceration has a historical, geographical, and gender dimension. The conviction that led to their incarceration came at a specific political moment: it followed the fall of the regime of President Blaise Compaore and the party he founded, the Congress for Democracy and Progress (CDP). Geographically, Ziniare occupies a distinctive place in the Burkinabe political imagination, and it is Compaore’s native city. Because of this, his own fate and that of the city’s inhabitants are closely connected, both in victory and defeat, as we will see in the Ziniare women’s interpretation of the sentences they received. Finally, their incarceration relates to the status of FGM in Burkina Faso.
The events that resulted in these women’s imprisonment are part of a larger history of the fight against FGM in Burkina Faso. We should recall the construction of the symbolic order underlying this practice (Douglas 1966) and the treatment of the danger posed by defilement. Incarceration and FGM are based on a convergent social construction of the female body and its function. However, they reveal a paradox. Although justifications for FGM and for specific detention conditions for female prisoners botli have at their core the same concern - to guarantee women’s ‘purity’ and to encourage their reproductive role - the former is condemned while the latter is universally accepted. The way that incarceration is inscribed historically and geographically catalyses this cognitive dissonance, which is transformed into a sense of injustice and political resentment. Prisoners interpret their sentences as revenge exacted against them by members of the new political regime because they come from the former president’s native region and therefore supposedly benefited from his largesse. The legitimacy of the sentence, and therefore of prison and of the justice of the state, is thereby challenged.
The Ziniare Detention and Correctional Centre: A rural prison
MACZ is one of 26 prisons (including a high-security prison) in Burkina Faso. In March 2018 it held a population of about 150 inmates. It was built in 2004, with funding from the European Union, but it did not truly become functional until 2011. It is located on the outskirts of the city of Ziniare, the capital of the province of Oubritenga, in the Plateau-Central region, 35 kilometres northeast of Ouagadougou.
Figure 8.1 Location of prisons in Burkina Faso; map created as part of Ecoppaf project, 2018.
In 2018, when I conducted my research there, around 150 inmates were being supervised by 39 guards (one inspector, four controllers, and 34 assistants), two nurses, and a social educator.11 The 34 assistants included nine women who supervised the 23 women prisoners. The detention areas of the MACZ were divided into three parts: one for men (130 inmates), one for women (23 inmates), and one for minors (7 inmates).
Beyond the walls of the detention centre were the prison’s vegetable garden, the kitchen, a pigsty, and a chicken coop, as well as guard posts and a mill. A mill was housed in a breezeblock building at the edge of the tarmacked road that runs along the prison grounds and was operated by an inmate. Next to this building was an apatam,  which housed an unlikely shop selling tables, woven chairs, and keyrings made by the inmates. In the morning, animals from the neighbouring areas came wandering around the outside of the prison in search of food and water.
The female prisoners were confined to their own section, which was organised around a central courtyard. In the middle was a warehouse that had been donated to the prisoners by a well-known faith healer in the region, Saidou Bikienga. There were a number of buildings around the courtyard: an inner courtyard where the women cooked collectively on a stove and where dry food was kept; a communal cell equipped with a television, a toilet, and a clean shower (but without running water, requiring the prisoners to use a bucket); and a storage room meant for the whole institution which could not be accessed from the female prisoners’ courtyard. They could go out to exercise in the area around the prison, accompanied by a guard, but the head of security remarked that the absence of an outer wall would leave them visible to passers-by and would cause them too much shame. They were therefore not permitted to leave (except to go into the garden, where they could not be seen from outside). At the time of my visit, the cell housed 23 women prisoners, each of them with a mosquito net provided by the administration (which was not the case for the men). Two very young children were with their mother. The courtyard also had a shower and a toilet, but these too lacked running water. The arrival of male visitors was always loudly announced in the courtyard so that the prisoners could cover themselves if they wished to do so. This was the case for the 10 women I met, who put on hijabs before I entered. Before meeting them, I learned from the MACZ head of security that they had been imprisoned for illegally practising excision on two young girls, and that some of their male relatives were also incarcerated. In addition to the 10 prisoners who were related, there were five others who had been arrested in connection with the same events.
Before beginning my ethnographic work inside the institution, I was introduced to the administration and its agents by a female Burkinabe doctor who worked for the local Expertise France delegation. The head of security led us into the different detention areas. Leaving the female prisoners’ courtyard, the head of security' asked the doctor accompanying me what her opinion was on excision, but she avoided the question. He himself seemed opposed to it but was also critical of the imprisonment of these women. He highlighted the fact that the women had been left by themselves, without any support to explain to them the sentences they had received or why excision was prohibited by law. The head of security openly blamed the Burkinabe NGO that had filed the complaint that led to their imprisonment. He felt that, by making spectacular, large-scale denunciations, the NGO’s aim was to make its work visible to its sponsors rather than to bring about a lasting change in mentalities and practices. In his view, the lack of outreach to the women by the NGO supported his analysis.
When I met Aminata, she was in her 20s. She grew up in a village 15 kilometres from Ziniare. She had become a seamstress and the only wife of a man, a trader, from another village; they had been living together in Ziniare with their three children, a boy and two girls. At the end of August 2018, when the school holidays were coming to an end and the new school year was about to begin, the wife of the brother of Aminata’s father asked her to send her daughters, who were 4 and 11 years old at the time, to her village in the rural area in order to be excised. Aminata explained that the paternal aunt was responding to pressure from Aminata’s mother-in-law. The next morning, Aminata complied, taking her children to her aunt in the village. The excision (baongo in Mossi) took place during a ceremony involving 23 girls from different families. Aminata then left her daughters in her husband’s village with her mother-in-law, who would take care of them as they healed. Two weeks later, Aminata was arrested by the police in her sewing workshop. She had been reported by the Burkinabe association, Voix de femmes, whose goal is to fight gender inequality' and violence against women.
The police asked to see the girls who had been excised. The girls were brought back from the village and a female police officer carried out a visual examination of them. Aminata’s children were taken away and left in the care of a relative in Ouagadougou, where they returned to school. Aminata was first incarcerated for two weeks at the Ziniare police station, along with all of the family members who
Figure 8.2 Simplified kinship diagram for Aminata.
had been present at the excision. They were then transferred to the MACZ on 19 September 2018 and were among 18 defendants (both male and female) tried at the Ziniare high court on 29 November in relation to the case. Aminata and one of her sisters-in-law became my main interlocutors.
Aminata was sentenced to six months in prison, and other relatives (for instance, her mother-in-law, her aunt, her father-in-law; see Figure 8.2) were given a heavier sentence of 12 months because of their involvement in preparing the ceremony. The prison sentences also came with fines of 300,000 to 500,000 CFA francs. In total, 10 members of the family were incarcerated at the MACZ, along with five other people involved in the same case from different families.
The person who carried out the excision, a Fula woman of slave origins,15 was sentenced to four years due to recidivism. Aminata’s family did not have a lawyer during the case. The civil case w'as brought by Voix de femmes.
The long history of the fight against FGM
There are two types of FGM in Burkina Faso: type 1, clitoridectomy, consists of the complete or partial removal of the clitoris and, more rarely, of the prepuce (the fold of skin surrounding the clitoris). Type 2, excision, is the complete or partial removal of the clitoris and labia minora, with or without removal of the labia majora.16 The Plateau-Central region, where Ziniare is located, has one of the highest excision rates in Burkina Faso: 87.7% of women between the ages of 15 and 49 years claim to have undergone excision.17 The prevalence of the practice in Burkina Faso is particularly striking, as for several years it has
been condemned in public discourse and banned by legislation. As Diop and colleagues (2008) note, Christian missionaries were the first to forbid excision in the colonial era, but the practice continued after independence. The government of the First Republic, under the presidency of Maurice Yameogo, aimed to ban excision, but met opposition from traditional authorities and the project was abandoned (Prolongeau 2006). In 1975, during the regime of Aboubacar Sangoule Lamizana, the second president of Upper Volta, there was a national radio campaign against excision, but the matter was not pursued further. It nonetheless marked the emergence of the status of women as a public issue, with the proclamation of International Women’s Year and the creation of a ministry for women’s issues that same year. This trend continued after Thomas Sankara took power, following a coup d’etat in 1984 and the creation of the Conseil national de la revolution (National Council for the Revolution, CNR) (Kanse 1989).
After listing the advances made to improve the condition of women - including anti-prostitution measures and the automatic allocation of men’s wages to their wives at home - Cherifah Benabdessadok (1985, pp. 59-60) notes that the fight against excision had more ambiguous results. The authorities’ cautiousness on the issue is confirmed by the record of action during the Sankara period compiled by Mathias Kanse (1989). Kanse emphasises the ambivalence of emancipator)', anti-patriarchal discourse, which reproduced a figure of the woman in line with classic features of femininity (reproduction, managing family affairs, cooking). Furthermore, CNR’s policies mainly concerned urban women, at the expense of most rural women (this is the case for the anti-prostitution measures and the mandate that salaried men give over some of their wages to their wives). While excision was publicly condemned, Kanse (1989, pp. 71-72) writes:
the CNR quickly recognised the impossibility of abruptly imposing regulations in this area. Caution has therefore been its watchword. Some of its members even argued that excision should merely be ‘humanised’, for once conscious of the power of tradition: discreetly, they suggested ‘soft’, limited excision, rather than clitoridectomy or infibulation. Revolutionary morale, although slightly scratched, thus remained intact, and cosmogony was respected - in anticipation of the better days promised by the gradually (and inevitably) increasing ‘awareness’ of the ‘masses’.
It was not until the beginning of the 1990s that the issue of FGM ceased to be the exclusive preserve of NGOs, and the Burkinabe state began to visibly deal with it. In 1988, a national seminar was organised in the capital, Ouagadougou. This led to the creation, in 1990 by presidential decree (Kiti no. AN VII-318/ FP/SAN-AS/SEAS), of the Comite National de Lutte contre la Pratique de l’Excision (National Committee to Fight the Practice of Excision; CNLPE) within the Ministry of Social Action and National Solidarity. The committee was equipped with a permanent secretary', appointed by the Council of Ministers, and was placed under the patronage of Chantal Compaore, the wife of the president at the time. On 13 November 1996, law no. 043/96/ADP was made part of the penal code (see Note 6). It criminalised excision but also had the aim of raising awareness: the first convictions were not handed down until 2000 and were limited to suspended sentences. Also in 2000, 18 May was designated as the national day against excision (Diop et al. 2008). The state’s commitment to combating FGM is reflected in Council of Ministers’ adoption, for a four-year period, of a Plan d’Action National de Promotion de l’Elimination de la Pratique de l’Excision dans la perspective de la tolerance zero (National Action Plan to Promote the Elimination of Excision with a Perspective of Zero Tolerance). The most recent plan covers the period from 2016 to 2020.
Between 1997 and 2005, 94 people were brought before the courts in cases involving excision. Among them, 27 were sentenced to less than six months’ imprisonment; 11 were sentenced to between six months and one year; 9 were sentenced to more than a year; and 44 cases were declared lost. Sentences were often more lenient than the law permitted, and in many cases influential relatives intervened to obtain acquittals or suspended sentences, or even to have the proceedings dismissed (ibid.). In addition, special awareness-raising patrols were set up in the 16 provinces with the highest rates of FGM. In spite of the low rate of incarceration, however, the courts’ role remains one of punishment rather than increasing awareness (ibid., p. 15).
The statistics produced by the Burkinabe Ministry of Justice for the period 2006-2015 confirm the low number of convictions for FGM, despite the practice being widespread. The year 2008 was an exception (Figure 8.3): in October of that year, Burkina Faso organised a summit of African first ladies on the issue of FGM, which led the law to be applied more rigorously, resulting in a tripling in the number of sentences handed down.
The results of 50 years of fighting against FGM in Burkina Faso are mixed: at present, three out of five women of childbearing age claim to have been excised (NISD and OECD Development Centre 2018, p. 158). However, there arc
Figure 8.3 Total number of prisoners incarcerated for cases relating to FGM mutilation (2006-2015). Source: GDSSS (Burkina Faso) 2017.
some signs that the practice is declining: ‘The proportion of excised women has decreased significantly from the older generations (89% of those aged 45-49) to the youngest generations (58% of those aged 15-19)’, although the fall in rates may be related to under-reporting due to the criminalisation of the practice in 1996 (NISD and ICF International 2012, pp. 291-294).
Law no. 061-2015/CNT on the prevention, punishment, and reparation of violence against women and girls, and support for victims, was passed by the transitional legislature (Fourth Republic) on 6 September 2015. This law gave the courts greater latitude to combat violence against women. While FGM was not explicitly mentioned in the text, the law defines the legal framework for reporting practitioners and family members, and tor punishing them in a more systematic way. It was this development that led to the incarceration of Aminata and her relatives.
Symbolic logics of FGM and the treatment of women in prison
Looking past their local specificities, arguments in favour of FGM share a triple discourse of‘fertility, punishment, and sexual differentiation’ (Sindzingre 1977, p. 74), which serves as a reminder that women are responsible for procreation (Sindzingre 1979, p. 177). In the Bwaba and Moaga societies of Burkina Faso, the removal of the clitoris seems to be motivated by a logic that is both aesthetic and sanitary (Maiga and Baya 2008, p. 643). In Gurma society, the excision ritual explicitly states the importance of the woman’s reproductive function and the need to control the possibility of defilement. As Michel Cartry (1968, p. 194) explains, the newly excised young woman is said to be ‘whitened’, or ‘purified’, and receives a calabash engraved with the symbol of the womb. Ellen Gruenbaum (2001, p. 4), an anthropologist who has worked on the issue of FGM in Sudan, explains that ‘Tahur (or its variations such as tahara) is usually translated as “purification” and connotes the achievement of cleanliness through a ritual activity’. In Burkina Faso, the practice of FGM helps to reproduce rog-n- miki (tradition, or literally ‘what is found at birth’) and so to incorporate a social gender role. In other words, as Sylvie Fainzang (1985, p. 125) argues, ‘excision and circumcision do not involve a social marking of sexual difference so much as a marking of the social difference that exists between the sexes - in other words, an inscription (on the body) of gender relations’. Prison as a normative institution reproduces this social construction of gender roles.
Prison as a reproducer of gender stereotypes
Cardi (2009, p. 79) proposes the concept of the ‘institutional gender regime’ to explain how women are constructed by the criminal and carceral system in France on account of their systematic association with reproduction and motherhood. Quoting Maryse Marpsat (1999), who uses the concept to describe the lower likelihood of homelessness among women, Cardi (2009, p. 79) argues that, in prison, ‘maternal status (whether actual or potential) acts as a “secondary benefit in the dominated woman’s situation’”. Corinne Rostaing (1997), who along with Robert Cario (1992) introduced these questions, extends these analyses with an account of the essentialising process that operates in prison. Women are rarely convicted, Rostaing (2017, p. 3) writes, and when they are incarcerated they are treated as if they possess a ‘sensitive and fragile nature’. She continues:
The rigorous surveillance of male presence in female detention centres confirms the strict social control exercised over female prisoners. While the separation of male and female prisoners made it possible to avoid rape and pregnancy, it was above all a moral concern: as a wife and mother, the guarantor of the moral character of the man and the child, the woman should be kept far from the male offender in order to avoid being contaminated by his vice. This led to the application of differentiated treatment based on gender, which for men centres around work and for women around religion and discipline.
(Rostaing, 2017, p. 7)
These analyses help us to understand the situation in African prisons, where there are not only fewer women prisoners than male prisoners but they are also relatively better treated.
Female prisoners eat better than male prisoners: instead of the men’s standard prison ration (usually porridge with a simple sauce), the women receive a dry ration of raw ingredients to prepare, which means that they can also earn money by selling meals to the male prisoners and the prison staff. In Ziniare, all the women are able to work in the vegetable garden (which is not the case for all of the male prisoners) and are also offered training in sewing, whereas training for men is largely non-existent.
In Ziniare, female prisoners are given hygiene kits on their arrival (soap, mosquito nets, and bleach). Officially, soap is provided monthly for men and fortnightly for women and minors, also this is not always respected. But the women also get detergent on a weekly basis from the prison steward, and ever)' morning, Female prisoners washed clean their cell. In general, not only are women’s detention conditions better but they always receive priority when help is provided externally, through food parcels or hygiene products.
Female prisoners - few in number, symbolically dangerous, and essentially nurturing - are an obvious target for sanitary and social interventions in prison. And because there are fewer women than men in prison, they represent easily achievable targets for those providing aid (soap, mosquito nets, food). Such gender-based approaches ultimately reproduce the gender stereotypes prevalent in society. Prison thus contributes to the institutional production of gender and echoes the social production of gender symbolised by FGM. The experience of female prisoners in the MACZ is the ultimate paradox of a justice system that punishes, only to subsequently accept, through the practices of the prison environment, the very rationality that was at work in the condemned act.
114 Le Marcis
Table 8.1 Percentage of women incarcerated in Burkina Faso in 2015 (Walmsley, 2017)
How should the sentences be interpreted?
In its strategic plan for 2016-20, the permanent secretariat of the National Committee to Fight against the Practice of Excision claims that, ‘in terms of encouraging preventive accusations, setting up a green emergency phone allowed us to record 117 accusations of excision across the country, which resulted in arrests and convictions between 2009 and 2013’ (SP-CNLPE 2016, p. 45). These results are modest, given how prevalent the practice is in Burkina Faso. They invite us to question the legitimacy of both the accusations and the convictions made.
Most of Aminata’s relatives incarcerated at the MACZ did not speak French. All had been excised, and all wore a foil veil, indicating that they were adherents of Wahhabi Islam. As they explained to me, ‘In Islam, if a woman is not excised, she cannot join in preparations during Ramadan. Custom [in Mossi, rog-n-miki, “what is found at birth”; in Fula,fina tawa also says that girls must be excised’. Aminata knew that Burkinabe law prohibited excision and that it could be dangerous for women’s health. But she also mentioned contradictor)' discourses: ‘Some say it’s good, others say it’s not. It’s difficult to understand’. Asewere Bah, the Fula excisor who had been incarcerated for the second time, told me that she was surprised to be in prison: ‘Mifenata, mi wujjata, min fecca!' (I don’t steal, I don’t lie, I cut!). Aminata continued: T don’t know why. Those who say it isn’t good say there may be deaths there [because of excision]. Others say it can be difficult to give birth. But all of us who are excised are here’.
After Aminata’s family was incarcerated, they received no visits to raise their awareness about the issues involved in excision. The family has been left to their resentment towards those who accused them and to their incomprehension of a justice system that condemns something that tradition defends.
Aminata sought the help of a Catholic priest from the region, Father Bicaba, who is known in the region for his support for prisoners. He funded an intervention by a lawyer, who entered an appeal for the family members. This had unexpected consequences for the patriarch of the family: the appeal halted his own separate request for an early release due to his age and health, which only increased the family’s bafflement in the face of a legal system whose logic it could not understand.
One of Aminata’s cousins in jail with her explained to me that she believed that they were in prison because the prosecutor was seeking to take revenge. When they asked for a pardon, the prosecutor supposedly answered: ‘There are no pardons here’. Aminata believed that the authorities who succeeded Compaore and the CDP (Hagberg et al. 2018) have imprisoned them out of revenge, as women who did not come from Ziniare supposedly received lighter sentences. Aminata’s cousin explained: ‘Those of us from Ziniare, including our husbands, our mothers-in-law, our grandfathers, some of them were given six months, twelve months, two years, even four years. But we didn’t take the CDP’s money!’ The people of Ziniare believe that their relationship with the state apparatus has deteriorated, much like the health of the now malnourished animals that Compaore brought to the Ziniare zoo. The prisoners interpret the workings of the courts, of Voix de femmes, and of power more generally, in terms of revenge. Whether true or not, this indicates a specific conception of the justice system: a space where social networks, political connections, and financial capacity - rather than any principle of universal justice - underpin the functioning of the judiciary.
Women’s incarceration conditions were objectively better than those experienced by men, and Laberge (1992, p. 277) argues that this is because the penal institution exercises substantial control over women, confining them to a role of mother. FGM has a similar goal, making its condemnation by the law all the more incomprehensible. In addition, these sentences were handed down in a location associated with a fallen authority, during a period of post-revolutionary' transition, and in a context in which the functioning of politics - beyond a facade of democracy - was relying heavily on alliances (of kinship, ethnicity' and region), co-optation, and potentially the use of a shadow economy (Bieri and Froidevaux 2010). In this context, we might understand the women’s view that their punishment was the product of jealousy, rather than the expression of the law, as perfectly rational.
Their incarceration was a missed opportunity to raise the women’s awareness about FGM: they received no visits from anti-FGM activists or social workers who could push them to question the practice. In their introduction to a book on opposition under Compaore’s semi-authoritarian regime, Mathieu Hilgers and Jacinthe Mazzochetti (2010, p. 6) ask what happens to foiled opposition in a democracy that is open, but where any hope that power will change hands is always disappointed: ‘When the means of political production are concentrated in the hands of an elite that monopolises the legitimate, suitable forms of politics, the consequences of this are felt to be inexorably tied to the exercise of power’. For those convicted of FGM, their prison sentence fed such an understanding of how power works. Their convictions were thought of as illegitimate, as abuses of power driven by revenge.
Tradition and the treatment of women in prison both demonstrate the permanence of the social and symbolic logics that construct the status of women in Burkinabe society. Imprisonment and FGM concern two different normative orders - tradition and criminal law - but they both contribute to the gendered construction of women in Burkina Faso. The illegality of the custom and the arguments for giving women in prison special treatment encourage a cognitive dissonance that is reinforced by political interpretations of punishments, which are both geographically and historically situated. And so prison, which should embody the state’s power and demonstrate its ability to administer justice, instead becomes a place in which the state is contested.
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