Banning female circumcision in The Gambia through legislative change: The next steps

Author: Satang Nabaneh
Lecturer at the Faculty of Law, University of The Gambia.

There is nothing more powerful than a decision made at the right time, especially one which is a desideratum. So it was with the ban on female genital mutilation (FGM) in The Gambia. From the coastal village of Brufut, on the chilly night of 24 November 2015, President Jammeh declared a ban on FGM stating that it was a cultural and not a religious practice (that is not to say that the practice would have been justifiable if it was a religious practice, given its well documented harmful effects). The news was as unexpected as it was music to the ear. It was every campaigner’s wish, to see an end to FGM in The Gambia. This was swiftly followed by the passing of the Women’s (Amendment) Bill 2015 by the National Assembly on 2 December 2015 to prohibit female circumcision. The amendment addresses one of the key deficiencies of the Women’s Act 2010 which was the absence of a provision on eliminating harmful traditional practices. The Amendment Act added sections 32A and 32B in the Women’s Act. With the enactment, The Gambia joined a number of African countries in adopting legislation as a reform strategy for ending FGM.

The objects and reasons for the amendment were premised on The Gambia’s international and regional human rights obligations such as article 5 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). Thus, it was geared towards ensuring the compliance of The Gambia with its international obligation ‘to prohibit female circumcision due to the proven harmful nature of the practice.’

The promulgation of a law banning FGM in The Gambia is victory for girls and women in The Gambia, and for all child rights activists and human rights defenders. But the main winner is The Gambia, for henceforth the health, dignity and lives of its most vulnerable and powerless would be secured, unscarred and wholly prepared to contribute their quota to national development as ‘whole human beings’.

The Act uses the term ‘circumcision’ instead of ‘mutilation’. However, in defining circumcision, it lists female genital mutilation. Section 32A makes it an offence for any person to engage in female circumcision and whoever contravenes it is liable on conviction to an imprisonment for a term of three years or a fine of fifty thousand dalasis (approximately $1250) or both. The Act also stipulates a life sentence in prison when the circumcision results in death.

The Act also addresses those who commission the procedure in section 32B(1). It states that ‘a person who requests, incites or promotes female circumcision by providing tools or by any other means commits an offence and is liable on conviction to imprisonment for a term of three years or a fine of fifty thousand Dalasis or both.’ In addition, a fine of ten thousand dalasis (approximately $250) as provided in section 32B(2) of the Act is levied against anyone knowing about the practice and failing to report.

However, there is a major lacuna in the Act, in so far as it makes no provision for cross-border circumcision addressing both circumcisers who perform the procedure outside the country as well as girls forced to undergo the procedure in countries with weaker FGM laws. Girls living nearer the borders are more vulnerable as they can be forced to move. A good example of a country addressing cross-border circumcision is Ghana which reviewed its laws to prosecute all perpetrators including those who perform it outside the country.

The Gambia has been known to enact laws that address specific issues such as the 2013 Domestic Violence Act and the Sexual Offences Act. It is thus surprising that an anti-FGM law was not enacted but rather was subsumed in the Women’s Act 2010. Generally, the enforcement of the Women’s Act is weak. To ensure Sections 32A and 32B do not become ‘scarecrows’, there would be the need to put in place detailed plan for implementation, enforcement and monitoring as well as establishment of enforcement mechanisms such as an Anti-FGM Prosecution Unit and the Anti-FGM Board. The existence of such ‘tools’ may bring about accountability in terms of reporting, investigating and prosecuting FGM cases.

Nevertheless, the Act constitutes a major step forward in promoting and protecting the rights of women to bodily integrity and dignity. Now that female circumcision is banned, there is need for continuous intensive education of practicing communities. A long standing and cherished traditional practice may not easily go away with the enactment of a law. It could, on the contrary, drive the practice underground and make it more harmful and dangerous for the children. Continuous engagement and dialogue with the practicing communities, including circumcisers, religious leaders and traditional gate keepers, popularisation of the law to every nook and corner of the country, enhancing coordination among relevant sectors and empowerment of children and young people are necessary conditions to bring about lasting change. We must make FGM unacceptable in the minds and hearts of every man, women, boy and girl in The Gambia. Boys and men should be more proactively targeted.

Laws must be drafted to drive implementation, including clear mandates, procedures, funding and accountability mechanisms. Effective implementation, coordination and enforcement of the law and programmes against FGM would require that the technical, human and financial capacities of the Ministry of Women’s Affairs, the National Women’s Council and Women’s Bureau, the lead state machineries, are enhanced greatly. It is therefore recommended that Women’s Bureau establishes a Legal Unit to which new lawyers from the University can be assigned to litigate on women’s rights and monitor the enforcement of laws.

The President and the National Assembly have played their part. The ball is now in the court of law enforcers, the courts, the women national machinery and the civil society to take the agenda forward, to change mind-sets in favour of FGM prohibition, to ensure the law is observed and enforced, to punish perpetrators and to protect children.

About the Author:
Satang Nabaneh holds a Bachelor of Laws (LLB) University of The Gambia (The Gambia) and an LLM in Human Rights and Democratisation in Africa from the University of Pretoria (South Africa). Her research interests include children’s and women’s rights.