Threats to #EndFGM Law in The Gambia

	Author: Satang Nabaneh Legal Scholar & Human Rights Practitioner
	Author: Musu Bakoto Sawo Gambian feminist and human rights lawyer

In 2015, The Gambia introduced legislation banning female genital mutilation (FGM) through an amendment of the Women’s Act of 2010, following decades of advocacy and sensitization efforts led by civil society organisations (CSOs) and community groups. Section 32A of the Women’s (Amendment) Act of 2015 makes it an offence for any person to engage in female circumcision. Whoever contravenes it is liable on conviction to a term of imprisonment of three years or a fine or both. The Act also stipulates a life sentence when the circumcision results in death. Section 32B (1) addresses those who commission the procedure, stipulating  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 $153) as provided in section 32B (2) of the Act is levied against anyone who knows about the practice and fails to report it without a good cause.

The legislation prohibiting FGM in The Gambia was enacted following an executive directive by former President Yahya Jammeh. It came when there was increasing visibility of survivors and a more significant push to end the practice in the country. Despite this purported commitment, the Government harassed anti-FGM campaigners, and restricted the space for CSOs and the media to engage practicing communities and the larger population, facilitate access to information on the dangers of FGM, and influence an end to the practice, in the interest of girls and women.

The recognition of FGM as a gross violation of the human rights of girls and women is well established in numerous international legal instruments and policy declarations. Since the enactment of the Women’s (Amendment) Act in December 2015, there has been only two reported cases of FGM, one of which involved a 5-month-old baby who died as a result of FGM in Sankandi Village. The accused persons denied the charges and applied for bail, to which the State objected. The case was then adjourned for ruling on the bail but before the Court ruled on bail, the state dropped the charges. The State’s official position was the medical report did not link the cause of death to FGM.

Fast forward to 2023, when three women from Niani Bakadaji, Central River Region, were convicted for their involvement in performing and abetting FGM. Eight children between the ages of 4 months and 1 year were mutilated, in direct violation of Section 32(a) and (b) of the Women’s (Amendment) Act of 2015. They were fined only 15,000 Gambian Dalasis (approximately USD 220) or in default to serve one year imprisonment, a sentence that is not consistent with the prescribed punishment of three years imprisonment or a fine of 50,000 Gambian Dalasi (approximately USD 750) or to both under the law.

On the weekend following their conviction, Imam Abdoulie Fatty, a firebrand Islamic religious scholar known for his fundamentalist views and associated with former dictator Yahya Jammeh travelled with other religious scholars to the village of the convicted ladies to pay the fine, an action he considered a sacred duty of every Muslim and in support of FGM as an integral part of the people’s culture. He further argued that if everyone openly supported female circumcision, the government wouldn’t be able to imprison an entire town, let alone an entire country. Imam Fatty’s onslaught against the anti-FGM law eventually led to intense and regressive debates in the National Assembly, eventually garnering overwhelming support for the repeal of the FGM ban. On 4 March 2024, Hon. Almameh Gibba introduced a Private Member’s Bill in the National Assembly, the Women’s (Amendment) Bill 2024 , which seeks to delete Sections 32A and 32B of the Women’s (Amendment) Act 2015 .

As noted elsewhere, a private member’s bill is usually introduced into the National Assembly by a Parliamentarian who is not a Cabinet member and is not acting on behalf of the Executive branch as provided in section 101(1) of the 1997 Constitution. The Women’s (Amendment) Bill 2024 is meant to further amend the Women’s Act of 2010. The objects and purpose states that:

This Bill seeks to lift the ban on female circumcision in The Gambia, a practice deeply rooted in the ethnic, traditional, cultural, and religious beliefs of the majority of the Gambian people. It seeks to uphold religious purity and safeguard cultural norms and values. The current ban on female circumcision is a direct violation of citizens’ rights to practice their culture and religion as guaranteed by the Constitution. Given The Gambia’s predominantly Muslim population, any law that is inconsistent with the aspirations of the majority of the people should be reconsidered. Female circumcision is a culturally significant practice supported by Islam, with clear proves of the teachings from our Prophet (S.A.W). It is to be noted that the use of laws to restrict religious or cultural practices, whether intentional or otherwise, can lead to conflict and friction. Interestingly, the continued existence of the ban on female circumcision and penalizing practitioners has directly contradicted the broader principles of the United Nations, which encourages, through its agencies, the preservation and practice of cultural and historical heritages…

While the Bill argues that female circumcision is deeply rooted in the cultural and religious beliefs of the majority of the Gambian people, particularly in the context of Islam, this position cannot justify practices that violate human rights, such as FGM. Many countries with predominantly Muslim populations have enacted laws to prohibit FGM, recognising it as against the principle of ‘do no harm’ in Islam. FGM has also been condemned by numerous Islamic scholars and organisations globally, emphasising the importance of protecting individuals from harmful practices.

The Bill also claims that the ban on female circumcision contradicts the broader principles of the United Nations, which encourage the preservation and practice of cultural and historical heritages. While the UN does promote cultural preservation, it also emphasises the protection of human rights, including the right to be free from all forms of discrimination and violence, such as FGM. The UN treaty monitoring bodies condemn harmful social and cultural practices that undermine the health, security, bodily integrity, and overall well-being of individuals, irrespective of cultural or religious justifications. Although international law recognises people’s rights to practise their culture and religion, these rights can be restricted by a government which has the obligation to protect fundamental human rights. Thus, the justification provided in the Women’s (Amendment) Bill 2024 is not in line with the spirit and intent of the UN’s preservation of cultural heritage interpretation. It is a stated fact that people cannot invoke culture or religion to justify the violations of the rights of women and children.

The Gambia is signatory to the Maputo Protocol, which imposes an obligation on states to prohibit FGM though criminal sanctions (article 5(b)).  The Protocol also guarantees the right to live in a ‘positive cultural context’. The Bill will be in direct violation of these provision if passed.  The country is also a state party of the African Court and has made the article 34(6) declaration. The African Court has held in APDF & IHRDA v Mali that African states cannot use cultural and religion as a basis to justify the violation of human rights.

On a commentary on article 5 (elimination of harmful practices), the Maputo Protocol, Nabaneh notes that the “Protocol acknowledges that culture has often been deployed to encroach on women’s rights. Although article 17 of the African Charter and article 17 of the Maputo Protocol recognise the right to culture, with article 18 of the Charter making reference to ‘traditional’ values, this does not absolve states of their responsibility to eliminate harmful traditional practices that violate human rights.”

Following the Second Reading of the Bill  on 18 March 2024, and the ensuing debate, the lawmakers voted 42 to 4 to refer the bill to the Assembly Business Committee for submission to appropriate Committees of the Assembly for further review and public consultation.

What’s next? The process

In terms of the next steps in the process, orders 68 to 76 of the Standing Orders of the National Assembly (as amended, 2020) are relevant. At Committee, members shall scrutinise the proposed legislation and engage in consultations with stakeholders  as well as hear expert opinions, and report back to the Assembly. This Committee has 16 weeks to scrutinise the bill, consult interested parties, and hear expert opinions. They can request more time if needed. This process ensures a thorough review of the bill before it moves forward to the Third Reading. This Committee Stage allows the Assembly itself to make changes to the bill, but these changes have to follow specific rules. Amendments must directly relate to the bill’s topic and avoid contradicting previously agreed-upon parts. Additionally, there are guidelines for proposing amendments in a clear and organised way, ensuring a smooth process. A report will subsequently be made to the Assembly by the Committee. After a report is presented to the Assembly, the Bill will be forwarded to the Assembly Business Committee for the arrangement of the consideration stage. This will then progress to the third stage when the Bill will be read the third time and passed. As soon as possible thereafter it shall be submitted to the President for his assent.

A call to action in support of women and girls in Gambia

The African Commission and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) recently issued a Joint Statement expressing deep concern. They urge The Gambia to safeguard girls and women by maintaining the ban. This is just one example of the international outcry against the potential repeal.

It is critical for CSOs both domestic and transnational to rigorously participate in the consultation process, lobbying for the bill’s withdrawal and pressuring the president to reject it if passed.

Join the fight! Support organisations working to protect girls in The Gambia and urge The Gambia’s government to prioritise the rights and well-being of women and girls.

About the Authors:

Dr. Satang Nabaneh is a legal scholar and human rights practitioner specialising in gender and sexual and reproductive rights in Africa, human rights, democratisation in Africa and Gambian constitutional law. She is the Director of Programs for the University of Dayton Human Rights Cente, Post-Doctoral Fellow with the Centre for Human Rights, University of Pretoria and  Research Fellow with LawTransform. She is the co-founder of Think Young Women, Founder and Editor of Law Hub Gambia and co-convener of the Sexual and Reproductive Rights Network in The Gambia.

Musu Bakoto Sawo is a feminist and human rights lawyer and defender with over 18 years of experience in children’s and women’s rights advocacy and activism. She holds a Master of Laws in Human Rights and Democratisation in Africa and a Master of Global Affairs in International Peace Studies and Gender Studies.  She is the recipient of numerous international and African human rights awards recognising her work for women and girls in The Gambia and beyond, particularly in relation to harmful traditional practices such as FGM,  including the 2018 Commonwealth Points of Light from Her Late Majesty Queen Elizabeth II, the 2020 Daily Trust African of the Year, and the Vera Chirwa Award from the Center for Human Rights at the University of Pretoria, South Africa.