Malick H.B Jallow Esq. Founder/President, Malick Jallow Foundation for Children(MJFC) on
International Day for Zero Tolerance Against Female Genital Mutilation-6th February 2023
The Gambia is the smallest country in Africa, geographically defined by The Gambia River in West Africa. As a result of its geographical location and historical relationship with England and the Muslim world, its justice system draws from English Common Law, Islamic Cadi law and customary law indigenous to the area. This “Tripartite Justice System” aims to serve the country’s population in both urban and somewhat distant and inaccessible rural areas. Gambian statutory law in many cases reflects practices dating from the British protectorate and does not often meet international standards nor addresses issues of serious concern presently facing the Gambian people. International law and standards is also sometimes misconstrued as foreign and therefore inapplicable or irrelevant to The Gambia. This perception often deprives the country of the benefit of utilizing internationally accepted practices as a subtle tool for socio-economic development.
Female genital mutilation is a practice that is deeply seated in Gambian culture. According to the World Health Organization: “Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” The WHO further states that: “FGM is recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. It is nearly always carried out on minors and is a violation of the rights of children. The practice also violates a person’s rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death.”
According to DHS 2013, the estimated national prevalence of FGM in girls and women in The Gambia (aged 15-49 years) is 75%. At the global level, more than 200 million girls and women alive today have been cut in the 30 countries in Africa and Middle East where FGM is concentrated, according to the WHO.
Traditionally FGM has been justified in The Gambia on grounds that it was necessary for the moulding and strengthening of the moral attributes of the girl child. It has also been justified by making reference to it being a requirement for those who profess the Islamic faith.It is strongly observed that such a position has not been well-founded.
The abandonment of FGM has been the subject of intense and sustained activism in The Gambia from civil society groups over the years. This activism appears to have finally yielded dividends with the pronouncement by the president of the republic of The Gambia banning the practice in The Gambia. This has been legitimized and given binding legal force by the amendment to the women’s act of 2010 criminalizing the practice of female genital mutilation in The Gambia.
According to the World Health Organization,
“FGM has no health benefits, and it harms girls and women in many ways. It involves removing and damaging healthy and normal female genital tissue, and interferes with the natural functions of girls’ and women’s bodies.
Immediate complications can include severe pain, shock, haemorrhage (bleeding), tetanus or sepsis (bacterial infection), urine retention, open sores in the genital region and injury to nearby genital tissue.
Long-term consequences can include:
- recurrent bladder and urinary tract infections;
- an increased risk of childbirth complications and newborn deaths;
- the need for later surgeries. For example, the FGM procedure that seals or narrows a vaginal opening (type 3 above) needs to be cut open later to allow for sexual intercourse and childbirth. Sometimes it is stitched again several times, including after childbirth, hence the woman goes through repeated opening and closing procedures, further increasing and repeated both immediate and long-term risks. “
The Gambia is signatory to many international legal instruments that guarantee the rights of women and children to be protected from harmful traditional practices such as FGM. Such instruments include The African Charter on Human and Peoples Rights, African Charter on the Rights and Welfare of the Child, International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.
The Maputo protocol to the African Charter on Human and People’s Rights on the Rights of Women 2003, which The Gambia ratified in 2005, provides the most specific reference to FGM. It states under Article 5, that:
“…state parties shall prohibit and condemn…through legislative measures backed by sanctions, all forms of female genital mutilation, scarification and para-edicalisation of female genital mutilation and all other practices in order to eradicate them”.
This provision, therefore, creates a binding international obligation for The Gambia to pass legislation outlawing FGM.
Indeed prior to the Maputo protocol the Constitution of The Gambia already contained progressive provisions on women’s and children’s rights that could potentially accommodate a declaration that FGM is illegal in The Gambia. Section 17 (2) specifically states that:
“Every person in The Gambia, whatever his or her race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter’.
Further, section 19 of the Children’s Act of 2005 states that:
“…no child shall be subjected to any social and cultural practices that affect the welfare, dignity, normal growth and development of the child and in particular, those customs and practices that are prejudicial to the health of the child, discriminatory to the child on the grounds of sex or other status.”
A corresponding provision is found in the Women’s Act of 2010
However, with FGM remaining a fairly sensitive and contentious issue, The Gambia had to wait until 2015 for expressing clear and unequivocal political will to criminalize the practice. Essentially this led to the passing of the Women’s act amended bill on FGM by the national assembly on the 28th day of December 2015 and its subsequent assent by the president in February 2016. The new shift in government policy on FGM provides an important opportunity for a comprehensive and detailed legislation providing for the abandonment of FGM and also addressing broader issues and realities relating to it. Indeed criminalization of the practice alone does not guarantee its eradication. According to a UNICEF report: “Punitive measures should not be the only response to end the practice. They can however help support the abandonment of FGM through the threat of punishment, thereby establishing a new legal norm that promotes the aspired new social norm.”
Whilst the new law criminalizing FGM is highly welcome, the legal framework promoting the abandonment of FGM can be further enhanced in the following ways:
- The new law makes it a crime to perpetrate or aid the perpetration of FGM. This creates the possibility for the parent and other family members of a victim to be prosecuted. Whilst this would not be unprecedented laws that criminalize parents for procuring FGM for their daughters may result in additional undue hardship for the girls who have undergone the procedures. This would indeed be detrimental to the best interests of the child as enshrined under section 3 of the Children’s Act of 2005. It is desirable for the law to be amended to expressly exclude parents and immediate family members from criminal punishment. Indeed the duty to eradicate the harmful practice must be balanced against the need to prevent secondary victimization of direct victims by the punishment of parents and immediate relatives through custodial or non-custodial means.The deterrent effect of the new law is strongly felt if perpetrators,who in most cases exclude the parent and immediate family members of the victim,are punished by the law. A more effective way of dealing with parents and immediate relatives involved in such a practice is through non-judicial mechanisms. This is indeed consistent with Article 5 a of the Maputo Protocol which states that States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including: a) creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes;
- The new law does not provide for FGM perpetrated by Gambians beyond the territorial waters of The Gambia. This can lead to perpetrators and accomplices choosing to carry out the practice away from The Gambia to other jurisdictions were the practice is either tolerated or not prohibited. It is therefore important, at least for deterrent purposes to ensure that the law punishes Gambians who decide to practice FGM in another jurisdiction. Under the French penal code any act of FGM committed in another country by a France citizen can be prosecuted in France. A similar provision would maximize the potency of the new law criminalizing FGM in The Gambia.
- It is realistic to conceive that the new law may well be seen by practitioners and sympathizers of FGM as a fundamental attempt to interfere and erode what they feel is a legitimate practice, and this may antagonize them even further. The battle to win hearts and minds is therefore still vital. To aid this effort, it would help if the criminalization of FGM is rationalized even further. Essentially, one may argue that if a 19-year-old woman voluntarily submits to the practice it may be less justifiable to punish the perpetrators as opposed to where it involves a 10-year-old child unable to give or refuse meaningful consent to such a practice. It is therefore desirable that the new law is restricted to FGM perpetrated on children. This still leaves the door open for criminalisation of FGM to be extended to women victims once the level of awareness and acceptance of the justifications for criminalising the practice is well accepted. Again this is consistent with the spirit and intendment of the Maputo protocol.