Women’s rights: legislation banning FGM under threat in The Gambia
When three Gambian women were convicted of performing female genital mutilation (FGM) on a number of children earlier this year, the reaction in the country was immediate. An Islamic cleric paid the fines issued to the women by the Kaur/Kuntaur Magistrates’ Court, the Gambia Supreme Islamic Council issued a fatwa declaring FGM ‘not just a merely inherited custom’ but ‘one of the virtues of Islam’, while members of the country’s unicameral legislature, the National Assembly, called for the 2015 law that banned the practice to be repealed.
The African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child were equally robust in their response, issuing a statement expressing ‘deep concern’ about what they termed the ‘regressive parliamentary debate’ on the issue. Meanwhile, 178 civil society organisations signed an open letter urging the Gambian government to ‘stand firm in its commitments to protect women and girls by upholding the law prohibiting female genital mutilation’.
The prosecution had been made possible by the Women’s (Amendment) Act, a law passed in 2015 amending the 2010 Women’s Act. Based on the Maputo Protocol – an international human rights instrument adopted by the African Union in 2003 and ratified two years later – the Gambian legislation guarantees a comprehensive set of rights to women, including the right to take part in the political process and, crucially, an end to FGM.
Almost all of the Gambian population are Muslim and those seeking to repeal the law argue that FGM is a key cultural practice. It’s certainly widespread. In an interview earlier in 2023, Ndeye Rose Sarr, UNFPA [UN sexual and reproductive health agency] representative in The Gambia, said that the rate of FGM in country ‘is around 76 per cent in the 14 to 49 year age range, and about 51 per cent for girls up to the age of 14’. What this means is that, ‘on average, every other young girl you see in The Gambia has undergone this mutilation, which involves altering their genitals by cutting the clitoris or labia’, said Sarr.
[The Maputo Protocol] says that culture is a positive thing but that we must eliminate harmful practices. One of those is FGM, which the protocol is unequivocal about
African Regional Forum Liaison Officer, IBA Human Rights Law Committee
Yet, while those advocating for the law to be repealed are doing so on cultural grounds, Judy Mionki, African Regional Forum Liaison Officer on the IBA Human Rights Law Committee, who’s based in The Hague, says they’re highly unlikely to be successful due to the way the legislation was passed. ‘The Maputo Protocol is based on the CEDAW [the Convention on the Elimination of All Forms of Discrimination against Women] but it makes it appropriate for the African continent because it mentions culture’, Mionki says. ‘The protocol makes it quite clear that we are not going to use religious values as a smokescreen. It says that culture is a positive thing but that we must eliminate harmful practices. One of those is FGM, which the protocol is unequivocal about: it’s a harmful practice.’
The Gambia not only ratified the protocol, Mionki says, but because it’s a dualist state it passed its own law to incorporate it too. That means the matter has been through a rigorous legislative process and repealing the law now would, she adds, ‘be incredibly difficult’. Because The Gambia ratified the protocol, ‘it would be very hard to repeal without a backlash’, Mionki explains. ‘They have an obligation to keep the law.’
In the letter sent to the Gambian government – which was also signed by the Association of Non-Governmental Organizations in The Gambia, the Gambia Committee on Traditional Practices Affecting the Health of Women and Children and the Network Against Gender-Based Violence – signatories highlighted the positive impact the country had on its neighbours when it passed the law in 2015.
‘The Gambia has demonstrated admirable leadership in taking legislative action against FGM, and the positive ripple effects extend far beyond its borders, influencing other West African nations in their endeavours to combat this entrenched form of gender-based violence’, they wrote. ‘Neighbours have looked to The Gambia as a source of inspiration, drawing valuable lessons and momentum from its progress.’
However, Mionki says part of the reason that calls to repeal the law have gained any kind of traction is that not enough was done to ‘get people on board’ with the law when it was being passed. Uzoma Lyanni Aneto, Diversity and Inclusion Officer on the IBA Human Rights Law Committee and a lawyer at Nigerian firm Oduko, Aneto and Associates, says that parts of her country took a different approach when beginning a process that eventually led to the enactment of the 2015 Violence Against Persons (Prohibition) Act. Though the Act hasn’t been domesticated by 17 of the country’s 36 states, in the 19 in which it has been, community engagement was key, Aneto explains.
‘At the beginning, because it is a cultural practice, it was quite difficult even getting agreement to stop it’, she says. ‘It took planning over 20 years to get the people to start changing their minds as regards the complications of practising FGM. That was achieved through community engagement in the sense that community rulers were involved and traditional leaders, and children that had been through the practice spoke about the effect on their health.’
The need to engage first with community leaders was very important, Aneto adds. ‘When they were able to learn about the health disadvantages they began, little by little, to ban it in the community, saying such things should no longer happen, before it went to the state level,’ she says.
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