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FGM AND THE LAW

Awa Gai

Background 

 It is that period of the year when the world acknowledges and brings to light the various forms of violence faced by women and girls. This period runs every year from the 25th November (International Day for the Elimination of Violence against Women) to the 10th December (Human Rights Day) to raise awareness about violence against women as a human rights issue with focus on gender-based violence especially. This campaign originated at the inaugural Women’s Global Leadership Institute and continues to be coordinated each year by the Centre for Women’s Global Leadership (CWGL).[1]

 According to the World Health Organization (WHO), violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.’’ Globally, 1 in 3 women experience violence in a lifetime. This shows that more than 1 billion women and girls face physical and sexual abuse. It is also important to know that violence against women does not discriminate as it affects women of all ages, abilities, classes and backgrounds.[2]

 In the context of The Gambia, there is still a prevalence of gender-based violence as a result of the patriarchal norms that continue to violate the human rights of women. In our own case, the atrocities are mostly caused by family or individuals that are close. We have experienced sexual violence (including rape), domestic abuse, sexual harassment, forced marriages, psychological violence and the center of discussion in this write up; female genital mutilation (FGM), which is one of the most practiced forms of gender-based violence in The Gambia- a practice that has been promoted by patriarchy for so long to control women’s sexuality.

 It is important to acknowledge that The Gambia as a state party to the UN Convention on the Rights of the Child (UNCRC), the UN Convention for the Elimination of all forms of Discrimination against Women (CEDAW), and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) has recognized the need to provide the enabling legal framework for the promotion and protection of women’s rights.

In this same vein, the Women’s Act, 2010, a domesticated legislation of the two abovementioned human rights instruments prohibits all forms of violence and discrimination against women.  Similarly, an amendment to this Act was made in 2015 to prohibit FGM in The Gambia. Since the passing of the anti-FGM law, there have still been underreported cases of FGM. Perhaps, this is as a result of the low level of awareness to the extent of the implementation of the law. 

This post will look at FGM in the Gambian context, its legal implications while providing viable recommendations. 

What is FGM? 

Female Genital Mutilation (FGM) is a deeply rooted and entrenched cultural practice in The Gambia. It is an act that involves the removal of the female clitoris. According to WHO, FGM comprises of procedures that involve altering or injuring the female genitalia for non-medical reasons.[3] 

 Moreover, based on research in The Gambia, it has been established that there are four (4) main types of FGM practiced: 

  • Type I – this is the removal of the clitoral hood with or without removal of all or part of the clitoris.

  • Type II – this involves the removal of clitoris together with part or all of the labia minora and with or without the labia majora.

  • Type III – this is the removal of part or all of the external genitalia and stitching or narrowing of the vaginal opening leaving a very small opening for urine and menstrual blood.

  • Type IV – this type includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.[4]

From individual experiences, type III is regarded to be the most commonly practiced in our local context. However, asides from the numerous health complications accompanied with it, there are also legal implications attached to practicing FGM in The Gambia.

 The Gambian law on FGM 

 In 2015, a law was passed through an Act of National Assembly to amend the Women’s Act, 2010 to cater for an anti-FGM legal provision. This was referred to as the Women’s Amendment Act, 2015. 

The Act under Section 32A(1) clearly stipulates the prohibition and punishment for FGM in The Gambia. This implies that practicing FGM in The Gambia is illegal and therefore a crime.[5] 

Section 32A (2) sets out the punishment for anyone found to be engaging in FGM with the punishment ranging from imprisonment for a term of 3 years or a fine of D50,000 or both. The question as to whether “both” can apply will depend on the discretion of the court of competent jurisdiction.[6] 

There are also instances where FGM leads to death. This attracts a punishment of life imprisonment for the perpetrator(s).[7] An example was the case of Sankandi v the Inspector General of Police (IGP) where a life was lost during the practice of FGM as a result of excessive bleeding from the cut. 

Under Section 32B (1), the Act defines who an accomplice is. An accomplice is any person who aids or abets the person committing the offense of FGM. Therefore, such a person who requests, incites or promotes FGM by providing tools or any other means meant to carry out the practice is punishable for 3 years imprisonment or a fine of D50,000 fifty or both.[8]

 Section 32B (2) added that a person who without good cause fails to warn or inform the proper authorities promptly that FGM is about to take place or has taken place is punishable to a fine of D10,000.[9] 

Conclusion 

Notwithstanding, this provision has its own shortcomings. For instance, the issue of cross-border cutting is not addressed, and it also fails to provide mechanisms or ways to include victim-compensation for the physical and psychological harm endured. 

In conclusion, I am putting the following recommendations forth:

  • We need to revisit the amendment to address some of the missing loopholes highlighted above to identify red-light areas where cross-border cutting takes place and include punishments for it, while providing a meaningful compensation for victims from the perpetrator(s).

  • There is a need to build more impactful strategies for the implementation of this law. Having a law is important but its implementation is indeed critical. There’s still need to have strong precedents to serve as deterrent factors.

  • Finally, the law enforcement officers need to work closely with the 1313 GBV hotline in The Gambia to entertain creative reporting mechanisms on cases involving FGM.

Suggested Citation: Awa Gai, ‘FGM and the Law’ Law Hub Gambia Blog (December 4, 2020): https://www.lawhubgambia.com/lawhug-net/2020/12/3-fgm-and-the-law

[1]https://www.womankind.org.uk/16-days-of-activism/.

[2]Ibid.

[3]https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation#:~:text=Female%20genital%20mutilation%20(FGM)%20involves,benefits%20for%20girls%20and%20women.

[4]Ibid.

[5]Women’s Amendment Act, 2015.

[6]Ibid.

[7]Ibid.

[8]Ibid.

[9]Ibid.