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Addressing female genital cutting/mutilation (FGC/M) in The Gambia

Authors:
8
DOI: 10.4324/9781003175049-8
8
Ebenezer Durojaye and Satang Nabaneh
Addressing female genital
cutting/mutilation
(FGC/M) in The Gambia
Beyond Criminalization
Ebenezer Durojaye and Satang Nabaneh
1 Introduction
Female genital cutting (FGC) or sometimes referred to as female genital muti-
lation (FGM) or circumcision is a cultural practice in some parts of Africa that
has become a subject of concern for many years. The term FGC and FGM
are sometimes used interchangeably. Although human rights organizations and
activists tend to prefer the use of FGM, it is often believed that this is stigma-
tizing and judgemental of the culture of the people. Thus, the use of FGC is
believed to be non-judgemental. An estimated 200 million girls and women
alive today have experienced FGC/M in 30 countries in Africa, the Middle
East and Asia where this practice is concentrated.1 About 3 million girls are said
to be at risk of FGC/M annually. Indeed, it has been noted that the practice
and social acceptance of FGC/M persist in many countries.2
The WHO (2016) estimates that 100–140 million girls and women world-
wide are currently living with the consequences of the FGC/M.3 It is mostly
carried out on young girls at some point between infancy and the age of
15 years. In Africa, an estimated 92 million girls from ten years of age and
above have undergone FGC/M.4 While recent evidence would seem to indi-
cate that this practice is declining in some countries, however, this is not the
same in other countries as the practice would seem to remain prevalent.5
According to the 2013 Demographic and Health Survey (DHS), FGM is
a universal practice in The Gambia, with 75% of girls and women between
15 and 49 undergoing the practice, and 76.3% for those between 15 and 19.6
The practice is mainly performed by traditional practitioners. In 2015, the
Gambian government took a giant step forward in addressing the menace of
FGC/M in the country.
The purpose of this chapter is to examine the various approaches that have
been adopted to address FGC/M in some African countries. In particular, the
chapter discusses the pros and cons of criminalization approach to FGC/M.
It then focuses on the amendment to the 2010 Women’s Act in The Gambia
which prohibits FGC/M. The paper evaluates the utility of the approach
adopted by the Gambian government vis-a-vis its obligation under the Protocol
to the African Charter on the Rights of Women (African Women’s Protocol/
116 Ebenezer Durojaye and Satang Nabaneh
Maputo Protocol). The paper concludes by noting that while prohibition of
FGC/M through sanction is important, such an approach will fail to achieve its
desired aim of reducing incidence of this practice unless other complementary
measures are adopted by states.
2 FGC/M in The Gambia
FGC/M refers to ‘all procedures involving partial or total removal of the exter-
nal female genitalia or other injury to the female genital organs for non-medi-
cal reasons’.7 FGC/M is classified into four major types. These are:
Type 1: Often referred to as clitoridectomy, this is the partial or total
removal of the clitoris (a small, sensitive and erectile part of the female
genitals), and in very rare cases, only the prepuce (the fold of skin sur-
rounding the clitoris).
Type 2: Often referred to as excision, this is the partial or total removal
of the clitoris and the labia minora (the inner folds of the vulva), with or
without excision of the labia majora (the outer folds of skin of the vulva).
Type 3: Often referred to as infibulation, this is the narrowing of the
vaginal opening through the creation of a covering seal. The seal is formed
by cutting and repositioning the labia minora, or labia majora, sometimes
through stitching, with or without removal of the clitoris (clitoridectomy).
Type 4: This includes all other harmful procedures to the female genitalia
for non-medical purposes, e.g. pricking, piercing, incising, scraping and
cauterizing the genital area.
In The Gambia, FGC/M is carried out throughout childhood, with 55% of
women reporting that they were circumcised before the age of five. Another
28% of women were circumcised between the ages of 5 and 9, and 7% were
circumcised between the ages of 10 and 14. Around 85% of women circum-
cised indicated that what they went through involved cutting and removal
of flesh.8 According to the 2018 Multiple Indicator Cluster Survey (MICs),
75.7% of women aged 15–49 years and 50.6% for those aged 0–14 years had
undergone FGM.9 FGM is often performed by traditional practitioners com-
monly called circumcisers in The Gambia. The procedure is performed with-
out anaesthesia and using knives or razor blades.
Kaplan et al., conducted a clinical study on the health consequences of
FGM in The Gambia from 2008 to 2009.10 The study indicated that type 1 is
most common in The Gambia accounting for the highest cases of FGC/M,
followed by types 2 and 3, while type 4 is not evident. The study found that
a substantial number of cases were observed with health complications arising
directly from the practice of FGC/M. Complications, whether immediate or
late, were present in 23.7% of the patients with type 1(137/ 577), 55.0% of
patients with type 2 (126/229) and 55.4% of patients with type 3 (36/65).
The most common immediate complication, for all types, was infection.
Addressing FGC/M in The Gambia 117
Nevertheless, knowledge about the extent of health consequences of FGC/M
in The Gambia remains scarce.
FGC/M is a deeply rooted and widely supported practice that is sustained
through many cultural justifications that reinforce its continuation in The
Gambia. Common reasons for performing FGC/M include female purity/vir-
ginity, family honour, maintenance of cleanliness and health and assurance of
women’s marriageability. Some also associate it with religious beliefs.11
3 FGC/M as a human rights violation
Given the nature of FGC/M, there is a consensus that this practice tends to under-
mine the human rights of girls as guaranteed under international human rights
law. This practice is a threat to the enjoyment of various rights of the girl-child,
including the rights to life, health equality and non-discrimination, liberty, free-
dom from inhumane degrading treatment, dignity and autonomy.12 These rights
are guaranteed in international and regional human right instruments such as the
International Covenant on Economic, Social and Cultural Rights (ICESCR),
International Covenant on Civil and Political Rights (ICCPR), Convention on
the Elimination of all Forms of Discrimination against Women (CEDAW) and
the Convention on the Rights of the Child (CRC). Different UN treaty moni-
toring bodies have expressed concerns about FGM and its implications for the
rights of women and girls. For instance, the CEDAW Committee in General
Recommendation 24 has condemned this practice as gross violation of women’s
rights to health, non-discrimination and life. It urges states to adopt decisive
measures including imposition of sanctions on the perpetrators of this act. In its
General Recommendation 30, the Committee notes that states are obligated to
eliminate all forms of harmful practices that undermine the rights and dignity
of women as well as perpetuate the low status of women in society. Also, the
Human Rights Committee has stated that FGM is in breach of Article 7 of the
ICCPR and constitutes torture or other cruel, inhuman or degrading treatment
or punishment and has also raised concerns regarding its persistence.
The Committee on the Rights of the Child in its concluding observations
recommended to The Gambia to adopt legal provisions fully criminalizing the
practice of female genital mutilation. It also requires the state to provide physi-
cal and psychological recovery programmes for victims of FGM and establish
reporting and complaints mechanisms accessible to girls who have been vic-
tims, or fear becoming victims of the practice. In addition, The Gambia should
take measures to help practitioners of female genital mutilation finding alterna-
tive sources of income.
At the regional level, provisions of the African Charter on Human and
Peoples’ Rights (African Charter) and the Protocol to the African Charter on
the Rights of Women in Africa (African Women’s Protocol) are important in
addressing human rights violations occasioned by FGC/M. Indeed, Article 5 of
the African Women’s Protocol specifically enjoins states to prohibit ‘all forms
of female genital mutilation, scarification and para-medicalization of female
118 Ebenezer Durojaye and Satang Nabaneh
genital mutilation and all other practices in order to eradicate them’. The
African Women’s Protocol is particularly concerned that, despite the ratifica-
tion of the African Charter and other international human rights instruments
by the majority of African states, and their solemn commitment to eliminate all
forms of discrimination and harmful practices against women, discrimination
against women persists in Africa. The African Women’s Protocol, therefore,
aims at holistically addressing this situation. The Protocol, highlighting the
implications of such practices on women’s health, provides that any practice
that hinders or endangers the normal growth and affects the physical and psy-
chological development of women and girls should be condemned and elimi-
nated. This is because such practices may hinder women from enjoying fully
their fundamental rights and prevent the promotion, protection and realization
of women’s rights. Failure on the part of African governments to address such
harmful practices will result in violation of women’s inherent human rights,
such as the rights to non-discrimination, equality and human dignity. As a
result, the African Women’s Protocol enjoins states parties to prohibit and con-
demn all forms of harmful practices which negatively affect the human rights
of women and which are contrary to recognized international standards.13 For
example, it specifically urges state parties to take all necessary measures to elim-
inate FGC/M including:
… prohibition, through legislative measures backed by sanctions, of all
forms of female genital mutilation, scarification, medicalisation and para-
medicalisation of female genital mutilation and all other practices in order
to eradicate them; … protection of women who are at risk of being
subjected to harmful practices or all other forms of violence, abuse and
intolerance.
These provisions of the Women’s Protocol distinctively address the elimina-
tion of FGC/M which is prevalent in many African countries. This makes the
Protocol unique in the eradication of FGC/M in Africa, unlike other existing
international human rights instruments such as the CEDAW ratified by many
African countries. Whereas the CEDAW generally condemns cultural prac-
tices against women in order to protect their human rights, it lacks a specific
provision relating to FGC/M.
It should be noted that Article 5 of the Protocol must be read together with
Article 2 which relates to elimination of all discriminatory practices against
women. Moreover, the Protocol in Article 3 on violence against women
enjoins African governments to ensure that victims of all violence (including
those perpetuated as a result of cultural practices) are rehabilitated. This is very
important in that it will ensure that the dignity and well-being of women and
girls that have undertone harmful practices are safeguarded. A combined read-
ing of these provisions would seem to show that the Protocol has adopted a
three-prong approach to eradicating cultural practices such as FGC/M.
Addressing FGC/M in The Gambia 119
First, the Protocol proposes the use of sanctions to curb the spread of this
practice. Second, the Protocol recommends education and awareness cam-
paign that will address behavioural change in societies. Third, the Protocol
adopts a humanistic approach of rehabilitating victims of all forms of violence.
This approach of the Protocol is not only pragmatic but also commendable.
It should be noted that applying criminal law to public health issues has
remained very contentious and experience has shown that this may, in the long
run, become ineffective.14 Indeed, such an approach may become counter-
productive in the end. Therefore, the holistic approach of the Protocol will
go a long way in ensuring the eradication of this practice in many African
countries. This issue is explored further below. It should be noted that The
Gambia has ratified virtually all these international and regional human rights
instruments. The implication under international law is that the Gambian gov-
ernment is obligated to comply with the provisions of these internments.15
In addition, to the binding instruments, there are consensus statements and
declarations relevant to this discussion. For instance, the international com-
munity during the 1995 Beijing Declaration and Platform for Action, affirmed
that if women and girls were to be free from violence and coercion, cultural
and patriarchal practices will need to be addressed.
The Special Rapporteur on violence against women stated that:16
those cultural practices that involve ‘severe pain and suffering’ for the
woman or the girl child, those that do not respect the physical integrity
of the female body, must receive maximum international scrutiny and
agitation. It is imperative that practices such as female genital mutilation,
[…] or any other form of cultural practice that brutalizes the female body
receive international attention, and international leverage should be used
to ensure that these practices are curtailed and eliminated as quickly as
possible.
On 20 December 2012, the United Nations General Assembly adopted a his-
toric and unanimous resolution calling on the international community to
eliminate FGC/M. The then UN Secretary-General, Ban Ki Moon, com-
menting on the historic resolution, urged countries ‘to condemn all harmful
practices that affect women and girls, in particular female genital mutilation,
and to take all necessary measures, including enforcing legislation, awareness-
raising and allocating sufficient resources to protect women and girls from this
form of violence’.17
Also in 2013, the 57th UN Commission on the Status of Women agreed
on a number of resolutions including a reference to the need for states to
develop policies and programmes to eliminate FGC/M as well as other forms
of violence against women.18 Similarly, on 25 September 2015, the global
community agreed to a new set of development goals – the Sustainable
Development Goals (SDGs) – which includes a target under Goal 5 to
120 Ebenezer Durojaye and Satang Nabaneh
eliminate all harmful practices, such as child, early and forced marriage and
FGC/M, by the year 2030.
From the foregoing, most of the human rights instruments recommend the
use of sanction as a means of addressing FGC/M. This is further explored in
the next section of this paper.
4 Criminalization and FGC/M
Over the years, different approaches have been adopted to address this serious
challenge to human rights and freedom of the girl-child in the region. In their
seminal article, Johansen et al., have discussed some of the approaches adopted
by African countries to address FGC/M in the region. Some of these include
health, criminalization and alternative/mock ceremony. These approaches
have their pros and cons. In this chapter, focus will only be on use of criminali-
zation to address FGC/M. As noted above, most of the human rights bodies
and instruments seem to recommend the use of sanctions to address FGC/M.
4.1 Criminalization
In many African countries, the use of sanctions to address FGC/M is by far the
commonest response adopted by governments. Criminalization often involves
the imposition of jail sentence or fines. The essence of enacting prohibitory
laws in most countries is not just to punish the culprits, but also to serve as an
act of correction or maintaining moral justice in society.
One of the most popular justifications for the use of criminal sanction is the
deterrence theory. The major philosophical basis for deterrence is to discourage
individuals from committing a crime. The origin of this theory has been traced to
the works of classical philosophers such as Thomas Hobbes, Cesare Beccaria and
Jeremy Betham. In his seminal work the Levithans, Hobbes argues that human
beings are inherently good or bad.19 He further asserts that human beings tend to
pursue their self-interests such as material gain, personal safety and social reputa-
tion, and make enemies without caring if they harm others in the process. This
sometimes may be in conflict with the needs of the society they belong. Thus,
the need for what he calls ‘social contract’ where people agree to submit to the
state, which is expected to enforce the contract. According to Hobbes, even
where the state strives to enforce the contract, crimes are inevitable, therefore, it
is necessary that the state imposes punishment for crime higher than the benefits
an individual may derive from it. This will serve to deter future commission of a
crime and thus maintain the sanctity of the social contract.
In addition, Beccaria in his highly influential work, On crimes and punish-
ments first published in 1764, has argued that human beings by nature are
rationally centred and will not likely commit crimes if the costs of committing
such crimes out-weight the benefits they will derive from engaging in undesir-
able acts.20 While he notes that the purpose of punishment should be to pre-
vent crimes, he submits that punishments will become unjust and severe if they
Addressing FGC/M in The Gambia 121
exceed what is necessary to achieve deterrence.21 In other words, punishment
should serve to deter others from committing crimes and to prevent the crimi-
nal from repeating his/her crime. He holds the view that excessive imposition
of punishments will aggravate rather than prevent crimes in society. Following
after Becaaria, Betham in his classical work An Introduction to the Principles of
Morals and Legislation, has noted that human beings are generally under the
control of two sovereign masters – pain and pleasure.22 He argues that moral-
ity in every society tends to promote ‘the greatest happiness of the greatest
number’. Consequently, he reasons that the major duty of the state is to pro-
mote the happiness of the society by punishing and rewarding. Like Beccaria,
Betham cautions against arbitrary imposition of punishments but maintains that
punishments should only be used to avert greater evil or control the action of
the offender.
In summary, the argument of these classical philosophers is that the more
serious a punishment, the more likely a rational individual will desist from
commission of a crime. Thus, to prevent crimes in society, punishment must
be imposed to ensure that citizens obey the law. In essence, if individuals
know that they will be punished for the crimes they commit, they will likely
think twice before attempting to commit a crime. This reasoning has influ-
enced modern-day criminal justice systems in many societies. Thus, the idea
that sanctions discourage commission of crimes has led to the imposition of
the death penalty and other severe punishments for offenders. This thinking
has influenced moves towards criminalization of FGC/M in many countries
in the region. However, this reasoning has been criticized as misleading and
unfounded. For instance, one of the justifications for the continued retention
of the death penalty is that it serves as a deterrent for commission of serious
crimes. However, a publication by the United Nations has noted that ‘research
has failed to provide scientific proof that executions have a greater deterrent
effect than life imprisonment. Such proof is unlikely to be forthcoming. The
evidence gives no positive support to the deterrent hypothesis’.23 On the con-
trary, countries that have abolished the death sentence tend to witness fewer
serious crimes.24 The publication further identifies other disadvantages of the
death penalty as being too expensive and sometimes used to target certain
groups in society.
4.2 Limitation of criminal law in addressing FGC/M
Indeed, commentators have noted that if truly sanctions serve as deterrence to
commission of crimes, the world would have been peaceful today. However, on
the contrary, the world has almost been turned to a jungle where the fittest tend
to survive. Despite the imposition of the death sentence and other severe punish-
ments for offenders, the crime rates in the world have not reduced. As discussed
below, similar situation plays out with regard to the criminalization of FGC/M.
Egypt is one of the African countries where the prevalent rate of FGC/M is
very high. It is believed that about 91% of women are mutilated.25 It practices
122 Ebenezer Durojaye and Satang Nabaneh
all the forms of FGC/M, subjecting women and girls to perpetual torture and
health crisis. To curb this act of torture, a presidential decree was enacted in
1958. It made the practice punishable by a fine and imprisonment. Also, a
resolution was signed by Egypt’s Minister of Health in 1959 to medicalize the
practice. This is based on the belief that carrying out this practice in a hospital
under more sanitary conditions would eventually reduce some of the detri-
mental, physical and psychological risks associated with FGC/M.26
Similarly, in Burkina Faso the high rates of death and health effects suf-
fered by victims of FGC/M have led to the enactment of a specific legislation
prohibiting the practice. Article 380 of the Penal Code specifically punishes
any person who violates or attempts to violate the physical integrity of the
female genital organ. This may either be by total ablation, excision, infibula-
tion, desensitization or by any other means. It may result in a punishment
of a fine or imprisonment, depending on its gravity. Other countries such as
Ghana, Senegal and Ivory Coast have laws punishing the practice.27
Most of these laws have not been effective in curbing the practice of FGC/M
in affected countries. This might be due to the fact the communities where this
practice is prevalent, have not been sensitized or provided with needed infor-
mation on what these laws entail before enacting them. They have not been
sensitized on the health hazards that the practice was causing to women and
girls. It might also be that the language of these laws was not well understood,
especially as the wording of these laws may seem alien. Moreover, the fact that
members of the affected communities were not always carried along before
these laws were enacted has made it difficult for members of the communities
where it is practised to understand or respect the laws. They have considered
these laws as foreign and an affront to their culture.28 Therefore, this general
lack of acceptance of the laws caused the practice to persist, especially in hid-
ing. In his seminal work, Why People Obey the Law, Tyler has noted that legiti-
macy and trust are crucial factors that determine whether a group of people
will obey the law.29 He argues further that obedience to the law is easier where
the people are carried among in its conceptualization and adoption rather that
when laws are imposed on the people. According to him, people obey the law
not for the fear of punishment but for legitimacy sake. He reasons that law
makers and those responsible for implementing the law will do much better if
they ensure that the legal system is worthy of respect rather than creating fear
in the people. In sum, Tyler would seem to suggest that people are more likely
to obey the law if they have confidence in the system. Conversely, people will
disobey the law for lack of respect no matter how severe the punishment for
such disobedience. He further reasons:
To be authoritative, legal rules and decisions must affect the actions of
those toward whom they are directed. A judge’s ruling means little if the
parties to the dispute feel they can ignore it. Similarly, passing a law pro-
hibiting some behavior is not useful if it does not affect how often the
behavior occurs.30
Addressing FGC/M in The Gambia 123
He concludes by noting that the ‘regulation of behaviour through social con-
trol is inefficient and may not be effective enough to allow a complex demo-
cratic society to survive’.31 This could be true for many of the anti-FGC/FGM
laws in many parts of the region.
Harmful cultural practices such as FGC/M are sensitive cultural issues falling
within the spheres of women and the family in that, if women are against the
practice, they may be ostracized by the family. This is due to the cultural belief
that a woman’s denial or rejection of the practice amounts to a cultural taboo.
Thus, the total elimination of such a practice can only be effectively based on
the full commitment and political will of the government. In addition to enact-
ment of laws, they have to put programmes, structures and resources in place to
intensify sensitization against the practice especially as most perpetrators do not
respect the laws nor understand the human rights implications of the practice.32
5 An analysis of The Gambian law on FGC/M
vis-a-vis obligations under international law
As noted earlier, The Gambia is a party to a number of international and
regional human rights instruments that protect the rights of women in the con-
text of cultural practices. In addition, the 1997 Constitution of The Gambia
contains a catalogue of rights and freedoms under Chapter IV relevant to pro-
tecting the rights of women and girls in relation to harmful cultural practices.
The rights and freedoms provided in the Constitution include the right to life
and personal liberty, torture and inhuman treatment, the rights to privacy,
property and fair trial, freedom of speech, conscience, assembly, association and
movement, the right to political participation, and freedom from discrimina-
tion. The Constitution does not provide a specific provision against FGC/M.
Given the various physical and psychological implications of FGC/M, it could
arguably be considered a violation under these provisions.
It is arguable that FGC/M can be considered a violation of sections 210 and
212 of the Criminal Code of Chapter XXII (Offences Endangering life and
health). Section 210 states that any person above 16, with responsibility for a
child under the age of 14, found to have treated or exposed a child to unneces-
sary suffering or injury commits a misdemeanour. However, this provision is
inconsistent with the definition of a child and it victimizes children. No case
on FGC/M has ever been made on this provision.
The Children’s Act was enacted in 2005. The Act was promulgated to
ensure the effective enjoyment and enforcement of the CRC and the African
Children’s Charter through the incorporation of their provisions into national
law. The Act clearly provides various rights that children should enjoy as well
as their responsibilities, reflecting the aspirations of the African Children’s
Charter. Section 19 of the Children’s Act 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
124 Ebenezer Durojaye and Satang Nabaneh
particular, those customs and practices that are- a) prejudicial to the health of
the child, b) discriminatory to the child on the grounds of sex or other status.
Section 19 of the Act does not specifically mention FGC/M as a form of harm-
ful traditional practice. This was a compromise as the 2003 Children’s Bill
under Article 25 provided for the prohibition of harmful traditional practices.
It stated that a person who subjects or causes a female child to be subjected to
a harmful traditional practice commits an offence and liable on conviction to
a fine of five thousand Dalasis. The definition of harmful traditional practice
expressly includes FGC/M and its different forms. However, this was modified
before the bill was passed.
The Women’s Act was signed into law by the president Yahya Jammeh on
28 May 2010. It is intended to provide for the protection of women’s rights
in addition to the rights guaranteed under Chapter IV of the Constitution. A
key deficiency of the Women’s Act is the absence of an equivalent provision
of Article 5 of the Protocol, dealing with ‘Elimination of Harmful Traditional
Practices’.
Efforts have been made to address FGC/M since the mid-1980s when the
first campaign group with a specific focus on harmful traditional practices
(HTPs) including FGC/M, was established. Various groups work actively to
mobilize public opinion against FGC/M and also to persuade circumcizers to
engage in other alternative employment. These groups have also demanded
that the Gambian Government adopt a law that criminalizes FGC/M which
led to a draft FGC/M Bill which was never tabled before the National
Assembly.33 However, on 24 November 2015, President Jammeh declared a
ban on FGC/M stating that it was a cultural and not a religious practice. He
stated that for 21 years, he conducted research on the Qur’an and consulted
religious leaders whether female circumcision is mentioned in the Qur’an but
he did not find it there. 34
6 The Women’s Amendment Act 2015
The presidential pronouncement against FGC/M 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 eliminating harmful traditional practices. The Amendment Act
added sections 32A and 32B in the Women’s Act.
The reasons for the amendment were premised on The Gambia’s interna-
tional and regional human rights obligations such as Article 5 of the African
Women’s 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’. However, as will be dis-
cussed below, the drafters of the law did not wholly incorporate the provisions
of the African Women’s Protocol.
Addressing FGC/M in The Gambia 125
Section 32A makes it an offence for any person to engage in female circum-
cision. 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 cir-
cumcision 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 circumci-
sion 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 thou-
sand 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 know-
ing about the practice and failing to report. In addition, although there have
been concerns about the ban leading to medicalization of FGC/M, however,
there has been no evidence of such happening in The Gambia. Countries such
as Senegal which amended its Penal Code to prohibit FGC/M in 1999, calls
for imprisonment from six months to five years, the maximum punishment
which applies when FGC/M has been practised or facilitated by a member of
the medical or paramedical profession.35
Generally, people would rarely come forward to report gender-based vio-
lence cases unless there is a scandal such as the death of a child. Recently,
two suspects were indicted and remanded in custody for allegedly practis-
ing FGC/M. Two people were charged with conspiracy to commit felony,
prohibition of female circumcision and accomplices to female circumcision.
Sunkaru Darboe (grandfather) was accused on several counts of taking, inciting
and promoting female circumcision which led to the child’s death. Saffiatou
Darboe was charged with having knowledge about the circumcision taking
place but failing to inform authorities concerned about it. The facts of the
case are that on 27 February 2016 in Sakandi Village in Kiang West, the two
accused persons conspired and took one Aminata Drammeh, a five-month-old
baby to the circumciser for the purposes of conducting FGC/M which later
resulted in her death. The accused persons denied the charges and applied for
bail to which the state objected stating that another accused person was still
at large, and it would not help the investigation if the accused persons were
granted bail. The case was then adjourned for ruling on bail while the accused
were remanded in prison. The case is still pending and no one has been con-
victed yet.36
There is no gainsaying that indeed the abolition of FGC/M in the Gambia is
a welcoming legal and policy achievement, but the case involving the Sankandi
girl was the first litmus test to determine the intentions and capacity of the state
to enforce the law and fulfil its international obligations. A comprehensive and
coordinated approach is crucial to accelerating the abandonment of FGC/M.
A comprehensive national movement that involves all public and private stake-
holders, including government institutions, community and religious leaders,
educational institutions, the media, NGOs, civil society, girls and boys, and
women and men can eliminate this harmful practice.
126 Ebenezer Durojaye and Satang Nabaneh
The Gambia is known to enact laws that address specific issues such as the
2013 Domestic Violence Act and the Sexual Offences Act. It is thus surpris-
ing that an anti-FGM law was not enacted but rather was subsumed in the
Women’s Act 2010. However, one reason for this may be the fact that cul-
tural practices such as FGC/M tend to evoke emotions and sentiments, thus
the need to avoid singling them out for prohibition through specific laws and
potential backlash. This approach is not peculiar to The Gambia, as Nigeria
recently prohibits FGC/M through the enactment of the Violence against the
Persons Act of 2015.
Generally, the enforcement of the Women’s Act is weak. To ensure
sections 32A and 32B do not become ‘paper promises’, it will be necessary
to put in place detailed plan for implementation 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.
The challenges faced with the recent passing of legislation discouraging
harmful traditional practices include lack of well-equipped local police stations
with the required legislation for charging of offences and a better understand-
ing of the law. In addition, various communities believe that some of these
laws especially the laws criminalizing FGC/M and child marriage was imposed
on the citizenry by the former regime and thus believe that with the new
change of government, the laws no longer exist. This has therefore led to low
rate of report of cases of FGC/M and child marriage.
Nevertheless, the Act constitutes a major step forward in terms of promot-
ing and protecting the rights of women to bodily integrity and dignity. Like
most other laws in other African countries prohibiting FGC/M, the Gambian
Women’s Act fails to incorporate the need for education and awareness pro-
grammes as an essential part of addressing this cultural practice. As noted ear-
lier, the African Women’s Protocol enjoins African governments to embark on
educations and awareness programmes to supplement the efforts in combating
harmful cultural practices including FGC/M. This is a missed opportunity on
the part of the drafters of Women’s Act. Nabaneh and Muula have argued
that the use of criminal sanction to address FGC/M is not sufficient and must
be complemented with other strategies including mobilization and awareness
campaign programmes.37
Although female circumcision is now banned in the country, there is need
for continuous intensive education of practicing communities. This would
seem to be consistent with the approach adopted by the African Women’s
Protocol. 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. For
instance, Egypt is among those countries where efforts are underway towards
the reduction and eventual eradication of FGC/M. The country has employed
strategies such as a strong media campaign, a fatwa against FGC/M by the grand
mufti of Egypt and the amendment of the decrees. Nevertheless, many people
Addressing FGC/M in The Gambia 127
still consider FGC/M part of their culture or religion and identity. Appiah has
argued that deep-rooted cultural practices such as FGC/M would need to be
made less ‘honourific’ before it can be totally eradicated among the people.38
He notes further that deep-rooted cultural practices cannot be easily eradicated
through mere appeals to reason, morality, law or persuasion. Appiah’s argu-
ment would seem to sum up the point that the mere imposition of criminal
sanction on FGC/M will not necessarily lead to the eradication of the practice.
This would seem to reinforce the argument by Tyler that criminal sanction
alone will not deter people from disobeying the law unless there is general
acceptance and legitimacy of the process leading to its enactment.39
It is therefore vital that in The Gambia, there is continuous engagement and
dialogue with the practicing communities, including circumcisers, religious
leaders and traditional gate keepers, popularization of the law to every nook
and cranny of the country, enhancing coordination among relevant sectors and
empowerment of children and young people are necessary conditions to bring
about lasting change.
The CEDAW Committee in its General Recommendation 31 has empha-
sized the need for states to embark on awareness and education programmes
with a view to eradicating harmful practices that may impair women and girls
from enjoying their fundamental rights and freedoms. One of the advantages
of education and awareness programmes is that it may lead to behavioural
change in the communities where FGC/M is practiced. This will be consistent
with the aim of the African Women’s Protocol in preventing violence against
women and girls.
The Human Rights Committee in 2018 recommended that The Gambia
strengthen the Women’s (Amendment) Act of 2015, which criminalizes
FGC/M, and enhance public awareness, particularly among traditional and reli-
gious leaders, of the lifelong negative consequences of such practices. In addi-
tion, more than 15 recommendations from the recently concluded Universal
Periodic Review were on FGC/M focusing on the need for government to
raise awareness and enforce the legislation, as well as strengthen and accelerate
mechanisms aimed at eradicating the practice.40
Another important omission in the Women’s Act is the fact that it fails
to address the situation of victims of FGC/M. Unlike the African Women’s
Protocol, which urges states to ensure that victims of violence are rehabili-
tated, the Women’s Act seems ominously silent on this. While it is important
to go after those that perpetrate this act, it is equally important to provide for
the needs of those that have undergone the practice and suffered some health
consequences. This is consistent with a human rights-based approach, which
is often centred on respect for human dignity. It is believed this will go a long
way in further cementing the fundamental rights of women and girls who are
victims of this harmful cultural practice. A substantive approach to equality
requires that the historical disadvantaged position of women is taken into con-
sideration in responding to gender inequality. Given that FGC/M is a manifes-
tation of the patriarchal tradition of many African societies, prohibition of the
128 Ebenezer Durojaye and Satang Nabaneh
practice alone will not suffice to assuage the injustice it portends for women. A
more pragmatic and holistic approach is needed which reflects the lived experi-
ences of women and girls that have undergone this practice.
There is no doubt that the abolition of FGC/M in the Gambia is a welcome
legal and policy development. A comprehensive and coordinated approach is
crucial to accelerating the abandonment of FGC/M. Such a movement must
include all public and private stakeholders, including government institu-
tions, community and religious leaders, educational institutions, the media,
NGOs, civil society, girls and boys, and women and men. Examples from
some countries in the region have shown that a combination of different strate-
gies is imperative to addressing the challenge posed by FGC/M. In Egypt for
instance, the Positive Deviance Approach, which include, one-on-one educa-
tion talk, community awareness campaigns, involvement of local communities
on discussions relating to FGC/M, collaboration between NGOs working on
FGC/M and community members and training and empowerment of people
to realize the negative effects of FGC/M, has recorded modest success.41 This
project has elicited open discussions among community members on the cul-
tural relevance of FGC/M and whether it should still be retained. Moreover, a
considerable reduction in the number of girls circumcised was observed during
the execution of the project.42
7 Conclusion
This chapter has discussed some of the approaches to addressing FGC/M
in African countries. Also, it has argued that FGC/M violates international
norms espoused by international human rights instruments most of which The
Gambia is a party. It has been contended that this practice is discriminatory and
undermines the rights to sexual autonomy of women since it seeks to control
women’s sexuality. It examines the provisions of the Women’s Amendment
Act of 2015 of The Gambia which prohibits FGC/M in the country. It is
argued that the Act misses a great opportunity to incorporate some of the
important provisions of the African Women’s Protocol.
It should be noted that a legal prohibition is not necessarily a guarantee
that girls and women would be protected against FGC/M. The law would
need to be effectively enforced and implemented. This requires political will
from the state. One can draw lesson from Burkina Faso’s experience, which
is being recognized as one of the few countries where the government has
been able to effectively implement laws on FGC/M. Other strategies such
as awareness creation, capacity building of law enforcers, participation of
children and young people, livelihood skills for ex-circumcizers, dialogue
with religious and traditional leaders, engagement with men and boys should
be enhanced to complement the legal reform. Time will therefore tell how
far well the government mean in what can only be described yet as a legal
and policy success against FGC/M. This is in line with the UN General
Addressing FGC/M in The Gambia 129
Assembly Declaration 2012, which enjoins states to adopt a holistic approach
to addressing FGC/M.
Notes
1 World Health Organisation (WHO) ‘FGM fact sheet’ (2016) http://www .who .int /
mediacentre /factsheets /fs241 /en/ (accessed 25 July 2020).
2 UNICEF Female genital mutilation/cutting: A Statistical overview and exploration of the dynam-
ics change (2013).
3 WHO (n 1).
4 As above
5 A Koski & J Heymann ‘Thirty-year trends in the prevalence and severity of female geni-
tal mutilation: A comparison of 22 countries’ (2017) 2 BMJ Global Health 1–8.
6 Gambia Bureau of Statistics (GBOS) The Gambia 2013 population and housing census pre-
liminary results (2014).
7 WHO (n 1).
8 Gambia Bureau of Statistics (n 6) 222.
9 UNICEF Multiple indicator cluster survey MICs (2018) 354–360.
10 A Kaplan et al ‘Health consequences of female genital mutilation/cutting in the Gambia,
evidence into action’ (2011) 8 Reproductive Health 26.
11 UNICEF The Gambia: Statistical profile on female genital mutilation/cutting (2016).
12 S Nabaneh & A Muula ‘Female genital mutilation/cutting: A complex legal and ethical
landscape’ (2019) 145(2) International Journal of Gynecology & Obstetrics 253–257.; see also
E Durojaye & P Sonne ‘A holistic approach to addressing female genital cutting (FGC)
in Africa: The relevance of the protocol to the African charter on the rights of women’
(2011) Akungba Law Review 240–259.
13 For a detailed discussion on this see, F Banda Women, law and human rights: An African
perspective (2005); see also R Murray ‘A feminist perspective on reform of the African
human rights system’ (2001) 2 African Human Rights Law Journal 205–224.
14 Canadian Legal Network HIV Briefing paper on Criminal law and HIV (2008) 12.
15 S Nabaneh ‘The impact of the African charter and the Maputo Protocol in The Gambia’
in V Ayeni (ed) The impact of the African Charter and Maputo Protocol in selected African States
(2016) 75–93.
16 Report of the Special Rapporteur on violence against women’ Cultural practices in the
family that are violent towards women E/CN.4/2002/83 para. 6, 31 January 2002.
17 UN News Centre ‘Ban welcomes UN General Assembly resolutions eliminating female
genital mutilation’ (2012) http://www .un .org /apps /news /story .asp ?NewsID =43839
&Cr =female +genital +mutilation &Cr1# .Vw3z2qQrLIU (accessed 12 July 2020).
18 UN Women ‘Agreed conclusions on the elimination and prevention of all forms of
violence against women and girls’ (2013) http://www .un .org /womenwatch /daw /csw
/csw57 /CSW57 _Agreed _Conclusions_(CSW_report_excerpt).pdf (accessed 15 July
2020).
19 T Hobbes Levithians (1651).
20 C Beccaria On crimes and punishments (1963) 14.
21 As above.
22 J Betham (ed) An introduction to the principles of morals and legislation (1948) 125.
23 R Hood The death penalty: A worldwide perspective (1996) 238, see also. UN Human Rights
Office of the High Commission Moving away from the death penalty: Arguemnts, trends and
Perspective (2015).
24 Amnesty International ‘Death sentences and executions 2010’ (2011) 12.
25 UNICEF Female genital mutilation/cutting: A Statistical overview and exploration of the dynam-
ics change (2013) 3.
130 Ebenezer Durojaye and Satang Nabaneh
26 H Rodney & D Efua Child protection and female genital mutilation: Advice for health, educa-
tion, and social work professionals (1992) 12.
27 R Cook et al ‘Female genital cutting (mutilation/ circumcision): Ethical and legal dimensions’
(2002) 79 International Journal of Gynecology and Obstructers 281–287.
28 I Gunning ‘Arrogant perception, world traveling and multicultural feminism: The case of
female genital surgeries’ (1992) 23 Columbia Human Rights Law Review 189–248.
29 T Tyler Why people obey the law (1990) 18.
30 As above 19.
31 As above 23.
32 R Cook et al Reproductive health and human rights. Integrating medicine, ethics and law (2003).
33 National Women Bereau ‘Female genital mutilation in The Gambia: A desk review’
(2002) 23–24.
34 Daily Observer ‘President Jammeh bans FGM in Gambia’ (25 November 2015).
35 UNFPA ‘Implementation of international and regional human rights frameworks for the
elimination of FGM’ (2014).
36 Nabaneh & Muula (n 12) 256.
37 Nabaneh & Muula (n 12).
38 K Appiah The honor code: How moral revolutions happen (2010).
39 Tyler (n 29).
40 Human Rights Council ‘Report of the Working Group on the Universal Periodic
Review – Gambia’ A/HRC/14/6 (2010).
41 J Materson & J Swanson Female genital cutting: Breaking the silence, enabling change (2000) 10.
42 As above.
References
Amnesty International Death sentences and executions 2010 (Amnesty International 2011)
Appiah, K The honor code: How moral revolutions happen (W.W Norton 2010)
Banda, E Women, law and human rights: An African perspective (Oxford Hart Publishing 2005).
Barsoum, B, Rifaat, N, El-Gibaly, O, Elwan, N & Forcier, N ‘National efforts towards
FGM-free villages in Egypt: The evidence of impact’ Tech. Rep. 22 (Population
Council 2011)
Beccaria, C On crimes and punishments (Macmillan 1963)
Bentham, J An introduction to the principles of morals and legislation (with an introduction by W
Harrison) (Hather Publishing Company 1948)
Canadian Legal Network on HIV Briefing paper on criminal law and HIV (Canadian Legal
Network on HIV 2008)
Chege, J, Askew, I & Liku, J An assessment of the alternative rites approach for encouraging
abandonment of female genital mutilation in Kenya (Population Council 2001)
Cook, R, Dickens, B & Fathalla, M ‘Female genital cutting (mutilation/ circumcision):
Ethical and legal dimensions (2002) 79 International Journal of Gynecology and Obstructers 281.
Cook, R, Dickens, B & Fathalla, M Reproductive health and human rights. Integrating medicine,
ethics and law. (Clarendon Press 2003)
Gambia Bureau of Statistics (GBOS) The Gambia 2013 population and housing census
preliminary results (Gambia Bureau of Statistics 2014)
Gunning, I ‘Arrogant perception, world traveling and multicultural feminism: The case of
female genital surgeries’ (1992) 23 Columbia Human Rights Law Review 189
Hobbes, T Levithians (Oxford 1651)
Kaplan, A, Hechavarria, S, Martin, M & Bonhoure, I ‘Health consequences of female genital
mutilation/cutting in the Gambia, evidence into action’ (2011) 8 Reproductive Health 26
Addressing FGC/M in The Gambia 131
Koski, A & Heymann, J ‘Thirty-year trends in the prevalence and severity of female genital
mutilation: A comparison of 22 countries’ (2017) 2 BMJ Global Health 1
Materson, J & Swanson, J Female genital cutting: Breaking the silence, enabling change
(International Centre for Research on Women & the Centre for Development and
Population Activities 2000)
Murray, R ‘A feminist perspective on reform of the African human rights system’ (2001)
2 African Human Rights Law Journal 205
Nabaneh, S ‘The impact of the African Charter and the Maputo Protocol in The Gambia’ in
Ayeni, V (eds) The impact of the African Charter and Maputo Protocol in selected African states
(Pretoria University Law Press 2016)
Nabaneh, S & Muula, A ‘Female genital mutilation/cutting: A complex legal and ethical
landscape international’ (2019) 145(2) Journal of Gynecology & Obstetrics 253
Population Reference Bureau Abandoning female genital cutting: Prevalence, attitudes and efforts
to end the practice (Population Reference Bureau 2001)
UNFPA Implementation of international and regional human rights frameworks for the elimination
of FGM (UNFPA 2014)
UNFPA ‘UNFPA-UNICEF joint programme on female genital mutilation/cutting:
Accelerating change’ Annual Report 2011 (UNFPA 2012)
UN Human Rights Office of the High Commission Moving away from the death penalty:
Arguemnts, trends and perspective (OHCHR 2015)
UNICEF Female genital mutilation/cutting: A statistical overview and exploration of the dynamics
change (UNICEF 2013)
World Health Organization ‘FGM fact sheet’ (2016) http://www.who.int/mediacentre/
factsheets/fs241/en/ (accessed 25 July 2020)
ResearchGate has not been able to resolve any citations for this publication.
Chapter
Full-text available
The chapter determines the extent to which two main regional human rights treaties in Africa (African Charter on Human and Peoples' Rights and the Maputo Protocol) have been effective and impactful in The Gambia. The chapter sets out to answer three overarching questions: what is the status of the implementation of the African Charter and the Maputo Protocol in a particular country; what indirect effects, if any, have the Charter and the Protocol had in that country; and what factors or mechanism enhance or impede the impact of the two instruments in that country?
Article
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Female Genital Mutilation/Cutting (FGM/C) is a harmful traditional practice with severe health complications, deeply rooted in many Sub-Saharan African countries. In The Gambia, the prevalence of FGM/C is 78.3% in women aged between 15 and 49 years. The objective of this study is to perform a first evaluation of the magnitude of the health consequences of FGM/C in The Gambia. Data were collected on types of FGM/C and health consequences of each type of FGM/C from 871 female patients who consulted for any problem requiring a medical gynaecologic examination and who had undergone FGM/C in The Gambia. The prevalence of patients with different types of FGM/C were: type I, 66.2%; type II, 26.3%; and type III, 7.5%. Complications due to FGM/C were found in 299 of the 871 patients (34.3%). Even type I, the form of FGM/C of least anatomical extent, presented complications in 1 of 5 girls and women examined. This study shows that FGM/C is still practiced in all the six regions of The Gambia, the most common form being type I, followed by type II. All forms of FGM/C, including type I, produce significantly high percentages of complications, especially infections.
Article
Full-text available
The practice better described as female genital cutting (FGC) is of long standing in some communities, and has spread to non-traditional countries by immigration. It is of varying degrees of invasiveness, often including clitoridectomy, but all raise health-related concerns, which can be of considerable physical and/or psychological severity, and compromise gynecological and obstetric care. The practice is not based on a requirement of religious observance, although parents usually seek it for their daughters in good faith. It is directed to the social control of women's sexuality, in association with preservation of virginity and family honor. FGC is becoming increasingly prohibited by law, in countries both of its traditional practice and of immigration. Medical practice prohibits FGC. In compromising women's health and negating their sexuality, FGC is a human rights abuse that physicians have a role in eliminating by education of patients and communities.
For a detailed discussion on this see, F Banda Women, law and human rights: An African perspective (2005); see also R Murray 'A feminist perspective on reform of the African human rights system
For a detailed discussion on this see, F Banda Women, law and human rights: An African perspective (2005); see also R Murray 'A feminist perspective on reform of the African human rights system' (2001) 2 African Human Rights Law Journal 205-224.
Ban welcomes UN General Assembly resolutions eliminating female genital mutilation
  • Un News Centre
UN News Centre 'Ban welcomes UN General Assembly resolutions eliminating female genital mutilation' (2012) http://www.un.org /apps /news /story.asp ?NewsID =43839 &Cr =female +genital +mutilation &Cr1#.Vw3z2qQrLIU (accessed 12 July 2020).
Agreed conclusions on the elimination and prevention of all forms of violence against women and girls
  • Un Women
UN Women 'Agreed conclusions on the elimination and prevention of all forms of violence against women and girls' (2013) http://www.un.org /womenwatch /daw /csw /csw57 /CSW57 _Agreed _Conclusions_(CSW_report_excerpt).pdf (accessed 15 July 2020).
UN Human Rights Office of the High Commission Moving away from the death penalty: Arguemnts, trends and Perspective
  • R Hood
R Hood The death penalty: A worldwide perspective (1996) 238, see also. UN Human Rights Office of the High Commission Moving away from the death penalty: Arguemnts, trends and Perspective (2015).