Almameh Gibba, National Assembly Member for Foni Kansala
By Ramatoulie Jawo
Hon. Almamy Gibba, the National Assembly Member (NAM) for Foni Kansala Constituency, along with seven other individuals and organizations has filed a lawsuit at the Supreme Court of the Gambia challenging the legality of Sections 32a and 32b of the Women’s Amendment Act 2015.
The plaintiffs in this lawsuit are Hon. Almamy Gibba (1st Plaintiff), Yassin Fatty (2nd Plaintiff), Nano Jawla (3rd Plaintiff), Kaddijatou Jallow (4th Plaintiff), Concerned Citizens (5th Plaintiff), Islamic Enlightenment Society (6th Plaintiff), Women’s Association For Islamic Solidarity (7th Plaintiff), Gambian Women Are Free To Choose (8th Plaintiff).
The group seeks a declaration from the Supreme Court that the amendment to Section 32 of the Women’s Act of 2010 and the insertion of new Sections 32A and 32B by the Women’s (Amendment) Act No. 11 of 2015 which prohibits female circumcision are inconsistent with Sections 17 (1) and (2), 25 (1)(c), 28 (1) and (2), 32, and 33 (2) and (3) of the 1997 Constitution. They further argue that these amendments contravene Section 4 of the Constitution of The Gambia, 1997, making them ultra vires, null, and void.
Additionally, the plaintiffs are requesting that the Supreme Court order the removal of Sections 32A and 32B from the Women’s (Amendment) Act No. 11 of 2015, leaving only Section 32 of the original Women’s Act of 2010 intact.
The plaintiffs further seek a declaration that the National Assembly exceeded its legislative authority in passing the Women’s (Amendment) Act No. 11 of 2015, rendering it void and of no effect from the outset for being inconsistent with Sections 17 (1) and (2), 25 (1) (c), 28 (1) and (2), 32, and 33 (2) and (3) of the 1997 Constitution.
“The law banning female circumcision in The Gambia is inherently discriminatory against females, particularly Muslim women. The said law contravenes several provisions of the Constitution,” the group stated in their statement of Claim.
Hon. Gibba and his co-plaintiffs argued that Section 33 (2) of the Constitution prohibits discriminatory laws, stating: ”Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect.”
They also point out Section 33 (3), which ensures that no person shall be treated in a discriminatory manner by any public office or authority.
“No person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.” the plaintiff asserts.
Furthermore, the group argues that Section 28 of the Constitution which states that, Women shall be accorded full and equal dignity of the person with men; Women shall have the right to equal treatment with men, including equal opportunities in political, economic, and social activities is also violated.
“We wish to first note that the definition of a woman, according to the Women’s Act of 2010, includes a girl child, and therefore reference to a woman includes the girl child. It is our view that no parent will give birth to a child and subject that child to unnecessary pain and suffering. Parents are presumed to act in the best interest of their children at all times. It is also important to note that the circumcision of females or the girl child is not a matter of men against women or men trying to decide for women.
“Rather, it is a private family matter concerning a particular family’s religious, tribal or cultural beliefs. Families have the right to take through their children what they believe to be in their best interest. The Plaintiffs and many of the parents insisting on the practice have gone through the practice themselves and experienced it. They would not have insisted on keeping the practice if there was any harm, as have been claimed by the anti-FGM campaigners,” the group argued.
Section 32A of the Women’s Amendment Act of 2015 defines female circumcision to include:
a. the excision of the prepuce with partial or total excision of the clitoris (clitoridectomy);
b. the partial or total excision of the labia minora;
c. the partial or total excision of the external genitalia (of the labia minora and the labia majora), including stitching;
d. the stitching with thorns, straw, thread, or by other means in order to connect the excision of the labia and the cutting of the vagina and the introduction of corrosive substances or herbs into the vagina for the purpose of narrowing it;
e. symbolic practices that involve nicking and pricking of the clitoris to release drops of blood; or,
f. Engaging in any form of female genital mutilation or cutting
Hon. Gibba and his co-plaintiffs contended that Section 32 A of the Women’s (Amendment) Act of 2015, as outlined above, does not accurately represent the practice of female circumcision as it is known in The Gambia.
“According to the most recent Multi-Index Cluster Survey (MICS) 2018, which is produced by the Government of The Gambia Office of Statistics with technical expertise from UNICEF, the most prevalent forms of female circumcision in The Gambia (80.6%) would fit into types a and b. Therefore, the description in Section 32A (3) (a) of the Women’s (Amendment) Act 2015, is misleading in that there is no form of female circumcision in which the entire clitoris is removed.
“The bulk of the clitoral tissue is in fact subcutaneous or contained within the body. The ones described in Section 32A (c) and (d) are referred to as “sewn closed” in the MICS, and the actual or empirically validated prevalence of these practices in The Gambia is uncertain. The data collected is from self-reports, and it remains unclear whether much of the 14.6% attributed to “sewn closed” is not a conflation of types a and b on the part of respondents or interviewers,” the plaintiffs argued.
This lawsuit came barely a month after the National Assembly Members rejected a Bill that sought to repeal the law that banned FGM in the Gambia