Committee: Joint Committee on Health, Women, Children, Refugees, Disaster and Humanitarian Relief.
TOPIC: WOMEN’S AMENDMENT BILL 2023 TO REPEAL OF THE WOMEN’S AMENDMENT ACT 2015
INTRODUCTION
The Child Protection Alliance, a national network or alliance of 48 organizations and institutions in The Gambia working for and with children, was formed on 26th April 2001. The Alliance is the first inter-agency institution in The Gambia whose focus is solely on child rights promotion and protection.
Women and girls make up more than half of the population of The Gambia. However, despite their numerical strength, womenand girls continue to suffer discrimination, all forms of sexual and gender based violence and barriers to equal participation in society. They also face other serious human rights abuses, such as domestic violence and trafficking. Thus, since promotion and protection of the human rights of children is the main mandate of the Child Protection Alliance (CPA), and children’s issues are intertwined with that of women, addressing the unequal status of women becomes one of the primary responsibilities of CPA.
OBJECTS AND REASONS
The Child Protection Alliance have been keenly following and monitoring the National Assembly debates on the private member Bill that seeks to repeal the sections 32A and 32B of the Women’s Act which criminalizes female genital mutilation since 2015.
The Bill referred to female circumcision as a practice deeply rooted in the ethnic, traditional, cultural, and religious beliefs of the majority of Gambian people. The mover of the bill therefore claims the objective of the bill was to uphold religious purity and safeguard cultural norms and values. The Bill further stressed that the current ban on female circumcision is a direct violation of citizens’ rights to practice their culture and religion as guaranteed by the Constitution and international law.
It is our understanding that the reason on religious purity is ambiguous at best and weak at worst in that the objects and reasons of the bill did not make reference to any authenticated Surah in the Holy Quran or Hadith that makes the practice obligatory on girls and women. Conversely there exists no Hadith or provisions in the Holy Quran that prohibit a woman from performing her religious duties and obligations on account of not being circumcised. Several Islamic jurists and clerics have abundantly explained that circumcision is obligatory for men, and only recommended for women. However, it is also established by jurists that circumcision for women can be abandoned given the actual and potential harm it poses to the health and life of girls and women. Apparently, this bill completely ignores these actual and potential harm on the reproductive health and rights of girls and women. It is observed that in most Muslim-majority countries, FGM has either been banned or criminalized altogether, or most citizens hardly perform the practice.
Thus, on the legal aspects of the matter, it is important to note that Section 32 of the Constitution provides the right to practice one’s culture. However, this right is not absolute as it is subject to terms of the Constitution and that the exercise of the right must not infringe on the rights of others. The terms of the 1997 Constitution are rooted in the principles of human rights and dignity. These principles recognize and uphold the right to life (s.18), the right to personal liberty (s.19), the right not to be subjected to torture or inhuman and degrading treatment (s.21) and the right to conscience and belief and to practice any religion (s25).
What these rights indicate in spirit and function is that no one should be subjected to any condition without his or her consent in recognition of his or her dignity. Consequently, a girl-child should not be subjected to circumcision of any kind since consent is irrelevant in matters involving children.
It is important to that in most Muslim-majority countries FGM has been legally banned on the advice of Islamic jurists that the practice is not obligatory. Consequently, there is no justification to continue the practice when it is also established that FGM has actual and potential harm for girls and women. Therefore, to subject children to this practice when they have not reached the age of consent is a direct violation of the Constitution when it states that the right to practice one’s culture should not impinge on the right and freedoms of others, in this case, the girl-child.
Furthermore, contrary to the claims of the mover of the bill that banning FGM contravenes the principles of international law which guarantee the preservation and practice of culture, both regional and international laws have unambiguously stipulated the abolition of the practice. Article 5(b) of the AU Protocol on Women (Maputo Protocol) prohibits FGM in all forms includingmedicalization of the practice. Article 21 of the African Charter on the Rights and Welfare of Children prohibit harmful social and cultural practices such as FGM. Furthermore, Article 24 of the UN Convention on the Rights of the Child (CRC) as well as Article 2(f) of the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) equally prohibit all forms of harmful practices. Hence this bill is a direct violation of both the Gambian Constitution as well as regional and international laws which have already been ratified by the Gambia.
Considering the above, the Child Protection Alliance is in total opposition to the repealing of the Women’s Amendment Act 2015 to ban FGC. The National Assembly has constitutional mandate to ensure that the State fulfills its domestic, regional, and international obligations as set out in national, regional, and international laws. The impact of this bill therefore will only make the Gambia renege from its domestic, regional, and international commitments hence further endanger the rights and dignity of girls and women. This bill serves no national benefit other than to put the name and dignity of the Republic of the Gambia into disrepute in the eyes of world. It will be an unprecedented and unique setback never seen before in the world.
Considering the foregoing, CPA hereby reminds NAMs of their legal obligation to ensure that all international agreements they ratified are upheld. This means NAMs and the National Assembly have a duty to monitor the Government to ensure that both domestic and international laws are enforced to protect the rights of citizens especially girls and women. This bill must be rejected in total. Instead, the National Assembly should strengthen its oversight function to ensure that public institutions are performing their duties to protect and fulfil human rights.
