The Supreme Court on Tuesday closed the plaintiffs’ case in the constitutional challenge to The Gambia’s law prohibiting female genital mutilation (FGM). The decision came after the plaintiffs failed to produce their final witness to present testimony before the court. The Supreme Court's action effectively concludes the legal proceedings initiated by those seeking to overturn the FGM prohibition. This significant development marks a procedural turning point in a case that has drew considerable public and legal attention. The case had drawn significant attention regarding the legal status of the FGM ban within The Gambia, noting deep divisions within society on the practice. The plaintiffs' inability to present their last witness ultimately led to the closure of their challenge, marking a procedural end to this specific legal effort and shifting the burden of presentation to the defendants.
Case Background and Legal Challenge
The legal challenge focused on the constitutionality of The Gambia’s law criminalizing female genital mutilation. This suit challenges the very foundation of the legislation designed to protect women and girls from the harmful practice. Plaintiffs sought a declaration from the Supreme Court that the amendment of Section 32 of the Women’s Act of 2010, along with the introduction of new Sections 32A and 32B in the Women’s (Amendment) Act (Act Number 11 of 2015), contradicts the 1997 Constitution of the Gambia. The core of their argument rested on the assertion that these legislative changes infringed upon fundamental rights enshrined in the nation's supreme law. The plaintiffs contended that these legislative changes were inconsistent with several sections of the 1997 Constitution, specifically Sections 17(1) and (2), which deal with the right to life and personal liberty; 25(1)(c), concerning freedom of conscience; 28(1) and (2), relating to the protection of women's rights; 32, addressing cultural rights; and 33(2) and (3), pertaining to the right to participate in cultural life and the protection of cultural values. Their ultimate goal was for the court to invalidate Sections 32A and 32B of the Women’s (Amendment) Act No. 11 of 2015 from the Women’s Act of 2010, thereby removing the legal prohibition against FGM.
The case gained prominence following the conviction of Yassin, Nano, and Kadijatou by the Kaur Magistrate’s Court. The three individuals, who hail from Kuntaur in the Central River Region, were found guilty of involvement in the practice of female circumcision. Their conviction showed the practical implications of the FGM ban and the legal consequences for those who violate it, bringing the constitutional challenge into sharper focus. During the proceedings, Chief Justice Hassan B. Jallow withdrew from the case. This withdrawal necessitated a change in the judicial panel, and another judge subsequently replaced him to preside over the matter, ensuring the continuity and impartiality of the legal process.
Witness Issues and Court Proceedings
The court ruled that the plaintiffs’ case be closed and directed the defendants to begin presenting their evidence. This decision came after a prolonged period of witness presentation by the plaintiffs. Plaintiffs had presented testimony from two witnesses thus far in the proceedings, who offered their perspectives and evidence in support of the challenge. The legal team for the plaintiffs had intended to call one final witness who resides in the United States. This witness was expected to provide key testimony that the plaintiffs believed would strengthen their arguments against the FGM ban. However, they were unable to bring this witness to The Gambia due to financial constraints, specifically citing transportation costs. The inability to secure the witness's physical presence in court proved to be a critical hurdle for the plaintiffs' case.
Counsel Lamin J. Darboe subsequently applied for the witness’s affidavit statement to be admitted into evidence by the court, seeking to introduce the testimony in written form given the logistical challenges. Counsel Yassin Senghore opposed this application, arguing that the plaintiffs had previously been provided with an opportunity to file the affidavit and arrange for virtual testimony from the witness. Senghore’s objection noted concerns about procedural fairness and the plaintiffs' diligence in prosecuting their case. State Counsel A.K. Wakawa, representing the Attorney General, associated himself with Senghore’s submissions, reinforcing the argument against the late introduction of the affidavit. "There is no sign of diligence to prosecute the case," Wakawa stated, emphasizing the state's view that the plaintiffs had not made sufficient efforts to present their evidence in a timely and appropriate manner.
Senior Counsel Lamin K. Mboge, representing the intervenor GAMCOTRAP, also supported Senghore’s position. GAMCOTRAP, an organization actively working to end FGM, had a vested interest in the continuation of the ban and its legal enforcement. Mboge characterized the matter as "very sensitive and delicate," acknowledging the profound societal implications of the case. He emphasized the procedural implications of the plaintiffs' inability to produce their witness, arguing that the court must adhere to established legal protocols. "The proper order to make here is to order the Plaintiffs’ case closed and for the Defendants to open their case, to start even today," Mboge asserted to the court, advocating for a swift transition to the defense's presentation.
Next Steps and Adjournment
The Supreme Court subsequently ordered the defendants to begin presenting their case, marking a significant shift in the proceedings. This directive followed the closure of the plaintiffs' arguments, placing the onus on the state and other defendants to justify the constitutionality of the FGM legislation. The Attorney General's legal team identified the Deputy Clerk of the National Assembly, Aji Sainey Kah, as their first witness, indicating the state's intention to present evidence related to the legislative process and the rationale behind the FGM ban. However, proceedings could not continue as no witness statement had been filed on behalf of Ms. Kah. This procedural hurdle prevented the immediate continuation of the defense's arguments, causing an unexpected delay. Following this development, the court adjourned the case to 13 July 2026, a distant date that shows the complex and often protracted nature of constitutional litigation in The Gambia.