No Right Is Absolute: Why The Gambia’s FGM Ban Must Survive Its Constitutional Challenge – JURIST – Commentary

A case pending before Gambia’s highest court orces a hard question: can a cultural practice claim constitutional protection when performing it requires violating other citizens’ rights to safety and equality?

The Gambia’s Supreme Court is weighing whether the country’s 2015 ban on female genital mutilation is unconstitutional — a challenge brought by religious traditionalists who say the prohibition violates their rights to culture and religion. The outcome in Almamy Gibba and Others v. Attorney General will test whether a cultural practice can claim constitutional protection when carrying it out requires violating other citizens’ rights to safety and equality.

‘I feel that God made my body perfect the way I was born. Then man robbed me, took away my power, and left me a cripple. My womanhood was stolen. If God had wanted those body parts missing, why did he create them…?’

This passage comes from Somali model and human rights activist Waris Dirie’s book Desert Flower, which detailed her account of being subjected to female genital mutilation (FGM) at the tender age of five. Her experience of the fear, lifelong trauma, and pain the practice inflicts is not isolated. In 2026 alone, up to 4.5 million young girls are at risk of undergoing the procedure, according to World Health Organization projections. It is widely recognized as a violation of bodily autonomy, with international organizations such as Legal Action Worldwide pushing for the procedure to be categorized as torture. If successfully classified as torture, young women and girls worldwide are automatically entitled to the right to hold states legally accountable for investigating and punishing perpetrators, protection from state complicity if a government fails to act, and an enforceable right to fair compensation, healthcare, and comprehensive rehabilitation.

To put it simply, female genital mutilation, also known as female circumcision, is defined as the partial or total removal of the external female genitalia with no justifiable medical basis. The agonizing procedure is typically performed for complex cultural, social, and religious reasons due to the misplaced notion that it makes girls marriageable, preserves premarital virginity and marital fidelity, and that female genitalia is unhygienic. Despite supporters of the procedure’s repeated attempts to justify it by invoking religious texts, no major religion requires it. There are four major types of female genital mutilation, which vary primarily by the anatomical structures removed, altered or injured. Type I is a clitoridectomy, where the clitoris and/or the prepuce, which is the fold of skin or hood around the organ, is partially or fully removed. Type II is an excision, which means that the clitoris, labia minora, and occasionally the labia majora are partially or fully removed. Type III, which is infibulation, is known as the most severe form of FGM and is defined as the narrowing of the vaginal opening via the creation of a covering seal. 

At this point, you must be thinking, ‘But there’s four types of FGM, logically shouldn’t the fourth type be the most severe in nature?’. You’d be correct to point that out, however, the four types of FGM do not follow a perfectly ascending scale of severity; they merely refer to the different categorical classifications. The fourth type encompasses all other harmful procedures to the female genitalia that do not fall neatly under types one to three, such as pricking, piercing, scraping or burning. Regardless of the type of FGM, international consensus is that it is a deeply dehumanizing procedure, and in light of the fact that it is typically performed without anaesthesia and in an unsanitized environment, it can cause severe infection, including life-threatening sepsis. Recently, concerned mothers and rights groups raised alarm in The Gambia after religious groups challenged the current ban against FGM as a violation of their constitutional rights to religious and cultural freedom. This article seeks to dissect the tension between constitutional rights and universal rights ahead of the release of the Supreme Court’s final decision on the matter.

The Conflict Between National Sovereignty and International Law: The Gambia as a Case Study

Before this article jumps into the tension between national sovereignty and international law in the context of The Gambia, it is important to distinguish and define the two. National sovereignty is defined as the absolute power and authority of a country to govern its internal affairs without interference from external forces. On the other hand, international law refers to the set of rules, agreements and treaties that govern the relationships and responsibilities of sovereign states and international organizations, particularly on issues such as human rights and the conduct of war. The tension between the two is well-documented by constitutional and international law scholars. Article 2(7) of the UN Charter functions as the primary clause safeguarding the national sovereignty of states and prevents the UN from intervening in domestic matters. In 1945, which was the year when the UN Charter was officially adopted, human rights were largely viewed as an internal matter because the global political system was strictly built on the concept of state sovereignty.

In the years since 1945, this limited worldview on human rights has rapidly changed mainly due to the atrocities that occurred during World War II which proved that domestic human rights violations directly contributed to global wars and mass suffering. The birth of international instruments, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Universal Declaration of Human Rights (UDHR), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment allowed for international intervention since parties were legally obligated to abide by them. Having endorsed the UDHR and ratified CEDAW, the Maputo Protocol, and the Convention against Torture, The Gambia is also expected to promote gender equality, eradicate discrimination, and protect its women and girls from harmful practices like FGM. 

This line of argument was reiterated by international scholars, women’s rights activists, and civil society groups who condemn The Gambia’s ongoing Supreme Court challenge by religious traditionalists to overturn the ban. Additionally, since FGM irreversibly violates fundamental rights to bodily integrity, activists have pushed for its total elimination. The case before the courts, officially called Almamy Gibba and Others v. Attorney General, was brought by Gambian politician Almamy Gibba, who stated that the prohibition of FGM infringed on citizens’ rights to practice their religion and traditional culture. Gibba, who filed the lawsuit alongside seven other plaintiffs, sought to challenge the 2015 FGM ban enacted under the Women’s (Amendment) Act 2015, which added Sections 32A and 32B to the Women’s Act 2010 to explicitly punish those who perform, assist, facilitate, or encourage the practice of FGM. 

Essentially, the Court is asked to decide whether the 2015 ban is unconstitutional in nature. Now, this begs the question: Can a cultural practice be constitutionally protected if its very execution requires the violation of other non-negotiable constitutional rights, in this context being safeguarding the safety of citizens and everyone being equal in the eyes of the law? Or are these constitutional rights merely qualified rights for women and girls? To put forth the argument that FGM must be decriminalized simply because it is ‘important’ to tradition is dangerous as it presumes that culture, especially harmful practices, are exempt from legal repercussions. The law should develop with modern times, and in the 21st century, FGM is seen as a desecration of a young woman’s body, spirit, and mind. Rights to religion and culture are never absolute, and are inherently limited by the duty to protect public health and safety. Evidently, there is no benefit that comes out of imposing an archaic practice on young women and girls, stripping them of their agency and perpetuating misogyny onto them as a mechanism to police their bodies. It is highly ironic that men face no equivalent standard of institutionalized mutilation to prove their marriageability, virginity, and value to society, whereas young women and girls are subjected to such procedures without their consent, often paying the price with their lives. 

Hope for the Future of Women and Girls

The Gambian Supreme Court’s decision, whether to uphold or to repeal the FGM ban was scheduled to be delivered on July 6, 2026. However, no final ruling on the matter has been delivered since the case had to be adjourned to continue hearing witness testimonies and examining expert evidence regarding the constitutional challenge. Ultimately, this case functions as a litmus test for the intersection of national sovereignty and compliance with international legal obligations. If the Supreme Court succumbs to religious and cultural pressure by striking down the ban, it would not only create a catastrophic legal loophole but also send a message to Gambian girls and girls around the world that their rights to their body can be reversed at any time. 

Sarisha Harikrishna is a BVS candidate at City St. George’s, University of London, and holds an LLB (Hons.) from Queen’s University Belfast. She is a legal research analyst at the Human Rights Research Center (HRRC) and an associate editor at JURIST.